C, M v Commissioner of Police
[2014] SASC 163
•5 November 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
C, M v COMMISSIONER OF POLICE
[2014] SASC 163
Reasons for Decision of The Honourable Justice Nicholson
5 November 2014
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
CRIMINAL LAW - SENTENCE - INTERPRETATION OF SENTENCING PROVISIONS
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
In 1982 the applicant, aged 14 at the time, commenced a sexual relationship with an eight year old girl. The relationship continued over a six year period until sometime in 1988, and resulted in the victim giving birth to a child in early 1989. On 18 April 1995 the applicant pleaded guilty to, and was convicted of, two counts of unlawful sexual intercourse with a person of the age of 14 years. He was sentenced on 26 May 1995 to 12 months imprisonment with a non-parole period of nine months, which was suspended upon his entering into a bond to be of good behaviour for a period of two years.
The applicant qualifies as a registrable offender for the purpose of the Child Sex Offenders Registration Act 2007 (SA) and is therefore required to meet certain reporting obligations. The applicant now seeks an order pursuant to s37(2) of the Act that those reporting obligations be suspended. The applicant meets the threshold requirements of a registrable offender who is entitled to apply to this Court for such an order to be made. The question that arises is whether this Court can be satisfied, under s38(2), that the applicant does not pose a risk to the safety and wellbeing of any child or children.
Held: application allowed.
Child Sex Offenders Registration Act 2006 (SA) s6, s15A, s37, s38; Acts Interpretation Act 1915 (SA) s22; Sex Offenders Registration Act 2004 (Vic) s11; Child Protection (Offender Reporting and Registration) Act 2004 (NT); Summary Procedure Act 1921 s99A, referred to.
Bowden v The Queen [2013] VSCA 382; Briginshaw v Briginshaw (1938) 60 CLR 336; R v ND [2014] NTSC 11, considered.
C, M v COMMISSIONER OF POLICE
[2014] SASC 163Application pursuant to the Child Sex Offenders Registration Act 2006 (SA)
NICHOLSON J.
These reasons concern an application for an order pursuant to s37(2) of the Child Sex Offenders Registration Act 2006 (SA) that the applicant’s reporting obligations imposed on him by that legislation be suspended.
Introduction
On 18 April 1995, in the Port Adelaide Magistrates Court, the applicant pleaded guilty to and was convicted of two counts of unlawful sexual intercourse with a person of the age of 14 years. He was committed to the District Court for sentence. On 26 May 1995, a Judge of the District Court sentenced the applicant to 12 months imprisonment with a non-parole period of nine months. This term of imprisonment was suspended upon the applicant entering into a bond in the sum of $200 to be of good behaviour for a period of two years.
On or about 18 October 2007, the Child Sex Offenders Registration Act 2006 (SA) came into operation. According to its long title, this was “an Act to establish a register of child sex offenders; to prevent registered child sex offenders engaging in child-related work; and for other purposes.” The coming into operation of this legislation had the effect of characterising the applicant as a “registrable offender” for the purposes of the Act and notwithstanding that the offences committed by the applicant occurred prior to the legislation coming into force. Subsection 6(1) provides as follows.
6—Who is a registrable offender?
(1)Subject to this section, a registrable offender is a person—
(a) whom a court has at any time (whether before, on or after the commencement of this section) sentenced for a class 1 or class 2 offence; or
(b) ...
Note— ...
It is common ground that the offences of which the applicant was convicted and sentenced in 1995 fall within the “class 1 offence” category, as defined in s4 of the Act as being those listed in Part 2 of Schedule 1 to the Act. The offences, being class 1 offences as defined, also satisfy the definition in s4 of the Act of a “registrable offence”.
According to s11 of the Act, as a registrable offender who was in South Australia on the commencement of s11 but who was not in government custody at that time, the applicant became obliged to report his personal details to the Commissioner of Police within 45 days after the commencement of s11. By letter dated 31 October 2007 from the Registrar of the Australian National Child Offender Register, the applicant received “Notice” advising him of his obligation to make an initial report to police in accordance with the requirements of the Act.
