Attorney-General (SA) v Tipping - [2020] SASC 64

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v TIPPING
[2020] SASC 64
Judgment of The Honourable Justice Nicholson
27 April 2020
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 - GENERALLY
On 28 August 2019, this Court made an extended supervision order for a period of 5 years with respect to the respondent pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act).
In October 2019, the Respondent breached the conditions of his extended supervision order and was taken back into custody. Following an interview with the respondent, the Parole Board satisfied itself that the respondent had breached the extended supervision order. Pursuant to s 17(1)(b)(ii) of the Act, the Parole Board directed that the respondent be detained in custody pending attendance before this Court for determination as to whether a continuing detention order should be made under s 18(2) of the Act. Pursuant to s 18(4) of the Act, the Court made an interim detention order on 18 December 2019 detaining the respondent in custody pending the outcome of the continuing detention order application.
Held:
1.      A continuing detention order is not to be used as punishment for the breach of the extended supervision order.
2.      The risk to the community posed by the respondent has not increased since the earlier Judge formed her assessment and released the respondent on the extended supervision order.
3.      Further, if amendments to the extended supervision order along the lines of those suggested were to be made and intensive supervision of the respondent undertaken, the risk he poses to the public is likely to be ameliorated further.
4.      Subject to hearing from the parties on the matters referred to in paragraph [59] of the judgment, orders foreshadowed refusing to make a continuing detention order and releasing the respondent from custody subject to the extended supervision order.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, s17, s 18, s 19; Sentencing Act 2017 (SA) s 57, s 58, referred to.
Attorney-General (SA) v Grosser [2016] SASC 49, applied.
Attorney-General (SA) v Tipping [2019] SASC 133; Thomas v Attorney-General (SA) (2019) 133 SASR 302; Attorney-General v Sullivan (No 2) [2018] SASC 74, discussed.
Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11, considered.

ATTORNEY-GENERAL (SA) v TIPPING
[2020] SASC 64
Criminal: Application

NICHOLSON J: On 2 August 2019, a Judge of this Court delivered reasons for judgment[1] in which the Judge foreshadowed the making of orders: refusing the Attorney-General’s application pursuant to section 57 of the Sentencing Act 2017 (SA) that the respondent be indefinitely detained in custody; and allowing the Attorney’s application, in the alternative, pursuant to section 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act) that the respondent, upon release from custody, be subject to an extended supervision order (ESO).
[1] Attorney-General (SA) v Tipping [2019] SASC 133.
The respondent’s head sentence had expired on 19 January 2019 by which time he was no longer a sentenced prisoner nor in custody on remand for any other offending. However, on 16 January 2019, an interim detention order had been made pursuant to section 57 of the Sentencing Act 2017 (SA) pending final determination of the application for indefinite detention.
On 28 August 2019, another Judge of this Court made an ESO for a period of five years on strict terms, which included: home detention,[2] electronic monitoring, abstinence from illegal drugs, a requirement to undertake treatment and counselling for sexual offending and for mental health as directed, non-contact provisions with respect to minors and various requirements designed to assist the supervising authorities to exercise control over the respondent’s internet access and usage.
[2] In addition to emergency situations, the respondent was allowed to leave for remunerated employment and for other purposes for which approval was obtained.
The respondent was released from custody on 5 September 2019 subject to the ESO. However, in early October 2019, the respondent committed a breach of the ESO and is alleged to have committed a second breach. As a consequence, a Parole Board warrant was executed on 15 October 2019 and the respondent returned to custody. The matter first came before me on 18 December 2019 consequent on a reference pursuant to subsection 18(1) of the Act, instigated by the Parole Board. More detail as to the background to this reference and concerning the respondent’s personal circumstances, prior criminal record and the extent and nature of the risk the respondent poses for the safety of the community are set out in the reasons of the earlier Judge.[3]
[3] Attorney-General (SA) v Tipping [2019] SASC 133.
Section 18 makes provision for the making of an order in prescribed circumstances, having the effect of detaining a person in custody for the duration of the supervision order to which they are subject or such lesser period as may be specified by the Court (continuing detention order or CDO). The Attorney and the person subject to the supervision order are parties to the referred proceedings and the Parole Board may exercise a right to appear and be heard. Subsection 18(4) empowers the Court to make an interim detention order, pending a final determination of the reference, “if the Court thinks fit”. I made such an order on 18 December 2019. The Attorney supports, and the respondent opposes, the making of a continuing detention order. The Attorney submitted that such an order for the balance of the ESO period, approximately four and a half years, is warranted. As such, it was necessary for the parties to be given an opportunity to obtain relevant evidence and to argue the matter.
Background
The respondent has a dreadful history of sexual offending against children. The Judge who heard the section 57 application summarised it in these terms.[4]
On 23 February 2006, the respondent was sentenced by a District Court Judge for three sexual offences committed against two young boys. The facts upon which the respondent fell to be sentenced were as follows. The respondent had indecently assaulted the first victim, who was aged 12 at the time, by touching him on the penis behind a shed. The respondent had also indecently assaulted the second victim, aged eight at the time, by rubbing his genitals against the boy. Later that same day, the respondent had also performed an act of fellatio on the second victim, constituting an offence of unlawful sexual intercourse. The respondent was sentenced to four years’ imprisonment, with an 18-month non-parole period, which was suspended on the basis that he enter into a bond to be of good behaviour for three years.
