Attorney-General (SA) v Symonds
[2021] SASC 145
•21 December 2021
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, considered.
ATTORNEY-GENERAL (SA) v SYMONDS
[2021] SASC 145Criminal: Application
PEEK J: The Attorney-General applies for an Extended Supervision Order pursuant to section 7(4) of the Criminal Law (High Risk Offenders) Act 2015 to be imposed upon the respondent.
Background and the Index charges
Mr Robert William Symonds (Symonds) was born on 22 November 1951 and is now 70 years old. He has no conviction for any offending except what I will refer to as the “Index charges”. However, there is no dispute that, because of those Index charges, Symonds falls within the definition of a “serious sexual offender” and is therefore, for the purposes of the Criminal Law (High Risk Offenders) Act 2015 (the HRO Act), a “high risk offender”.
The Index charges are three counts of unlawful sexual intercourse with a
14-year-old boy in 1994, some 27 years ago. The complainant will henceforth be referred to as “R”. Mr Symonds was then aged 42 and was a practising homosexual. He had met R at what was referred to as a homosexual “beat”.
R did not complain to the police until 2016, about 22 years later. Symonds was then charged with the three offences. The prosecution case was that the two went to Symonds’ house. Symonds there committed fellatio upon R (Count 1) and immediately thereafter R had intercourse with Symonds by placing his penis in Symonds’ anus (Count 2). On a different occasion, at some time later in 1994, a further act of fellatio occurred (Count 3). He was convicted of the three charges after pleading not guilty before Judge Beazley and a Jury in the District Court.
The pre-sentence report
I do not intend to publish details of this document.[1] While I put aside references to unproven allegations, I consider that there are some matters therein that militate in favour of the making of an ESO.
[1] Appended to Exhibit AG2 - second affidavit of Holly Frances Nikoloff sworn 28 May 2021.
Sentencing remarks of the Trial Judge
On 27 June 2018, District Court Judge Beazley sentenced Symonds to imprisonment for 3 years and 4 months and fixed a non-parole period of 18 months. Symonds was then 66 years old. In his sentencing remarks, his Honour stated that he accepted that R was pro-active in that he asked Symonds if he would like to commit fellatio upon R. Indeed, the Judge stated that he would sentence Symonds on the basis that R was a willing participant who initiated the sexual acts.
The Judge further stated that “there is no need for personal deterrence, as you have not been convicted of any other offence over the last 24 years”. As to the non-parole period, his Honour stated:[2]
In respect of fixing a non-parole period I again take into account those matters personal to you, including the fact that ‘R’ was proactive, the delay, your health and your unblemished record. Unlike your co-accused you have not been subsequently convicted of other offences. While stressing the need to fix a non-parole period which reflects general deterrence, these matters permit a merciful approach. Accordingly I fix a very low non-parole period of 18 months.
[2] Appended to Exhibit AG1 - affidavit of Holly Frances Nikoloff sworn 4 March 2021.
Both the head sentence and the non-parole period were backdated to 28 February 2018 when he had been first taken into custody.
Treatment while in prison
While in prison in January 2020, Symonds was assessed as suitable to participate in the Sexual Behaviour Clinic Program, but his participation was later terminated due to “poor behaviour” and his refusal to sign a “Behaviour Contract”.[3] He has not undertaken any other treatment of counselling relating to his risk of sexual reoffending.
[3] Minute from Sarah Martin and Rhys Scott dated 31 July 2020. Appended to Exhibit AG1 - affidavit of Holly Frances Nikoloff sworn 4 March 2021.
Refusal of parole
I have had regard to a letter from the Parole Board dated 17 May 2021 entitled “Reasons For Refusal – Robert William Symonds”.[4] I do not intend to publish details of this document. While I put aside references to unproven allegations, I consider that there are some matters therein that militate in favour of the making of an ESO.
[4] Appended to Exhibit AG3 - affidavit of Louise Kleinig sworn 24 June 2021.
The application for an Extended Supervision Order to be imposed
On 5 March 2021, the Attorney-General applied for an Extended Supervision Order (ESO) pursuant to section 7(1) of the HRO Act for a period up to three years. On 24 March 2021, David J ordered the prescribed health reports in relation to the respondent. On 1 June 2021, the matter was called on for argument in relation to the material to be provided to the report writer and affidavits were received in support. The matter was adjourned for further argument.
On 7 June 2021, Dr Pei Lim completed her psychiatric report which was provided pursuant to s 7(3) of the HRO Act. She concluded (inter alia): “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.” This report is considered in detail below.
