GD v Commissioner of Police - [2020] SASC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
GD v COMMISSIONER OF POLICE
[2020] SASC 2
Judgment of The Honourable Justice Parker
15 January 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 for suspension of reporting obligations pursuant to s 37 of the Child Sex Offenders Registration Act 2006 (SA).
In 2003 the applicant pleaded guilty to three counts of indecently assaulting his daughter when she was aged nine years. He was sentenced to imprisonment for 12 months with a non-parole period of six months. The sentence was suspended upon the applicant entering into a bond to be of good behaviour for two years. He complied with the terms of that bond. In the absence of an order suspending his reporting obligations, the applicant is subject to a lifelong reporting obligation under s 34(1) of the Act because he has been found guilty of three or more class 2 offences.
The applicant has sought to make contact with women in his age group through the use of the dating site RSVP. He believes that an order under s 38(2) will relieve him from statutory disclosure obligations that will hinder the development of a relationship.
The applicant disclosed his use of the RSVP site in an interview with a clinical psychologist commissioned to undertake a forensic psychological assessment of him. As the applicant had not previously reported his use of this site, the Crown Solicitor’s Office referred the matter to the police for investigation. This resulted in the applicant being charged with and pleading guilty to the offence of failing to comply with his reporting obligations without a reasonable excuse. The Magistrate recorded a conviction and placed the applicant on a bond to be of good behaviour for 12 months.
Each of the three requirements under s 37(2) are satisfied. Two questions remain. First, whether the Court is satisfied, as required by s 38(2) of the Act, that the applicant does not pose a risk to the safety and well-being of any child or children. Secondly, whether the Court should exercise the discretion to make an order under s 38. In considering that question the Court must take into account each of the matters specifically identified in 38(3) together with any other matter the Court considers relevant.
Held, Per Parker J, dismissing the application:
(1) In view of the very positive opinion expressed by the expert, combined with the fact that the applicant has not offended against a child in the past 19 years, his apparent personal stability over that time and the remorse he has shown, I am satisfied that the applicant does not pose any appreciable risk to the present or future safety and well-being of any child or children.
(2) The applicant has misconceived the extent of his reporting obligations. When properly understood, the obligations to which he is currently subject are less likely to interfere with his prospects of developing a relationship with a woman than he believes the case.
(3) It is inappropriate for the Court to exercise its discretion to suspend the applicant’s reporting obligations within weeks after he has been convicted of a failure to meet those obligations.
(4) The applicant is entitled to make a further application to this Court under s 37 after two years from the date of the order refusing the present application.
Child Sex Offenders Registration Act 2006 (SA) ss 37, 38; Criminal Law Consolidation Act 1935 (SA); Child Sex Offenders Registration Regulations 2007 (SA), referred to.
Attorney-General v Grosser [2016] SASC 49; C, M v Commissioner of Police (2014) 121 SASR 106; K, MP v Commissioner of Police [2017] SASC 38; L, R v Commissioner of Police [2018] SASC 181; O'Dea v Commissioner of Police (2016) 125 SASR 159; R v ND (2014) 283 FLC 348; R v White (1948) 122 CLR 467, applied.

GD v COMMISSIONER OF POLICE
[2020] SASC 2

PARKER J: This is an application by a registrable offender for an order under s 37 of the Child Sex Offenders Registration Act 2006 (SA) (the Act) suspending his reporting obligations. For the reasons that follow, I dismiss the application.
Background
The applicant was convicted in 2003 on three counts of indecently assaulting his daughter contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). These offences had occurred in 2000 and 2001 when his daughter was aged nine years. The matter was dealt with in the Magistrates Court.
The police apprehension report relevant to the 2003 convictions was admitted into evidence in the present proceedings. The applicant gave oral evidence which differed in material respects from the allegations contained in that report.