Less than three months after being sentenced, the respondent committed a further sexual act of gross indecency against a 13-year-old boy by masturbating in front of him at the boy’s home. Approximately three months after that incident, the respondent committed an act of unlawful sexual intercourse against the same 13-year-old boy by performing fellatio on him at the respondent’s home. Those two offences constituted a breach of the bond which the respondent had entered into on 23 February 2006. On 17 August 2007, the respondent was sentenced by another District Court Judge to six years’ imprisonment with a non-parole period of three years and six months for that fresh offending. That term of imprisonment was ordered to be served concurrently with the previously suspended term of imprisonment imposed on 23 February 2006. The Judge also imposed a paedophile restraining order, pursuant to s 99AA of the Summary Procedure Act 1921 (SA).
On 17 December 2010, the respondent was released on parole in relation to the sentence imposed by the District Court Judge on 17 August 2007.
Regrettably, within two months of release the respondent commenced an association with a 15-year-old boy which led to further offences of indecent assault and unlawful sexual intercourse. These offences occurred when the respondent spent the night at the boy’s home and slept in the boy’s bed with him. The sexual offending again involved the respondent fondling the boy’s penis and then performing an act of fellatio on him. In the lead-up to that offending the respondent had communicated with the victim on Facebook, the victim and the respondent had visited each other’s houses regularly, and the respondent had exposed the victim to pornography depicting boys about his age engaged in oral and anal sex.
The respondent was arrested, charged and eventually sentenced for that offending on 13 April 2015 by another District Court Judge. A single sentence of six years and four months with a non-parole period of four years and six months was imposed, backdated to 20 September 2012 when the respondent’s earlier period on parole had expired.
[4] Attorney-General (SA) v Tipping [2019] SASC 133 at [4]-[8].
The Judge analysed the expert evidence before the Court in detail and accepted the following opinions respectively expressed by the forensic psychiatrists, Dr O Haeney and Dr N P Nambiar.[5]
I believe that Mr Tipping’s conduct historically demonstrates a failure to control his sexual instincts even when subject to bonds or parole, leading to recidivism within a short period following release from custody. This conclusion is further underpinned by his conduct within prison, engaging in behaviour that was said to parallel his offending history even when in custody and engaged in a Sexual Behaviour Clinic program. In my opinion the only conclusion is that Mr Tipping could be regarded as being unwilling to control his sexual instincts despite his protestations that such sexual instincts have diminished to the point of no longer existing.
(Dr Haeney)
. . . .
With regards to unwillingness to control his sexual instincts, in my opinion, Mr Tipping’s history of offending, which appears to have increased in complexity and severity over a period of seven years during which time he committed offences shortly after he was released on parole, would suggest to me that he poses a significant risk to the community. Despite participation in the SBC-me program, which appears to be variable in terms of engagement and understanding, Mr Tipping’s conduct during the program including parallel offending behaviours whilst in custody, all suggest that he remains high risk.
In my opinion, there is a significant risk that Mr Tipping would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts.
(Dr Nambiar)
[5] Attorney-General (SA) v Tipping [2019] SASC 133 at [30]-[31].
Following her analysis of the available evidence, the Judge made the following finding.[6]
I must therefore exercise the discretion under s 57(7) of the Sentencing Act on the basis that the respondent is unwilling to control his sexual instincts and that despite extensive treatment over the past several years he does continue to maintain a perverse and deviant interest in young males, particularly under the age of consent.
It should be borne in mind that by definition,[7] a person 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 [that is a prescribed sexual] offence, fail to exercise appropriate control of the person’s sexual instincts.
[6] Attorney-General (SA) v Tipping [2019] SASC 133 at [41].
[7] Subsection 57(1) of the Sentencing Act 2017 (SA).
It is also important to note that whilst there were powerful considerations in favour of the Attorney’s case for an order under section 57 for indefinite detention, there also were powerful considerations militating against the making of such an order, particularly when regard is had to the analysis and observations of the Full Court in Thomas v Attorney-General (SA).[8]
[8] [2019] SASCFC 21; (2019) 133 SASR 302 at [38]-[50], [73] and [86] (Kourakis CJ with whose reasons Nicholson and Parker JJ agreed).
The Judge provided detailed reasons, including by reference to Thomas as to why an order under section 57 was not justified in the circumstances. Her Honour recognised the following.[9]
Both the psychiatrists and the Parole Board have expressed concern that, should the respondent be released into the community, he is likely to continue to engage in grooming and other para-offending type behaviours giving rise to a very high likelihood that he will commit further serious sexual offences.
. . . .
It is uncontentious that the respondent has previously continued to offend whilst on parole and whilst subject to a bond. However, it was not in dispute that the respondent has never been placed on an extended supervision order and that, while he has been subject to other kinds of supervisory conditions in the past, he had never been subject to electronic monitoring.
Nevertheless, her Honour ultimately concluded as follows.[10]
I have taken into account the same concerns expressed by the Court in Thomas, particularly in relation to the effect of treatment in prison alone and the limitations of assessment about a person’s behaviour in the artificial environment of a prison. Without the respondent having previously had the opportunity to comply with such strict conditions, I am not persuaded at this stage that the risk to the community posed by the respondent cannot be adequately addressed by the respondent being subjected to strict home detention and electronic monitoring conditions as part of an extended supervision order under the HRO Act.
