Attorney-General (SA) v Smallbone

[2018] SASC 2

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

ATTORNEY-GENERAL (SA) v SMALLBONE

[2018] SASC 2

Judgment of The Honourable Justice Hinton

17 January 2018

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS

Application by the Attorney-General for an order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) that the respondent be detained in custody until further order, or alternatively, an order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) that the respondent be subject to an extended supervision order.

The respondent is presently serving a term of imprisonment of three years for unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1936 (SA) (“CLCA”). That offence was committed in breach of a good behaviour bond entered into as part of a suspended sentence for an offence of gross indecency committed in the presence of a 14 year old and five breaches of bail. All of the respondent’s offending was committed in breach of a paedophile restraining order obtained under s 99AA of the Summary Procedure Act 1921.

The respondent opposed both applications but submitted that if the Court were minded to grant any order, that an extended supervision order under s 7 of the High Risk Offenders Act 2015 was adequate. He argued that his age, criminal history and the availability of treatment in the community were factors militating against any order being made. Further, he argued that his poor engagement with the Sexualised Behaviour Clinic program while imprisoned was the result of cognitive deficits rather than defiance.

Held:

1. The respondent is unwilling to control his sexual instincts within the meaning of section 23 of the Criminal Law (Sentencing) Act 1988 (SA).

2. The respondent is to be detained in custody until further order.

3. The application for an extended supervision order pursuant to s 7 of the High Risk Offenders Act 2015 is dismissed.

Criminal Law (High Risk Offenders) Act 2015 (SA) s 7; Criminal Law (Sentencing) Act 1988 (SA) s 23, referred to.
Attorney-General (SA) v Wells [2017] SASC 149; Attorney-General (SA) v Hoare [2017] SASC 7, applied.

ATTORNEY-GENERAL (SA) v SMALLBONE
[2018] SASC 2

Criminal:  Application

HINTON J.

Introduction

1. This is an application by the Attorney-General for the State of South Australia seeking an order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) that Martin Ablett Smallbone be detained in custody until further order. In the alternative the Attorney seeks an order under s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act) that Mr Smallbone be subject to an extended supervision order for five years.

2. On 19 June 2015 Mr Smallbone was sentenced to imprisonment for three years after pleading guilty to the offence of unlawful sexual intercourse with a person under the age of seventeen years.[1] That sentence commenced on 19 January 2015 and will be completed on 18 January 2018. By virtue of his conviction for that offence and the fact that he remains in prison serving the sentence imposed, Mr Smallbone is a person in relation to whom an application for an order for indefinite detention under s 23 of the Sentencing Act may be made.[2] Further, his conviction for unlawful sexual intercourse means that he is a high risk offender within the meaning of s 5 of the High Risk Offenders Act. He is then a person in relation to whom an application for an extended supervision order may be made.[3]

   [1]    Criminal Law Consolidation Act 1935 (SA), s 49(3).

   [2]    Criminal Law (Sentencing) Act 1988 (SA), ss 23(1) and (2a).

   [3]    Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(1).

3. Mr Smallbone opposed both of the Attorney-General’s applications. That said, he submitted that if the Court were minded to make either order, an order under s 7 of the High Risk Offenders Act was all that was required. 

4. The essential difference between the s 7 and s 23 applications is that the latter provides for incarceration, treatment and the annual review of progress, whilst the former provides for supervision in the community and can include treatment.

5. For the reasons that follow, I am satisfied that Mr Smallbone is unwilling to control his sexual instincts and that an order should be made detaining him in custody until further order pursuant to s 23 of the Sentencing Act. In the circumstances it is unnecessary to consider the application under s 7 of the High Risk Offenders Act and it should be dismissed.

   Material considered

6. In support of both applications I received the following evidence:

   ·An affidavit of Joseph Nguyen, sworn 13 September 2017, and the 11 exhibits referred to therein (JN 1- JN 11) (Exhibit AG1);

   ·A second affidavit of Joseph Nguyen, sworn 24 October 2017, and the three exhibits referred to therein (JN 12- JN 14) (Exhibit AG2);

   ·A third affidavit of Joseph Nguyen, sworn 8 December 2017, and the one exhibit referred to therein (JN 15) (Exhibit AG3);

   ·An affidavit of Katharine Mary Short, affirmed on 8 December 2017, and the two exhibits referred to therein (KMS-1 and KMS-2) (Exhibit AG4);

   ·A report from Dr Craig Raeside, forensic psychiatrist, dated 17 November 2017, prepared at the direction of this Court under s 23(3) of the Sentencing Act and s 7(3) of the High Risk Offenders Act (Exhibit AG5);

   ·A report from Dr N P Nambiar, Clinical Director of the Forensic Mental Health Service, dated 1 November 2017, prepared at the direction of this Court under s 23(3) of the Sentencing Act and s 7(3) of the High Risk Offenders Act (Exhibit AG6).

7. Mr Smallbone did not call nor give evidence. Drs Raeside and Nambiar were called to give oral evidence supplementing their reports. They were both cross-examined by Counsel for Mr Smallbone.

8. Counsel for the Attorney-General also provided the Court with a draft extended supervision order setting out the terms of the order sought by the Attorney.[4]

   [4]    MFI AG7.

   Mr Smallbone’s Personal Circumstances

9. Mr Smallbone’s personal circumstances are set out in the reports of Drs Raeside and Nambiar and Mr Fugler,[5] the latter being prepared to assist the Judge who sentenced Mr Smallbone on 19 June 2015. What follows is taken from those reports.

   [5]    A psychologist.

10. Mr Smallbone was born in London in January 1948 as the second of four children. He is now 70 years of age. He has a younger sister and brother, both whom reside overseas, and an older brother who died due to a congenital heart condition.

11. Mr Smallbone was sent to boarding school at age eight. He described himself to Mr Fugler as “a skinny stutterer” and the “smallest kid in the school” who was entirely dependent on his peers for support. He thought he was sent to boarding school because of his mother’s need to attend to his brother’s ill-health. He continued to attend boarding school until he was 16½. His academic work was average and grades “medium”. He was never required to repeat any years or attend special classes. He completed Year 10. Although he claimed no misbehaviour, he was regularly caned because of his stutter.

12. As a child Mr Smallbone’s stutter affected his ability to relate to other children. He told Dr Raeside that he believed this a precursor of his social anxiety. The stutter has improved but continues to manifest itself when Mr Smallbone becomes stressed and anxious.

13. After leaving school Mr Smallbone completed the equivalent of a TAFE course for the building trades, excelling in carpentry. He then worked in the building industry in the United Kingdom rising to the position of site manager.  In the course of doing so he completed several building management courses.

14. Mr Smallbone’s father died when Mr Smallbone was in his early 20s. His father had worked in the Merchant Navy but was discharged due alcohol misuse. His mother, who died at age 94, worked as a secretary in the air force during the war and after having children became a stay at home mother. His parents divorced when Mr Smallbone was 20. Dr Raeside notes that there was some information to suggest that there was domestic violence in the home.

15. In 1973, when he was 25 years old, Mr Smallbone migrated to Australia with his then pregnant girlfriend who later became his wife. He was married for 13 years. There are three children of the marriage, two sons and a daughter. Of his children, he has some contact with only his eldest son. He has not met any of his grandchildren. Dr Raeside notes that it is not clear why the children do not have contact with Mr Smallbone.

16. Mr Smallbone has limited other social and family contact and generally lives an isolated lifestyle. He has not been involved in another romantic or sexual relationship since his marriage.

17. Mr Smallbone was reported to have been diagnosed with bipolar disorder some thirty years or so ago.

18. In Australia Mr Smallbone worked for a number of companies but ended up being self-employed and specialising in suspended ceilings. In 1986 his working life largely came to an end as a consequence of his illness. Dr Raeside reports that Mr Smallbone stated that around this time, also being the time of the breakdown in his marriage, everything was getting on top of him. He ended up receiving sickness benefits and subsequently a disability support pension.

19. Sometime after his marriage came to an end and he had finished working as a carpenter, Mr Smallbone moved to Kangaroo Island. He remained on Kangaroo Island until he was 58 years old. Whilst on the island he was involved in racing and sailing at the local yacht club, worked at the Kingscote Airport, and looked after the grounds and swimming pool at a local hotel. He left the Island because he “had my time there”. He also reported feeling persecuted by various “insinuations and thought that it was time to come back.”

20. With respect to Mr Smallbone’s mental health, there is, as mentioned, evidence of a past diagnosis of bipolar disorder. In this regard Mr Smallbone reported having generally good mental health until his mid-30s, when he had cycles of highs and lows in his mood. In 1984, he suffered from a “mental breakdown” and was hospitalised. Whilst living on Kangaroo Island Mr Smallbone saw a psychologist for at least six years which he found helpful in managing his stress.

21. Dr Nambiar noted that there is no evidence on Mr Smallbone’s prison file that Mr Smallbone had been treated for bipolar disorder while incarcerated, but he is prescribed Cipramil (an antidepressant) and Sodium Valproate (a mood stabiliser).

22. Mr Smallbone reported being sexually abused at age 15. He told Dr Raeside that he was “made to perform manual sex with a prefect” whilst at boarding school. He suggested that this might have continued for about three months until he moved dormitories. Dr Raeside refers to a report of Mr Fugler dated 12 May 2015 in which Mr Fugler states that the abuse occurred on a nightly basis and involved Mr Smallbone masturbating the boy who was 12 months older and in a position of authority over him. Mr Smallbone did not report any threats or inducements to engage in this behaviour but he said he “didn’t like it at all”. He told Mr Fugler that he did not believe the abuse to have had any lasting negative affect upon him.

23. Mr Smallbone reported to Dr Nambiar that his next sexual experience was when he had intercourse with his girlfriend when he was 17.  He reported that at that time that he would masturbate frequently, at least up to three times per day. He denied having fantasies of men or boys at that time, but has developed fantasies of having close relationships with men over the years including having sex.

24. Prior to his incarceration and whilst on bail Mr Smallbone was living in a share house in Croydon. He was in receipt of the age pension.

    Mr Smallbone’s Offending History

25. On 1 November 2013, at 65 years of age, Mr Smallbone committed the offence of unlawful sexual intercourse for which he is presently imprisoned. That offence was committed while subject to a good behaviour bond entered into only one month earlier, on 3 October 2013, as part of a suspended sentence of four months imprisonment imposed in relation to the offences of gross indecency in the presence of a 14 year old male[6] and five breaches of bail. The good behaviour bond was also breached earlier, on 14 October 2013, when Mr Smallbone was found loitering at a school, resulting in him being required to serve the four month suspended sentence. All of Mr Smallbone’s sexually related offending occurred in breach of a paedophile restraining order made on 26 May 2010 under s 99AA of the Summary Procedure Act 1921 (SA).