The police apprehension report states that the applicant made full and frank admissions regarding the offences against his daughter. He stated that he began to have sexual urges towards his daughter after the breakdown of his marriage in July 2000. He stated that these urges peaked in about September 2000 when he began touching his daughter. The applicant admitted to police that he had touched his daughter’s vagina with his hands while he thought she was asleep on many occasions. He estimated that this would have occurred every couple of nights since September 2000 until the time the offending came to notice. The applicant also admitted that on two occasions while his daughter was sleeping in his bed he rubbed her vagina with his penis while lying in the missionary position and that on one of those occasions he had ejaculated.
The applicant stated in his oral evidence in chief in support of this application that the conduct referred to in the three counts of indecent assault was as follows. First, his daughter had complained about the way he had kissed her but not that he had kissed her in a particular area or manner. Secondly, he had masturbated and ejaculated onto her vagina on one occasion. He denied having touched his daughter’s vagina with his hands on any occasion while she was asleep. Thirdly, he had lifted her pyjamas while his daughter was in bed. However, the applicant admitted in cross-examination that he had touched his daughter on at least two occasions. Counsel for the Commissioner of Police conceded that the Court must proceed on the basis of the admissions made by the applicant in these proceedings.
The effect of the applicant’s evidence was to diminish the extent and gravity of some of the allegations contained in the police apprehension report. However, the conduct now admitted to by the applicant is not inconsistent with his plea of guilty in 2003 to three counts of indecent assault. The copy of the information laid in 2003 extracted from the records of the Magistrates Court does not contain any particulars relating to the three counts of indecent assault. There is no documentary information before this Court to establish precisely what allegations the police prosecutor put to the Magistrates Court. There is also nothing in the Magistrate’s sentencing remarks, or in the report of Dr Raeside, that is in any way inconsistent with the assertions now made by the applicant. Under the circumstances, I must proceed in accordance with the concession made by the Commissioner. Nevertheless, I observe that the conduct now admitted by the applicant constitutes a serious case of indecent assault.
The Magistrate noted in his sentencing remarks that usually offending of this type would attract an immediate term of imprisonment. The Magistrate noted that as “disturbing as the defendant’s actions were I do accept that many background factors impacted on the defendant at the relevant time, outlined particularly in Dr Raeside’s report”. The Magistrate also noted the applicant’s plea of guilty and his cooperation with the police. His Honour accepted that an immediate custodial sentence would have a negative impact on the applicant’s daughter.
The applicant was sentenced to imprisonment for 12 months with a non‑parole period of six months. The sentence of imprisonment was suspended upon the applicant entering into a bond in the sum of $200 to be of good behaviour for two years. He complied with the terms of that bond.
The legislative scheme
Section 6(1)(a) of the Act provides that a person who has been sentenced by a court at any time, whether before or after commencement of the provision, for a class 1 or a class 2 offence is a registrable offender. Clause 3(c) of Schedule 1 to the Act provides that an offence against s 56 of the Criminal Law Consolidation Act 1935 (SA) (i.e. indecent assault) is a class 2 offence if the victim was a child unless the offence occurred in prescribed circumstances. No circumstances have been prescribed in the Child Sex Offenders Registration Regulations 2007 (the Regulations).
Because the applicant has been convicted of an offence under s 56 where the victim was a child, he is a registrable offender. Although sub-ss 6(3) to 6(6) of the Act exclude certain persons who have been sentenced for a relevant offence from being a registrable offender, none of those exclusions are relevant to the applicant.
The term “serious registrable offender” is defined in s 4(1) as follows:
serious registrable offender means—
(a) a registrable repeat offender; or
(b) a registrable offender who has been declared to be a serious registrable offender under Part 2A;
A “registrable repeat offender” is defined in s 4(1) in the following terms:
registrable repeat offender means a registrable offender who has (whether before or after the commencement of this Act) committed—
(a) on at least 3 separate occasions, a class 1 or class 2 offence; or
(b) on at least 2 separate occasions, a class 1 or class 2 offence provided that on each occasion the victim was under the age of 14 years;
In the absence of an order made by the Court under s 38(1) suspending the reporting obligations of the applicant, he is subject to a lifelong reporting obligation under s 34(1). That is because he has been found guilty of three or more class 2 offences.