[9] Attorney-General (SA) v Tipping [2019] SASC 133 at [42] and [46].
[10] Attorney-General (SA) v Tipping [2019] SASC 133 at [58].
The making of an ESO under section 7 of the Act was not opposed by the respondent and the Judge’s decision to make such an order necessarily meant that she was satisfied that the prerequisite jurisdictional facts for such an order had been established, namely, that the respondent was a high risk offender and that he would pose an appreciable risk to the safety of the community if not supervised under the ESO.[11]
[11] Subsection 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) provides:
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.
The Judge’s decision has not been appealed. Rather, the Attorney now seeks to have the respondent further detained for the balance of the term of the ESO following the respondent’s breach of the ESO.
It is against this background that the Parole Board’s reference to this Court for the making of a continuing detention order pursuant to section 18 of the Act falls to be decided.
Section 18 and the evidence before the Court
Section 18 of the Act is in these terms.
(1)If the Parole Board directs that a person subject to a supervision order be detained in custody pending attendance before the Supreme Court for determination as to whether a continuing detention order should be made in respect of the person, the matter is referred to the Court by force of this subsection.
(2)The Supreme Court may, if satisfied that the person—
(a)     has breached a condition of the supervision order; and
(b)     poses an appreciable risk to the safety of the community if not detained in custody,
order that the person be detained in custody (a continuing detention order) until the expiration of the supervision order, or for such lesser period as may be specified by the Court.
(3)The paramount consideration of the Supreme Court in determining whether to make a continuing detention order must be the safety of the community.
(4)The Supreme Court may, if the Court thinks fit, order that a person the subject of proceedings under this section be detained in custody pending the determination of the proceedings.
(5)The Attorney General and the person the subject of proceedings under this section are parties to the proceedings, and the Parole Board has a right to appear and be heard in the proceedings.
(5a)If proceedings under this section relate to a terror suspect—
(a)     the Attorney General may be represented in the proceedings by a terrorism intelligence authority; or
(b)     a terrorism intelligence authority has a right to appear and be heard in the proceedings.
(6)As soon as is reasonably practicable after making a continuing detention order or an order under subsection (4) in respect of a person subject to a supervision order, the Supreme Court must issue a warrant committing the person to a correctional institution for the period specified in the order.
(7)To avoid doubt—
(a)     if a person is detained in custody under this section until the expiration of his or her supervision order, the supervision order expires on the person's release from custody (but nothing in this paragraph prevents the Supreme Court, on application by the Attorney General, from making a second or subsequent supervision order against the person); and
(b)     if a person is detained in custody under this section for a lesser period, the person continues to be subject to the supervision order on release from custody for the balance of the duration of the order (and the date of expiry of the supervision order under section 12 is not affected by the fact that the obligations of the person under the order were suspended during the period that the person was in custody).
According to subsection 18(2), two jurisdictional facts (paragraphs (a) and (b)) must be established before the Supreme Court is empowered to make a continuing detention order. Once the Court is satisfied of those two facts, the Court “may” make such an order. There is an overarching discretion whether or not to make an order evident from the use of the word “may” and the requirement in subsection 18(3) that the paramount consideration in determining whether to make such an order “must be the safety of the community”. However, apart from this paramount consideration, section 18 provides no other express assistance as to the basis on which the discretion is to be exercised. Plainly, the discretion must be exercised judicially, that is, by having regard to relevant considerations and not having regard to irrelevant considerations.
On the hearing of the reference, I received without objection the following documentary evidence read on behalf of the Attorney:
(i)affidavits affirmed by Victoria Jean Montandon on 7 August 2018, 17 December 2019 and 24 January 2020, Michael Bruce Wood affirmed on 30 December 2019, Nickolas Leslie Fredella affirmed on 15 January 2020, Ashlee Bridge affirmed on 21 January 2020, Lauren Frances Sommer affirmed on 23 January 2020, Gabrielle Anna Wright affirmed on 17 January 2020, Sky Marie Lambert affirmed on 24 January 2020 and Jarrod Peter Davey affirmed on 24 January 2020;
(ii)a report by the forensic psychiatrist, Dr N P Nambiar, dated 5 December 2018, together with the transcript of the oral evidence he gave before the earlier Judge; and
(iii)a report by the forensic psychiatrist, Dr O Haeney, dated 2 April 2019 together with the transcript of the oral evidence he gave before the earlier Judge.
Both Dr Haeney and Lauren Sommer gave brief oral evidence before me to which I will return.
The two breaches

The two breaches of the ESO relied on by the Attorney have been conceded by the respondent. According to the affidavit evidence they are said to have arisen in the following circumstances.
Condition 2(c)(ii) of the ESO requires the respondent to obey the reasonable directions of the Community Corrections Officer assigned to supervise him. On two occasions, being 5 September 2019, the day the respondent was released from custody, and 26 September 2019, the respondent’s supervising Community Corrections Officer, Lauren Sommer, instructed him not to use the internet. Nevertheless, on two occasions, 8 and 11 October 2019, the respondent had access to an internet based service known as airG[12] which is a worldwide mobile social chat and dating service. The first breach came about when the respondent accessed the internet on 8 and 11 October 2019, contrary to the express direction given by his supervisor.
