Attorney-General (SA) v Symonds

Case [2021] SASC 145

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

ATTORNEY-GENERAL (SA) v SYMONDS

[2021] SASC 145

Judgment of the Honourable Justice Peek  

21 December 2021

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

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

Application by Attorney-General for the State of South Australia for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015.

The respondent is now 70 years of age. He pleaded not guilty to three counts of unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (the Index charges) and was convicted following a trial by jury.  Later, on 27 June 2018, he was sentenced to three years and four months imprisonment with a non-parole period of 18 months.

The Index charges were committed against a 14-year-old boy (referred to as “R”) in 1994, some 27 years ago.  Count 1 involved the respondent performing an act of fellatio upon R.  Count 2 occurred immediately after with R placing his penis in the respondent’s anus.  Count 3 occurred on a later occasion in 1994, and involved the respondent performing an act of fellatio upon R.

The respondent has no history of other proven offending; he has been charged with other sexual offences but all have been discontinued or decided in his favour.  A report prepared by a forensic psychiatrist concluded that there was a moderate likelihood of the respondent committing a further serious sexual offence if not placed on an extended supervision order and that that was her opinion even if the unproven allegations of other criminal conduct are put aside.

Held: Application granted.

1.The respondent is a high risk offender for the purposes of s 5 and s 7(4)(a) of the Criminal Law (High Risk Offenders) Act 2015.

2.Putting aside the unproven allegations of other criminal conduct, the respondent poses an appreciable risk to the safety of the community for the purpose of s 7(4)(b) of the Criminal Law (High Risk Offenders) Act 2015.

3.It is appropriate that an extended supervision order with stated conditions be imposed pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 for a period of two years.

Criminal Law Consolidation Act 1935 (SA) s 49(3); Criminal Law (High Risk Offenders) Act 2015 (SA) ss 5, 7, 10, 12; Criminal Law (Sentencing) Act 1988 (SA) ss 23, 24, referred to.

Attorney-General (SA) v Grosser [2016] SASC 49; Attorney-General (SA) v Grosser [2017] SASC 89; Attorney-General (SA) v Karpany [2020] SASC 219; Attorney-General (SA) v V, ZR [2019] SASC 1; Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11; R v Kimmins [2016] SASC 176; R v Schuster [2016] SASCFC 86, discussed.

Attorney-General (SA) v Wells [2017] SASC 149; State of NSW v John Owen Company [2011] NSWSC 976,…

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Attorney-General (SA) v Symonds [2021] SASC 145
Case
[2021] SASC 145
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CaseChat Overview and Summary

In Attorney-General (SA) v Symonds, the South Australian Supreme Court considered whether to impose an extended supervision order (ESO) on the respondent, Symonds, under the Criminal Law (High Risk Offenders) Act 2015. The Attorney-General applied for the ESO, arguing that Symonds posed an appreciable risk of reoffending if not supervised. The court examined Dr Lim's risk assessment report, which identified several risk factors, including deficits in psychological and social adjustment, pro-offending attitudes, and a lack of meaningful engagement with treatment. The court had to decide whether these factors constituted an appreciable risk warranting an ESO.

The court considered the legal framework for imposing an ESO, focusing on whether Symonds was a high-risk offender and whether he posed an appreciable risk to community safety. It noted that an appreciable risk is not speculative but founded on evidence providing a basis for apprehension of future risk. The court also highlighted the importance of balancing the respondent's rights and freedoms against the need to protect the community. In assessing the appropriateness of an ESO, the court had to give paramount consideration to public safety.

The court concluded that Symonds was a high-risk offender and posed an appreciable risk to the safety of the community. Despite the unproven allegations, the court found that Symonds's established risk factors were sufficient to warrant an ESO. The court imposed an ESO for two years with specified conditions, emphasizing the need to manage Symonds's risk of reoffending while protecting the community.

Orders

Orders of the court

Held: Application granted.

1. The respondent is a high risk offender for the purposes of s 5 and s 7(4)(a) of the Criminal Law (High Risk Offenders) Act 2015.