According to evidence given by the applicant on affidavit and which has not been disputed by the respondent, the applicant complied with the reporting obligations set out in the Notice dated 31 October 2007 and has, since then, continued to report annually, on or about the anniversary of his initial registration, in accordance with his obligations under the Act.
The respondent, being the Commissioner of Police, has had an opportunity to enquire into the applicant’s status under and compliance with the registration and reporting requirements imposed by the Act. There is no suggestion that the applicant has done anything other than fully comply with his obligations.
There is power under s38(1) of the Act for the Supreme Court, by order, to exempt certain registrable offenders from the reporting obligations otherwise imposed by the Act and to do so by making an order that those obligations be suspended.
By application filed on 12 June 2014 pursuant to s37(2), the applicant has sought an order that his reporting obligations pursuant to the Act be suspended. In support of the application, the applicant relies on:
(i) his own affidavit, sworn 12 June 2014, together with a number of exhibits including a report by the forensic psychologist, Mr Allen Fugler, dated 11 May 2012;
(ii)an affidavit of the applicant’s solicitor, Craig Andrew Sloan, sworn 24 October 2014 and to which is exhibited, inter alia, a report by the forensic psychologist, Mr Luke Broomhall, dated 21 October 2014; and
(iii)an outline of written submissions filed with the Court on 24 October 2014.
Counsel for the respondent initially reserved its position with respect to the application. However, during an early interlocutory hearing, counsel indicated that before forming a view it would like to see a report from a second independent forensic psychologist. The report of Mr Broomhall was obtained. The respondent was provided with an opportunity to examine that report and, at the most recent hearing of the matter, indicated to the Court that having done so it did not wish to be heard on the application.
The legislation
Sections 37 and 38 of the Act provide 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.
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.
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).
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.
It is common ground that the threshold requirements under s37(2) which permit the making of such an application have been satisfied. I turn therefore to consider the approach to be adopted with respect to the injunction in s38(2) that the Court must not make such an order unless it is satisfied that “the registrable offender does not pose a risk to the safety and wellbeing of any child or children”.
The requirement in s38(2) has been stated in quite absolute terms. Expressed in positive terms, a court can only make an order if “it is satisfied that the registrable offender does not pose a risk to the safety and wellbeing of any child or children”. The factum probandum is that the person does not pose a risk to the safety and wellbeing of any child or children. However, the section is silent on the standard of proof, civil or criminal, that is to govern the factum probandum. A question also arises as to whether the factum probandum need only be satisfied as at the time of the application (a literal reading) or whether a determination as to the future is required.
In R v D, WD[1] I identified some fundamental principles of statutory construction in the following terms.
[1] [2013] SASCFC 32 at [63]-[65], [67] (Nicholson J with whom Anderson and Peek JJ agreed).
A commonly accepted formulation of the literal approach was provided by Higgins J in Amalgamated Society of Engineers v Adelaide Steam Ship Co. Ltd.[2]
[2] (1920) 28 CLR 129 at 161-2.
The fundamental rule of interpretation to which all others are subordinate, is that a statute is to be expounded according to the intent of the parliament that made it; and that intention has to be found by examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable.
With reference to these propositions, Professors Pearce and Geddes have made the following observation.[3]
[3] DC Pearce and R Geddes, Statutory Interpretation in Australia 6th ed, LexisNexis Australia 2006 at [2.3].
Stated in this uncompromising form, the possibility of applying any other approach to interpretation was excluded, however unsatisfactory the result. Later it was accepted that this approach complimented the purposive approach. “The natural and ordinary meaning of what is actually said in the Act must be the starting point” Cooke J said in Reid v Reid [1979] 1 NZLR 572 at 594. Although the literal approach had a simplicity about it that was attractive, it suffered from a major defect. The defect was that it assumed that a word or phrase, read in its textual context, always has just one meaning. In fact, there may be no single, unambiguous, ordinary meaning.
In Project Blue Sky Inc. & Ors v Australian Broadcasting Authority[4] the authors of the plurality judgment[5] said this.
[4] (1998) 194 CLR 355 at [69] (citations omitted) and see generally [69]-[71].
[5] McHugh, Gummow, Kirby and Hayne JJ.
The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. … “[T]he context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.” Thus, the process of construction must always begin by examining the context of the provision that is being construed.