[12] Referred to in the affidavits as “AirG”.
The nature of the access on 8 and 11 October 2019 is explained in subparagraphs 4.1 to 4.4 of the affidavit of Detective Brevet Sergeant Ashlee Bridge who reviewed material extracted from the respondent’s mobile phone.
4.1On 8 October 2019, the respondent was subscribed to 3 chat accounts through the website “AirG”. These account [sic] were titled “Divas Chat”, “VIP Chat”, and “Gamer Chat”. I was able to determine this date by reference to confirmation text messages on the phone which were sent to the service and which were dated 8 October 2019.
4.2I identified that “AirG” is an internet-based service.
4.3I observed that 2 emails dated 9 and 11 October 2019 respectively, were sitting in the email ‘outbox’ folder of an account entitled “[email protected]”. These emails had not yet been sent. I was unable to view the content of these emails.
4.4On 11 October 2019, the respondent sent 3 pictures of his penis to number 86…84. I observed the number appears to be a Florida mobile number. When the number is called, it goes through to a message bank with a young girl’s voice but no other descriptors are present.
In addition, Detective Bridge identified other telephone text communications which, whilst not relied on as a breach of the direction not to use the internet, are important by way of context and as to the respondent’s state of mind. These communications are summarised in subparagraphs 4.5 to 4.10, 4.13 and 4.14 of Detective Bridge’s affidavit.
4.5On 12 October 2019, the respondent engaged in sexualised conversation via text message with a person using the number 04…469. This conversation included sending and receiving pictures of male genitalia.
4.6On 13 October 2019, the respondent engaged again in sexualised conversation via text message with a person using the number 04…469, and also another person using the number 04…778. The latter described himself as ‘Kelly’ using their username ‘notme69’ on “AirG” and both persons exchanged pictures of their genitals.
4.7On 14 October 2019, the respondent engaged in sexualised conversation via text message to a person using the number 04…268, and sent pictures of his penis.
4.8On 15 October 2019, the respondent engaged in sexualised conversation with a person using the number 04…441 and sent pictures of his penis.
4.9I observed from the respondent’s internet history that he had used the phone to access and / or search for “AirG” and “Grindr”.
4.10I observed that the respondent’s various sexualised conversations took place at varying times, ranging between 7am to 1am. Some of the conversations were very explicit. For example, one conversation got to the point of discussing the male staying overnight at the respondent’s residence. However, I noted that this particular male stated the [sic] he was located in Queensland.
.. . .
4.13I did not identify any evidence of child exploitative material on the respondent’s phone, nor did the “sexting” involve discussion of underage people.
4.14However, I did identify on the respondent’s phone two images of a young boy, who appeared to me to be clearly under the age of 18 years. The images appeared to have been originally obtained by photographing a TV screen. I did not consider there to be anything sexualised about the images. I am not aware as to how these pictures came to be on the respondent’s mobile phone.
Counsel for the Attorney acknowledged during the argument that it was the fact of access to the internet that constituted the breach and that none of the content of the respondent’s communications was relied on as being in breach of any other condition of the ESO. It is not illegal nor in breach of the ESO for the respondent to engage in sexual conversations or sexual relations with consenting adults. However, the respondent did have what would appear to have been inadvertent contact with an underage person.[13]
[13] ESO conditions 2(r), (s), (t) and (u) are designed to require the respondent not to have and to prevent the respondent from having any contact with persons who are under 18.
The Attorney became aware of this contact as the result of a volunteered statement by the respondent to his disability support worker, Gabrielle Wright, who deposed as follows.
3.My only shift with the respondent was on 13 October 2019. The shift was between about 10am and 4pm. I recall that while I was at his residence, amongst other things, the respondent said words to the effect that:
3.1    he had joined a free mobile social chat and dating service called “AirG”;
3.2    the “AirG” website gives access to both the age and location of the men he was talking to;
3.3    as soon as someone “adds him [on “AirG”] the first thing he does is ask their age, because he wants to make sure they are over 18;
3.4    one man he was talking to [on “AirG”] the other night, who displayed his age as 18 was in fact 15; and
3.5    he blocked that man [on “AirG”] as soon as he found that out.
4.On 14 October 2019 I sent an email outlining my concerns to my colleague Michelle Williams… .
It was this disclosure that triggered the enquiry into the respondent’s conduct which disclosed the respondent’s unauthorised access to the internet.
The second alleged breach concerns an asserted failure to observe ESO condition 2(v) which provides as follows.
(v)The respondent will declare to his Community Corrections Officer any and all email addresses, internet user names, social network user names or online identities in use or intended for use by him on the internet or any other electronic communication service or application, and any relevant passwords at the direction of his Community Corrections Officer;
The second alleged breach is said to have arisen from the same events that gave rise to the first breach. Between 8 October and approximately 15 October 2019, the respondent did not voluntarily disclose the internet address of airG, his username(s) and online identities in use or intended to be used on the internet or any electronic communication services. The respondent also failed to disclose any password(s).
The obligation imposed by condition 2(v) is subject to the qualification in the final clause – “at the direction of his Community Corrections Officer”. Counsel for the Attorney conceded that no express direction in this respect had been given. However, he submitted that the words of qualification related only to the last item in the list, the requirement to declare passwords rather than to the requirement to declare all matters in the list. There are various grammatical and syntactical arguments which lend support to either construction which I will not stay to consider.