Part 3 sets out in considerable detail the reporting obligations of a registrable offender. Part 3 is divided into nine Divisions and comprises ss 11 to 59. Sections 11 to 14 deal with the making of an initial report by a registrable offender. That obligation was apparently met by the applicant long ago.
Section 15 requires a registrable offender to report his or her personal details to the Commissioner each year. Section 22(2) provides that a registrable offender may, with the approval of the Commissioner, make the report in a manner permitted by the Commissioner or by the Regulations. A relevant form has not been prescribed under the Regulations. Thus, the content of the annual report is determined by the Commissioner. It was the failure of the applicant to comply fully with his reporting obligations under s 15 that led to his recent conviction.
Section 15A provides that the Commissioner may require a serious registrable offender to make additional reports if he considers that the offender may fail to comply with the Act or poses a serious risk to the safety and well‑being of children. Such an order may only operate for a period of not more than two years. However, the Magistrates Court may make an order imposing additional obligations for a longer period or until further order. The appellant is not subject to an order under s 15A.
Section 16 requires a registrable offender to report changes to their relevant personal details to the Commissioner within seven days after the change occurring. The term “personal details” is defined in s 4(1) to mean the information listed in s 13(1). The information referred to in s 13(1) is set out in 20 paragraphs, some of which contain subparagraphs.
Of particular relevance for present purposes is the duty under s 13(1)(e) to report the names and ages of any children who generally reside in the same household as that in which the registrable offender generally resides. There is a further obligation under s 13(1)(ea) to report if the registrable offender knows that they are likely to have reportable conduct during the next 12 months with a particular child.
Section 13(2) stipulates that a registrable offender does not generally reside at any particular premises unless they reside at those premises for at least 14 days, whether consecutive or not, in any period of 12 months. The same formula is applied to determine whether a child generally resides in the same household as a registrable offender.
Section 16(2) provides that the obligation to report a change of personal details in respect of the premises or household where the offender or a child generally resides only arises upon the expiry of the 14-day period referred to in s 13(2).
Sections 17 to 20 require registrable offenders to meet certain reporting obligations in relation to travel outside South Australia or Australia.
Section 20A provides that, despite other provisions of the Act, if a registrable offender has reportable contact with a child they must report the details of that contact to the Commissioner within two days.
The term “reportable contact” is defined in s 4(1) to have the meaning set out in s 13(4). Section 13(4) provides as follows:
(4) For the purposes of this section, a person has reportable contact with a child—
(a) if—
(i) the person has contact with the child consisting of—
(A) any form of physical contact or close physical proximity with the child; or
(B) any form of communication with the child (whether in person, in writing, by telephone or other electronic device); and
(ii) the contact with the child—
(A) occurs in the course of—
• the person or the child visiting or residing at a dwelling (whether the person and the child are alone or with others); or
• the person (whether alone or with others) supervising or caring for the child; or
(B) involves the person providing contact details to the child or obtaining contact details from the child or otherwise inviting (in any manner) further contact or communication between him or her and the child; or
(b) if the person has contact of a kind, or occurring in circumstances, prescribed by the regulations.
No additional conduct or circumstances have been prescribed by the Regulations.
Part 5 of the Act contains provisions prohibiting registrable offenders from particular work that may involve contact with children. It is unnecessary to refer to these provisions as there is no suggestion that the applicant has any interest in such work.
Section 66B of the Act authorises a registrable offender to apply to the Commissioner for a declaration modifying their reporting obligations under Part 3 or exempting them from the operation of Part 5 or specified provisions of Part 5. In the present case s 66B(5) operates to exclude the power of the Commissioner to make a declaration. That is because the applicant was more than 10 years older than the victim at the time of the offence and also because the victim was less than 14 years old. Thus, the only avenue open to the applicant was to apply to this Court under s 37(2) of the Act for an order suspending his reporting obligations. Section 38 empowers the Court to make such an order.