On 16 June 2021, the matter was called on to set a further date for argument, and in particular as to the proposed conditions of a proposed Interim Supervision Order (ISO). Outlines of argument in relation to the proposed ISO conditions were received by the court.
On 25 June 2021, Bampton J heard argument and ordered that the respondent be subject to an ISO and adjourned the matter to 2 September 2021 for the determination of the application for an ESO.
On or about 27 June 2021, Symonds completed his head sentence, and he was released (subject to him conforming with the ISO).
On Friday, 27 August 2021, the Court received correspondence from Mr Blake, an employee of the Legal Services Commission and Symonds’ then solicitor. He requested the matter be called on as “[the respondent’s] grant of legal aid has been cancelled …”. Mr Blake indicated that he was to contact the respondent and inform him of this fact and the fact that the respondent will need “… to obtain his own legal representation and decide whether he pursues the challenge to the application for an [ESO].”
The proceedings before me
The matter first came before me on Wednesday, 1 September 2021, at which time Mr Blake confirmed that legal aid had been refused on a means basis and that Mr Symonds might obtain other (private) legal representation. I granted permission for Mr Blake to withdraw from the matter. Symonds then indicated to me that he intended to act for himself. I advised against that and urged him to retain a lawyer. He further indicated that he wished to cross-examine Dr Lim at the hearing. The matter was adjourned to Thursday, 21 October 2021 for a hearing of the application for an ESO.
The applicable legislation
The Criminal Law (High Risk Offenders) Act 2015 relevantly provides (inter alia):
Part 2—Extended supervision orders
7—Proceedings
(1)The Attorney‑General may make an application to the Supreme Court for an extended supervision order to be made in respect of a person who is a high risk offender (the respondent).
(2)An application for an extended supervision order may only be made within 12 months of the relevant expiry date for the respondent.
(3)The Supreme Court must, before determining whether to make an extended supervision order, direct that 1 or more prescribed health professionals examine the respondent and report to the Court on the results of the examination, including—
(a) if the respondent is a serious sexual offender—an assessment of the likelihood of the respondent committing a further serious sexual offence; or
(b) if the respondent is a serious violent offender—an assessment of the likelihood of the respondent committing a further serious offence of violence; or
(c) if the respondent is a terror suspect—an assessment of the likelihood of the respondent committing a terrorist offence, or otherwise being involved in a terrorist act, or committing a serious offence of violence.
(4) The Supreme Court may, on application under this section, order that the respondent is to be subject to an extended supervision order if satisfied that—
(a) the respondent is a high risk offender; and
(b)the respondent poses an appreciable risk to the safety of the community if not supervised under the order.
(5) The paramount consideration of the Supreme Court in determining whether to make an extended supervision order must be the safety of the community.
(6) The Supreme Court must also take the following matters into consideration in determining whether to make an extended supervision order in respect of the respondent:
(a) the likelihood of the respondent—
(i) committing a further serious sexual offence; or
(ii) committing a further serious offence of violence; or
(iii)committing a terrorist offence, or otherwise being involved in a terrorist act, or committing a serious offence of violence,
(as the case may be) if not supervised under the order;
(b)the reports of any prescribed health professional (as directed under subsection (3)) furnished to the Court;
(c)any report prepared by the Parole Board under section 64(5) of the Correctional Services Act 1982;
(d)any report required by the Court under section 20 (including the results of any statistical or other assessment furnished to the Court as to the likelihood of persons with histories and characteristics similar to those of the respondent committing a further relevant offence);
(e)any relevant evidence or representations that the respondent may desire to put to the Court;
(f)any treatment or rehabilitation program in which the respondent has had an opportunity to participate, including his or her willingness to so participate and the extent of such participation;
(g)in the case of a respondent released on parole—the extent to which he or she has complied with the conditions of his or her release on parole;
(h)in the case of a respondent subject to an existing extended supervision order—the extent to which he or she has complied with the terms of the order;
(i)in the case of a respondent who is a registrable offender (within the meaning of the Child Sex Offenders Registration Act 2006)—the extent to which he or she has complied with any obligations under that Act;
(j)the circumstances and seriousness of any offence in respect of which the respondent has been found guilty according to his or her criminal history, and any pattern of offending behaviour disclosed by that history;
(k)any remarks made by the sentencing court in passing sentence;
(l) any other matter that the Court thinks relevant.