The modern approach to statutory interpretation which focuses on context and the purpose of the Act or the particular provision in question at the expense, where appropriate, of the literal approach is encapsulated in s22(1) of the Acts Interpretation Act 1915 (SA) and the decisions of this Court which have considered and applied it.[6] Sub-section 22(1) provides as follows.
Subject to sub-section (2), where a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
In Project Blue Sky, the plurality judgment contained the following observations.[7]
[T]he duty of a court is to give the words of the statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the cannons of construction[8] may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.
[6] For example, R v P, NJ (No 4) [2008] SASC 97; (2008) 183 A Crim R 461 at [78]-[86].
[7] At [78].
[8] The example given in the plurality judgment of such a cannon of construction was the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities, Coco v The Queen (1994) 179 CLR 427 at 437.
When construing a provision in the context of the act as a whole it will be important to keep the objects of the legislation steadily in mind. Such are discernible from the terms of the long title, the legislation itself and any objects clause. Section 3 of the act now under consideration is in these terms.
The object of this Act is to protect children from sexual predators by –
(a)requiring certain persons who may have a propensity to commit sexual offences against children to keep the Commissioner of Police informed of their whereabouts and other personal details for a period of time –
(i) to reduce the risk of such offences being committed; and
(ii) to facilitate the investigation and prosecution of any offences that are committed; and
(b)preventing such persons from engaging in child related work.
I am confident that it was not the intention of the legislature that a court would need to be satisfied only that, as at the time of any application, the applicant did not pose the relevant risk. Such a finding would be of limited utility when the overall scheme and objects of the legislation are taken into consideration. Such an approach would also be inconsistent with a number of the matters that must, according to s38(3) be taken into account. A major purpose behind the legislation is to protect children in the community from being confronted with or affected by any improper behaviour of a registrable offender in the future. Insofar as the court must take into account matters of history, for example, s38(3)(a)-(d) inclusive and (f), it will do so as an aide to predicting the future in this respect. The enquiry under s38(2) is directed to future risks assessed by reference to existing knowledge.[9] In addition, whilst the compound verb “does not pose” is in the present tense, indicative mood, its use in this context connotes a sense of active or continuing presentation. In my view, the phrase “does not pose a risk” should be read in the sense: does not pose a risk and will not pose a risk in the future.
[9] Cf; the discussion and similar approach adopted with respect to the same issues (albeit in the converse context) by the Victorian Court of Appeal (Redlich, Coghlan JJA and Dixon AJA) in Bowden v The Queen [2013] VSCA 352.
In DPP v Leys & Leys[10] the Victorian Court of Appeal observed:
The common law has long sought to avoid interpreting legislation in a manner that leads to a result that is manifestly absurd, unreasonable, creates an anomaly or otherwise produces an irrational or illogical result. In certain circumstances, departure from the literal meaning is justified and “the court is entitled to attribute to the provision the meaning which it was obviously intended to have”... . That a court may sometimes be justified in abandoning the literal meaning and adding or implying words to avoid an unintended result can no longer be doubted.
[10] (2012) 296 ALR 96 at [48]-[49] (citations omitted).
Section 38 and the Act as a whole are silent as to the standard of proof that must be satisfied. Notwithstanding that these proceedings arise as a consequence of the applicant having, in the past, been convicted of criminal offences, they are in my view civil by nature. Ordinarily, the burden of proof applicable to civil proceedings is on a balance of probabilities and not the criminal standard, beyond reasonable doubt. Had the legislature intended otherwise it could have and should have expressly indicated that an applicant had to satisfy the court beyond reasonable doubt that they did not pose the relevant risk.
For example, in Bowden v The Queen[11] the Victorian Court of Appeal was called upon to consider whether or not to affirm a registration order made by the sentencing judge pursuant to s11 of the Sex Offenders Registration Act 2004 (Vic). Under that legislation, the standard of proof was expressly identified. Subsection 11(3) of that Act provides:
The court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community.
