BM v Commissioner of Police - [2020] SASC 16

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
BM v COMMISSIONER OF POLICE
[2020] SASC 16
Reasons for Decision of The Honourable Justice Kelly
10 February 2020
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - REGISTRATION, REPORTING AND LIKE MATTERS
Application pursuant to s 37(2) of the Child Sex Offenders Registration Act 2006 (SA).
Where the applicant is a registrable offender for the purposes of s 6 of the Act due to having been convicted for one count of unlawful sexual intercourse with a girl aged 15 years old – where the applicant is required to comply with certain reporting obligations under Part 3 of the Act.
Whether the applicant poses a risk to the safety and well-being of any child or children – whether the discretion should be exercised to suspend the applicant’s reporting obligations under Part 3 of the Act.
Held: application granted.
Child Sex Offenders Registration Act 2006 (SA) s 37, s 38, referred to.
C, M v Commissioner of Police [2014] SASC 163, applied.
H, DB v Commissioner of Police [2015] SASC 2, considered.

BM v COMMISSIONER OF POLICE
[2020] SASC 16
Criminal: Application

KELLY J: On 28 January 2020, I made an order pursuant to ss 37 and 38 of the Child Sex Offenders Registration Act 2006 (SA) (‘the Act’) that the applicant’s reporting obligations under Part 3 of the Act be suspended. My reasons follow.
The s 37(2) application
By application filed on 29 October 2019, the applicant sought an order suspending his reporting obligations under the Act, citing that he does not pose a risk to the safety and well-being of any child or children. In support of the application, the applicant relied on:
1his own affidavit affirmed on 23 October 2019;
2a report by a forensic psychologist, Mr Luke Broomhall, dated 28 August 2019;
3an affidavit of his mother, affirmed 21 March 2019;
4an affidavit of his friend, affirmed on 10 March 2019;
5an affidavit of his sister, affirmed on 4 March 2019; and
6an affidavit of his ex-partner, affirmed on 15 March 2019.
The application was not opposed by the Commissioner.
Offending giving rise to the reporting obligations
The applicant pleaded guilty in the District Court of South Australia to one count of unlawful sexual intercourse with a girl aged 15 years old, committed between 4 and 5 November 2000. On 9 October 2003, he was sentenced to seven months’ imprisonment for that offence, which was suspended upon him entering into a bond to be of good behaviour for a period of two years.
On 1 December 2003, the applicant was convicted in the Port Adelaide Magistrates Court of one count of possessing child pornography, committed on 24 January 2001. For that offending he was fined $800 without a conviction being recorded.
At the time of the commission of the offence of unlawful sexual intercourse, the applicant was 22 years old. He met the complainant in a chat room on an internet site. After they formed a close friendship the complainant’s parents permitted the complainant to stay overnight with the applicant on condition that they did not have sexual intercourse. However, the applicant did have consensual sexual intercourse with the young girl and accordingly, later pleaded guilty to one count of unlawful sexual intercourse.
The circumstances in which the applicant came to possess child pornography involved him accessing and downloading various material onto his computer, including pornography generally. However, within that data downloaded, there was some child pornography. He pleaded guilty on the basis that it was not his intent at the time to specifically download child exploitation material, but rather it was caught in a mix of material that he downloaded. That explains why the court dealt with him in such a lenient fashion for that offence.
The applicant’s reporting obligations
The applicant is a registrable offender for the purposes of s 6 of the Act due to having been convicted for the offence of unlawful sexual intercourse with a child aged 15.
The obligations upon him, imposed by Part 3 of the Act, contain certain reporting obligations. Those obligations include providing the Commissioner of Police with identification, residence and employment details, details of intended absences from the State, and details of access to and contact with children. Further, a registrable offender must make an annual report to the Commissioner in addition to reporting any changes in his or her personal details as and when they occur.
Apart from one instance in July 2012, there has been no other failure by the applicant to comply with his reporting obligations. The failure to comply with the reporting obligations in July 2012 was dealt with in the Adelaide Magistrate Court on 4 December 2012 when he received a fine of $200 after entering a plea of guilty. The circumstances that justified such a lenient penalty were that the applicant had no choice but to leave his housing due to a breakdown in his relationship at the time. In the chaotic period of trying to find a new address that followed, he failed to report that change of address and admitted that that was his error.
Discussion
In determining this application, I have been assisted by the observations of Nicholson J in C, M v Commissioner of Police,[1] and the later decision of Nicholson J in H, DB v Commissioner of Police.[2]
[1] [2014] SASC 163.
[2] [2015] SASC 2.
In particular, I gratefully adopt Nicholson J’s reasons in C, M regarding the operation of ss 37 and 38 of the Act:
[11]The power to make the order, as conferred by s38(1), is discretionary. By the use of the word “may”, in the context of the legislation as a whole, the legislature has indicated that a court is to exercise a judicial discretion. However, any exercise of this discretion by the Court is constrained by the requirements set out in s37(2), s38(2) and s38(3). In addition to the threshold requirements in s37(2), the Court must not make the order unless it is satisfied that the registrable offender does not pose a risk to the safety and well being of any child or children (s38(2)) and the Court, in deciding whether to make the order, must take into account the matters set out in paragraphs (a)-(g) of s38(3).
[12]A court will not be obliged to make the order in the event that it is satisfied of the requirement in s38(2); the making of the order will remain discretionary. Nevertheless, whilst lack of satisfaction under s38(2) is described as a matter of preclusion, a finding of satisfaction ordinarily will be highly favourable to the exercise of the discretion. Findings with respect to the matters to be taken into account under s38(3) will be relevant not just to the making of any finding pursuant to s38(2) but to the exercise of the discretion generally. The making of an order involves a three stage process: have the threshold matters (s37(2)) been satisfied; if so, is the court satisfied of the requirement in s38(2); if so, should the discretion be exercised to make the order sought.
There is a three-stage process set out in the Act for the consideration of any application for suspension of reporting obligations.
The starting point is whether the threshold matters prescribed in s 37 of the Act have been satisfied. Section 37 relevantly provides as follows:
37—Supreme Court may exempt certain registrable offenders
(1)This Division applies to a registrable offender who is required to continue to comply with the reporting obligations imposed by this Part for the remainder of his or her life.
(2) If—
(a)     a period of 15 years has passed since he or she was last sentenced or released from government custody in respect of a registrable offence or a foreign registrable offence, whichever is later; and
(b)     he or she did not become the subject of a life-long reporting period under a corresponding law whilst in a foreign jurisdiction before becoming the subject of such a period in South Australia; and
(c)     he or she is not on parole in respect of a registrable offence,
the registrable offender may apply to the Supreme Court for an order suspending his or her reporting obligations.
There is no dispute that the applicant has satisfied the threshold requirements set out in s 37(2)(a), (b) and (c).
The second stage is whether the Court is satisfied that the requirement in s 38(2) of the Act is met. The final stage is whether the applicant should receive a favourable exercise of discretion. In exercising that discretion, the Court must take into account the factors listed in s 38(3) of the Act.
Section 38 states:
38—Order for suspension
(1)On an application under section 37(2), the Supreme Court may make an order suspending the registrable offender's reporting obligations.
(2)The Court must not make the order unless it is satisfied that the registrable offender does not pose a risk to the safety and well-being of any child or children.
(3) In deciding whether to make the order, the Court must take into account—
(a)     the seriousness of the registrable offender's registrable offences and foreign registrable offences; and
(b)     the period of time since those offences were committed; and
(c)     whether the registrable offender has ever been subject to a restraining order under section 99AA of the Summary Procedure Act 1921; and
(ca)   whether the registrable offender has ever been subject to a declaration under Part 2A or an order under section 15A; and
(d)     the age of the registrable offender, the age of the victims of those offences and the difference in age between the registrable offender and the victims of those offences, as at the time those offences were committed; and
(e)     the registrable offender's present age; and
(f)     the registrable offender's total criminal record; and
(g)     any other matter the Court considers appropriate.
This Court must be satisfied before making an order suspending the obligations of a registrable offender, that the applicant does not pose a risk to the safety and well-being of any child or children. To that end, I have received and considered the report of Mr Luke Broomhall, dated 28 August 2019.
Mr Broomhall expressed the opinion that the applicant’s offending behaviour occurred at a time when the applicant was in a chaotic and turbulent period of his life, abusing alcohol, recovering from traumatic sexual assault and experiencing high levels of social anxiety. Mr Broomhall noted that, whilst the applicant was indifferent to the age of the complainant, his behaviour towards her did not appear aggressive or violent. Mr Broomhall found no indication that the applicant selected the complainant primarily based on her age or childlike features. He found no indications of paedophilic interest or sexual attraction.
He noted that, at the date of his assessment, the applicant was solely dedicated to the care and protection of his own two children by a marriage that had broken down and was positively involved in relationships with his parents, sister and other community and group activities.
Importantly, Mr Broomhall concluded his opinion with the following observations:
The current assessment and opinions expressed have been undertaken with awareness that ultimately the court will determine whether [the applicant] poses a risk to the safety of any child or children. As noted above, in my opinion (following best practice literature and guidelines in forensic psychology) it would be inappropriate to offer a determination which concludes whether [the applicant] will or will not pose a risk to the safety of any child or children. The best which can be offered in this assessment to assist in decision making follows best practice literature and guidelines using structured professional judgement to reach a determination on a scale from very low to very high on the likelihood of an individual reoffending in a sexualised manner. On the basis of the current assessment including interview, psychometric background information and actuarial assessment tools, the literature surrounding length of time living in the community offence free, it was my opinion that [the applicant’s] risk of future sexualised offending behaviour was in the very low range.
In considering relevant recommendations regarding the risk of similar future sexualised offending behaviour, there were, in my view, no specific recommendations which would reduce or which would be required to maintain [the applicant’s] very low risk of future sexualised offending behaviour. I do not believe that [the applicant] would benefit from one to one psychological treatment around sexualised behaviour nor do I believe that he would benefit from a structured group‑based intervention program related to sexualised offending behaviour.
The applicant is now 41 years old and living in Housing Trust accommodation as the primary carer of his two children. He is in receipt of a disability support pension due to a genetic eye condition. There has been little offending in the last 20 years of any note. It appears from the antecedent report of the applicant that most of his offending occurred in the late 1990s and early 2000s and consisted of mainly street‑type offending, such as larceny and fighting.
In addition to Mr Broomhall’s report, I have also taken into account four statements provided by the applicant’s mother, friend, sister and ex‑wife. Each of those witnesses has directly observed the applicant’s parenting in respect of his own children and their observations are consistent with Mr Broomhall’s opinion that the applicant currently represents a very low risk of re‑offending.
In exercising the discretion favourably to the applicant, I have also taken into account the very substantial period of time that has occurred since the offending nearly 20 years ago. The applicant has reached a very different stage of life and, in my view, there is nothing in any of the material that has been submitted in support of his application which militates towards an unfavourable exercise of the discretion.
Conclusion
I have taken into consideration all of the matters listed in s 38(3) of the Act. In the circumstances, and pursuant to s 38(2), I am satisfied that the applicant does not pose a risk to safety and well-being of either his children or any child or children entrusted to his care. Therefore, in accordance with s 38(1), the application is granted and the applicant’s reporting conditions pursuant to Part 3 of the Act are suspended.