…
10—Supervision orders—terms and conditions
(1) The following conditions apply in relation to an extended supervision order:
(a) a condition that the person subject to the order not commit any offence;
(b) a condition that the person subject to the order is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 2015) or any part of a firearm;
(c) a condition prohibiting the person subject to the order from possessing an offensive weapon unless the Supreme Court permits the person to possess such a weapon and the person complies with the terms and conditions of the permission;
(d) a condition that the person subject to the order—
(i) be under the supervision of a community corrections officer; and
(ii)obey the reasonable directions of the community corrections officer; and
(iii)submit to such tests (including testing without notice) for gunshot residue as the community corrections officer may reasonably require;
(e) any other condition that the Court thinks fit and specifies in the order;
(f) any condition imposed by the Parole Board under section 11.
…
12—Duration of extended supervision order
(1) An extended supervision order—
(a) takes effect—
(i) on the making of the order; or
(ii) on the relevant expiry date for the person subject to the order,
whichever is the later; and
(b) remains in force for a period of 5 years or such lesser period as is determined by the Supreme Court and specified in the order.
(2)The obligations of a person subject to an extended supervision order are suspended during any period the person is in government custody.
(3)Nothing in this section prevents the Court, on application by the Attorney‑General, from making a second or subsequent extended supervision order against a person.
It is to be observed that s 10(1) placita (a), (b), (c), (d) and (f) specify conditions which must be included if an order is made. However, s 10(1)(e) is discretionary and permits the Court to impose any other condition it thinks fit. Similarly, s 12(1)(b) is discretionary in that it imposes a maximum period within which an extended supervision order can remain in force but permits the Court to make an extended supervision order for a lesser period than five years.
The hearing of the application for an ESO on 21 October 2021
The application for an ESO came on for hearing on 21 October 2021. At that time Symonds was unrepresented. He did not wish to adjourn the matter to enable him to obtain legal representation and insisted on proceeding unrepresented.
I received the following material tendered by the prosecution:
·Exhibit AG1 - Affidavit of Holly Frances Nikoloff sworn 4 March 2021;
·Exhibit AG2 - Second Affidavit of Holly Frances Nikoloff sworn 28 May 2021;
·Exhibit AG3 - Affidavit of Louise Kleinig sworn 24 June 2021;
·Exhibit AG4 – Psychiatric report of Dr Pei Lim dated 7 June 2021;
·Exhibit AG5 - Extract of trial transcript of Mr Symonds commencing 26 February 2018.
Exhibit AG4: The psychiatric report of Dr Pei Lim dated 7 June 2021
A psychiatric report of Dr Pei Lim dated 7 June 2021 was received as Exhibit AG4. It is a lengthy document and I summarise parts of it only as follows.
The District Court sentencing proceedings 27 June 2018
Dr Lim referred to the District Court sentencing proceedings thus:
2.14 The judge noted that the victim was 14, homeless and vulnerable whereas Mr Symonds was “a mature person…knowing that what you were doing constituted serious criminal conduct. It must have been apparent to you that R had no regular place to stay and was in need of accommodation. It would have come as no surprise to you when R moved in with your co-accused.” The offending had lasting negative impact on the victim who had ongoing intimacy problems and begun to abuse methamphetamines due to his sexual abuse by older men.
2.15 Judge Beazley observed that Mr Symonds had “no insight as to the effect upon him (the victim). Your lack of remorse tells against a finding of good reason. Your victim has for 24 years suffered the adverse effects of your offending. He has not observed any remorse from you. You remain in denial. Indeed, you do not accept that you offended at all.” Despite Mr Symond’s “unblemished record”, the judge considered that “an unblemished record is quite a common feature in offences of this nature”. The court considered a Home Detention Order was inappropriate as it would affect public confidence and Mr Symonds would be on his own at home, where some of the offending occurred and he remained in denial.
The Pre-sentence Report for the District Court sentencing proceedings
Dr Lim referred to the Pre-sentence Report for the District Court sentencing proceedings thus:
2.22 Mr Symonds maintained his innocence throughout the trial and post-conviction. He admitted that he met the victim in 1994 outside the public toilets at Rymill Park and used to see him “occasionally” before driving him home or taking him to see other friends. The report noted that Mr Symonds’ contact with the victim reflected grooming or creation of opportunities for sexual encounters. The report noted Mr Symonds had been charged with numerous sexual offences in the past and the index offences “follows a pattern of allegations of a similar nature/theme”.
2.23 Mr Symonds said he did not consider the age of the victim but thought he was “a bit older than 14 years”. Mr Symonds’ apparent lack of attention to the significant age gap between him and the victim reflected minimisation of the inherent power imbalance in the relationship, and blurred the usual social norms between adults and children. He remained in denial with no remorse or victim empathy.