2. Putting aside the unproven allegations of other criminal conduct, the respondent poses an appreciable risk to the safety of the community for the purpose of s 7(4)(b) of the Criminal Law (High Risk Offenders) Act 2015.

3. It is appropriate that an extended supervision order with stated conditions be imposed pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 for a period of two years.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

After traversing other matters, Dr Lim concluded:9.30 In my risk assessment, I have also taken into consideration that sexual recidivism reduces with age and infirmity. I do not believe he is at high risk of sexual re-offending. However, Mr Symonds remains physically and mentally healthy, and will be returning to live alone in the house where the offending occurred. He has demonstrated an ability to groom vulnerable underage youths and will still have the means and opportunities to re-offend covertly. 9.31 Considering all of the above, whilst Mr Symonds does not have a definitive paraphilia and his convictions are limited to the index offences, he has significant deficits in the domains of psychological and social adjustment, and manageability in the community. His underlying attitudes towards his offending have remained fairly consistent with recurring themes of denial, minimisation, deflection of responsibility, victim-blaming, unwillingness to gain insight and lack of empathy. These common themes reflect pro-offending attitudes which may permit him to re-offend in future. He has engaged superficially with treatment when it suits him and is unwilling to gain insight into his offending. Given his deficits in self-awareness, he may be more reliant on external risk mitigation strategies rather than internal ones. 9.32 In Attorney-General v Grosser, Justice Stanley held 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 on some evidence that provides a substantive basis for apprehension that the respondent might conduct himself in the future in a manner that poses a risk to the safety of the community. It is a question of degree. The extent of the appreciable risk is informed by the consideration that in determining whether to make an Extended Supervision Order, the safety of the community is paramount. I construed that requirement to mean that when a court considers the question of whether to make an order is finally balanced, the protection of the community would favour making the order rather declining to do”. The best predictor of future risk is past behaviour. If Mr Symonds has been convicted of 3 counts of unlawful sexual intercourse, then his risk of further sexual reoffending is not purely speculative. Even if the court disregards the unanswered questions about paraphilia, he has ongoing risk factors relating to intimacy deficits, social isolation, cognitive distortions, lack of remorse and problems with treatment. It is therefore impossible to conclude that he poses no appreciable risk to the community. On balance, I believe there is a moderate likelihood of Mr Symonds committing a further serious sexual offence if not placed on an extended supervision order. 9.33 He is intelligent and has the capacity to benefit from a community based SBC program, provided he is mandated to engage. In the interim, his risks can be managed by demarcating exclusion zones where underage males are known to congregate, monitoring his recreational activities and associates. Until Mr Symonds gains meaningful insight into his offending, the external strategies underpinned by an extended supervision order may assist in reducing his risk of sexual recidivism.[Emphasis added]Dr Lim’s evidence at the hearing