The Victorian legislature saw fit to impose the criminal standard in circumstances where the making of a registration order would serve to infringe or otherwise restrict the ordinary rights enjoyed by a citizen. The present case concerns the converse situation. The purpose of the present application is to ensure that the ordinary rights of a citizen, in relevant respects, are restored. This suggests, all the more so, that if it were intended for the standard of proof under s38 to be the criminal standard, the legislature would have expressly provided so. Nevertheless, given the seriousness of the purpose underlying the enquiry and the serious nature of the potential consequences, I take the view that a Briginshaw[12] approach should apply.
[11] [2013] VSCA 382.
[12] Briginshaw v Briginshaw (1938) 60 CLR 336. In R v ND [2014] NTSC 11, Barr J had to consider whether to make an order that the respondent comply with reporting obligations contained in the Child Protection (Offender Reporting and Registration) Act 2004 (NT). In order to do so, his Honour had to be satisfied, inter alia, that the respondent posed a risk to the lives or the sexual safety of one or more children or children generally. The Act was silent as to standard of proof and his Honour held that in the circumstances before him, it was not appropriate to apply a particular standard, “either the court is satisfied or it is not” ([27]).
Finally, with respect to s38(2) it is noted that whilst the legislation concerns the registration of child sex offenders, the requirement under s38(2) that a registrable offender does not pose a risk is not confined, by its terms, to the risk of sexual offending. The risk to be avoided is stated in more general terms – risk to the safety and wellbeing of any child or children. It is unnecessary, in this case, to consider whether this general statement of the risk to be avoided is to be interpreted and applied literally or to be read down in order to conform more precisely to the primary object of the legislation. On either approach and as explained later in these reasons, I am satisfied that s38(2) has been made out.
The facts
In order to address the matters raised in s38(3) and the requirement in s38(2) it will be necessary to canvass, in a little detail, the circumstances of the offending, the applicant’s history, the applicant’s present circumstances and the opinions of Mr Fugler and Mr Broomhall.
The applicant committed the two charged offences of unlawful sexual intercourse with a person of the age of 14 years between 1 January and 31 December 1988. However, according to the sentencing remarks, this was a representative period in respect of a course of conduct that the applicant admitted had continued over a period of about six years. The applicant was sentenced on the basis that the offences with which he had been charged formed part of a course of conduct consisting of a series of criminal offences of the same or a similar character.
The victim was the daughter of the second wife of the applicant’s father. A sexual relationship commenced in about 1982 when the victim was about eight years of age and the applicant was about 14. According to the applicant, it started with kissing and fondling and the like before progressing to include regular sexual intercourse. After the sexual relationship had continued for a period of about six years, the victim fell pregnant and, in early 1989, a baby was born. By this time the victim was 15 years of age and the applicant was 21. No further acts of sexual intercourse took place after some time in 1988.
During sentencing submissions, the applicant, through his counsel, maintained that, at least towards the end of the six year period, there was a genuine relationship between the two. Nevertheless, the victim lodged a formal complaint with authorities some six or seven years after the offending conduct ceased. By then, at the latest, the psychological and emotional damage caused to the victim had become apparent and she had, with quite some justification, become very angry. In any event, the offending ceased some six years before the applicant was charged and sentenced, some 19 years before he became a registrable offender in 2007 and more than 25 years before the bringing of this application.
The sentencing Judge, in his remarks, noted that whilst the applicant was only 14 years of age when the offending began it could not be ignored that, whatever his level of maturity might have been at the age of 14, he willingly continued with the unlawful conduct for about two years after he turned 18 and had come to be regarded by the law as being of full age and capacity.
The applicant was 27 years old when he was sentenced and, at that time, his only previous conviction had been for an eight year old driving offence. He was therefore sentenced, in effect, as a first offender. The sentencing Judge also accepted that the applicant had shown contrition and had cooperated with the authorities in the investigation of the matter. A number of references from people who held the applicant in high regard were provided to the court and the sentencing Judge regarded him as otherwise of good character. The Judge expressed the view that “the likelihood of [the applicant] offending again is negligible”.
The Judge’s expectation in this latter respect has been vindicated. The applicant has not been convicted of any further offending, of any nature, since that which was before the sentencing Judge.
The applicant married in December 1994. The applicant and his wife commenced their relationship in 1991 when the applicant was about 23 years of age and his wife about 21 years of age. They have remained together since. There are three daughters of the marriage, presently 13, 10 and 8 years of age respectively.