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.
Upon an order being made under s 38(2), the reporting obligations otherwise imposed upon a registrable offender by Part 3 are suspended pursuant to s 32.
Section 41 provides that if the Court refuses to make an order under s 38, a registrable offender is not entitled to make a further application until five years have elapsed from the date of the refusal unless the Court otherwise orders at the time of that refusal.
Section 66L imposes certain obligations on registrable offenders and serious registrable offenders. I will refer to that provision in greater detail later in this judgment.
The appellant is a serious registrable offender
While the Commissioner has apparently not regarded the applicant as a serious registrable offender, for the reasons that follow I consider that he is covered by the definition of a “serious registrable offender” in s 4(1).
The applicant pleaded guilty to, and was convicted of, three offences of indecent assault. It is apparent from the information laid in the Magistrates Court that these offences occurred on different occasions. The applicant acknowledged in these proceedings that he had touched his daughter on at least two occasions.
The circumstances of the present case are relevantly indistinguishable from those considered by the Full Court in O’Dea v Commissioner of Police.[1] The appellant in O’Dea had been convicted of six counts of indecent aggravated assault against a child. The six counts had been included in the one information. The appellant contended that he was not a serious registrable offender. The Full Court rejected that contention.
[1] (2016) 125 SASR 159.
The Full Court found in O’Dea that the appellant had committed relevant offences on at least two separate occasions. In reaching that conclusion the Full Court followed the decision of the High Court in R v White.[2] In that case the High Court held that there is an “occasion” each time a person was charged in court with an offence and convicted upon that charge.[3] The fact that all convictions were recorded at one court appearance does not mean that the offences occurred on one occasion.
[2] (1948) 122 CLR 467.
[3] Ibid at 475.

The circumstances of the applicant cannot be distinguished from those considered in O’Dea. He has been convicted of a class 2 offence on at least two separate occasions and on each occasion the victim was aged under 14 years. For that reason the applicant is a serious registrable offender.
Personal circumstances
The applicant is now aged 58 years. He was employed for 38 years as a technical officer with a Commonwealth public authority. He was retrenched from that position in early 2018. Apart from the three convictions for indecent assault of his daughter in 2003, and the recent conviction which I will refer to shortly, the applicant has no other convictions. He completed a two-year certificate course at TAFE prior to his employment as a technical officer. He subsequently completed a diploma at Flinders University and also undertook studies in computer science at degree level which he did not complete.
Following the applicant’s conviction in 2003, his employer conducted a protracted enquiry as to whether his employment should be continued. That question was ultimately decided in his favour. The applicant is the father of two girls and a boy. The victim of his offending was his elder daughter. The applicant’s wife had left him prior to the commencement of the offending. She suffered a serious mental illness and was hospitalised on a number of occasions. Following several attempts, she committed suicide some months after her daughter had disclosed to her the applicant’s offending behaviour.
After the disclosure by the victim of the applicant’s offending, his three children were removed from his custody and placed in the care of his sister. The applicant’s son was later returned to his custody and remained with him until he reached adulthood. The applicant has a good relationship with his son and younger daughter. However, his relationship with his elder daughter has been difficult, although he has recently taken steps towards improving that relationship.
The applicant has sought to make contact with women in his age group through use of the dating site RSVP. He met and dated several women through the use of the RSVP site but has not had any contact for a few years. He has made the present application because he believes that an order under s 38(2) will relieve him from statutory disclosure obligations that will hinder the development of a relationship.
The psychological report of Mr Richard Balfour
Mr Balfour reported that the applicant “possesses none of the traditional static (historical) and dynamic (acute) criminogenic risk factors that have been identified by researchers as predisposing an individual towards offending behaviour”. Mr Balfour also stated that he could not find any clinical evidence to suggest the applicant has any form of mental illness or a serious personality disorder. He is of above average intelligence. His personality is reserved and introverted and he can lack confidence.