    [6]    Criminal Law Consolidation Act 1935 (SA), s 58.

26. In what follows I set out the details of this offending and the basis upon which the paedophile restraining order was made. I also refer to various reports received by the courts involved in addition to reports prepared as to treatment since provided to Mr Smallbone while in custody, related progress reports, and to his application for parole.

    Unlawful Sexual Intercourse

27. On 19 June 2015 Mr Smallbone was sentenced to imprisonment for three years with a non-parole period of 18 months after pleading guilty to one count of unlawful sexual intercourse. The sentence was backdated to commence on 19 January 2015 when his bail was revoked upon him pleading guilty to the offence. The sentencing Judge summarised the circumstances in which the offending occurred:[7]

    …the victim was aged 15 years at the time of the offence.  The victim has an intellectual disability and has been in receipt of services from Disability SA since 2005, this offending having occurred in 2013. Your offending against him was that you performed an act of fellatio upon him. The offending occurred at your house at Seaford Rise on about 1 November 2013.

    At the time of this offending by you, you were subject to a paedophile restraining order prohibiting you from being in contact with minors.  The victim was acquainted with another young male adolescent and the victim attended at your house at a time when the other young male was there. When the victim arrived you told him that his friend was still asleep and that the victim would need to wait for him to wake up. It was while the victim was waiting that you performed the act of fellatio upon him. Fortunately, the victim’s father came to learn that the victim was at your house and rescued him. I note that in breach of the paedophile restraining order you had two male adolescents at your place.

    The victim did return to your house again but this was to see the other young made (sic) adolescent. Again the victim’s father rescued him and it was then that police became involved.

    [7]    Exhibit AG1, JN6, page 27.

28. The sentencing Judge rejected a submission from Counsel for Mr Smallbone that there was an element of mutuality in the offending.[8]

    [8]    Exhibit AG1, JN6, page 28.

29. In the report he prepared for the assistance of the sentencing Judge,[9] Mr Fugler records Mr Smallbone as having told him that the victim had attended Mr Smallbone’s house intending to visit a friend, “DY”. The victim “wouldn’t stop staring” at him. When the victim started masturbating himself, Mr Smallbone told Mr Fugler that he walked away but the victim followed him. Mr Smallbone said the victim then took out his penis and continued to masturbate. Mr Fugler noted:

    Mr Smallbone admitted in the letter to DY on 16 December 2014 having committed an act of fellatio with [the victim] by having “sucked” his penis “a bit”.

    [9]    Exhibit AG1, JN5.

30. Mr Smallbone told Mr Fugler that he knew the victim was intellectually disabled.[10] After assessing Mr Smallbone’s previous criminal offending, Mr Fugler came to the conclusion that “his behaviour is strongly suggestive of his having developed a pattern of inappropriate sexual arousal to male youths,” at least from the age of 48.

    [10]   Exhibit AG1, JN5, page 20.

31. The sentencing Judge noted Mr Fugler’s opinion that it was important that Mr Smallbone receive treatment:

    “in the form of a sexual offending treatment programme such as offered either in the custodial setting or Owenia House in the community.  He would also benefit from ongoing psychological, and possibly psychiatric assistance, although it is my opinion his prognosis will depend to a very large extent on an increase in his understanding of the triggers of deviant sexual arousal and the learning of relapse prevention skills.”[11]

    [11]   Exhibit AG1, JN6, page 28 and JN5, page 25.

32. The sentencing Judge concluded:[12]

    Your real test will be when you are released back into the community.  For a time you will be under supervision but after that you will, in a sense, be on your own. It is to be hoped that the treatment you should receive will prevent you from reoffending and thereby protect the community.  If you reoffend again the consequences for you will be much more serious in the long term.

    [12]   Exhibit AG1, JN6, page 28.

    Gross Indecency

33. In sentencing Mr Smallbone for unlawful sexual intercourse, the Judge held that the sentence imposed for Mr Smallbone’s prior offence of gross indecency was highly relevant to the degree of leniency the Court was able to extend to Mr Smallbone:[13] 

    That brings me to the gross indecency offending that was dealt with in the Christies Beach Magistrates Court on 3 October 2013. On that occasion you pleaded guilty to an act of gross indecency in the presence of a 14-year-old male. You also pleaded guilty to five breaches of bail.

    After your arrest for the gross indecency offending, you were placed on bail with certain conditions to minimise your risk of reoffending. In particular, you were not to be in the company of anyone under the age of 18.

    You breached that condition on five occasions in that you had five people under the age of 18, between about 13 and 15 years old, attending at your house after those bail conditions had been imposed. 

    As at 3 October 2013, you had been in custody since 26 June 2013. In sentencing you for the gross indecency, the learned special magistrate, quite rightly, observed that it is completely inappropriate for you to cultivate the company of young children in your area by allowing them to socialise in and visit your house.  The court was then concerned that you harboured a sexual interest in children.  He emphasised the need for a sentence that deterred you from reoffending and protected children. You were given a four-month suspended sentence, partly because you had spent just over three months in custody.  You were required to be of good behaviour by the terms of the bond for two years from October 2013.

    [13]   Exhibit AG1, JN6, page 27.

34. Mr Fugler reported that when Mr Smallbone was asked in interview on 29 April 2015 about the offence of gross indecency, Mr Smallbone said, “I was naked in my house” and “talked sexually” with complainants who were under the age of consent.[14] In interview on 15 November 2017, Mr Smallbone explained to Dr Raeside that he had young people coming over to his house over Easter and one asked Mr Smallbone to show him his penis because he had piercings in it. He said this “just came up in conversation”.[15] The victim was 14 years old.

    [14]   Exhibit AG1, JN5, page 18.

    [15]   Exhibit AG5, page 9.

35. The victim’s version, as set out in the Police Apprehension Report,[16] was that he met Mr Smallbone when he approached the victim in the street. Mr Smallbone showed him where he lived and the victim attended his house about four times, the last time in April 2013, because Mr Smallbone provided his friends with marijuana to smoke. He further stated:

    …on two occasions he has seen the accused’s penis at this home address.  The first time he saw the accused’s penis he was sitting with friends on a lounge chair in the accused’s lounge room.  The accused told the victim that he had a particular chair in his lounge room that he uses to masturbate in.  He told the victim he likes to masturbate while watching porn and ‘comes’ (sic) all over the computer.  He further showed the victim that he had a bottle of something next to the chair along with tissues, and some ‘weird objects’ that the accused informed the victim were ‘cock rings’.

    The accused then explained to the victim how the ‘cock rings’ worked.  The accused then pulled his penis out of his pants and exposed it to the victim, showing the victim the piercings he had on his penis.  The victim further states that the second time he saw the accused’s penis was when he visited the accused at his home in SEAFORD RISE.  When he let the victim in to the house he was totally naked and did not attempt to put any clothes on.

    (emphasis in original)

    [16]   Exhibit AG1, JN3, page 8.

1. On 29 May 2013, police seized Mr Smallbone’s computers and ‘cock rings’.[17]  I was not provided with a copy of the sentencing remarks made by the Magistrate who sentenced Mr Smallbone for gross indecency. The Judge who sentenced Mr Smallbone for the offence of unlawful sexual intercourse in 2015 did, however, have the benefit of those remarks. He referred to them and observed:[18]

   As at 3 October 2013, you had been in custody since 26 June 2013. In sentencing you for the gross indecency, the learned special magistrate, quite rightly, observed that it is completely inappropriate for you to cultivate the company of young children in your area by allowing them to socialise in and visit your house. The court was then concerned that you harboured a sexual interest in children. He emphasised the need for a sentence that deterred you from re-offending and protected children. You were given a four-month suspended sentence, partly because you spent just over three months in custody. You were required to be of good behaviour by the terms of the bond for two years from 3 October 2013.

   [17]   Exhibit AG1, JN3, page 10.

   [18]   Exhibit AG1, JN6, page 27.

2. As mentioned, eleven days after Mr Smallbone was sentenced for the gross indecency offence, on 14 October 2013, he breached the good behaviour bond by loitering at a school in breach of the paedophile restraining order.

3. The Police Apprehension Report for the 14 October 2013 offending contains statements from an employee at the front desk of the school and from a 17 year old male who wanted to re-enrol in the school who had attended that day in the company of Mr Smallbone.[19] The employee stated that when asked what relationship he was to the boy, Mr Smallbone hesitated before saying that he was living with him after meeting him through a friend of a friend. In his statement, the boy said that Mr Smallbone came with him to the school to “help him with his words as he has some minor learning difficulties.”  After being told to make a time for a meeting with a teacher to discuss his options, Mr Smallbone and the boy left the front desk to attend the library. Finding the library closed the boy decided to seek a visitors pass to visit his friends and old teachers. Mr Smallbone told him that if he was going to stay at the school for a while then he would just catch up with him later and left. The boy was told that he was not allowed to visit his friends and decided to leave. He checked to see if Mr Smallbone was around and saw him at the fence around the side of the school watching the children playing. They remained for a short time before walking home.[20]

   [19]   Exhibit AG1, JN4, page 12.

   [20]   Exhibit AG1, JN4, page 13-14.

4. Mr Smallbone explained to Dr Raeside that he understood that the visit to the school “was against his PRO” but rationalised that, “by Centrelink the boy was classified as an adult so I presumed that it was okay for me to be with him.” He thought in the circumstances “due cause” existed to be around the school.[21]

   [21]   Exhibit AG5, page 10.

5. As mentioned, Mr Smallbone pleaded guilty to five breaches of bail associated with the offence of gross indecency. No further evidence regarding those breaches is available beyond that stated by the sentencing Judge.

   The Paedophile Restraining Order

6. In May 2010 Mr Smallbone was made the subject of a paedophile restraining order in terms summarised in the SA Police Department Criminal Incident System as follows:[22]

   1.Having regard to Section 99AA(3) of the Act; It is appropriaot(sic) in the circumstaces (sic) to make an orderk (sic) it is ordered that the defnadnt (sic) be restrained: From (sic) loitering near children at or in the [v]icinty of the Moana surg (sic) Lifesaving Club or any Surf Lifesaving entity or any soprting (sic) club:

   2.From loitering near children in any circumstance ( for (sic) the prose (sic) of this order, loitering near children means loitering without reasonable excuse at or in the vicinity (sic) of a [s]cxhool (sic), public toilet or a place at which children are regularly present, whether or not children are actually present at the school, public toilet or place. 

   [22]   Exhibit AG1, JN2, page 1.

7. The Police Apprehension Report provided in support of the application for the paedophile restraining order describes a number of complaints made to police about the behaviour of Mr Smallbone from 1996 to 2010, being:[23]

   [23]   Exhibit AG1, JN1, pages 1-5.

   ·On 20 March 1996, police investigated a complaint by a 12 year old boy that during a visit to Mr Smallbone’s house, Mr Smallbone had asked him to ‘place a cork up his backside’ and expose his penis.[24] No police action was taken.