The applicant left school part way through year 12 in 1984 at which time he commenced and thereafter completed a four year apprenticeship as a spray painter. The applicant has been in stable employment since then in the motor vehicle body repair business. Since about July 1996, the applicant has owned and operated his own motor vehicle body repair business. He employs approximately 14 staff.
By way of support for the application, the solicitors for the applicant obtained a report from a forensic psychologist, Mr Allen Fugler, dated 11 May 2012. I have read and considered this report.
According to the history provided to Mr Fugler, the applicant’s first sexual contact was with the victim when he was about 14. He did not have any sexual contact with other persons until after the offending ceased at or about the time of the birth of the child and when the applicant was approximately 21. Such additional sexual contact which occurred before the applicant married was only with adult females. The applicant also informed Mr Fugler: that, according to his belief, his marriage was stable; that his marriage had never involved domestic violence; and that he had not been involved in extramarital relations or sexual activity with prostitutes. Mr Fugler appears to have accepted the accuracy of this information and I have no reason to do otherwise. Mr Fugler offered the following conclusions in his report.
The sexual offences that brought your client before the court in 1995 first began when he was 14 years of age. His first sexual conduct was with the complainant and appears to have occurred when he had just begun to discover his sexuality. The offending behaviour became a pattern which [the applicant] understands was inappropriate and was continued for six years. He did not describe a history of deviant sexual arousal to individuals under the age of consent, other than the complainant during adolescence and his early adult years. Your client denied having developed sexual fantasies involving children since, or having developed a pattern of deviant sexual arousal. He has been married for the last 17 years and reported the relationship with his wife ... as being stable and positive. [The applicant] has not committed an offence of any kind since being sentenced in 1995 and described a history of pro-social behaviour since 1988, a period of 24 years.
[The applicant] has a good level of psychological functioning and does not have any difficulties with alcohol, illicit drugs, or poor impulse control, sexual or otherwise. Based on the information supplied by [the applicant] with respect to his sexual functioning and his history of non-offending for an extended period I have formed the opinion [the applicant] does not pose a risk to the sexual safety of any child or children.
As earlier indicated, a more recent report has now been obtained being that of the forensic psychologist, Mr Luke Broomhall, and dated 21 October 2014. I have read and considered this report. The history given by the applicant to Mr Broomhall is consistent with that given to Mr Fugler and that which has been given to the Court. The report by Mr Broomhall is extremely detailed and comprehensive. It is sufficient for present purposes to note the following, taken from Mr Broomhall’s summary of his conclusions and opinions.
At interview [the applicant] expressed feelings of shame, remorse and guilt in his behaviour... . He demonstrated adequate victim empathy in taking responsibility for his actions, not blaming the victim and espousing the understanding of the negative impact his behaviours had not only on the victim but also their daughter and the victim’s family.
. . . .
Whilst there were indications of lowered self-esteem, guilt and remorse as well as periodic sadness and grief symptoms reactive to trauma/death, there were no indications that [the applicant] suffered from any diagnosable psychological or psychiatric conditions. While it was not clear whether [the applicant] would have met the diagnostic criteria for a paraphilic disorder such as paedophilic disorder at the time of the offending..., there were no indicia of paedophilia at the date of assessment.
Actuarial risk assessment of static variables revealed that [the applicant’s] risk of similar sexualised offending was in the low range. More pertinently, actuarial risk of dynamic (current/changeable) risk factors were also in the low range. This indicated that there were no issues found at assessment with any dynamic risk factors shown in the relevant literature that correlate with a high risk of future sexual offending behaviour.
As noted, it is not standard best-practice in forensic psychology to offer a definite and fixed opinion whether an individual will or will not actually offend. An opinion anchored in outcomes from the relevant literature on probability (Low to Very High) is seen as standard practice. In summary, it was my opinion based on the information gathered that [the applicant’s] risk of similar future sexualised offending behaviour (or indeed any general offending behaviours) was in the Low range.