The respondent has admitted that he breached the condition by failing to declare “email address(es) and/or internet username(s) and/or social network username(s) or online identities”.[14] There is no mention in this respect of passwords and, as such, it would appear that he has accepted the construction of condition 2(v) advocated by counsel for the Attorney.
[14] Respondent’s outline of submissions paragraphs 3 and 4.
Counsel for the Attorney contended in the alternative, that if the second breach is not made out there still has been a clear breach of condition 2(c)(ii) (the unauthorised internet access) which serves to satisfy the first jurisdictional fact that must be established before a continuing detention order under section 18 can be entertained. I accept that submission. Furthermore, the fact that the respondent understood that he was required to disclose the matters in condition 2(v) but did not is of significance and lends support to the Attorney’s position, even if it were that, strictly, no breach of condition 2(v) has been proved.
In my view, condition 2(v) is, at best for the Attorney, ambiguous. As such, given the severe consequences that might flow from a breach of the condition, in accordance with section 18, if the resolution of this matter were to be dependent on a finding that the respondent had committed this breach, I would be inclined to construe the provision against the Attorney and find that the breach had not been established. However, it is not necessary in order to resolve this matter to express a final view on this question of construction. As indicated to counsel during argument, this clause, if it is to be relied on in the future, should be redrawn so as to make clear the intention of the Attorney.
The oral evidence of Dr Haeney and Lauren Sommer
Dr Haeney gave brief oral evidence before me. He confirmed that, having read and considered the affidavit material relied on by the Attorney, he adhered to the opinions he had expressed in his earlier report including that, notwithstanding completion of the SBC-Me treatment program,[15] the respondent remains at very high risk of sexual re-offending and is to be regarded as unwilling to control his sexual instincts.
[15] This is a specialist psychotherapeutic program for adult male sexual offenders designed to cater for those within the range of a mild intellectual disability to a borderline level of intellectual functioning or those with other cognitive deficits that would preclude them from engaging in mainstream programs. The respondent’s IQ testing has consistently placed him within the extremely low range (64-72).
Of most relevance to Dr Haeney in this respect was the respondent’s failure to abide by the verbal instruction and the sexualised content of the internet use. Dr Haeney explained as follows.
Q.Taking that first part, that is the breach of the verbal direction, why is that of significance.
A.One of the factors that we would consider in risk assessment would be an individual's ability to follow management plans, to abide by supervision orders or similar. So a breach of that would be considered a risk factor in and of itself.
Q.You also mentioned the second part of that was the sexualised nature of some of the communications.
A.Yes.
Q.What is significant from your perspective of that content.
A.Well, the sexualised nature itself would not necessarily be regarded as problematic because any individual would be - would have a normal level of sexual expression, but considered in conjunction with the breach through use of the internet, it would concern me that Mr Tipping was showing an inability to abide by instructions; that he was not able to use the judgment about the nature of those communications, not able to consider the reason that his corrections officer had prevented him from using the internet as well.
Q.In the review of that affidavit material, did you review a transcript of a Parole Board interview with Mr Tipping.
A.I did.
Q.Was there anything significant arising from that interview, from your perspective.
A.Again I think my concern was that Mr Tipping tried to normalise or minimise the breach that has been present, that he explained it as just being lonely and seeking friendship when the very sexually explicit nature of those communications really would suggest it was not about friendship, but it was sexually motivated.
Under cross-examination, Lauren Sommer agreed that, in addition to being forbidden from using the internet, the respondent had also been directed not to have contact with anyone then in prison, including Correctional Services employees, and that he had been restricted from attending social events because of his home detention conditions. When challenged with the notion that the effect of the ESO and the respondent’s supervision requirements to date, was to severely socially isolate the respondent, Ms Sommer observed that the respondent could have contact with his family and with other services providing social support.
The parties’ submissions
Counsel for the Attorney, frankly acknowledged that the basis of the Attorney’s support for the making of a continuing detention order was the protection of the public. It was not expected that additional time in custody would enable the respondent to undertake further courses and counselling that might lower his risk profile.
Implicit, if not express, in counsel’s submissions was the contention that, in the proceedings before the earlier Judge, a section 57 indefinite detention order had been warranted but for the following particular considerations which are not relevant to the present reference.
Section 58 of the Sentencing Act 2017 (SA) provides, inter alia, that an order for indefinite detention under section 57 cannot be discharged unless the person satisfies the Supreme Court that they are both capable and willing to control their sexual instincts or that they no longer present an appreciable risk to the safety of the community due to their advanced age or permanent infirmity.
It is generally accepted that, because of the prior sexual offending record and static criminogenic risk factors typical of most, if not all, persons with respect to whom a section 57 order is made, together with the relatively low threshold underpinning the statutory definition of “unwilling”, most, if not all, such persons will not be able to discharge the onus on them to prove they are no longer unwilling to control their sexual instincts. Similarly, the operation of section 59 of the Sentencing Act 2017 which makes provision for the release on licence of a person subject to indefinite detention, is subject to the same constraints. It follows that an indefinite detention order, had it been made, would in all likelihood have subsisted for the rest of the respondent’s life or at least until he was too old or physically infirm to present a risk to the public.