   ·On 15 April 2004, police obtained a statement detailing inappropriate behaviour by Mr Smallbone, including unnecessary touching of children and supplying fifteen year old boys with alcohol at yacht camp.

   ·On 3 May 2004, Mr Smallbone was issued a warning for loitering near children.

   ·On 7 March 2005, police cautioned Mr Smallbone for walking naked from the front door of his home into his yard to collect the newspaper.

   ·One month later, on 4 April 2005, Mr Smallbone was issued with a warning for loitering near children.

   ·In February 2007 and July 2007, Mr Smallbone was issued warnings for loitering near children.

   ·On 7 April 2010, Mr Smallbone was located with two male youths in his vehicle after police received reports of him supplying minors with alcohol. Statements obtained from the youths described Mr Smallbone as being a taxi driver for local kids. One of the boys stated that Mr Smallbone would rest his hand on other youths’ knees whilst they were in his vehicle. He remembered an occasion when Mr Smallbone asked him and other youths whether or not they had had sexual intercourse. It was further alleged that Mr Smallbone allowed his computer to be used to access pornography sites that were listed in the history and favourites. Police seized the computer.

   ·On 10 May 2010 police received a statement detailing concerns of parents of children at a sports club who had observed Mr Smallbone loitering on the beach during Tuesday evening junior paddleboard training, despite him having no children at the club. The author of the statement believed that Mr Smallbone “had a strong interest and obvious attraction to children and his behaviour at the club poses a serious risk to children.”

   [24]   Exhibit AG1, JN1, page 2.

8. A paedophile restraining order may be granted under s 99AA of the Summary Procedure Act 1921 if a defendant has been found loitering near children on at least two occasions and there is reason to think that the defendant may, unless restrained, again so loiter. The court must also be satisfied that the making of the order is appropriate in the circumstances.

   Treatment in the Sexual Behaviour Clinic program

9. Mr Smallbone’s non-parole period expired on 18 July 2016. He applied for parole occasioning the preparation of a parole report.[25] The Case Manager who prepared the report was of the following opinion:[26]

   Although Mr Smallbone does not have a significant offending history the seriousness and rapid escalation of his offending behaviour is cause for concern. Mr Smallbone has committed offences whilst subject of bail, a paedophile restraining order and a supervised suspended sentence bond.

   Mr Smallbone failed to display any meaningful victim empathy and constantly blamed the victim for his offending. He displayed no insight into his offending and stated that there was no level of premeditation to his Offence (sic), the information contained in the police application for a paedophile restraining order 10/T49137 strongly indicates otherwise. As Mr Smallbone does not recognize predilection to offending against children he has not developed any strategies to assist him to remain free from offending.

   Mr Smallbone has not been assessed or undertaken any programs to address his sexual offending and it is respectfully recommended that he not be considered for parole until the relevant assessments and program has been completed.

   The information gained for this report suggests that Mr Smallbone would be at high risk of re offending if released, and it is considered that he would be a poor candidate for parole.

   [25]   Exhibit AG1, JN7.

   [26]   Exhibit AG1, JN7, page 31.

10. I note that in the interview conducted for the purposes of this report Mr Smallbone said that he had considered completing his sentence so that he would be released without conditions, however changed his mind as he realised that he would probably be subject to conditions regardless of completing his sentence.[27]

    [27]   Exhibit AG1, JN7, page 33.

11. Subsequently Mr Smallbone was accepted into the Sexual Behaviour Clinic program (SBC program) conducted at Mount Gambier prison from 26 October 2016 to 13 September 2017.

12. Before dealing with the assessment undertaken of the impact upon Mr Smallbone that the SBC program is considered to have had, as contained in a Post-Treatment Report, I note that in a “progress summary” prepared on 5 July 2017 by a Senior Clinician of the Department for Correctional Services, Rehabilitation Programs Branch, reference is made to three complaints of non‑consensual sexual acts perpetrated by Mr Smallbone on other prisoners.[28] It is then recorded:[29]

    Since the beginning of the SBC program, facilitators had repeatedly encouraged Mr Smallbone to choose alternative friendships, with men his same age. Recently, Mr Smallbone had been advised not to associate with young prisoners and had been explicitly instructed by custodial staff that he is not to allow other prisoners in his cell or enter other prisoner’s cells himself. Despite this he had continued to seek exceptions to these instructions (see details below). It is of concern that these men appear to fit Mr Smallbone’s victim preferences and may be increasing his risk of reoffending by reinforcing his sexual deviancy. It is also likely indicative of offence-paralleling behaviour.

    Following the recent allegations noted above, Mr Smallbone was subsequently moved from his accommodation to a different unit in Mount Gambier prison. Mr Smallbone was directed by management to not enter other prisoners’ cells and/or have prisoners enter his cell. Since that instruction was put in place, Mr Smallbone had received four formal warnings from custodial staff for contravening the instruction. …

    …

    Early in the SBC program, facilitators raised concerns with Mr Smallbone that it appeared that he was engaging in offences paralleling/risky behaviour and repeatedly encouraged him to choose alternative behaviour i.e. socialising with men his same age and to cease contact and/or socialising with young, vulnerable prisoners. Mr Smallbone had been given multiple opportunities to choose alternative behaviours and had not chosen to do so. Facilitators encouraged him to follow management direction at all times, yet he appeared unwilling to comply with directions regarding contact with young prisoners. Thus it appears that during treatment, the risk factors regarding problem solving and compliance with supervision had increased for Mr Smallbone. In addition, Mr Smallbone had committed the index offence whilst under a Paedophile Restraining Order (PRO) for a prior sexual offence of a similar nature.

    (emphasis removed from original)

    [28]   The complainants were 22, 24 and 25 years of age. Exhibit AG2, JN 12 at pp 5-6.

    [29]   Exhibit AG1, JN10, page 46.

13. Despite this Mr Smallbone completed the attendance requirements for the SBC program. The Post-Treatment Report dated 3 October 2017 states that he attended 100% of group sessions, receiving approximately 262 group treatment hours and 27 individual treatment hours.[30] 

    [30]   Exhibit AG2, JN12, page 7.

14. Prior to beginning the SBC program Mr Smallbone was estimated as being of moderate-high risk of reoffending due to the following dynamic risk factors:

    ..his lack of social supports and absence of intimate relationships; feelings of social rejection; tendency towards impulsive behaviour; lack of problem solving skills; preoccupation with sex; tendency to utilise sex as a coping mechanism to deal with negative emotions; deviant sexual preferences; and poor compliance and cooperation with supervision processes.[31]

    [31]   Exhibit AG1, JN8, page 43; Exhibit AG2, JN12 at page 3.

15. At the conclusion of the program, the estimate that he was of moderate-high risk of sexual reoffending remained unchanged.

16. It was hypothesised that Mr Smallbone’s sexual offending occurred within the context of social rejection and isolation, preoccupation with sex, emotional identification with children and deviant sexual arousal.[32] The report writers recorded under the heading “Formulation of Offending Behaviour”:[33]

    It was considered likely that Mr Smallbone’s lack of stability in his early childhood and experiences of abandonment influenced his beliefs that he was unwanted. An unstable and neglectful home life likely led Mr Smallbone to place greater emphasis on the importance of his peer and intimate relationships, and any perceived rejection by family and peers likely led to feeling defective and impacted his self-esteem. It was likely that Mr Smallbone’s childhood sexual abuse led to feelings of confusion about his sexuality. Mr Smallbone felt rejected by his wife and children following a marriage breakdown, and failed in his attempts to gain regular employment due to reported mental health issues. While Mr Smallbone evidenced a desire to have a meaningful adult relationship with others, this was often hampered by his mistrust of others and fear of rejection. Mr Smallbone had limited skills in expressing and managing emotions, as well as the ability to develop relationships with adults subsequently reinforcing a desire to spend time with youths. Mr Smallbone’s social relationships and volunteer work appeared to be largely based on his desire to spend time with children. Mr Smallbone reported feeling wanted by youths which likely increased a sense of positive esteem and decreased feelings of loneliness and depression. Mr Smallbone was at his happiest when he was in the presence of children and getting attention from them. His beliefs around helping others led to Mr Smallbone opening his home to homeless youths who he spent significant amounts of time in the presence of, resulting in opportunistic contact with the victim whose friend was residing with Mr Smallbone. Mr Smallbone’s erectile dysfunction issues likely led to feelings of inadequacy and lack of sexual intimacy with adults but finding he was able to maintain arousal through masturbation, he sought sexual satisfaction through masturbation in the presence of children and possibly recapitulating his own experiences of childhood abuse with his victims. Mr Smallbone expressed the opinion that he had sexual fantasies about the victim of the index offence and that he had a sexual preference for males at the time of his offending. Further, Mr Smallbone viewed himself as immature mentally and sexually, and that likely led to sexual thoughts about the victim as being seen as more appropriate, due to ascribing himself more child-like qualities. When the victim attended his home, it was likely that Mr Smallbone externalised his own feelings of sexual frustration and unresolved feelings of rejection regarding his own life experiences, upon the victim, through sexual abuse, which also likely acted as a maladaptive way of obtaining sexual gratification and intimacy. At the conclusion of the program, it was evident that Mr Smallbone had limited protective factors that may reduce the likelihood of future offending. These factors included a desire to avoid people underage, living independently and abstinence from substance use.

    [32]   Exhibit AG2, JN12, page 6.

    [33]   Exhibit AG2, JN12, page 6.

17. The Post-Treatment Report states that Mr Smallbone’s engagement and interest in the SBC program fluctuated. Despite developing rapport with the writer at the beginning of the program, he appeared to withdraw as the program progressed. He struggled to practice skills developed in the program between sessions, and to complete homework, providing a variety of explanations including stress and dislike of feedback. Half way through the program, on 2 May 2017, Mr Smallbone was asked to sign a Behaviour Agreement to encourage participation, confidentiality, completion of homework and appropriate contact with the program facilitators.[34] Later in the program, Mr Smallbone was reported to have difficulty remembering information and occasionally repeated questions that had already been answered.  It was unclear to the report writers whether his problems engaging with the program may have been a result of cognitive issues that had previously been undetected.[35]

    [34]   Exhibit AG2, JN12, Appendix A.

    [35]   Exhibit AG2, JN12, page 8.

18. As to the module on cognitive distortions and restructuring, it was reported that Mr Smallbone could recognise problematic thoughts and beliefs, however demonstrated limited ability to challenge and modify problem thinking. He maintained throughout the program that he intended to avoid contact with anyone under age but struggled to generate ideas as to how he would do this.[36]

    [36]   Exhibit AG2, JN12, page 11.

