Attorney-General v Colangelo (No 2) - [2025] SASC 174

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL v COLANGELO (No 2)
[2025] SASC 174
Judgment of the Honourable Justice McDonald (ex tempore)
8 October 2025
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
This is an application for an Extended Detention Order (EDO) pursuant to s 57(3) of the Sentencing Act 2017 (SA) and, in the alternative, an application for an Extended Supervision Order (‘ESO’) pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’). On 15 January 2025, it was ordered that the respondent be the subject of an Interim Detention Order (‘IDO’) pending the outcome of these applications.
It is the applicant’s contention that the respondent should be subject to an EDO on the basis of the expert opinions that he is unwilling to control his sexual instincts, as legislatively defined. It is the applicant’s submission that it is appropriate for the Court to exercise its discretion to make an EDO having regard to the purpose and object of s 57 of the Sentencing Act 2017 (SA), that being to protect the community from sexual offenders where the risk posed by such a person is such that it is inappropriate for them to be released.
The respondent does not oppose the imposition of an ESO, however he opposes the making of any form of detention order. The respondent relies upon the availability of such conditions under an ESO as an argument against the making of an EDO; that is that the option of an ESO provides the community with a level of protection that makes it unnecessary to go to the length of keeping the respondent indefinitely in custody. The respondent also submits that given there is now a greater understanding of the complex issues facing the respondent, his risk is more open to management within the community.
Held:
1. The application for an EDO is refused; and
2. The application for an ESO is granted. The respondent is to be the subject of an ESO for the period of five years.

Child Sex Offenders Registration Act 2006 (SA); Criminal Law Consolidation Act 1935 (SA) s 63; Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(1); Sentencing Act 2017 (SA) s 57, referred to.
R v Hoare [2017] SASC 7; R v Schuster (2016) 125 SASR 388, applied.
Thompson v Attorney-General (SA) (2019) 133 SASR 302, considered.

ATTORNEY-GENERAL v COLANGELO (No 2)
[2025] SASC 174
Criminal: Application
McDONALD J:

The Attorney-General has made an application for an Extended Detention Order (‘EDO’) pursuant to s 57(3) of the Sentencing Act 2017 (SA) and, in the alternative, an application for an Extended Supervision Order (‘ESO’) pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’).
Mr Colangelo does not oppose the imposition of an ESO.…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Attorney-General v Colangelo (No 2)

Details

AGLC: Attorney-General v Colangelo (No 2) [2025] SASC 174
Case: [2025] SASC 174
Decision Date: 8 October 2025

CaseChat Overview and Summary

In Attorney-General v Colangelo (No 2), the Court was presented with an application by the Attorney-General for the imposition of an extended detention order (EDO) on Mr Colangelo, a man with a history of sexual offending. The application followed Mr Colangelo’s conviction for multiple counts of possessing, aggravated possessing, and disseminating child exploitation material (CEM). The legal issues before the Court included whether Mr Colangelo was either incapable of or unwilling to control his sexual instincts, and if the risk he posed to the community justified the imposition of an EDO.

The Court considered the expert evidence provided by Dr Craig Raeside and Dr Catherine Crouch, which highlighted Mr Colangelo’s complex psychological profile, including borderline intellectual capacity, communication difficulties, and autism spectrum disorder (ASD). Despite these conditions, the experts concluded that Mr Colangelo remained at high risk of future sexual offending and was unwilling to control his sexual instincts. The Court also noted that Mr Colangelo had not committed contact offences and did not have antisocial borderline personality disorder or substance abuse issues, which typically accompany an escalation to contact offending. Counsel for Mr Colangelo argued that his risk was more manageable within the community given his unique circumstances, and that an extended supervision order (ESO) with strict conditions could effectively mitigate his risk.

The Court determined that while Mr Colangelo’s conditions provided some context for his offending, they did not mitigate his risk. The statutory framework under s 57 of the Sentencing Act 2017 (SA) made it clear that offences involving the dissemination of CEM were subject to the possibility of an EDO, regardless of whether contact offences were committed. The Court concluded that the risk Mr Colangelo posed to the community was unacceptable without an EDO. Consequently, the Court exercised its discretion to make an EDO in line with the purpose and object of the legislation to protect the community from sexual offenders.