In the opinion of Mr Balfour, the applicant used the opportunity granted by the suspension of his sentence to fully rehabilitate himself and to remain offence free for the past 17 years. Mr Balfour considered that the applicant’s prognosis to continue to remain offence free is excellent. He administered the RSVP (Risk for Sexual Violence Protocol) test.[4] The applicant was assessed as having a low level of sexual risk and, in the opinion of Mr Balfour, the probability of his re‑offending is very low.
[4] To be distinguished from the dating site with the same acronym used by the applicant.
Mr Balfour further stated that while no person who has committed a child sex offence could ever be considered zero risk, the applicant’s level of sexual risk to prepubescent females is in the lowest range possible. While his offending behaviour was an act of paedophilia there is no indication that he has a persistent sexual interest in prepubescent females. His primary sexual interest is in adult women and for that reason he maintains a profile on RSVP to meet and date adult females. However, he informed Mr Balfour that the Australian National Child Offence Register (ANCOR) reporting obligations had limited his ability to establish an enduring relationship with an adult female. This has been counterproductive to his overall rehabilitation. Mr Balfour considered that a protective factor against further sexual offending would be to develop an ongoing relationship with an adult woman so that his sexual needs could be satisfied in an age appropriate consensual relationship.
Mr Balfour further stated that the applicant does not suffer from any comorbid psychopathology that would predispose him to further offending such as an antisocial personality disorder or drug or alcohol abuse problems. There are also a number of protective factors against further sexual offending, e.g. the applicant is financially secure, has a good work ethic and a supportive relationship with his family. Mr Balfour also noted that the applicant is extremely remorseful regarding his offending behaviour and has exhibited victim empathy. His concern has always been about the welfare of the victim. For that reason, after the offending was disclosed by his daughter, he had voluntarily attended the police station and made full and frank admissions. He then pleaded guilty at the earliest opportunity so that his daughter would not have to endure the trauma of a trial. He had voluntarily acknowledged that he had a sexual problem and had immediately followed the police advice that he should attend SOTAP (the Sexual Offenders Treatment and Assessment Program, now known as Owenia House). He successfully completed the SOTAP program. Mr Balfour stated that he believed the applicant’s remorse is sincere and not self‑serving. He had not attempted to diminish his level of personal responsibility for his offending behaviour by blaming others or the victim. He had an understanding of his risk factors and had developed his own psychological strategies to ensure that he does not reoffend.
Mr Balfour reported that he did not believe the applicant requires specific rehabilitation. He could not see any benefit in recommending that he attend the Owenia House rehabilitation program.
The psychiatric report of Dr Raeside
The report of Dr Raeside, a forensic psychiatrist, dated 9 December 2002 was provided to the Magistrate during the sentencing process. The contents of Dr Raeside’s report were generally consistent with the later report of Mr Balfour.
Dr Raeside stated that he considered it likely that the applicant’s offending behaviour was the result of a combination of ongoing marriage difficulties, depression, sexual frustration and eventual sexualisation of his paternal relationship with his daughter.
Breach of reporting obligations
As previously noted, the applicant disclosed in his interview with Mr Balfour that he used RSVP to contact women for the purpose of forming a relationship. As the applicant had not previously reported his use of this site, the Crown Solicitor’s Office referred the matter to the police for investigation. That resulted in the applicant being charged with the offence of failing to comply with his reporting obligations without reasonable excuse, contrary to s 44(1) of the Act. The present application was adjourned for a long period pending the outcome of the prosecution.
The applicant pleaded guilty and was sentenced by a Magistrate on 25 November 2019. The Magistrate noted that the applicant had openly and honestly disclosed to Mr Balfour his use of the RSVP site. The Magistrate observed that the applicant should have known exactly what his obligations were and complied with them. On that basis, the Magistrate found that a conviction was appropriate but he was also confident that the applicant could comply with the terms of a bond. The Magistrate recorded a conviction and placed the applicant on a $200 bond to be of good behaviour for a period of 12 months.