19. During the module on deviant sexual fantasy and arousal, Mr Smallbone fluctuated between denying and admitting to having sexual interests in children. The report writer stated that during the program, it appeared:[37]

    …that Mr Smallbone was focused on children to some degree. For example, when discussing aspects of his childhood to the larger group on one occasion, Mr Smallbone appeared to be smiling when expressing memories of excessive masturbation experienced at Boarding School. In a separate exercise in response to a task requiring him to think of an image related to relaxation, Mr Smallbone presented cut outs from the local newspaper of pictures of a semi-naked teenage boy sitting on a beach and a young female child of approximately 4 or 5 years old.  When challenged, Mr Smallbone did not appear to have insight into the inappropriateness of the pictures.  When asked to destroy the pictures, he appeared to become defensive and refused, stating that the pictures were important to him as representations of “health” and “serenity”.  Moreover, during an individual exercise, Mr Smallbone was provided with a handout titled ‘30 Random Facts About the World’ for motivational purposes and was asked to pick one story that he enjoyed the most. He chose a story about a boy with a disability who needed treatment and who had received monetary donations from a male stranger. When asked why he chose that story, Mr Smallbone said it was “good” that the man wanted to help the boy instead of himself.  Additionally, Mr Smallbone spoke openly about his preference for television shows such as ‘Home and Away’, further indicating inappropriate interests in underage activities.

    [37]   Exhibit AG2, JN12, page 12.

20. During an individual exercise to identity self-talk that Mr Smallbone engaged in, he noted the example “I can still get pleasure thinking of the offence when I masturbate.”[38] He was not responsive to the facilitator offering to work on his deviant sexual arousal on an individual basis claiming that he no longer had any sexual thoughts and/or interests in children.

    [38]   Exhibit AG2, JN12, page 12.

21. Mr Smallbone was reported to be distracted during modules focused on emotion management due to interpersonal issues with group participants and prisoners outside of the group. The report writers stated that his beliefs about the importance of intimacy, relationships and social functioning in reducing his risk of reoffending fluctuated throughout the program.[39] Mr Smallbone appeared to understand that in the past he had been used to being in the company of children as a coping strategy for negative emotions such as loneliness and depression.[40]

    [39]   Exhibit AG2, JN12, page 14.

    [40]   Exhibit AG2, Exhibit JN12, page 13.

1. When challenged with the proposition that he appeared to socialise with young, vulnerable prisoners without difficulty, Mr Smallbone explained that he preferred to socialise with prisoners aged in their early 20-30s stating “I haven’t found any older I’m compatible with.”[41] It was reported that he permitted other prisoners to enter his cell in contravention of management warnings. The report writers stated:

   Mr Smallbone tended to justify his lack of cooperation with staff by externalising blame to others, claiming that officers varied in their interpretations of the instruction.  This appeared to reflect Mr Smallbone’s poor compliance and cooperation with supervision processes, which is of concern regarding his likelihood of adherence to parole, PRO and ANCOR conditions in the future.[42]

   [41]   Exhibit AG2, JN12, page 14.

   [42]   Exhibit AG2, JN12, page 15.

2. Mr Smallbone reportedly made limited progress during the program module that focussed upon empathy. When asked as part of the program to complete a Letter of Responsibility, the letter Mr Smallbone prepared lacked meaning and emotion. 

3. When asked to prepare a Self-Management Plan, Mr Smallbone’s plan lacked detail and was incomplete.  When provided with additional time to review his plan, Mr Smallbone reported that he found the activity too challenging because it asked him to consider his life and his future. The primary self‑management strategy he identified for the future was avoidance.[43]

   [43]   Exhibit AG2,  JN12, page 15-16.

4. The assessment of Mr Smallbone at the conclusion of the program was that there was minimal change across the majority of his dynamic risk factors. His score in relation to “sex as coping” reduced. However several scores, including for “negative emotionality”, “sex drive/sex preoccupation”, “cooperation with supervision” and “impulsivity” increased. These increases reflected disclosures from Mr Smallbone during the program that were not made in his pre-treatment interview.[44] Further, Mr Smallbone was reported to have difficulty managing his risk factors while in prison. It was reported that on 21 September 2017, Mr Smallbone was overheard engaging in a conversation with other prisoners that he had had several sexual encounters with young prisoners previously on the unit. An investigation of the specific prisoners identified by Mr Smallbone found that the majority had since left the prison. One remaining prisoner denied that he and Mr Smallbone had engaged in sexual activity.[45]

   [44]   Exhibit AG2, JN12, page 18.

   [45]   Exhibit AG2, JN12, page 18. See also, JN14.

5. Subsequently, on 1 October 2017, prison staff reported that Mr Smallbone stood on a chair in the prison common area, removed his pants and masturbated with a toilet brush in front of the viewing panels of other prisoners’ cells. The Post-Treatment Report writers noted that these “post treatment incidents” appeared to be an escalation in his sexualised behaviour.[46]

   [46]   Exhibit AG2, JN12, page 18.

6. Overall Mr Smallbone was assessed as having not gained sufficient insight and/or skills relating to his treatment targets. It did not appear to the course facilitators that “cognitive issues and psychological issues were substantial barriers to treatment, rather it appeared that motivational and attitudinal issues may have impacted his willingness to fully engage and/or use skills learnt.”[47] The report writers expressed concern that Mr Smallbone would be released into the community at the expiry of his sentence on 18 January 2018 without any supervision by the Department of Correctional Services. The authors recommended consideration of an application for an order under s 23 of the Sentencing Act or s 7 of the High Risk Offenders Act and expressed the following opinion:[48]

   Of concern was Mr Smallbone’s apparent unwillingness to control his sexual instincts in the prison environment, as evidenced by the apparent grooming behaviour shown towards younger prisoners who were much younger than himself. Furthermore, during his current sentence, Mr Smallbone was alleged to have committed assaults of a similarly sexual nature towards three different young males (aged 25, 22, 24). Mr Smallbone externalised blame to others regarding these incidents, claiming that he was a victim of rumour in each instance. Of further concern, Mr Smallbone appeared unwilling to adhere to prison rules exposing himself in a common area of the prison, or complying with management instructions whereby he was not permitted to associate with young prisoners, enter others’ cells, or allow other prisoners into his cell. Mr Smallbone attempted to deceive facilitators about these situations and demonstrated a lack of willingness to consider his behaviour as risky.

   Whilst there was no overt evidence that Mr Smallbone was unable to control his sexual instincts in prison, he had demonstrated behaviours that suggest that he may be unwilling to control his sexual instincts. Given that Mr Smallbone continued to demonstrate behaviour similar to his offending within the prison environment despite treatment, in conjunction with the evidence of Mr Smallbone’s repeated history of sexual offending after being placed under a Paedophile Restraining Order, there remains uncertainty regarding his capacity to control some aspects of his sexual instincts in the community.

   It is noted that some potential risks were not present for him whilst in custody (i.e. association with children and complete social isolation) however limited progress was, made during the current treatment directly related to these factors; although this is balanced with his relative lack of opportunity to implement and generalise the minimal insight improvements and skills he has developed. Should Mr Smallbone be eligible for an extended Supervision Order, his situation is suggestive of the need for stringent conditions throughout the process of reintegration. It is important to note that Mr Smallbone’s sentence is due to expire on 18/01/2018.

   Mr Smallbone’s risk factors appear to have increased and the treatment offered did not appear to be mitigating his risk for re-offending. Mr Smallbone’s barriers to treatment need to be explored so that further treatment options can be developed. Considering his risk profile, Mr Smallbone remains a MODERATE-HIGH risk of sexual reoffending.

   (emphasis in original)

   [47]   Exhibit AG2, JN12, page 19.

   [48]   Exhibit AG2, JN12, page 21.

   Post-Treatment Conduct and SBC Conclusions

7. Since and in consequence of the Post-Treatment Report a neuropsychological screen was undertaken with Mr Smallbone because it was thought that his performance in the SBC program might reflect in part neuropsychological difficulties such as early onset dementia.  Mr Smallbone’s functioning was found to be in the average range, however he was also found to have a significant deficit in his immediate memory falling within the “Extremely Low” range.

8. Mr Smallbone was then interviewed. The report writers advise:[49]

   Regarding Mr Smallbone’s recent sexually indecent behaviour whilst at MGP (01/10/2017), he explained to the writer that he engaged in the behaviour due to “boredom”, stress reaction due to regime change, being served legal documentation and feeling bullied by other prisoners. Therefore the sexually indecent behaviour did not appear to be indicative of signs of dementia, rather it was likely related to Mr Smallbone’s emotional problems and using sex as a coping mechanism.

   Regarding his release into the community, given Mr Smallbone’s limited ability to recall immediate information, he may struggle to recall information provided to him by his Community Corrections Officer (CCO) or ANCOR such as supervision conditions or Orders. Mr Smallbone may benefit from his CCO or relevant parties providing memory aids such as cue cards and a day-to-day notebook which he can write in and use to prompt his recall. Mr Smallbone should also be prompted to engage in ongoing revision of material covered within the SBC program throughout his period of supervision.

   The Statutory Schemes and Applicable Legal Principles

   [49]   Exhibit AG2, JN13, page 13.

   Section 23 of the Sentencing Act

9. In Attorney-General (SA) v Hoare,[50] I set out the legal principles relevant to an application under s 23 of the Sentencing Act:

   [50] [2017] SASC 7, [62]–[73].

   a. Section 23 of the Sentencing Act

   Pursuant to s 23(4) of the Sentencing Act this Court may order that a person subject of an application made by the Attorney-General under s 23(2a) of the same Act be detained in custody until further order. As mentioned the Attorney-General may only make an application under s 23(2a) in relation to a person who has been convicted of a relevant offence and is in prison. Section 23(3) conditions the power conferred by s 23(4) upon this Court first directing that at least two legally qualified medical practitioners inquire into the medical condition of a person to whom this section applies and report to the Court on whether the person subject of the application is incapable of controlling, or unwilling to control, his or her sexual instincts. Thereafter ss 23(5) and (5a) govern the exercise of the discretion conferred by s 23(4). They provide:

   (5)     The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be the safety of the community.

   (5a)   The Supreme Court must also take the following matters into consideration in determining whether to make an order that a person to whom this section applies be detained in custody until further order:

   (a)The reports of the medical practitioners (as directed and nominated under subsection (3)) furnished to the Court;

   (b)Any relevant evidence or representations that the person may desire to put to the Court;

   (c)Any report required by the Court under section 25;

   (d)Any other matter that the Court thinks relevant.

