CM v Commissioner of Police - [2021] SASC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

CM v COMMISSIONER OF POLICE
[2021] SASC 85
Reasons for Decision of the Honourable Justice Nicholson
7 July 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE
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 for reporting obligations under the Child Sex Offenders Registration Act 2006 (SA) to be suspended.
Held: application allowed.
Child Sex Offenders Registration Act 2006 (SA) ss 15A, 37, 38; Summary Procedure Act 1921 (SA) s 99A, referred to.
C, M v Commissioner of Police (2014) 121 SASR 106, applied.

CM v COMMISSIONER OF POLICE
[2021] SASC 85
Criminal: Application
NICHOLSON J.
Introduction

During the arraignment list on 21 June 2021, on the application of CM not opposed by the Commissioner of Police, I made an order pursuant to section 38 of the Child Sex Offenders Registration Act 2006 (SA) (the Act) that the applicant’s reporting obligations imposed on him by that legislation be suspended. These are my reasons for so doing.
On 16 November 1992, the applicant was sentenced in the District Court with respect to three counts of unlawful sexual intercourse to a period of imprisonment for 30 months with a non-parole period of 26 months. This term of imprisonment was wholly suspended upon the applicant entering into a bond in the sum of $1,000 to be of good behaviour for a period of three years.
The applicant qualifies as a “registrable offender” pursuant to the Act which came into operation on or about 18 October 2007. The applicant is registered on the Australian National Child Offender Register (ANCOR) pursuant to section 6 and Schedule 1, Part 2 of the Act. As such, he is subject to lifelong reporting obligations, subject to any successful application to have them suspended.
This Court has the power, pursuant to subsection 38(1) of the Act, to make an order suspending the reporting obligations of certain registrable offenders that would otherwise be imposed by the Act. That power is enlivened upon an application being made to this Court by a registrable offender pursuant to subsection 37(2).
By application filed on 3 December 2020, the applicant sought an order suspending his reporting obligations. In support of his application, the applicant relies on his own affidavit, sworn 8 February 2021. In a preliminary hearing before this Court, the applicant tendered a clinical psychological report by Dr Gary Childs dated 16 January 2020.
The respondent by affidavit sworn 18 June 2021 exhibited a copy of the applicant’s Offender History Summary Report and the sentencing remarks of the subject offences delivered by his Honour Judge Kitchen dated 16 November 1992. I have also received a Court ordered psychiatric report by Dr Owen Haeney dated 12 May 2021.
The legislation
It is convenient to set out and consider the operation of the statutory framework that underpins an application of this nature.
A registered offender’s right to apply for a suspension of his or her reporting obligations is provided for by section 37 of the Act.
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.
The manner in which this Court is to approach the determination of such an application is governed by section 38 of the Act.
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.
In C, M v Commissioner of Police,[1] I considered an application analogous to the one currently before the Court, and in so doing made the following general observations regarding the operation of sections 37 and 38 of the Act.
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.
[1] [2014] SASC 163; (2014) 121 SASR 106 at [11]-[12].
I also considered the proper approach to the requirement under subsection 38(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”. In doing so, and after considering various authorities relevant to the issue,[2] I formed the view that subsection 38(2) was to be construed as applying not only to the time at which an application was made, but also as requiring consideration as to any future such risk. That is, the statutory injunction that an offender must not pose a risk to the safety and wellbeing of any child or children is to be interpreted as “does not pose a risk and will not pose a risk in the future”. Such an interpretation is consistent with the overall intention of the legislation, being the ongoing protection of children in the community from being subjected to any future improper behaviour by a registrable offender.
[2] At [15]-[21].
In summary, before making the order sought by the applicant that his reporting obligations be suspended pursuant to section 38 of the Act, I must be satisfied that:
(a)a period of 15 years has passed since the applicant was last sentenced or released from government custody in respect of a registrable offence or a foreign registrable offence, whichever is later;
(b)the applicant has 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;
(c)the applicant is not on parole in respect of a registrable offence; and
(d)the applicant does not pose a risk to the safety and wellbeing of any child or children, after having regard to the factors set out in subsection 38(3) of the Act.
The respondent has had an opportunity to investigate the applicant. Counsel for the respondent advised the Court that the respondent did not oppose the application.
The respondent conceded that there is no evidence of any foreign registrable offences by the applicant. The applicant has not committed any further registrable offences since the date of sentencing for the subject offending, being a period of just under 29 years.[3] The respondent also conceded the applicant is not the subject of a life-long reporting period under a corresponding law in a foreign jurisdiction, nor is the applicant on parole for a registrable offence. On both the respondent’s concessions and the evidence which is not disputed, (i), (ii), and (iii) above have been satisfied.