However, a continuing detention order under the Act would only operate for a maximum of four and a half years or so. Furthermore, section 19 of the Act makes provision for a variation or revocation of a continuing detention order. The person subject to such must apply for a variation or revocation but, unlike with section 59, there are no express constraints on when a variation or revocation might be made. Nevertheless, the person must first obtain the permission of the Supreme Court to apply. Permission will only be granted if the Court is satisfied that there has been a material change in circumstances relating to the person and it is in the interests of justice to grant permission.
The Attorney submitted to the effect that a continuing detention order for up to four and a half years would not have anywhere near the same serious consequences for the respondent’s liberty as would a section 57 indefinite detention order. Counsel put the following additional submissions.
(i)The purpose underlying the Act includes the protection of the community from being exposed to an appreciable risk of harm posed by serious sexual offenders (section 3).
(ii)The statutory prescription under subsection 18(3) that the paramount consideration must be the safety of the community is mandatory.
(iii)It would be wrong to focus simply on the fact and nature of the breach or breaches of the ESO. Their importance is as one of the necessary jurisdictional facts. Once established, all of the circumstances (including the breaches) need to be considered.
(iv)The basis of the Attorney’s position is that a continuing detention order is necessary to protect the public from the very high risk of further sexual offending posed by the respondent. This is evident from the respondent’s repeated sexual offending against young boys in the past; the fact that the second and third occasions of offending occurred within months of being released from custody and having breached parole or bond conditions and a paedophile restraining order.
(v)The comprehensive reports of Drs Haeney and Nambiar describe the high risk that the respondent will offend again and that this risk has not been moderated by various rehabilitation programs.
(vi)The various Corrections and other reports exhibited to the affidavit evidence show the respondent being manipulative and to be lacking insight as to the risks he poses to children, wishing to downplay or understating the significance of his previous sexual offending and current sexual desires. The circumstances of his most recent access to the internet is of concern in this context. When challenged by the Parole Board about his unauthorised use, the respondent indicated that he wanted to use chat forums to make friends. However, it is quite apparent that some of the communications engaged in were of a highly sexualised nature. This is inconsistent with his statement to his Community Corrections Officer (Ms Sommer) on 26 September 2019, that he was not currently interested in sex. Further, even if (apart from the one inadvertent contact) the respondent might be trying to engage sexually only with adults which would not be illegal nor in breach of the ESO, there is an inherent risk that being involved with such internet sites will bring the respondent into contact with children.
(vii)Ultimately, the risk that the respondent will engage with children that is inherent in him living in the community, even when subject to the ESO, is too great. The paramount consideration requires that this risk should not be allowed.
(viii)There is nothing in the risk profile of the respondent to suggest that the above concerns might be moderated over the period of the ESO. As such, if a continuing detention order is made it should be for the balance of the term of the ESO.
Counsel for the respondent contended, in reliance on the observations of Hinton J in Police v Sullivan; Attorney-General (SA) v Sullivan[16] (referred to below) that the risk posed by the respondent at the time the ESO was made had to be re-assessed in light of the nature and circumstances of the breach(es). Having regard to these matters, the risk as assessed by the earlier Judge, has not changed. The respondent committed no offence and caused no harm. Furthermore, the breach(es) were only detected and able to be investigated because of the respondent’s frank admission to his disability support worker (Gabrielle Wright). The respondent was not actively trying to hide his behaviour. The respondent has also indicated through his counsel that, to the extent that access to the internet might be perceived as adding unacceptably to the risk profile, he would agree to a variation of the ESO to exclude all internet access.
[16] [2018] SASC 11 at [85].
Consideration
The purpose underlying, and the approach to adopt when considering whether or not to make, a continuing detention order were explained by Hinton J in Attorney-General v Sullivan (No 2)[17] in terms with which I agree.
[17] [2018] SASC 74 at [9]-[14].
The power to make a continuing detention order is conditioned on the Court first being satisfied of the existence of the two factual circumstances referred to in s 18(2)(a) and (b). That is, s 18(2)(a) and (b) are in the nature of jurisdictional facts. A finding of the existence of both jurisdictional facts enlivens a discretionary power. In the exercise of the discretion all factors relevant to achieving the purpose of the order are to be taken into account. That begs the question, what is the purpose of a continuing detention order?
In Police v Sullivan; Attorney-General (SA) v Sullivan (Sullivan No 1) I said:
The power to make a continuing detention order is not a power to punish a person for breaching a supervision order. It is a power to be exercised for protective not punitive purposes. The question is whether the drastic step of incarcerating the high risk offender for the duration of the extended supervision order or some lesser period is necessary to protect the community from an appreciable risk to its safety as posed by the high risk offender. That question is to be answered in the knowledge that the alternative is the continuation of the supervision order, possibly varied. Obviously the risk posed by the offender subject of the breached supervision order must be reassessed in the light of the nature and circumstances of the breach.
I remain of this view. The question posed in the passage quoted immediately above reflects the fact that Parliament has said that the paramount consideration in determining whether to make a continuing detention order must be the safety of the community. In R v Schuster the Full Court was required to determine the significance of Parliament making public safety the paramount consideration in determining whether to release a person subject to indeterminate detention on licence. The Court 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.
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 reoffending 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.
The same may be said about s 18(2) considered in the light of s 18(3) of the Act.