Orders

Orders of the court

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Background

Background to the litigation

Since that time, I have received reports from Dr Craig Raeside and Dr Catherine Crouch. Dr Raeside and Dr Crouch also gave evidence concurrently. Before I come to that evidence, it is of utility to set out some of the detail of Mr Colangelo’s background, offending history and his previous responses to therapy. I canvassed each of these topics in considerable detail in my reasons for imposing the IDO. I do not propose to repeat them in detail but will instead endeavour to summarise those matters most relevant to my determination of this application.Background Mr Colangelo grew up with his parents and four younger sisters. He had a stable upbringing and his parents remain together. They continue to be supportive of their son. Mr Colangelo’s parents have attended every hearing in these proceedings, and there have been many. Over that period they have heard considerable detail about Mr Colangelo’s offending, the risk that he poses of reoffending, the concerns the psychiatrists hold about him and the seriousness with which the courts and the community regard his conduct. Whilst at the outset of the process, Mr Colangelo’s parents may have been somewhat naive about these matters, they are now fully informed. For reasons that I will come to, this is a relevant consideration in determining whether appropriate measures can be put in place to protect the community, in the event that an EDO is not made.Offending history Mr Colangelo has a history of sexual offending, which commenced in 2005. His most recent offending, the index offences, was detected on 30 January 2022, when police located an amount of child exploitation material (‘CEM’) on Mr Colangelo’s electronic devices. At that time Mr Colangelo was a registerable offender under the Child Sex Offenders Registration Act 2006 (SA). He was also the subject of a paedophile restraining order. It was as a consequence of the police conducting compliance checks under that Act that they came to inspect Mr Colangelo’s devices. Generally speaking, Mr Colangelo’s sexual offending can be divided into two categories: exhibitionist behaviour and CEM offences. Between 2007 and 2012, Mr Colangelo was convicted of four offences, which involved him masturbating in public places, at least some of which occurred in the vicinity of children, or places children frequent. Of note, when Mr Colangelo committed the last offence, he was on a good behaviour bond for similar offending. In 2016, Mr Colangelo moved on to commit CEM offences. On 31 January 2018, Mr Colangelo was sentenced to a period of imprisonment for two counts of possessing CEM. It was as a consequence of this offending that Mr Colangelo became a serious registrable offender, which led to the search that resulted in his most recent charges. These were two counts of possessing CEM, two counts of aggravated possessing CEM and two counts of disseminating CEM. It is the last two offences that are the index offences, which resulted in Mr Colangelo becoming liable for the imposition of an EDO. It should be noted that these offences involved a large number of images and videos, some of which fell into the most serious category of CEM.