[3] As at 21 June 2021, 28 years, 7 months and 5 days.
The remaining question of substance is whether the applicant poses the relevant risk as provided for under subsection 38(2). Before embarking upon that enquiry, it is necessary to canvass in brief the circumstances of the applicant’s offending, the applicant’s personal history and the opinions of Doctors Haeney and Childs.
The facts
The applicant pleaded guilty to three counts of unlawful sexual intercourse which took place between 1 November 1991 and 21 May 1992. The offending occurred against the applicant’s then wife’s eldest daughter, who was between 14 and 15 years of age during the relevant period. The circumstances of the offending are set out in detail in Judge Kitchen’s remarks. The following summary is sufficient for present circumstances.
The victim’s mother, along with the victim and her sister, moved to South Australia in or about January 1991 to live with the applicant as a family. The applicant later married the victim’s mother in November 1991, making the victim the applicant’s step-daughter for most of the relevant period. In about March or April of 1991, the victim went to the applicant’s bedroom and an act of sexual indecency took place. This uncharged act formed the beginning of their inappropriate relationship. One day, whilst the victim was alone in the house, the applicant gave the victim a massage which culminated in an act of unlawful sexual intercourse. Further acts of unlawful sexual intercourse occurred at the applicant’s shop, from where he conducted his craft business, and later, after the closing down of the shop, at another residential home of the family where surplus craft items were stored. Prior to this last occasion, the victim told the applicant she did not want the relationship to continue as she felt confused and pressured by it. The victim stated that while the applicant was understanding, he asked for “one last time”, to which the victim consented.
Judge Kitchen recounted a number of mitigatory and aggravating features of the offending, not necessary to detail here. It should be noted that, while the appellant’s wife was initially supportive, this offending later contributed to the dissolution of the marriage.
While there was no reference to the psychological report, the applicant was described as suffering a psychological disturbance attributable to a motor vehicle accident in 1986. As a result of presenting to SOTAP,[4] the applicant was assessed by Mr Allen Fugler and deemed suitable for the counselling and therapy that program offered. It is unknown whether the applicant undertook this program after sentencing, although attendance at such a program was included within the conditions of his suspended sentence bond. In his report Mr Fuglar stated that the applicant accepted responsibility for his sexual behaviour, although justified it to some extent by stating the victim’s curiosity in part led to the offending.
[4] Sexual Offenders Treatment Assessment Program, now known as Owenia House.
After the offending, the applicant has enjoyed a relatively successful albeit unremarkable lifestyle. After early retirement from the Police Force in 1991 due to ill health, he pursued a career in hospitality, as a sales representative and later as State Secretary of the Australian Culinary Federation. He is now 71 years old, living alone with his pet cat on the aged pension and having divorced his third wife four years ago. The applicant is heavily involved in the Russian Pentecostal Church and enjoys gardening, but otherwise lives a relatively isolated existence.
The applicant was convicted of three counts of unlawful sexual intercourse against a different complainant in November 1992. These convictions were quashed by the Court of Criminal Appeal in August 1993, with the Court finding that the trial judge failed to properly direct the jury. Chief Justice King noted that the ordinary course would be for the conviction to be set aside and the matter remitted for retrial. However, the applicant’s time in custody had been completed and he was on parole. The Full Court entered a verdict of acquittal.[5] The applicant was further charged with one count of indecent assault in September 1995, however this was withdrawn in December 1995. These allegations were taken into account by Dr Haeney in his report, notwithstanding that they remain unproven.
[5] M v R (1993) SASC S4128 (unreported, Court of Criminal Appeal, SA, No 199 of 1993, 18 August 1993) per King CJ (Mohr and Bollen JJ agreeing).
The applicant has been convicted once for failing to comply with his reporting obligations in 2010. The applicant reported he had neglected to tell ANCOR he was to travel overseas and received a fine in the order of $2,500. Other than the above, the applicant has no relevant offending history.
The more recent psychological report by Dr Haeney provides support for the present application. Dr Haeney found the applicant falls within the low risk category for sexual reoffending.