   Whilst the exercise of the power contained in s 23(4) is not expressly conditioned upon the Court finding that the offender subject of an application is incapable of controlling, or unwilling to control, his or her sexual instincts, the Full Court has stated that the question whether the subject is incapable or unwilling to control his or her sexual instincts is a threshold question that must be answered yes or no, otherwise, bearing in mind the scheme created by Part 2 Division 3 of the Sentencing Act, no proper foundation exists for the Court to consider the risk that the offender poses to the safety of the community. Having answered the threshold question, there remains vested in the Court a residual discretion – despite the Court finding that a person to whom the section applies is incapable or unwilling to control his or her sexual instincts, it may be inappropriate that an order for indeterminate detention be made. Here it is important to bear in mind, for example, that the application may be made well in advance of the completion of an offender’s determinate sentence, when there is much time remaining for the offender to take advantage of courses and programs offered by the Department for Correctional Services.

   While a conviction for a “relevant offence” is a precondition to the engagement of the scheme, the scheme’s purpose is not punitive. Rather, it is concerned with preventing recidivist sexual offending through incapacitation and rehabilitation. The scheme does not punish an offender twice for the same offences or increase the punishment for those offences. While it operates by reference to an offender’s status as a person convicted of a relevant offence, it sets up its own normative structure. The purpose of an order of indeterminate detention is to protect the community from sexual offenders where the risk posed by such a person is such that it is inappropriate that they be released, even when they have completed what would otherwise be their period of imprisonment for the offences that they have committed. Additionally it is to ensure that the person “receives appropriate treatment, review and supervision”.

   An order for indeterminate detention should only be made where there is cogent and reliable evidence justifying the making of the order. In this regard Bleby J’s observations in R v England made in relation to a prior version of s 23 remain apposite. He said:

   ... satisfaction as to the inability of a person to control their sexual instincts is a matter of assessing the opinions to that effect, their strengths and their weaknesses, to a point where the court can be satisfied that the incapacity is present. In doing so, the court will need to take account of the seriousness of the declaration it is asked to make and the gravity of the consequences of giving the direction. To borrow the words of Dixon J in Briginshaw v Briginshaw, the necessary degree of satisfaction cannot be produced “by inexact proofs, indefinite testimony or indirect inferences”. It will require cogent and acceptable evidence in order to justify the making of the declaration and the giving of the direction. But even then, there is a residual discretion conferred by the use of the word “may” in the subsection. In that respect it may also be appropriate to consider, as in the case of R v Fahey and R v Riley whether, if a sentence is also imposed, the defendant is likely, at the end of the custodial period, to resume similar sexual activities. This will, in turn, require consideration, among other things, of the defendant’s access to and the likely effect of various regimes of treatment, and whether they can be effected in the prison setting or in some other institution contemplated by the section.

   (footnotes omitted).

   What amounts to an incapacity to control one’s sexual instincts is not defined. King CJ considered what amounted to incapacity in R v Kiltie in the context of discussing a progenitor of s 23. He said:

   ... The incapacity referred to in the section is an incapacity to exercise control resulting from innate mental characteristics. It is not that temporary incapacity to exercise self-control which results from the paralysis of will power caused by the ingestion of alcoholic liquor or drugs. Nor is it a strong inclination towards sexual offending resulting from deprivation of the means of satisfying sexual desire unless there is, in addition, an innate incapacity to control that inclination.

   Unwilling is defined in s 23(1) as follows:

   unwilling – a person to whom this section applies will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts.

   In R v Whyte White J recorded that the two forensic psychiatrists who provided reports in that matter “...recognised that the statutory definition of the word “unwilling” required consideration of matters going beyond an assessment of his present state of mind”. White J added:

   In my opinion, the definition is to be applied in the following way: the Court must assess the risk that the offender would, given the opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts. That assessment is to take account of all factors bearing on that risk. The Court’s assessment of the person’s state of mind will usually be very relevant to the assessment of the risk, but it is not the only matter to be considered. The opinions of the medical practitioners who have examined the offender and reported to the Court on the offender’s mental condition will be relevant to the assessment of the offender’s state of mind, but the opinions which those practitioners are able to express based on their field of expertise will not ordinarily encompass all the matters relevant to the Court’s assessment. That is to say, it will be necessary in some cases for the court to consider a range of factors which are not particularly within the field of expertise of, say, a forensic psychiatrist.

   In R v Schuster the Full Court observed:

   ...more importantly it was necessary for the medical practitioners and the judge to consider the circumstances in which and degree to which Mr Schuster is unable or unwilling to control his sexual instincts. A detailed consideration of these matters was necessary in order to assess the nature and extent of the risk to public safety presented by Mr Schuster. For example, the risk profile of a person with a desire or inclination to offend in an opportunistic or impulsive way would raise different considerations to those in the case of a person whose modus operandi has been, or is likely to be, one involving a longer term grooming of potential victims.

   Whilst these observations were made in the context of an appeal against an application for release on licence under s 24 of the Sentencing Act they are, in my view, equally applicable to an application made under s 23.

   Something more should be said here as to the significance of s 23(5). In R v Schuster the Full Court tackled the question of the significance of making the public safety the paramount consideration in the context of an application for release on licence. It said:

   What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility.

   I think these observations apply equally to s 23(5). So too the observation that the “exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety”. The Court quoted from the judgment of the Queensland Court of Appeal in Attorney-General (Qld) v Francis as reflecting the approach to be adopted. In that case Keane and Holmes JJA and Dutney J said:

   The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.

   Again such approach may be seen to apply equally to an application made under s 23. If the Court is satisfied that the offender is incapable or unwilling to control his or her sexual instincts, the question is whether an order for indeterminate detention is apt to ensure adequate protection of the community, having regard to the risk to the community posed by the offender.

   The High Risk Offenders Act

10. Under s 7(4) of the High Risk Offenders Act this Court may, on the application of the Attorney-General under s 7(1), make an extended supervision order if satisfied that the respondent to the application is a high risk offender within the meaning of s 5, and, that the respondent poses an appreciable risk to the safety of the community if not supervised under the order. That is, the power to make the order is only enlivened if the Court is first satisfied that the respondent is both a high risk offender and, in addition, poses an appreciable risk to the safety of the community if not supervised pursuant to an order. The Court must, before exercising the discretion, direct that one or more legally qualified medical practitioners examine the respondent and report to the Court on the results of the examination, including an assessment of the likelihood of the respondent committing a further serious sexual offence.[51]

    [51]   High Risk Offenders Act, s 7(3).

1. Similar to the approach mandated under s 23 of the Sentencing Act, the paramount consideration in determining whether to make an extended supervision order must be the safety of the community.[52]

   [52]   Criminal Law (High Risk Offenders) Act 2015, s 7(5).

2. It is implicit in Mr Smallbone’s submission that an order under s 7 is sufficient to adequately ensure the safety of the community, that he does not dispute that he is a high risk offender within the meaning of s 5 of the High Risk Offenders Act. In any event, that he is a high risk offender, is plain.[53]

   [53] Section 5 of the High Risk Offenders Act defines a high risk offender to include a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence. Section 4 defines “serious sexual offender” to mean a person convicted of a serious sexual offence and “serious sexual offence” is defined by picking up the definition of that phrase in s 33(1) of the Sentencing Act. Section 33 of the Sentencing Act provides that a serious sexual offence includes a number of offences under the Criminal LawConsolidation Act 1935 (SA) ("CLCA") set out in that provision where the maximum penalty prescribed for the offence is, or includes, imprisonment for at least five years. Unlawful sexual intercourse contrary to 49 of the CLCA is prescribed in s 33 and the maximum penalty for an offence against s 49(3) is imprisonment for 10 years. Accordingly, Mr Smallbone is a high risk offender for the purposes of the High Risk Offenders Act.

3. The real question is whether Mr Smallbone poses an appreciable risk to the safety of the community for the purposes of s 7(4)(b). In Attorney-General (SA) v Wells,[54] I considered the principles relevant to the exercise of the discretion set out in s 7(4):

   [54] [2017] SASC 149, [7]-[16].

   Returning to s 7(4), in Attorney-General (SA) v Grosser (Grosser) Stanley J considered what amounts to an appreciable risk for the purposes of s 7(4)(b). He said:

   I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible. 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.

   (footnote omitted.)

   Section 7(5) of the High Risk Offenders Act provides that in determining whether to make an order under s 7(4) the paramount consideration for the Court must be the safety of the community. In Grosser Stanley J considered that s 7(5) informed the question of whether a respondent posed an appreciable risk to the community for the purposes of s 7(4)(b). He said:

   ... 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. I do not suggest that this consideration is exhaustive of the work to be performed by s 7(5) of the Act. The full extent of the operation of this provision falls to be considered on another occasion.

   Section 7(6) prescribes a number of additional factors that the Court is required to take into account in determining whether to make an extended supervision order to the extent that they are relevant in the individual case.

   Ultimately, if the Court is satisfied of the qualifying criteria the power contained in s 7(4):

   ... 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. Here there are two competing considerations. On the one hand, the respondent to an application by the Attorney-General has completed his or her sentence. There is a common law rule that his personal liberty and freedom of movement will not be infringed absent clear, unambiguous lawful authority. On the other hand, there is the need to protect the community from the risk of him reoffending. In construing the statute which infringes those rights and freedoms the Court will do so in a manner which limits the infringement to what is strictly required to effect the purpose of the statute. Given the terms of the Act, specifically the paramount consideration of public safety, in the exercise of this Court’s discretion relatively smaller degrees of risk will outweigh considerations which, even strongly, would militate against the making of an extended supervision order. The same principles inform consideration of what are appropriate conditions to impose in making an extended supervision order and in determining the length of that order. The efficacy of the order is determined by the conditions it imposes. That warrants the same consideration applying to the conditions imposed as to the making of the order per se.

   (footnote omitted.)

4. I turn to consider the reports ordered under s 7(3) of the High Risk Offenders Act and s 23(3) of the Sentencing Act and the further treatment available to Mr Smallbone.

   The Reports and Evidence of the Legally Qualified Medical Practitioners

5. As mentioned, Drs Raeside and Nambiar, who are both forensic psychiatrists with considerable experience, each provided reports to the Court. Both doctors also gave oral evidence at the hearing on 11 December 2017 and were cross-examined. Mr Smallbone did not challenge either doctors’ expertise. Both were of the opinion that Mr Smallbone had the capacity to control his sexual instincts but was unwilling, within the meaning of the Sentencing Act, to do so. Both support an order under s 23 of the Sentencing Act and do so in preference to an order under s 7 of the High Risk Offenders Act.

   Dr Raeside

6. Dr Raeside interviewed Mr Smallbone in prison on 15 November 2017. He agreed with many of the conclusions set out in the SBC Post-Treatment Report. His initial impression of Mr Smallbone was one of surprise when Mr Smallbone said that he “had never been charged with anything” when asked to explain how he had first come to the attention of police.[55] 

   [55]   Exhibit AG5, page 9.