2.24 Although Mr Symonds did not have general criminogenic factors like substance abuse, impulsivity or antisocial attitudes, the report noted that in sexual offending, “perpetrators can maintain the appearance of an ordinary life on the surface since the arena of offending relates to private situations and settings”. It was recommended that further intervention be undertaken to address criminogenic factors specific for sexual offending including: intimacy issues, risky scenarios that allow grooming, beliefs that affect arousal and permit offending. Mr Symonds was considered higher risk as he continued to deny his offending and placed himself in situations of proximity to children or youths.
2.25 His denial and poor motivation to engage were barriers to treatment, hence it was recommended that external restrictions were necessary to minimise his risk of recidivism. A high level of supervision was recommended if he received a community-based order. It was noted that nothing precluded him from receiving a custodial sentence.
Sexual Risk Assessment 30 August 2018
Dr Lim referred to the Sexual Risk Assessment which took place on 30 August 2018 while Symonds was serving his sentence thus:
2.27 Mr Symonds was now under protection in prison. He was willing to engage in rehabilitation programs if it meant he could be released at “the first available opportunity”. He conceded that sexual activity had indeed occurred with the victim but thought the victim was “a lot older than he actually was, the age of consent or higher”. He believed that the victim was motivated by financial gain. He felt his sentence was “a pretty good result” as he understood that similar offences attracted heavier sentences. It was recommended that his social relationships and recreational activities be closely monitored upon release.
Sexual Behaviour Clinic (SBC) Pre-treatment report dated 10 January 2020.
Dr Lim referred to the Sexual Behaviour Clinic (SBC) Pre-treatment report dated 10 January 2020 compiled while Symonds was serving his sentence thus:
2.34 Mr Symonds was considered to have the following treatment needs and risk factors: sexually deviant lifestyle, sexual compulsivity, offence planning, cognitive distortions, insight, limited community support, release to high risk situations, deviant sexual preference and intimacy deficits. His risk was estimated to be “above average range should he not receive treatment”. Under the Department’s operational risk language, this was equivalent to “a moderate to high risk of sexual reoffending”.
Sexual Behaviour Clinic Termination survey
Dr Lim referred to the Sexual Behaviour Clinic Termination survey which was compiled while Symonds was serving his sentence thus:
2.35 Mr Symonds started attending the Sexual Behaviour Clinic program in December 2019. Despite his high level of intelligence, he rarely contributed to the discussions unless specifically questioned. Even then, his responses were often brief and lacking in details or examples. During individual sessions, he came across as “highly controlled and considered in the information he offered”. There was evidence of impression management. For example, he claimed that his thinking had changed since attending the SBC program, even though he had only completed 4 weeks of group work. With specific prompting, he provided information about significant life events but was “unable or unwilling to discuss the impact on his attitudes, behaviour or functioning”.
2.36 Following the COVID-19 pandemic, program delivery changed to weekly telephone calls using workbooks. Although Mr Symonds’ written work reflected his ability to understand concepts, he was persistently unwilling to connect the offence-related concepts to his life events. He denied that any of his life experiences, attitudes or beliefs were connected with his decision to offend. He saw his offending as “an error of judgement and an inability to screen sexual partners”, a failure to consider consequences and a failure to plan to avoid an outcome. He believed that his decision was an “aberration” and he was no longer at any risk of sexual reoffending as he was no longer interested in sex. The report indicated that his attitudes reflected his unwillingness to gain insight into his offending behaviour.
2.37 Mr Symonds was offered the opportunity to continue the program if he met the expectations outlined in a behaviour contract. In June 2020, Mr Symonds refused to sign the behaviour contract and was subsequently removed from the SBC program. His criminogenic risk factors remained unaddressed due to his poor participation and engagement. There was insufficient time remaining on his sentence to include him in future prison programs.
2.38 In conclusion, the report noted that Mr Symonds met the criteria for an Extended Supervision Order (ESO) and indeterminate detention under Section 57 of the Sentencing Act. It was recommended that the ESO include conditions to monitor his associates, stipulate exclusion zones (where underage males are known to congregate) and mandate him to attend a community-based SBC program to address his outstanding risk factors.
Dr Lim’s interviews with Symonds
Dr Lim described her interviews with Symonds in fine detail. She referred to many salient matters including the following:
7.19 I asked Mr Symonds in relation to his future plans. He wanted to return to his Vale Park property. He said that he would avoid socialising at “gay beats” in future but was unable to provide suggestions for alternative venues. When asked for specific details, he said he would engage in “normal run of the mill activities” but was again unable to provide examples. When asked to elaborate further, he appeared evasive and vague, stating he would “go to places” where he could “talk to people, meet new people in society”. When I pointed out that he had not provided any specific examples of how and where he might socialise upon release, he commented that it was “an interesting thought”. He did not believe he would struggle to fill the void if he had to avoid “gay beats”, despite frequenting them for 40 years to meet his social needs.