Evidence

Evidence Before The Court

Taking all of these matters into account, Dr Crouch arrived at the view that Mr Colangelo remains at high risk of future sexual offending and is unwilling to control his sexual instincts. She went on to suggest, however, that consideration should be given to whether sufficient community-based measures could be instituted to modify the risk to a more acceptable level.The concurrent evidence of Dr Raeside and Dr Crouch As mentioned, Dr Raeside and Dr Crouch gave evidence concurrently. Much of their evidence was a confirmation of the information that was contained within their reports. There were three overlapping topics or themes that arose during the experts’ evidence that are worth mentioning. These were Mr Colangelo’s communication issues and his intellectual function, the time that Mr Colangelo has spent undertaking therapy for sexual offenders and the risk of Mr Colangelo escalating to contact offending. Communication issues and intellectual functioning In evidence, Dr Raeside reiterated that upon meeting with Mr Colangelo for the purposes of preparing the report, it became immediately apparent that he had issues with language, both in receptive and expressive language, that required the simplification of questions. In addition, he was aware of Mr Colangelo’s borderline intellectual capacity, so he took care to not overwhelm him or use leading questions where possible. Dr Raeside gave an example of the complexities that arose as a consequence of Mr Colangelo’s concrete thinking. In the interview Dr Raeside asked Mr Colangelo about his sexual attraction towards children. Initially Mr Colangelo acknowledged a sexual attraction to children but later, when the topic came up again, he agreed to having previously had a sexual attraction to children, but quickly added “but not now”. Dr Raeside explained that whilst it may appear that Mr Colangelo was being inconsistent, and potentially deceitful, there was an alternative explanation, which was that Mr Colangelo thought that when Dr Raeside asked him the question Mr Colangelo meant “then and there” whilst talking to Dr Raeside, which may be why he reinforced the answer by saying ‘not now’, all of which may technically be correct. Dr Raeside told the Court that he did not pick up on any deliberate deceit on the part of Mr Colangelo, rather there was a degree of minimisation with a lack of insight, combined with his limited intellectual capacity. Dr Crouch gave evidence that Mr Colangelo’s language difficulties have a significant impact on his ability to build rapport and that it is further complicated by his ASD. Dr Raeside agreed with Dr Crouch and went on to elaborate on the impact of Mr Colangelo’s language disorder on his ability to gain benefit from therapy. He explained: [8] In terms of getting help, most therapeutic approaches depend on a degree of language, that is, talking. In these types of conditions, at least engaging with a therapist in whatever activities and then reflecting back on what they’ve learnt, and again, he’s had those four community and prison-based sex offender programs which, whether they’re in a group or individual sessions certainly depend on language. There is some writing done but effectively his language disorder is a significant barrier to him getting the help, or not getting help, being able to benefit from any help that is offered to him. But it’s not just a language, his intellectual capacity and his ASD, with the social impairments, he’s got an unfortunate combination of conditions. The time that Mr Colangelo has spent undertaking therapy for sexual offending[8] Transcript dated 25 June 2025 at 38-39.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

However, a factor in favour of Mr Colangelo not falling into the category of offenders who are likely to escalate to contact offending is that he does not have an antisocial borderline personality disorder or substance abuse issues, which commonly accompany an escalation of sexual offending.Consideration It is the Attorney-General’s submission that Mr Colangelo should be the subject of an EDO on the basis of the expert opinions that he is unwilling to control his sexual instincts, as legislatively defined. It is contended that it is appropriate for the Court to exercise its discretion to make an EDO having regard to the purpose and object of s 57 of the Sentencing Act 2017 (SA), that being to protect the community from sexual offenders where the risk posed is such that it is inappropriate for them to be released. Whilst Mr Colangelo has not committed a contact offence, the number and diversity of his offences, and his failure to meaningfully respond to the extensive therapy that he has undertaken, mean that absent an EDO the risk that he poses is unacceptable. It is the Attorney-General’s submission that whilst Mr Colangelo’s chromosomal disorder, communication issues and ASD may explain the circumstances in which he now finds himself, they in no way mitigate his risk. Counsel for Mr Colangelo contends to the contrary, that is that given there is now a greater understanding of the complex issues facing Mr Colangelo, his risk is more open to management within the community. It was also submitted on behalf of Mr Colangelo that care must be taken about any assumption being made about the risk of his conduct escalating to contact offending. Whilst it was accepted that offences involving CEM are serious offences, they do not expose the community to the same immediate risk, as compared to other forms of sexual offending. Further, that the risk of Mr Colangelo engaging in these sorts of offences can be effectively ameliorated by the imposition of an ESO with strict conditions. The startling point for the determination of this application is that pursuant to s 57 of the Sentencing Act2017 (SA) a relevant offence includes an offence under s 63 of the Criminal Law Consolidation Act 1935 (SA). Here, the relevant offence is disseminating CEM. It follows that it was the intention of Parliament to make those who have committed such an offence liable for the imposition of an EDO regardless of whether or not they have additionally committed a contact offence against a child. The fact that the criminal conduct in question is captured as a relevant offence does no more, however, than enliven the power of the Attorney-General to make an application for an EDO. It says nothing about whether or not the Court should, in fact, make such an order. The threshold question to be answered in the affirmative, before such an order can be made, is whether the offender who is the subject of the application is either incapable of controlling or unwilling to control his or her sexual instincts.