7. Mr Smallbone told Dr Raeside that he did not think that there were any ongoing effects from the sexual abuse he experienced as a child until it “came up again in the SBC course”. He said that it “didn’t stress me at all” and “was just a coincidence that my offending involved teenage boys.” It was apparent to Dr Raeside that Mr Smallbone had a limited and incorrect understanding of some of the issues surrounding his offending as raised in the SBC program.[56]

   [56]   Exhibit AG5, page 8.

8. Dr Raeside reports that Mr Smallbone was unwilling to discuss the circumstances in which he committed the offence of unlawful sexual intercourse in any detail, stating only that the victim came around to see a 17 year old boy staying with him, and things “evolved from there”. Dr Raeside reported his concern that this simplistic account of the offence was:[57]

   …consistent with concerns raised at various times during his Sexual Behaviour Clinic assessments in custody to indicate his tendency to blame the victim, or at least blame the circumstances (such as the boy coming to the house) rather than accepting responsibility for his own behaviour. As will be noted, notwithstanding participation in the SBC whilst in custody, Mr Smallbone’s general thinking and views about his offending behaviour appear not only to have not improved, but there are features to suggest that it has actually decreased with various risk factors of his offending having increased.   

   (emphasis in original)

   [57]   Exhibit AG5, page 10.

9. Mr Smallbone acknowledged in his interview with Dr Raeside that he changed to homosexual attraction around the age of 45 or 50. He said he had gained no insight into this shift from participation in the SBC program. He said he did not masturbate and was not sexually active, which as Dr Raeside noted, is contrary to recent evidence of his behaviour in prison.[58]

   [58]   Exhibit AG5, page 11.

10. Dr Raeside concluded that it was apparent that “despite a period of nearly three years in prison, as well as extensive involvement in the Sexual Behaviour Clinic, his troubling and concerning thoughts and behaviours have continued and, if anything, his risk of further sexual offending has increased.”[59]

    [59]   Exhibit AG5, page 13.

11. While noting Mr Smallbone had a previous diagnosis of bipolar disorder, Dr Raeside could not identify any underlying personality disorder, nor an indication of any other mental illness that was not being controlled well by his current medication regime.

12. Dr Raeside concluded:

    … He appears to have a long history of inappropriate interaction with adolescent boys dating back to 1996, most of which he dismissed as merely “insinuations”. However, concerns about his inappropriate behaviour had been raised for some time, eventually resulting in the PRO. Nevertheless, there appears to be an escalation of his behaviour, including offending behaviour, in recent years. It is not entirely clear why there has been an escalation and this is an area for further exploration, particularly in light of recent findings that there may be some cognitive decline that has been occurring recently.

    …

    In my view, Mr Smallbone does not have any active mental illness that is of particular relevance to questions of his future risk of offending. Rather, he appears to have developed sexual arousal patterns to teenage boys, notwithstanding he describes himself as either bisexual or heterosexual. The history of his earlier years is not entirely clear, but there is some reference to him being a scout leader in his early 20s and one might speculate that his interest (whether platonic or sexual) in associating with children has been present throughout much of his adult life. It is unclear what led to the breakdown of his marriage and his children cutting off contact with him. It would appear that he has become more sexual and acted out with male adolescents in the last couple of decades for reasons which are not entirely clear.

    …

    I would concur that on the basis of probabilities Mr Smallbone appears to continue to have difficulties with his willingness to control his sexual behaviour. In other words, should he be confronted with similar situations again in which he is able to offend, then I think he would be likely to do so as he lacks the skills and abilities to either avoid such situations, or appropriately deal with them when the “temptation” arises. Further, upon being released into the community he is likely to experience significantly increased stress, social isolation, and other difficulties common to prisoners returning to the community. Given his pre-existing problems, I think he is highly likely to again start to associate inappropriately with younger people with significant risk of further offending in such circumstances.

    I could find no indication that Mr Smallbone is unable to control his sexual behaviour. However, if there are significant cognitive impairments then this might further worsen his ability to control.

    Additionally, simply based on the risk of him being a high risk offender, I believe that it is self-evident from the above that he represents more than an appreciable risk of further offending in the community. Significant treatment and the SBC program have not reduced his risk and concerns expressed about his immediate risk. Indeed, recent behaviour within the last few weeks whilst in custody further enhances concerns about his risk of inappropriate sexual behaviour.

    (emphasis in original removed)

13. Dr Raeside did not retreat in any respect from these opinions in the course of giving oral evidence.

14. Dr Raeside was of the opinion that Mr Smallbone required ongoing supervision in a custodial environment for two reasons; first, to guard against the potential for reoffending. Second, to guard against the risk that further individual therapy will stir up issues that may increase the chance of Mr Smallbone acting on his sexual impulses if not addressed.[60] Dr Raeside remarked that this is an “unusual case” in that Mr Smallbone poses a slightly higher risk at the end of the SBC program than at the beginning.

    [60]   Transcript, 11 December 2017, page 8.

15. In cross-examination, Dr Raeside agreed that Mr Smallbone’s low range memory recall may have made it harder for him to complete homework in the course of undertaking the SBC program, but added that, paradoxically, this may mean he is less likely to gain from the program with the consequence that he remains an ongoing risk.[61]  Dr Raeside explained that Mr Smallbone’s unusual behaviours while in prison raised the possibility that, particularly given his age, there may be cognitive changes occurring that might be contributing to his disinhibited behaviour.[62] Despite adhering to his opinion that Mr Smallbone was unwilling to control his sexual instincts and that he could find no evidence of an inability to control his sexual instincts, Dr Raeside noted that cognitive impairment may raise questions about his capacity to control his sexual instincts as well.[63]

    [61]   Transcript, 11 December 2017, page 15-16.

    [62]   Transcript, 11 December 2017, page 10.

    [63]   Transcript, 11 December 2017, page 22.

    Dr Nambiar

16. Dr Nambiar interviewed Mr Smallbone in prison on 30 October 2017. Mr Smallbone told him that he had never heard of half of the allegations made in the application for the paedophile restraining order. He then admitted to providing alcohol to youths because he was a “softie”; walking naked because “he was a naturalist by nature”; letting children drive on a service road “because they asked” and talking to children about sex because “he joined in on their conversation”. He denied watching children during paddleboard training and denied viewing child pornography. When discussing engaging in sexual talk with children, he gave Dr Nambiar the impression that it was “not inappropriate.”[64] When explaining his offence of unlawful sexual intercourse in 2013, he said he believed the youth was attempting to gain sexual experience and had enticed Mr Smallbone to perform sex on him as part of that experience. He reportedly told Dr Nambiar that he “couldn’t resist the urge.”[65] As to reports of Mr Smallbone engaging in sexual activity with younger males in prison, Mr Smallbone admitted to Dr Nambiar that he had performed oral sex on an inmate in one sexual encounter.[66]

    [64]   Exhibit AG6, page 7.

    [65]   Exhibit AG6, page 8.

    [66]   Exhibit AG6, page 6.

17. Dr Nambiar was unable to find any documentation that confirmed a diagnosis of bipolar disorder, however speculated that Mr Smallbone may well experience Bipolar II Disorder (mild episodes of elevated mood with episodic periods of depression). He considered that Mr Smallbone’s insight into his offending was poor and explanations of his behaviour vague and evasive. He formed the impression that Mr Smallbone was “cognitively intact”. He repeated that assessment in oral evidence.[67]

    [67]   Transcript, 11 December 2017, page 25.

18. In his report, Dr Nambiar expressed the following opinion:[68]

    There is no evidence to suggest that Mr Smallbone is incapable of controlling his sexual instincts.

    …

    Mr Smallbone’s behaviour since 1996 both in the community and in fact during his current period of incarceration (whilst attending the SBC course) demonstrates an unwillingness to control his behaviour. It seems clear to me that if Mr Smallbone were to be placed in the situation where an opportunity arises to commit an offence, that he would fail to exercise appropriate control of his sexual impulses. It was concerning that whilst in custody with all of the supervision and controls inherent that he continues to disobey warnings from correctional staff which does not bode him well should he be in the community without specific controls or supervision of that level.

    [68]   Exhibit AG6, page 9-10.

19. In oral evidence, Dr Nambiar said that he supported an order under s 23 of the Sentencing Act because Mr Smallbone had not successfully completed the SBC program and would gain from repeating the program while in custody to master the techniques taught.[69] He added that the order would provide safety to the community and provide greater motivation to Mr Smallbone to engage fully in the SBC program this time around.[70] In cross-examination, he disagreed with the proposition that the threat of detention created by a breach of an extended supervision order would sufficiently motivate Mr Smallbone. He affirmed that his view is that detention under s 23 is preferable, particularly given Mr Smallbone’s history of ignoring supervision and conditions such those imposed under the paedophile restraining order.[71] When challenged with the proposition that Mr Smallbone’s non-compliance may be misinterpreted because of unknown cognitive difficulties, Dr Nambiar was of the opinion that his past conduct in the community was “quite openly defiant”.[72] Nonetheless, he agreed there may be a possibility that his noncompliance with the SBC program was a result of struggling with some of the concepts, but reiterated that he did not wish to speculate. Dr Nambiar said that he did not support a release on licence at this time.[73]

    [69]   Transcript, 11 December 2017, page 24.

    [70]   Transcript 11 December 2017, page 27-28.

    [71]   Transcript 11 December 2017, page 28.

    [72]   Transcript 11 December 2017, page 32.

    [73]   Transcript, 11 December 2017, page 37.

    Further treatment available to Mr Smallbone

20. As mentioned, the Court received an affidavit of Katharine Mary Short, affirmed on 8 December 2017. Ms Short is the Manager of the Rehabilitation Programs Branch of the Department for Correctional Services. To her affidavit there was exhibited a report prepared on the rehabilitation programs and case management options available to Mr Smallbone in the event that an order under s 23 of the Sentencing Act were to be made.

21. Ms Short advised:

    In the event that an order for indefinite detention was made, initially Mr Smallbone would be engaged in additional assessments to determine in more detail the nature and scope of his cognitive functioning, and his current mental health and medication status. Those assessments included:

    ·Neuropsychological assessment by a qualified neuropsychologist, to determine if dementia and/or age-related cognitive decline had occurred; and,

    ·Psychiatric assessment through SAPHS [South Australian Prison Health Service] to confirm mental health status and suitability of current medication, in view of reported discrepancies between Mr Smallbone’s self-reported symptoms/diagnosis and information contained on his medical record.

    Simultaneously with the above-mentioned assessments, Mr Smallbone would be engaged in individual treatment with an experienced RPB [Rehabilitation Programs Branch] clinician; the purpose of that intervention would be to create a strong therapeutic alliance with Mr Smallbone and address his preparedness for treatment. It was evident from the SBC Post-Treatment Assessment Report that Mr Smallbone exhibited behaviours during the program that could be seen as “therapy-interfering”; such behaviours included his lack of response to requests to desist from contact with younger prisoners, his lack of respect for group rules including ignoring facilitators’ request and failing to submit written work (SBC Post-Treatment Assessment Report, Black 2017, page 7, lines 29-31). That work, in conjunction with the further assessments outlined above, would allow RPB to formulate the extent to which Mr Smallbone’s behaviours and response to past treatment were impacted by organic versus attitudinal influences, and at the same time it would provide an opportunity to target some of Mr Smallbone’s dynamic risk factors.