The Full Court also said:
… it demands a normative judgment which is quite different from traditional judicial discretions. This Court has been entrusted with a mandate to ensure public security by sacrificing, for the remainder of their natural lives if necessary, the right to liberty of persons who are found to be unable or unwilling to control their sexual instincts. There are good reasons to commit this function to the independent judiciary of this State even though it is foreign to the traditional judicial function. However, the discretion having been conferred, it is important for the community to understand that it will be exercised having regard to both the interests of the community and the interests of the person in question, but by according the consideration of public safety paramountcy.
This approach is reflected in the judgment of the Queensland Court of Appeal in relation to applications for indefinite detention under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). In Attorney-General (Qld) v Francis, 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.
[footnotes omitted]
The same may be said of the task committed to this Court under s 18(2) of the Act (save of course that it is not a matter of whether the respondent is incapable or unwilling to control his or her sexual instincts and the duration of detention cannot exceed the term of the extended supervision order). Although consideration of a continuing detention order is triggered by the breach of an extended supervision order, the measure of the period of detention is not the units of punishment. The respondent is detained to prevent what he or she might never do. This being so, the respondent should not be detained for any longer than is necessary to ensure adequate protection of the community. Accepting this it is self-evidently important to identify with some particularity the risk that a respondent poses before turning to consider whether detention is necessary to adequately protect the community from that risk. In some cases the risk may be immediate and the appropriate response may simply be incapacitation. In other cases it may be less immediate but no less profound and may require detention in order to facilitate different measures of intervention and prevention. Where a continuing detention order of a shorter duration than the period of the extended supervision order is contemplated, that period will be determined by the anticipated effect of detaining the respondent, including all interventions and treatments that may be undertaken whilst in detention, upon the risk posed by the respondent.

When determining to refuse the section 57 application, the earlier Judge was satisfied that the respondent was unwilling to control his sexual instincts and made various findings as to the serious risk he posed to the public, as set out earlier. In doing so, her Honour took into account the paramount consideration to protect the safety of the community but ultimately was not satisfied that an order for indefinite detention, under section 57, was “appropriate”.[18]
[18] Sentencing Act 2017 (SA), subsection 57(7).
Her Honour so decided, in part, because of the availability of an ESO under the Act. In order to make an ESO, her Honour had to be (and was) satisfied that the respondent would pose an appreciable risk to the safety of the community if not supervised under the order.
An “appreciable risk” for the purpose of section 7 has been explained by Stanley J in the following terms.[19]
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. …
I am prepared to accept for present purposes that this notion of “appreciable risk” is the same for section 18.
[19] Attorney-General (SA) v Grosser [2016] SASC 49 at [29].
Under section 18, the discretion to make a continuing detention order arises if the court is satisfied that the respondent poses an appreciable risk to the safety of the community if not detained in custody. This threshold question is plainly different from the threshold question under section 7. Nevertheless, it does not necessarily follow from a finding that a person poses an appreciable risk to the safety of the community if not supervised under an ESO (section 7) that the person ceases to pose such a risk if supervised under the order. In the respondent’s case, such a risk remained even once the ESO was made albeit the risk had been ameliorated. On my assessment of the evidence, particularly that provided by Drs Haeney and Nambiar, and given the relatively low threshold inherent in the notion of appreciable risk, the respondent, whilst in the community, poses an appreciable risk to the public whether subject to the ESO or not. It necessarily follows that the respondent poses an appreciable risk to the safety of the community if not detained in custody; so much is axiomatic. As such, the discretion arises whether or not to make the order sought by the Attorney.
In my view, the respondent’s risk profile has not changed from that which was before the earlier Judge. The respondent’s conduct between 8 and 15 October 2019 is not the manifestation of a new or increased risk but of the risk always present and recognised by the forensic psychiatrists and the earlier Judge. In that sense, the position has not changed from the time the ESO was made. What has occurred is that the respondent has been provided with an opportunity to live in the community subject to the terms of an ESO and found to be wanting.
The respondent committed no offence and put no child at risk. Nevertheless, it is of real concern that so soon (about five weeks) after his release from custody, the respondent failed to observe a direction from his Community Corrections Officer and engaged in internet and texting behaviours of a sexual nature in contexts that might very easily have brought him into contact with children. It is perhaps fortunate that the respondent disclosed his concern about the inadvertent underage contact to his disability support worker which triggered the further investigations.
However, this may also say something about the level of, or the resources that had been devoted by Corrections to, the ongoing supervision of the respondent. Plainly, he was and remains a person who requires close and frequent supervision.
According to counsel for the Attorney, there is no ability for internet service providers to control or limit a customer’s internet usage, at least, without the cooperation of the customer. Further, the Department for Correctional Services does not have access to technology that would enable it to block the respondent’s access to specified areas of the internet. Because of this, the Attorney has made this submission.
In the circumstances, any access [the respondent] has to the internet depends upon trusting that [the respondent] will comply with any supervision conditions imposed, which in the [Attorney’s] submission gives rise to an unacceptable risk.
I do not accept this submission, at least in such an unvarnished form. The success or otherwise of an ESO cannot depend solely on reposing trust in the subject person to comply with its terms. If the system is to operate successfully, resources will need to be devoted to supervision and, in the case of persons like the respondent, intensive supervision. Intensive supervision leading to early intervention would go a long way towards securing compliance.
Conditions 2(s), (v), (w) and (x) of the ESO provide as follows.