7.20 In view of his limited social support, we discussed how he would manage stress upon release. His response was “by not letting situations get on top of me, try to sort out problems. I would just not worry”.
7.21 Mr Symonds indicated that he was opposed to the ESO application but would comply with the order if it was made.
And later she stated:
9.8 Mr Symonds’ account of the index offences has been inconsistent over the years and he appears willing to modify his responses to achieve his desired outcome. During his trial, he gave evidence confirming that the victim was “quite possibly” 14 years old when they first met, but strenuously denied engaging in any sexual activity with him. He claimed the victim was financially motivated to press charges, and alleged that his co-accused testified against him in retaliation over another matter. Following his convictions, he admitted sexual activity did in fact occur on multiple occasions but claimed he thought the victim was older than 14. His denial of wrongdoing has persisted and reinforced by projecting blame and responsibility to the underage victim.
9.9 Despite his denial, Mr Symonds indicated his willingness to engage in the Sexual Behaviour Clinic (SBC) program to secure early release. The program facilitators expressed concerns about the veracity of his account and impression management. He paid lip service during sessions and ultimately chose to terminate therapy when requested to engage meaningfully. Parole that was initially granted was revoked due to his outstanding treatment needs.
9.10 Currently, Mr Symonds is opposed to the ESO application as he believes he is no longer a risk, ostensibly due to his asexuality following his imprisonment. … There is no way of proving if he has become permanently asexual but I remain unconvinced. His generally evasiveness, impression management and history of duplicity to achieve a desired outcome makes it difficult to accept him at face value. Even if he is given the benefit of the doubt, sexual offending may be driven by factors unrelated to libido (eg loneliness, need for control) and can occur even when there is sexual dysfunction in the perpetrator.
Risk assessment
In order to assess the likelihood of Mr Symonds’ likelihood of reoffending, I have used both actuarial and structured professional judgment tools commonly used in forensic practice.
9.11 The Static 99R is an actuarial tool based on demographic and criminogenic factors known to correlate with sexual recidivism. A numerical score is calculated with higher scores reflecting higher risk of recidivism. This instrument takes into consideration Mr Symonds’ age which substantially reduces his total score. Despite this significant discount, Mr Symonds’ overall score still places him at the above average risk of sexual re-offending.
…
Psychological adjustment
9.15 Mr Symonds’ risk factors are particularly concerning under this domain. Denial and minimisation remain pertinent risk factors. During the jury trial, he strenuously denied the offences and tried to discredit the victim and co-accused’s evidence. Although he has since admitted that sexual activity occurred, he has denied wrongdoing by claiming he was unaware of the victim’s age (contradictory to his own evidence in court) and denied engaging in anal intercourse. Overall, Mr Symonds has taken minimal responsibility for the offences.
9.16 The next risk item relates to pro-offending attitudes. Mr Symonds exhibits a range of cognitive distortions that condone his offending. Cognitive distortions refer to attitudes and beliefs that are deliberately skewed to justify or permit offending. He maintains that the victim looked older than 14 and blames him for initiating the offences. He still justifies his offending by maintaining the victim was fully aware of what he was consenting to, despite his age and obvious vulnerabilities. Mr Symonds has not demonstrated any victim empathy or remorse. On the contrary, he has persisted in making disparaging remarks about the victim’s character and financial motive. Overall, Mr Symonds does not view himself as a perpetrator and his stance allows him to distance himself from responsibility, which in turn hinders genuine reflection and change.
9.17 Another risk factor is Mr Symonds’ limited self-awareness of the factors that contributed to his offence cycle. His repeated reference to the offences as an “aberration” allows him to avoid reflecting on the thoughts, feelings and impulses that contributed to his offending. If he does not understand what led to the “aberration” and does not consider himself a risk, then he cannot be relied upon to autonomously implement strategies that reduce his risk of recidivism.
9.18 The next item relates to stress and coping skills. Mr Symonds has previously coped with a stressful job for many decades and is clearly competent in task-based activities. However, due to his reluctance to disclose, it is unclear how he copes with stress from social isolation and interpersonal conflicts. It is also unclear whether he frequented the “beats” and used sex to cope with stress.
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
Dr Lim attended at the hearing at the request of Symonds who wished to cross-examine her. Her report was tendered and there was no examination in chief. Dr Lim was cross-examined by Symonds to little effect.