Decision

Reasons for decision

Since Symonds was unrepresented, I raised with Dr Lim the matter that, apart from the index offending, she had taken into account against Symonds that he had been charged with other sexual offences over the years, all of which had been discontinued or determined in his favour. Discussion proceeded thus:A.Okay, thank you, your Honour. So may I draw your Honour's attention to para.9.29 where I have specifically considered that Mr Symonds was in the community for 20 years after the offending occurred.Q. Yes.A.Even though there were no convictions in this period, clinically there was suspicion of potential offending for which he was not convicted of.Q.Well now, once again, Dr Lim, this is just a problem I have with some parts of your report because yes, I understand that there were some allegations of sexual offences but the authorities decided to withdraw all of the charges except one, for which he stood trial and was acquitted. And it's my view that you should not be placing any weight on those matters for which he was not convicted.A. Okay.Q.So I know that might make it a little bit hard for you because I think you have placed some weight on that during portions of your report.A.Okay. Yes, your Honour, so I will take that into account. So as I said in para.9.31, I'll go there, there is no definitive evidence of deviant - definitive evidence of paraphilia and his convictions are limited to the index offence, he currently, as of my assessment in April and May, he still has significant deficits in the domains of psychological and social adjustment and manageability in the community and I've outlined the relevant current risk factors that remain unaddressed because Mr Symonds has dropped out of the SBC program. And his - the attitudes that are elicited during my interview and they are corroborated by the collateral information are consistent with recurring themes of denial, minimisation, deflection of responsibility, victim blaming, unwillingness to gain insight, lack of empathy. He also has a number of concerning cognitive distortions which, if given the opportunity, may condone further offending.Q.Sorry, does that go to another paragraph, just that last thing you said. I was following you through at 9.31 but that last bit seems to have -A.Yes, so these common themes reflect pro-offending attitudes which may permit him to reoffend in future.Q.Yes, I see.A.He has engaged superficially with treatments when it suits him and is unwilling to gain insight into his offending. Even if we completely exclude the unproven allegations my final conclusion for my risk assessment is unchanged. [Emphasis added] I will mention that since making the above remarks, I have read the decision in Attorney-General (SA) v V, ZR, in which Hughes J stated:[5]27. I do not accept that each of the categories of conduct listed above is available for the task of determining whether the respondent should be subject to an extended supervision order. Those which are not amenable to be considered are those which behaviour is not proven or admitted, and which is proposed to be evaluated by the Court directly. The index offending and the breaches of bail are relevant. They describe conduct that has been established through a court process. Section 7(6)(j) refers to offences in respect of which the respondent has been found guilty according to his or her criminal history and any pattern of offending behaviour disclosed by that history. “That history” in this provision refers to “criminal history” and should be understood as referring to matters in respect of which the respondent has been found guilty.[6]28. The non-compliance on 1 August 2018 with the interim supervision order may be taken into account. That conduct was found by the Parole Board to have occurred following a process of interview. 29. However, in respect of assertions of conduct that have not been admitted or proven, such as the charges contained in the information laid on 1 November 2018, it is difficult to see how the Court can find such conduct to be established to any degree sufficient to then incorporate the proposition into an assessment of the risk posed by the respondent. [5] [2019] SASC 1.[6] State of NSW v John Owen Conway [2011] NSWSC 976 (8 September 2011) at [35].

Ratio Decidendi

Legal Principle Established

As to Dr Lim’ s evidence, I find her to be suitably qualified and to have been an honest and frank witness. Consideration as to the making of an Extended Supervision Order The process concerning the making of an ESO is delineated in s 7 of the HRO Act. It is to be observed that the Judge has essentially six questions to answer. First, is the respondent a high risk offender? (ss 7(1) and 7(4)(a)). Secondly, is the application within time? (s 7(2)). Thirdly, has the required report been compiled? (s 7(3)). Fourthly, is the Court satisfied that the respondent poses an appreciable risk to the safety of the community if not supervised under the order? (s 7(4)(b)). Fifthly, if the above conditions precedent are satisfied, is it appropriate to impose an ESO? Sixthly, if it is appropriate to impose an ESO, what conditions (if any) should be added to the mandatory conditions stipulated by s 10(1) of the HRO Act? The first three requirements are clearly satisfied here. As to the fourth question (appreciable risk), in Attorney-General v Grosser, Stanley J observed:[7]29. 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. 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. [Citation omitted][7] [2016] SASC 49. As to the fifth question (appropriate to impose an ESO), in Attorney-General v Grosser (No 3), Stanley J further observed:[8]12. … The discretion to be exercised pursuant to s 7 demands a normative judgment which is quite different from traditional judicial discretion. The Court has been entrusted with a mandate to ensure public safety by interfering with the right to liberty of a person who is a high risk offender and poses an appreciable risk to the safety of the community if not supervised. The discretion is to be exercised having regard to both the interests of the community and the interests of the respondent, but by according the consideration of public safety paramountcy. 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.[9] 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.[8] [2017] SASC 89.[9] Attorney-General v Kimmins [2016] SASC 176 at [38].