(s)The respondent will not communicate, or attempt to communicate, either directly or by telephone or other electronic means, with any person under the age of 18 years;
.. . .
(v)The respondent will declare to his Community Corrections Officer any and all email addresses, internet user names, social network user names or online identities in use or intended for use by him on the internet or any other electronic communication service or application, and any relevant passwords at the direction of his Community Corrections Officer;
(w)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 otherwise comes into his possession within 48 hours of it coming into his possession;
(x)In relation to any tablet, computer, mobile phone, photographic equipment, or other electronic equipment that the respondent purchases, loans, or otherwise comes into his possession, the respondent will produce the equipment to his Community Corrections Officer or to a South Australian Police Officer upon being directed to do so, 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 produce, possess or view child exploitation material; …
Conditions (v), (w) and (x) could be improved upon.
(i)Condition (v) might be amended by the deletion of the phrase “at the direction of the Community Corrections Officer” and the addition at the end of such words as “within 48 hours of having created the same”.
(ii)Conditions (w) and (x) might be amended by the replacement of the word “loans” with “borrows”. The use of the word “loans” is grammatically incorrect and does not reflect the intention of the parties to the order.
In addition, the following conditions might be added.
(i)“2(z)     The respondent is not to enter that part of any premises in which any type of computer equipment including any desktop or laptop computer, tablet or mobile phone is made available to the public for use by connecting to the internet.”
(ii)“2(za)   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 search these premises and his person to locate and inspect any device of the type referred to in condition 2(w) that is in the premises or on his person and to remove the same for the purpose of inspecting in order to determine whether there is any evidence to suggest that the respondent may have breached this extended supervision order or committed any criminal offence.”
(iii)“2(zb)   Until otherwise determined by the Parole Board, the respondent is not to access the internet, except for the purpose of banking, navigation, accessing electronic mail, employment, medical purposes, accessing Commonwealth or State government services, for the activities of daily living such as online shopping and payment of bills or any other purpose approved of in writing and in advance by his Community Corrections Officer.”
Proposed condition 2(zb) if observed, would limit internet usage in such a way as to ensure that the breaching conduct engaged in by the respondent would not occur. Proposed condition 2(za) would add to Correction’s capacity to make frequent and random checks on the respondent and his device or devices. An awareness of this additional capacity should encourage the respondent to maintain compliance and, if deployed frequently enough, will enable corrections to detect any breach at an early stage and to permit an intervention, hopefully before any harm is caused to a child as a consequence of any illicit use of the internet.
The effectiveness of an ESO in this form, as with most ESOs, may well be proportionate to the level of supervisional resources provided by Corrections. It is no answer to the risk posed to the public by persons such as the respondent to say that the ESO system is solely dependent on a person’s willingness to comply with the terms of the order and that, if they were not to comply, they can be ordered to return to prison for up to five years. Of course, a person’s willingness to comply is critical to their rehabilitation for the long term. However, any person subjected to an ESO, ex hypothesi is a person in great need of support and supervision if they are to be rehabilitated while living in the community. The respondent is one such person.
In deciding whether to make a continuing detention order, the paramount consideration must be safety of the community. I have taken this paramount consideration into account. As already discussed, in my view, the risk to the community posed by the respondent has not increased since the earlier Judge formed her assessment and released the respondent on the ESO. Indeed, that risk may well have been reduced by the fact that the breach or breaches of the ESO committed by the respondent have caused him to be detained in custody for a further approximately four months following his release. In fact, the respondent has now spent more than 12 months in custody not having committed any offence and not subject to any outstanding charges, and only five weeks or so in the community, from the time his head sentence expired (19 January 2019) at which time he had an expectation that he would be released.
I expect that the respondent now has a keen understanding of the fragility of his entitlement to remain in the community whilst subject to the ESO and the importance in this respect of strictly complying with its terms.
Further, if amendments to the ESO along the lines of those I have suggested were to be made and intensive supervision of the respondent undertaken, the risk he poses to the public is likely to be ameliorated further.
One further consideration is this. The Attorney has submitted that in this case the sole purpose underlying the making of a continuing detention order is the protection of the public and that, in this case, the risks posed by the respondent are unlikely to change in the future. A continuing detention order is not to be used as punishment (proportionate or otherwise) for the breach(es) of the ESO. Further, as already observed, there is no suggestion that further time in custody would serve to lessen the risk to the community posed by the respondent. As such, if a continuing detention order were to be made, it would be difficult to justify a term of anything less than the maximum available (approximately four and a half years).
I accept the distinctions, earlier referred to, between an order under section 57 of the Sentencing Act 2017 for indefinite detention and a continuing detention order for four and a half years under section 7 of the Act. I accept that these must be accorded great weight in the balancing exercise. Nevertheless, for the reasons I have given, and subject to the question whether the terms of the ESO ought to be varied, I am disinclined to make a continuing detention order for four and a half years or any lesser period on this occasion. I take the view that the respondent ought to be given another opportunity to comply with the ESO and to remain out of custody.
However, before arriving at a final conclusion and before making final orders, I will stand the matter over for a short period for two reasons: first, to allow for arrangements to be made for the respondent’s future accommodation and supervision in the community; and second, to permit either counsel, if so advised, to make an application to vary the terms of the ESO either along the lines I have mentioned or in other respects.