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].
I agree with those paragraphs.
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].
Later, in R v Kimmins, Stanley J further observed:[10]
38. … In this case, given the terms of this legislation, specifically the paramount consideration of public safety, in the exercise of the Court’s discretion relatively smaller degrees of risk will outweigh considerations which, even strongly, would militate against the making of an extended supervision order.
[10] [2016] SASC 176.
In R v Schuster, the Court of Criminal Appeal considered the meaning of the expression “the safety of the community is paramount” in the context of sections 23 and 24 of the Criminal Law (Sentencing) Act 1988 (SA) and stated:[11]
79. 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.
80. More fundamentally, it is in the very nature of a discretion that the level of risk, whatever it is, may nonetheless be sufficiently outweighed by other factors to justify release on licence. For example, an offender with some degree of short term risk of re-offending who has excellent prospects of medium to long-term rehabilitation might be released on licence, when an offender with the same risk profile but poor prospects of rehabilitation would not. The effect of making public safety the paramount consideration is that, speaking generally, relatively smaller degrees of risk will outweigh considerations which, even strongly, support release. 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.
[11] [2016] SASCFC 86 at [79]-[80], (2016) 125 SASR 388 at 405-406.
Bearing in mind that Symonds is unrepresented, I will put the matter very briefly (and hopefully clearly). The essential problem for Symonds is that the authorities establish that the task of demonstrating that a respondent “poses an appreciable risk to the safety of the community if not supervised under the order”[12] is a quite low bar. Here, the definitive statement of Dr Lim in her report (“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”) was added to at the hearing by the further definitive statement: “Even if we completely exclude the unproven allegations my final conclusion for my risk assessment is unchanged.” Those two definitive statements together form Dr Lim’s ultimate opinion.
[12] Being the test stipulated by s 7(4)(b) of the HRO Act.
Giving full weight and effect to the evidence of Symonds and his submissions, and having full regard to all of the evidence, I am not in a position to reject that ultimate opinion. In the circumstances, no reason exists not to accept Dr Lim’s opinion which is grounded in rational and logical precepts. No opinion given by any official throughout the period of Symonds’ custody is at variance with it. In all of the circumstances, I accept Dr Lim’s ultimate opinion. Accordingly, the Attorney-General has persuaded me (albeit by a quite narrow margin) that Symonds “poses an appreciable risk to the safety of the community if not supervised under the order”.
As noted above, the further fifth question remains: the conditions precedent being satisfied, is it appropriate to impose an ESO upon the respondent?
Here I must have regard to all of the facts and circumstances before me including (but not limited to) the matters referred to in s 6 placita (a) to (l). I confirm that I have had regard to each of those placita where applicable (but noting that I have disregarded material based upon unproven allegations of criminal offending). I must then apply the decided authorities (and particularly the South Australian authorities) to the facts and circumstances as I consider them to be.
Following that process I have concluded, not without some hesitation, that it is appropriate to impose an ESO upon the respondent.
Mandatory and discretionary conditions
I come now to the sixth and final question: “It being 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 Attorney-General proffered the following draft document which contains both mandatory conditions (only those at paragraphs numbered 2.1 to 2.4 and 2.19) and additional suggested discretionary conditions thus:
1. The respondent is to be subject to an extended supervision order for a period of three years from the date of this order.