    After a period of individual treatment, Mr Smallbone would be considered for options including further placement in a SBC program (if neuropsychological assessment deemed that a suitable option), or continued individual intervention to address his risk factors and treatment needs; that decision would be made following feedback and advice from the clinician engaged in his individual treatment. If Mr Smallbone were found to have cognitive difficulties, he would have the option to be assessed for suitability to participate in the SBC-me program; a 15-month high-intensity rehabilitation program designed to address sexual offending committed by individuals who have cognitive deficits.

1. Both Drs Raeside and Nambiar supported such approach.

   Submissions

2. Counsel for the Attorney-General made plain that the Attorney did not contend that Mr Smallbone was incapable of controlling his sexual instincts. It was submitted however, relying upon the opinions of Drs Raeside and Nambiar and the material filed in support, that the Court could conclude that he was unwilling to control his sexual instincts in the relevant sense.

3. Counsel structured her submissions in support of the contention that the Court should make an order under s 23 around three broad factors: first, the escalating pattern of Mr Smallbone’s offending and his more recent offending occurring in a context where he was subject to supervision and restrictions under the paedophile restraining order, bail agreements, and a good behaviour bond. Second, the unchanged assessment of Mr Smallbone as a moderate to high risk of reoffending despite undertaking the SBC program. Third, concerning and sexualized behaviour exhibited by Mr Smallbone while incarcerated, occurring in breach of management directions, and during and despite undertaking the SBC program. These three factors in combination, it was contended, lead to the conclusion that the community would not be adequately protected unless an order was made under s 23. Implicitly the contention was that an extended supervision order did not provide an adequate level of comfort, bearing in mind, in particular, Mr Smallbone’s repeated failure in the past to comply with directions given and orders made and, indeed, assurances he himself had given.

4. Counsel for Mr Smallbone commenced his submissions by noting the significant incursion that any order made under s 23 or s 7 would be on Mr Smallbone’s liberty. It was submitted that on 10 October 2017 Mr Smallbone was granted parole, however, before he was released that decision was revoked.[74] No reasons for the grant or revocation of parole are in evidence. The submission was taken no further.

   [74]   See the Exhibit AG3.

5. Counsel identified a number of other factors to be taken into account in determining whether to make either order sought by the Attorney-General. The first was Mr Smallbone’s limited offender history. It was observed that the paedophile restraining order was granted in 2010 when Mr Smallbone was 61 years of age and that he had no criminal history prior to that. It was said that this demonstrates that Mr Smallbone had exercised restraint for most of his life. It was submitted that limited weight could be placed on evidence that a laptop was seized from Mr Smallbone prior to his offending which contained pornography, as there was no evidence that it was child pornography. Further, it was said that Mr Smallbone’s association with groups such as the yacht club is not indicative of him being a paedophile.

6. The second was Mr Smallbone’s low intellect. Counsel contended that this provided reason why he genuinely struggled and/or was not capable of engaging in treatment programs, a response that may easily be misconstrued as defiance. Counsel appeared to infer that Drs Raeside and Nambiar did not adequately address the possibility of Mr Smallbone’s cognitive capacity as affecting his ability to engage in the SBC program which then undermined their opinions as they were based on reports that he was non-compliant with treatment. Counsel noted that in cross-examination both Drs Raeside and Nambiar conceded that if someone has a low intellect or has difficulty with immediate memory, then he or she will have difficulty complying with standards set in those programs.

7. Counsel emphasized that the “SBC-me program” was also available to Mr Smallbone in the community. He noted that Mr Smallbone was assessed as being suitable for sex offender treatment at Owenia House[75] and noted that there is also other treatment available to Mr Smallbone in the community.

   [75]   Exhibit AG1, JN 9. 

8. Counsel submitted that Mr Smallbone could be subject to electronic monitoring as part of his parole, or by registration on the ANCOR register established under the Child Sex Offenders Registration Act 2006. In the alternative, if the Court considered that an order under s 23 or s 7 was necessary, Counsel submitted that an order under s 7 was all that was required to adequately protect the community. It was added that, knowing that a breach of an extended supervision order may mean a return to prison, Mr Smallbone would be motivated to comply with the terms of such order including any treatment regime posed.

9. Lastly, Counsel noted that Mr Smallbone had demonstrated some recognition of the effect of his offending, which was said to indicate that he had gained some benefits from the SBC program.

   Consideration

10. I deal first with the application under s 23 of the Sentencing Act.

11. As mentioned the application proceeded on the basis that Mr Smallbone is unwilling to control his sexual instincts within the meaning of s 23(1) of the Sentencing Act.

12. In my view Mr Smallbone is unwilling to control his sexual instincts in the relevant sense. I accept the evidence of Drs Raeside and Nambiar. That evidence satisfies me that if Mr Smallbone was released into the community without supervision and left to his own devices, there is a significant risk that he would, given an opportunity to commit a sexual offence against a child, fail to exercise appropriate control of his sexual instincts.

13. I recognise that a mere possibility of a failure to exercise appropriate control is not sufficient. The risk of a failure to exercise appropriate control must be “significant” in the sense of being substantial.[76] Bearing in mind the escalation of Mr Smallbone’s sexualised behaviours since 2010 in the community and, more recently, his conduct while in prison, his history of socialising with adolescents, including intellectually disabled adolescents, his social anxiety when engaging with same aged-peers, his limited insight into the triggers for and effects of his offending, his inability to demonstrate changed or modified problem thinking and behaviours, his refusal to accept responsibility for his offending and limited apparent response to external supervision including while in prison, I consider that there is a significant risk, a considerably high risk, that given an opportunity to sexually offend against a male teenager, he would do so.

    [76]   R v Whyte [2006] SASC 56, [30]. See also Attorney-General (SA) v Kelly [2017] SASC 164, [60].

14. Particularly concerning is the offence-paralleling behaviour that Mr Smallbone has engaged in whilst in prison, and that he has engaged in such behaviour during the course of the SBC program.

15. Mr Smallbone has demonstrated limited insight into the power imbalance between an adult and a child, still less the power imbalance between an adult and intellectually disabled child. It is concerning that he gave Dr Nambiar the impression that engaging in sexual talk with children was “not inappropriate”. In articulating to Dr Raeside what he had learnt from the SBC program, he appeared to be simply parroting back terms and expressions used in the program. His responses in relation to his social functioning that “this is what I do” and “I’ve been this way for years”, suggests that Mr Smallbone’s social functioning is entrenched. That throughout the SBC program Mr Smallbone repeatedly identified avoidance as the primary way in which he could reduce his risk of reoffending provides no comfort that he would be willing and able to call on other mechanisms to control his sexual instincts should the likely scenario arise in which he finds himself with an opportunity to reoffend. This is particularly true given Mr Smallbone’s isolated lifestyle and absence of family or wider social supports to act as protective factors in the community.

16. While usually risks of reoffending reduce with age, the available evidence establishes that Mr Smallbone’s sexualised behaviour in the community and in prison has become increasingly disinhibited in recent years. Paradoxically, Mr Smallbone’s age also means that if released into the community he will not have protective factors such as employment to reduce his risk of reoffending. Although Mr Smallbone’s offending has occurred relatively late in his life, allegations of his inappropriate behaviour around children are long standing, dating back to 1996.

17. The SBC Post-Treatment Report articulates few gains made by Mr Smallbone from the program. This is consistent with the impression gained by Drs Raeside and Nambiar. The only reported gain Mr Smallbone made in his dynamic risk factors was in the area of “sex as coping”. It is now difficult to reconcile this gain with the later explanation that his public masturbation in prison was a response to “boredom and a stress reaction due to regime change, being served legal documentation and feeling bullied by other prisoners.” I am persuaded that Mr Smallbone is not yet equipped to deploy the skills taught in the SBC program when feeling stressed or uncertain outside of the treatment environment.

18. I note that Mr Smallbone’s engagement in the SBC program fluctuated and that he did not consider that he needed the assistance of facilitators with his deviant sexual arousal. The writers of the Post-Treatment Report expressed concern at Mr Smallbone’s cognitive capacity, but nevertheless concluded that Mr Smallbone’s motivational and attitudinal issues plagued the effectiveness with which he engaged in the program. Bearing in mind the degree of contact they would have had with Mr Smallbone over the course of the SBC program, including the work undertaken individually, I am inclined to accept that opinion. As Dr Raeside said, if there was a significant cognitive deficit, I would expect the clinicians to have picked it up.

19. I am not persuaded that assessments following the SBC program that Mr Smallbone’s immediate memory falls within the “Extremely Low” range undermine the cogency of the conclusions reached in the Post-Treatment Report, or in the reports of Drs Raeside and Nambiar. I did not understand either Dr Raeside or Dr Nambiar to resile from their ultimate opinion because of the possibility of Mr Smallbone suffering cognitive deficits that may be reflected in his performance during the SBC program.

20. In any event, I accept Dr Raeside’s evidence that cognitive deficits impacting upon Mr Smallbone’s capacity to engage effectively with the SBC program may, paradoxically, increase the risks Mr Smallbone poses to the community and his willingness to control his sexual instincts. If it is the case that he has cognitive deficits associated with ageing, his decline may continue to increase the risk he poses to the community.

21. In the light of the above, I find that Mr Smallbone is unwilling to control his sexual instincts within the meaning of s 23(1) of the Sentencing Act.

22. I turn to the question whether Mr Smallbone should be detained indeterminately. How great is the risk that given the opportunity to commit a relevant offence Mr Smallbone would fail to exercise appropriate control of his sexual instincts? For the same reasons as given in determining that Mr Smallbone is unwilling to control his sexual instincts, and on the assumption that Mr Smallbone does not have the benefit of any supervision, I consider having regard to the opinions of Drs Raeside and Nambiar and the content of the SBC program Post-Treatment Report in particular, that the risk is so high as to warrant an order that he be indefinitely detained. I make plain I have arrived at that conclusion, bearing in mind that the making of an order for indeterminate detention is an exceptional step to take. 

23. In the present case the real question is whether the protection of the community can be adequately ensured by a less intrusive regime such as that which may be imposed under an extended supervision order. In this regard the draft minutes of order provided by the Attorney-General for the purposes of s 7 of the High Risk Offenders Act state:

    1. The respondent is to be subject to an extended supervision order for a period of five years from the date of this order.