Conclusion
I am satisfied that a period of 15 years has passed since the applicant was last sentenced in respect of a registrable offence, that he is not the subject of a lifelong reporting period under a corresponding law whilst in a foreign jurisdiction before becoming the subject of such a period in South Australia and that he is not on parole in respect of a registrable offence. Accordingly, I am satisfied that the threshold requirements under s37 of the Act have been made out, such that the applicant is entitled to apply to the Supreme Court for an order suspending his reporting obligations, otherwise applicable under the Act.
My conclusions with respect to the matters that must be taken into account in accordance with s38(3) are as follows.
The registrable offences committed by the applicant were serious (paragraph (a)). Nevertheless, given the circumstances of the offending and the applicant’s age at the time, the offending was not at the most serious end of the spectrum of offences of this nature. Perhaps more importantly, whilst serious, the offences did not foreshadow, as it happens, a propensity to engage in paedophilic behaviour more generally or at all.
The period of time between when the offences were committed and the date of this application, approximately 25 years, is substantial (paragraph (b)). During that period of time the applicant has demonstrated that he has not posed any risk to the safety and wellbeing of any child or children.
There is no evidence before the Court to suggest that the applicant has ever been subject to a restraining order under s99AA of the Summary Procedure Act 1921 or that he has ever been subject to a declaration under Part 2A or an order under s15A of the Child Sex Offenders Registration Act. The Commissioner of Police is the respondent to the application. I am confident that, if there was any evidence to this effect, the Court would have been put on notice of it. Accordingly, neither paragraph (c) nor (ca) of s38(3) would seem to present any impediment to the making of the order sought.
As far as the matters in paragraph (d) are concerned, I note again that the applicant was very young during the period of the offending and indeed a minor for much of it. The victim was extremely young at the beginning of the offending and still very young (and under age) at the time the offending ceased. The difference between their ages was “substantial”. However, given the relative youth of the applicant, that difference in age (approximately eight years or so) does not, in my view, have quite the same significance as it would have, had the applicant been in say his early to mid-20s at the time of such offending. The relative ages and the nature of the relationship were important considerations, taken into account and reflected in the ultimate opinions expressed, by both Mr Fugler and Mr Broomhall.
As far as paragraphs (e) and (f) are concerned, I note that the applicant is presently 46 years of age and has no prior criminal record other than that as discussed in these remarks. Again, these factors are matters that were regarded as significant by Mr Fugler and Mr Broomhall when coming to their ultimate opinions as to the risks, if any, posed by the applicant.
Finally, I have not had drawn to my attention any other matters (paragraph (g)) which I would consider might militate against making an order of the type sought by the applicant.
I turn to consider the s38(2) requirement and the ultimate exercise of the discretion. Mr Fugler formed the opinion in May 2012 that the applicant did not then pose a risk to the sexual safety of any child or children. Mr Broomhall has expressed himself in a slightly more qualified fashion. He opined that the applicant’s risk of similar future sexualised offending behaviour (or indeed any general offending behaviour) was in the low range. Mr Broomhall explained why, according to the standard best-practice protocols in forensic psychology to which he adhered at the time of writing, it was not appropriate to offer a definite and fixed opinion regarding whether an individual will or will not actually offend. As I understand Mr Broomhall’s report, it was his opinion that the applicant should be placed at the very low end of the descriptive range of risk available to Mr Broomhall within the protocols to which he adhered. In a sense, Mr Broomhall’s approach reflects a concern with the absolute terms in which the statutory injunction has been expressed – “does not pose...”.
I have no reason not to accept the opinions expressed by both Mr Fugler and Mr Broomhall. Furthermore, the nature of the applicant’s sexual offending and the circumstances in which it occurred and the applicant’s behavioural history thereafter, for the ensuing more than 25 years, fully support these opinions. As far as s38(2) is concerned, I am satisfied, on the balance of probabilities and after acting with much care and caution,[13] that the applicant does not pose a risk to the safety and wellbeing of any child or children.
[13] Briginshaw v Briginshaw (1938) 60 CLR 336 at 347 (Latham CJ).
I am satisfied that the applicant has established the requirements for the making of an order suspending the applicant’s reporting obligations, otherwise to be observed by him pursuant to the Child Sex Offenders Registration Act 2006. I am satisfied that it is appropriate to make the order. I will hear the parties on the precise terms of the proposed order.
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