2. The conditions to which the respondent is subject are:
2.1 the Respondent will not commit any offence;
2.2 that 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 that 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 that the Respondent will:
2.4.1 be under the supervision of a Community Corrections Officer;
2.4.2 obey the reasonable directions of that Community Corrections Officer;
2.4.3 submit to such tests (including testing without notice) for gunshot residue as the Community Corrections Officer may reasonably require;
2.5 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;
2.6 the Respondent will reside at an address that is approved in writing by his community corrections officer and will not change his residence without the prior written approval of his community corrections officer;
2.7 the Respondent will maintain a telephone service for the duration of this order and provide his community corrections officer with the phone number(s);
2.8 the Respondent will, upon his release from prison, be fitted with an electronic monitoring device and will wear this device for such period of time as determined by the Parole Board. The Respondent will obey all directions of his community corrections officer with respect to the wearing and maintenance of the electronic monitoring device;
2.9 the Respondent will be subject to a curfew for such period of time as determined by the Parole Board. Whilst subject to a curfew the Respondent is to remain in his residence between 9pm and 6am, and he will present to police, a community corrections officer or such person as is authorised to conduct a curfew check at his front door on request;
2.10 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 and will advise his community corrections officer of any drug that has been prescribed to him by a legally qualified medical practitioner;
2.11 the Respondent will submit to drug testing (including testing without notice) as directed by his community corrections officer or the Parole Board and will do all things and sign all forms as may be necessary to enable samples to be taken and analysed, and to enable the results of such analysis to be provided to his community corrections officer and/or the Parole Board;
2.12 the Respondent will attend and participate in any assessments and/or counselling and/or treatment and/or programs relating to sexual offending as directed by his community corrections officer;
2.13 the Respondent will not contact, communicate or associate with, or attempt to contact, communicate or associate with, whether directly or indirectly, with the victim of his offending (R) or his co-accused (John Argent);
2.14 the Respondent will follow any written direction issued to him by his community corrections officer in relation to not contacting or associating with any person named in the written direction;
2.15 the Respondent will not contact, communicate or associate with, or attempt to contact, communicate or associate with, whether directly or indirectly, with any person under the age of 18 years unless his community corrections officer is present or he obtains the prior written approval of his community corrections officer;
2.16 the Respondent will no [sic] provide or offer accommodation to any person under the age of 18 years;
2.17 the Respondent will not loiter without reasonable excuse at, or in the vicinity of, a school, public toilet, playground or place at which children are regularly present and will not loiter without reasonable excuse at any of the following locations:
a. the Eastern Parklands of Adelaide comprising Rundle Park (Kadlitpina – Park 13), Rymill Park (Murlawirrapura – Park 14), King Rodney Park (Ityamai-Itpina – Park 15) and Victoria Park (Pakapakanthi – Park 16) bordered by East Terrace, Rundle Road, Dequettaville Terrace and Greenhill Road;
b. the Southern Parklands of Adelaide comprising Carriageway Park (Tuthangga – Park 17), Peppermint Park (Wita Wirra – Park 18), Pelzer Park (Pityarilla – Park 19), Blue Gum Park (Kurannga – Park 20), Veale Park (Walya Yarta – Park 21), Golden Wattle Park (Mirnu Wirra – Park 21W) and Josie Agius Park (Wikaparntu Wirra – Park 22) bordered by Anzac Highway, South Terrace, Fullarton Road and Greenhill Road; and
c. the area within Adelaide bordered by the Torrens River (Karrawirra Parri), the Adelaide University Footbridge, Victoria Drive and Kind [sic] William Road (including Jolley’s Lane).
2.18 the Respondent will follow any written direction issued to him by his community corrections officer in relation to not attending at and/or loitering without reasonable excuse at any specified place described in the written direction.
2.19 Any condition imposed by the Parole Board under s 11 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
As noted above, only paragraphs numbered 2.1 to 2.4 inclusive and 2.19 are conditions which must be included if an order is to be made.
However, as to the additional proposed conditions presently sought in the draft order supplied, I foreshadow that I am not persuaded that the Attorney-General has established that, in all of the circumstances, all of those conditions are either required or appropriate.[13]
[13] Hinton J stated in Attorney-General (SA) v Wells [2017] SASC 149 at [9] “Clearly the onus is upon the Attorney-General to adduce evidence capable of satisfying the Court that each of the qualifying criteria are satisfied and that the discretion, if enlivened, ought be exercised.” This obviously applies to particular discretionary conditions as well as the making of the Order itself.
Consideration
I consider that, given both the low bar test for making an order and the fact that certain important conditions must be included if that low bar test is met, it follows that the discretion to attach additional conditions impinging on the freedom of a person who has fully served his sentence must be exercised with care.
In this regard, I note that in Police v Sullivan; Attorney-General (SA) v Sullivan, Hinton J observed:[14]
97. An extended supervision order should only interfere with the liberty of a respondent to the extent, and for only so long, as is necessary to protect the community from the appreciable risk that the respondent poses. Whilst an extended supervision order may be made for up to five years,[15] it is for the Attorney-General to justify the period of any order sought. It is not to the point that a respondent can subsequently apply for the revocation of an order made for 5 years if in the interim it is no longer required. It is for the State to justify interference with the liberty of the subject.
[14] [2018] SASC 11.
[15] High Risk Offenders Act, s 12.
And in Attorney-General (SA) v Karpany, Livesey J stated:[16]
26. … Any lack of opposition to, or acquiescence in, the conditions being sought does not relieve the Court from the task of determining whether an order should be made, and what conditions should be imposed, as part of the order. The onus lies on the Attorney, as the applicant, to justify the imposition of both an order and a particular condition. Put simply, it is "for the State to justify interference with the liberty of the subject".