During their investigation of the offence against s 44(1), the police searched the applicant’s phone and computer but found no material of concern.
The applicant’s submissions
The applicant submitted that he had been reporting reliably to ANCOR and no concerns had been raised about his risk to children since he became subject to the Act in 2006. Eighteen years have elapsed since the commission of the offences. The applicant stated in evidence that, even prior to the commencement of the reporting obligations under the Act, he had voluntarily disclosed his past offences before entering a relationship. He now wishes to meet a suitable woman and remarry. He does not think that it would be fair to impose on a wife or partner the obligation to declare his offences every time that they entered premises or a friend’s place where there were children present.
The applicant stated that his understanding of the disclosure obligations under the Act was that if he entered a house where children were present he was required to disclose his past offences. He also stated that, in any event, he would inform any woman that he was dating of his past offences. His concern was that he could not visit friends and would be unable to have a social life because of the obligation to disclose.
The applicant acknowledged that a police officer had spoken to him in about June 2018 when conducting the annual review of his reporting obligations. While he stated that he had failed to inform the officer of his use of the RSVP site when completing the reporting form, he asserted that he had always made disclosure to the police as required by the Act. Thus, he had reported his interstate travel, changes to his telephone number, contact with children and the birth of his granddaughter.
The applicant acknowledged in cross-examination that he had been using the RSVP site since about 2013. However, he did not disclose his use of RSVP in response to the question on the annual review form asking about social media use. He asserted that he did not regard the RSVP site as being within the scope of that question, i.e. he did not consider the RSVP site to be a form of social media. The question referred by way of example to “Facebook, Twitter, Skype etc”. In his view, RSVP was not covered by those examples. However, he pleaded guilty to failing to report his use of RSVP. Thus, he admitted that he was required to make disclosure.
The Commissioner’s submissions
The Commissioner opposes the application for three reasons. The first reason is the seriousness of the offences committed by the applicant. The Commissioner contends that the offences were at the most serious end of offences of this type. The applicant was clearly in a position of trust and power and the primary carer of the victim. She was vulnerable because of her age and because there was not another adult in the home.
The Commissioner also submits that the merciful sentence imposed on the applicant does not assist him when considering the seriousness of the offences. It was clear from the sentencing remarks, and the reports that were before the Court, that the Magistrate adopted a merciful approach because of the extremely traumatic circumstances that the applicant’s children, and in particular the victim, had been placed due to his offending.
The second basis for the Commissioner’s opposition was the fact that the applicant had been very recently convicted of failure to comply with his reporting obligations without reasonable excuse. The Commissioner submitted that the Magistrate had correctly identified that the offence was quite serious and the applicant should have known exactly what his obligations were and complied with them. While the police interrogation of the applicant’s computer and phone had not revealed anything of further concern, his failure to disclose the existence of the RSVP account had deprived the Commissioner of the opportunity to monitor and investigate his dealings with people contacted through that site and to establish their family situation. If he had disclosed his RSVP account and his username and password, it would have been possible for the police to monitor his activities. His failure to disclose had prevented that from occurring.
The third basis upon which the Commissioner opposed the application was that the applicant had misunderstood his reporting obligations in relation to contact with children. The Commissioner submitted that the reporting requirements to which the applicant is actually subject are not onerous and it was the intention of the Parliament that he comply with these obligations for the remainder of his life.
Section 66L(1) of the Act requires that a registrable offender who is generally to reside in a household in which a child generally resides, or is to stay overnight in a household where a child is also staying overnight, must inform each parent or guardian of the child who generally resides in the same household as the child of the fact that he is a registrable offender and the offences that resulted in him becoming a registrable offender. The Act does not require a registrable offender to disclose their history simply because they are at a residence or venue where a child is present. However, that fact must be reported to the Commissioner rather than the parent or guardian.