It is notable that [the applicant] has not subsequent or prior convictions for further child sexual offending since his original convictions in 1992. However, he was charged and initially convicted of a further count of unlawful sexual intercourse but his conviction was reportedly quashed on appeal. No retrial was held and I do not have any further information regarding that incident. It is also noteworthy that in 1995, he was charged with a further indecent assault but this was dismissed for want of prosecution. [The applicant] alleges that it was a vexatious and false allegation made against him, with no basis in fact. I do not have any collateral information about this allegation.
. . . .
Overall, while he has a tendency to minimise aspects of his risk, both in terms of the index offending and in his initial denial of subsequent charges (in 1995), it is apparent that [the applicant] has few of the risk factors described within the RSVP tool. He has not been convicted of sexual offending for nearly thirty years, despite being out in the community for all that time. While the subsequent acquittal on appeal and later discontinued charges are of some concern, to my knowledge there has been no indication of offending behaviour relating to children for well over twenty years. It is difficult to know for sure whether his ANCOR registration and reporting conditions have been instrumental in preventing reoffending, for example in preventing access to potential victims. However, given the particular nature of his offences, against an apparently post-pubertal girl in the setting of a domestic situation, it appears relatively unlikely that such a situation would arise again, in terms of his motivation to offend, the opportunity, his age, or the susceptibility of any potential victim.
Overall, in my opinion the RSVP assessment echoes the STATIC-99R and suggests he is relatively low risk of sexual reoffending.
The psychological report by Dr Childs also provides support for the application. Dr Childs found the applicant does not represent any risk to the community, although did not provide a basis for doing so.
The situation of [the applicant’s] culpability and risk warrants thorough investigation. His continued classification on the Sexual Register and consequent Risk Factor should be reviewed. His reporting obligations should reflect the reality of his situation. He is not a risk to anyone, and has not been for thirty years. He should be able to travel overseas without impairment.
[The applicant] was incarcerated for six months for erroneous allegations, but accepted full culpability for his single lapse of conduct. He has not re-offended in any sense. He does not represent any risk to the community.
I note that Dr Child’s report was based on considerably less materials than that of Dr Haeney, and contained significant factual discrepancies to Dr Haeney’s report. However, they both formed the same conclusions in effect.
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. It follows that I am satisfied that the threshold requirements under section 37 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.
Having recently conducted a forensic psychiatric assessment of the applicant, Dr Haeney has formed the view that the applicant’s risk of similar sexualised offending behaviour in the future is in the low range. I accept the opinion expressed by Dr Haeney.
Furthermore, the nature of the applicant’s sexual offending and the circumstances in which it occurred, in addition to the applicant’s behavioural history for the more than 25 years that have since passed, support this opinion. As far as subsection 38(2) is concerned, I am satisfied that the applicant does not pose a risk to the safety and wellbeing of any child or children.
I turn, briefly, to my conclusions with respect to the other matters that must be taken into account in accordance with subsection 38(3).
There is no doubting that the registrable offences committed by the applicant were serious (paragraph (a)). However, given the circumstances and the applicant’s behavioural history since, the offending, though serious, would seem not to indicate a propensity on the applicant’s behalf to engage in paedophilic behaviour more generally or at all. That view is consistent with the opinions expressed by Dr Haeney and Dr Childs.

The period of time between when the offences were committed and the date of this application, more than 28 years, is substantial (paragraph (b)). I note that while Dr Haeney reported that the applicant appeared to minimise his offending by reporting the age of the victim as “16, hadn’t reached 17 yet”, the applicant has demonstrated that he has not at any time since his offending posed a risk to the safety and wellbeing of any child or children.
The respondent conceded that the applicant has never been subject to a restraining order under section 99AA of the Summary Procedure Act 1921 (SA) or that he has ever been subject to a declaration under Part 2A or an order under section 15A of the Act. Accordingly, neither paragraph (c) nor (ca) of section 38(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 that the applicant was 41 years of age at the time of the offending and the victim was between 14 and 15 years of age. The age difference was significant.
As far as paragraphs (e) and (f) are concerned, I note that the applicant is presently 71 years of age and has no relevant criminal record other than that as discussed in these remarks. This is a significant factor in favour of the applicant.
Finally, I have not had drawn to my attention by the respondent any other matters (paragraph (g)) which would preclude an order of the type sought by the applicant from being made.
I am satisfied that an order suspending the applicant’s reporting obligations, otherwise to be observed by him pursuant to the Act, is appropriate in the circumstances of this case. It was for these reasons that I made the following order.
1.Pursuant to subsection 37(2) and subsection 38(1) of the Child Sex Offenders Registration Act 2006 (SA) the applicant’s reporting obligations under that Act are suspended.