…
28. The breach of any conditions of an extended or interim supervision order may expose the respondent to arrest and detention pursuant to the provisions in Part 3 of the High Risk Offenders Act.
29. Thus, the restrictive and burdensome nature of the conditions, coupled with the potential consequences that may flow from breach, emphasise the need for the Attorney to demonstrate that there exists a proper basis or reason for the imposition of both an order and any condition. [Emphasis added] [Citation omitted]
[16] [2020] SASC 219.
I will proceed by sequentially considering each of the paragraphs in the above draft ESO submitted by the Attorney-General.
As to draft paragraph 1, having regard to Symonds’ present age of 70 and the fact that the Index charges occurred in 1994, about 27 years ago, and all of the other facts and circumstances, I consider that two years rather than three is appropriate.
As to draft paragraphs 2.1 to 2.4, these paragraphs are mandatory and are therefore included.
As to draft paragraphs 2.5 to 2.7, I consider these paragraphs to be appropriate.
As to draft paragraphs 2.8 to 2.9, I am not persuaded that such a sweeping incursion into fundamental rights and freedoms is justified as having sufficient utility in all of the present circumstances.
As to draft paragraphs 2.10 to 2.11, I consider these paragraphs to be appropriate.
As to draft paragraph 2.12, I am not persuaded that there is sufficient utility in such matters in all of the present circumstances.
As to draft paragraph 2.13, I consider this paragraph to be appropriate.
As to draft paragraph 2.14, I am not persuaded that there is sufficient utility in such a broad power to be given in all of the present circumstances including that the respondent has been released after serving his full sentence and the Attorney-General has had the opportunity to furnish specific names to be included in these conditions (as they have been included at draft paragraph 2.13).
As to draft paragraphs 2.15 to 2.16, I consider these paragraphs to be appropriate (with the typographical error “no” being changed to “not” in draft paragraph 2.16).
As to draft paragraph 2.17, I consider that this paragraph should be amended to read only as follows: “the Respondent will not loiter without reasonable excuse at, or in the vicinity of, a school, playground or other place at which children are regularly present”.
As to draft paragraph 2.18, I am not persuaded that there is sufficient utility in such a broad power to be given in all of the present circumstances including that the respondent has been released after serving his full sentence and the Attorney-General has had the opportunity to furnish specific places to be included in these conditions (as they have been included at draft paragraph 2.17).
As to draft paragraph 2.19, this paragraph is mandatory and is therefore included.
Disposition and orders
For all of the above reasons, I order pursuant to section 7(4) of the Criminal Law (High Risk Offenders) Act 2015 that an Extended Supervision Order be imposed upon Mr Robert William Symonds (Symonds) for a period of two years from today’s date and with the following conditions.
1. The respondent is to be subject to an extended supervision order for a period of two years from the date of this order.
2. The conditions to which the respondent is subject are:
2.1 the Respondent will not commit any offence;
2.2 that 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 that 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 that the Respondent will:
2.4.1 be under the supervision of a Community Corrections Officer;
2.4.2 obey the reasonable directions of that Community Corrections Officer;
2.4.3 submit to such tests (including testing without notice) for gunshot residue as the Community Corrections Officer may reasonably require;
2.5 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;
2.6 the Respondent will reside at an address that is approved in writing by his community corrections officer and will not change his residence without the prior written approval of his community corrections officer;
2.7 the Respondent will maintain a telephone service for the duration of this order and provide his community corrections officer with the phone number(s);
2.8 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 and will advise his community corrections officer of any drug that has been prescribed to him by a legally qualified medical practitioner;
2.9 the Respondent will submit to drug testing (including testing without notice) as directed by his community corrections officer or the Parole Board and will do all things and sign all forms as may be necessary to enable samples to be taken and analysed, and to enable the results of such analysis to be provided to his community corrections officer and/or the Parole Board;
2.10 the Respondent will not contact, communicate or associate with, or attempt to contact, communicate or associate with, whether directly or indirectly, with the victim of his offending (R) or his co-accused (John Argent);
2.11 the Respondent will not contact, communicate or associate with, or attempt to contact, communicate or associate with, whether directly or indirectly, with any person under the age of 18 years unless his community corrections officer is present or he obtains the prior written approval of his community corrections officer;
2.12 the Respondent will not provide or offer accommodation to any person under the age of 18 years;
2.13 the Respondent will not loiter without reasonable excuse at, or in the vicinity of, a school, playground or other place at which children are regularly present.
2.14 Any condition imposed by the Parole Board under s 11 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
3. This order takes effect on 21 December 2021.
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