Importantly, the Commissioner also pointed to the fact that if the Court were to grant the application, the obligation to report to the Commissioner would be suspended but not the obligation to disclose to a parent or guardian in the circumstances to which I have previously referred.
The Commissioner submitted that the Court could find that it was not satisfied that the applicant does not pose a risk to the safety and welfare of children. Alternatively, if the Court finds in light of the report of Mr Balfour that he does not pose such a risk, the residual discretion of the Court should be exercised so as to decline the application.
The authorities
C, M v Commissioner of Police
In C, M v Commissioner of Police[5] Nicholson J considered an application for the suspension of reporting obligations under s 38 of the Act. Nicholson J held that the making of an order under s 38 involves a three‑stage process. The first issue is whether the threshold matters set out in s 37(2) have been satisfied. If so, the further question is whether the Court is satisfied that the offender “does not pose a risk to the safety and wellbeing of any child or children”. If each of these requirements are satisfied, the Court must consider whether it should exercise its discretion to make an order under s 38.
[5] (2014) 121 SASR 106.
Nicholson J held that it was not the intention of the legislature that the Court would need to be satisfied only that as at the time of the application the applicant did not pose a risk to the safety and well-being of any child or children. His Honour held that the enquiry required under s 38(2) is directed to future risks assessed by reference to existing knowledge. Thus, Nicholson J concluded that the phrase “does not pose a risk” should be read to mean “does not pose a risk and will not pose a risk in the future”.
Nicholson J also held that while an application must be determined in accordance with the civil standard, that “given the seriousness of the purpose underlying the inquiry and the serious nature of the potential consequences” his Honour concluded that the Briginshaw approach should be adopted.[6]
[6] (1938) 60 CLR 336. Nicholson J also observed in footnote 12 that in R v ND (2014) 283 FLC 348 Barr J had held that when considering an application under generally cognate Northern Territory legislation it was not appropriate to apply a particular standard of proof. The only question was whether the Court was satisfied or not.
K, MP v Commissioner of Police
In K, MP v Commissioner of Police Hinton J considered the standard of proof that was to be applied by the Court under s 38 of the Act.[7] Hinton J found it unnecessary to express a final view as to whether the conclusion reached by Nicholson J in C, M v Commissioner of Police was correct. His Honour stated “[i]t occurs to me that there is much to be said for the view that the text imports neither of the traditional standards of proof. Either the Court is satisfied or it is not”.
[7] [2017] SASC 38 at [19].
L, R v Commissioner of Police
In L, R v Commissioner of Police[8] Nicholson J revised the approach that he had previously taken to the standard of proof in C, M v Commissioner of Police. Nicholson J stated that after further consideration, and having regard to the views expressed by Hinton J in K, MP and Barr J in R v ND, he had concluded that it may not be appropriate to refer to the civil standard of proof, albeit with a Briginshaw approach. The fundamental question before the Court in considering an application under s 38(2) was whether the Court is or is not satisfied of the statutory requirement.[9]
[8] [2018] SASC 181.
[9] Ibid at [12].
Nicholson J also stated in L, R that he adhered to the view he had expressed in C, M that s 38(2) required the Court to consider future risks and not merely the level of risk at the time of the application or delivery of judgment. In other words, the phrase “does not pose a risk” should be read as meaning “does not pose a risk and will not pose a risk in the future”.[10]
[10] Ibid at [11].
The third observation made by Nicholson J in L, R concerned the requirement in s 38(2) that the Court must be satisfied that the registrable offender “does not pose a risk to the safety and well-being of a child or children”. Nicholson J noted that if this provision were to be construed literally it would rarely, and perhaps never, be the case that the Court could make an unqualified finding that any person, let alone a person with a history of underage sexual offending, posed no such risk, particularly as to the indefinite future. His Honour also observed that a forensic psychologist or psychiatrist will not express the level of risk other than by reference to a scale or spectrum of risk ranging upwards from low risk. Experts will not commit themselves to an absolute position of no risk.