    2. The conditions to which the respondent is subject are:

    2.1     The respondent not commit any offence;

    2.2.    The respondent is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 2015) or any part of a firearm;

    2.3.    The respondent is prohibited 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;

    2.4.    The respondent be under the supervision of a Community Corrections Officer and will obey the reasonable directions of that Officer;

    2.5.    The respondent will report as and when required or directed by his Community Corrections Officer;

    2.6.    The respondent will wear an electronic monitoring device, to be fitted at the point of being discharged from custody, as required by his Community Corrections Officer and comply with his Community Corrections Officer’s directions as to the care and use of the electronic monitoring device;

    2.7.    The respondent will reside at a place approved in writing by his Community Corrections Officer and will not change his place of residence without the prior written permission of his Community Corrections Officer;

    2.8.    The respondent will not permit any person to stay overnight at his residence unless he obtains the prior written approval of his Community Corrections Officer;

    2.9.    The respondent will submit to tests (including tests without notice) for gunshot residue as reasonably required by his Community Corrections Officer;

    2.10. The respondent will not depart from or attempt to depart from the State of South Australia without obtaining the written approval of the Parole Board at least seven (7) days prior to travel;

    2.11. The respondent will not supply alcohol to persons under 18 years of age;

    2.12. The respondent will not use, possess or administer any illegal or prescription drug except in accordance with the directions of a legally qualified medical practitioner;

    2.13. The respondent will advise his Community Corrections Officer of any drug that has been prescribed to him by a legally qualified medical practitioner;

    2.14. The respondent will present for and submit to drug testing (including testing without notice) as and where directed by his Community Corrections Officer, or the Parole Board, and will do all things and sign all such forms as may be necessary to enable drug testing to be conducted and analysed and the results of such analysis provided to his Community Corrections Officer and/or the Parole Board;

    2.15. The respondent will attend, undertake and satisfactorily complete counselling or any other mental health assessments, programs and interventions at the direction of his Community Corrections Officer;

    2.16. The respondent will attend, undertake and complete any psychological and/or psychiatric assessment and comply with any intervention required thereafter at the direction of his Community Corrections Officer;

    2.17. The respondent will attend, undertake and satisfactorily complete sexual offender treatment as directed by his Community Corrections Officer;

    2.18. The respondent will take any such medication as his treating doctor, psychologist or psychiatrist shall prescribe;

    2.19. The respondent will not contact, attempt to contact or associate in any way, whether directly or indirectly, with any person under the age of 18 years, whether or not that person is in company of another adult and whether or not that association or communication is in person or written correspondence, unless his Community Corrections Officer is present, or a person nominated or approved by that Officer is present;

    2.20. The respondent will not undertake any remunerated or voluntary work with children or participate in any organisation which provides recreational, social, educational or other activities or facilities for children;

    2.21. The respondent will not undertake any remunerated or voluntary work for any service offered by or funded by Disability Services of South Australia.

    2.22.  The respondent will not loiter without reasonable excuse at, or in the vicinity of, a school, public toilet, playground, beach or place at which children are regularly present;

    2.23. The respondent will declare to his Community Corrections Officer any tablet, computer, mobile phone, photographic equipment or other electronic equipment that he purchases, loans or which otherwise comes into his possession within 48 hours of it coming into his possession;

    2.24. In relation to any item declared in accordance with [2.23], if directed to do so by his Community Corrections Officer, the respondent will produce the equipment to that Officer and provide any relevant passwords, for the purpose of inspection and/or analysis to ensure that it is not being used by the respondent to associate or communicate with children and/or to provide, possess or view child exploitation material;

    2.25. The respondent will permit and enable his Community Corrections Officer or a police officer to enter any premises in which he is residing at any time in order to inspect any computer or device capable of storing electronic data at those premises, or to remove from the premises any computer or device capable of storing electronic data, for the purpose of inspecting the computer or device to determine where there is any evidence to suggest that the respondent may have contravened the extended supervision order or committed any criminal offence;

    2.26. The respondent will not approach or attempt to contact any victim of his offending;

    2.27. The respondent will comply with the terms of any intervention or restraining order that has been confirmed in relation to him;

    2.28. The respondent will comply with the requirements of the Child Sex Offenders Registration Act 2006.

    2.29. Any condition imposed by the Parole Board under section 11 of the Act.

24. Mr Smallbone has demonstrated over a number of years and in a variety of contexts that external supervision is insufficient to override the internal motivations he has to offend. While the conditions proposed by the Attorney‑General are strict, I cannot conclude absent any advances in treating his internal motivations to offend, that the risk Mr Smallbone poses to the safety of the community would be adequately addressed.

25. In Attorney-General (SA) v Hoare[77] I spoke of the interplay between internal controls and external supervision as relevant to the assessment of the risk posed to the community:

    … I am not convinced that merely controlling Mr Hoare’s external factors by electronic monitoring and supervision will improve the risk that Mr Hoare poses to the community. The risk he poses remains largely a reflection of his internal controls and absence of protective factors. Leaving all the work in the protection of the community to controlling Mr Hoare’s external factors does not adequately protect the community in the long term. Controlling the risk of Mr Hoare re-offending would largely be the product of intervention as opposed to Mr Hoare owning his deviant thinking, accepting that it is wrong to act on such thinking, and working to put in place measures that ensure he does not act on his distorted thinking. To release Mr Hoare does not provide any comfort as to the improvement of Mr Hoare’s distorted thinking and his internal controls nor as to his development of protective factors. The risk I have articulated would remain awaiting opportunity.

    The same can be said of and in relation to Mr Smallbone.

    [77]   Attorney-General (SA) v Hoare [2017] SASC 7.

26. In addition, Mr Smallbone has shown flagrant disregard for supervision regimes such as under the paedophile restraining order, bail conditions, and the terms of a suspended sentence bond. More recently, while imprisoned he has continued to defy management instruction in relation to his social interactions, demonstrating his limited insight into his triggers for offending, and engaged in very public inappropriate sexual conduct. The latter conduct he undertook despite being confronted by these proceedings, and despite having participated in the SBC program. His explanation provides no comfort that electronic monitoring would deter him from further offending.

1. In these circumstances, I do not consider that the external controls provided by an extended supervision order would be apt to ensure adequate protection of the community. Still less do I consider that the reporting obligations and other controls set out in the Child Sex Offenders Registration Act 2006 would be adequate as contended by Counsel for Mr Smallbone.[78] 

   [78]   See Attorney-General (SA) v Hoare [2017] SASC 7, [174] as to the obligations imposed on “registrable repeat offenders” under the Child Sex Offenders Registration Act 2006 (SA).

2. There are two further concerns, both identified by Dr Raeside. First, if Mr Smallbone’s conduct in prison and unsatisfactory participation in the SBC program is the product of cognitive deficits, those deficits only increase the risk of his future offending and undermine the effectiveness of electronic monitoring and supervision in the community. Second, another explanation for Mr Smallbone’s post treatment assessment evincing no improvement on his pre‑treatment assessment may be that the program unleashed within Mr Smallbone additional psychological factors impacting upon his conduct. There is a risk that this could be exacerbated by his being further treated in the community. Hence the desire that he undertake a neuropsychological assessment and additional individual treatment in custody. Further, exacerbation increases the already present risk and decreases the effectiveness of supervision and electronic monitoring.

3. The purpose of an order under s 23 of the Sentencing Act is not punitive.  Rather, the purpose is to allow Mr Smallbone to receive appropriate treatment, review and supervision.[79] In Attorney-General (SA) v Hoare[80] I contrasted the respective avenues for treatment post sentence under the Sentencing Act and the High Risk Offenders Act:

   The supervision regime created by the High Risk Offenders Act is not necessarily, in my view, a substitute for the regime created by Part 2 Division 3 of the Sentencing Act nor is it intended to be. The focus of Part 2 Division 3, upon an order being made under s 23, is treatment first and foremost. This is particularly evident in s 23(9) and (10) of the Sentencing Act and in the provision for release on licence and the gradual reintegration of the individual who is initially indeterminately detained. It is this sort of regime that offers the community the best protection from the risk posed by Mr Hoare.

   In my view it is the treatment and improvement of Mr Hoare’s internal controls leading to the development and improvement of protective factors that will ultimately best protect the community. I appreciate that Mr Hoare can be treated in the community, but that would not be subject to the system of review and ultimate supervision of this Court provided for by the Sentencing Act. That system obliges the provision of treatment, the tracking of progress, the review of methodologies and outcomes, and change to such methodologies and outcomes if desired results are not obtained.

   The same may be said in relation to Mr Smallbone.

   [79] [2017] SASC 7, [64].

   [80] [2017] SASC 7, [177]-[178].

4. I accept Dr Nambiar’s evidence that remaining in custody will motivate Mr Smallbone to engage in treatment more than the threat of detention created by breach of an extended supervision order. Again, the possibility of cognitive deficits is relevant here. If they exist they may well undermine motivation to participate in any treatment regime with greater consequences if he is in the community. I am persuaded that Mr Smallbone’s rehabilitation prospects are more likely to improve while undertaking an SBC or SBC-me program in prison than completing a program offered by Owenia House. In reaching this conclusion, I repeat, I am mindful that the effect of s 23 order is the further deprivation of his liberty.

5. In oral evidence, Dr Raeside disagreed with Counsel’s suggestion that there is a “vast array” of treatment options available to Mr Smallbone in the community. No specific evidence was adduced regarding what the options for treatment, education, counselling and the development of interpersonal and relationship skills in the community would consist of. Both Drs Nambiar and Raeside supported the treatment and rehabilitation options set out in Ms Short’s report. That report satisfies me that there is further work Mr Smallbone can undertake while incarcerated, including individual therapy and repeating the SBC program or undertaking the SBC-me program. 

6. In my view, in all the circumstances, the risk that Mr Smallbone poses of committing a further relevant offence is significant such as to justify the exceptional course of making an order that he be detained indeterminately. For the reasons I have given I do not think the less intrusive approach of an extended supervision order adequately ensures the protection of the community. I grant the Attorney-General’s application and order that Mr Smallbone be detained in custody until further order.

7. Given the above, the application under the High Risk Offenders Act is moot. In any event, I indicate that if I am wrong in determining that it is appropriate to make an order under s 23(4) of the Sentencing Act in this case, I would have imposed an extended supervision order for five years subject to the conditions proposed by the Attorney-General as set out above. In my view, taking into account Mr Smallbone’s history of offending, his conduct in prison, the Post‑Treatment Report, and the opinions and evidence of Drs Raeside and Nambiar, Mr Smallbone poses an appreciable risk to the safety of the community if not supervised.

   Conclusion

8. I am satisfied that Mr Smallbone is unwilling to control his sexual instincts and that, under s 23(4) of the Sentencing Act, it is appropriate to order that he be detained in custody until further order. The Attorney‑General’s application under s 7 of the High Risk Offenders Act is dismissed.