For these reasons, Nicholson J held that the words “does not pose a risk” were not to be construed literally as that would effectively empty the judicial discretion of all content. Thus, Nicholson J held that the provision is concerned with appreciable risk.[11] In that respect, his Honour adopted the observations made by Stanley J in a different context in Attorney-General v Grosser where his Honour had stated :[12]
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 [of the type in question]. It is a question of degree.
(Footnote omitted)
[11] Ibid at [15].
[12] [2016] SASC 49 at [29].
Nicholson J concluded his analysis with the observation that the risk envisaged by s 38(2) will be appreciable if it is such that the Court concludes the applicant remains a person who should continue to be subject to the reporting obligations notwithstanding their satisfaction of all the other mandatory statutory requirements for suspension of those obligations, the identification of favourable discretionary considerations and the lack of any unfavourable discretionary considerations.
Consideration
While I have found that the applicant is a serious registrable offender, that does not mean that he is not also a registrable offender. It is clear from the terms of the Act that serious registrable offenders are a sub-set of registrable offenders who may potentially be the subject of an application under s 15A and who are subject to an additional reporting obligation under s 66L(2). A serious registrable offender may make application under s 37.

Close to 17 years have passed since the applicant was sentenced on 25 February 2003. Thus, he meets the threshold requirement of 15 years since sentencing prescribed under s 37(2) of the Act. The Commissioner also accepts that the applicant satisfies the other two requirements of s 37(2).
As each of the three requirements under s 37(2) are satisfied, the further question is whether the Court is satisfied that the applicant “does not pose a risk to the safety and well-being of any child or children”. I approach this question on the following basis.
I agree with the conclusion by Nicholson J in C, M that the words “does not pose a risk …” in s 38(1) must be interpreted as meaning “does not pose a risk and will not pose a risk in the future”.[13] As his Honour observed in that case, the object of the Act is to protect children from harm caused by the registrable offender. Thus, the inquiry under s 38(2) is directed to the assessment of both current and future risk.
[13] (2014) 121 SASR 106 at [17].
I also respectfully agree with the suggestion by Hinton J in K, MP, which was later endorsed by Nicholson J in L, R, that it is not a question of applying any particular standard of proof but rather that the Court must be satisfied that the applicant does not pose a risk to the safety and well-being of any child or children. In my view, that approach is required for two reasons. The first reason is to give proper effect to the words used in s 38(2). The second reason is that the Court is being required to make an evaluative judgment rather than to decide adversarial proceedings.
As Nicholson J observed in C, M, in deciding whether the required state of satisfaction has been reached, it is necessary to consider the matters listed in s 38(3) and also circumstances of the offending, the applicant’s history, his current circumstance and the expert evidence.
Additionally, I agree with the conclusion reached by Nicholson J in L, R that s 38(2) requires the Court to be satisfied that the applicant does not pose an appreciable risk to the safety and well-being of any child or children. I also agree with Nicholson J that the observations made by Stanley J in Grosser (see [67] above) concerning the meaning of “appreciable”, albeit in a different statutory context, are apposite to the interpretation of s 38(2).
Mr Balfour has reported that the applicant was assessed as having a low risk of reoffending under the relevant psychological test. At another point in his report Mr Balfour stated that the applicant has an excellent prognosis of continuing to remain offence free. Most importantly, Mr Balfour also stated that the probability of the applicant reoffending was very low and his level of risk to prepubescent females was in the lowest range possible.
The evidence of Mr Balfour has not been challenged by the Commissioner. I also note that the findings upon which Mr Balfour based his opinion are consistent with the observations made by Dr Raeside in 2002. Significantly, Dr Raeside observed that the applicant’s offending was the product of his personal circumstances as they then existed.
In view of the very positive opinion expressed by Mr Balfour, combined with the fact that the applicant has not offended against a child in the past 19 years, his apparent personal stability over that time and the remorse he has shown, I am satisfied that the applicant does not pose an appreciable risk to the present or future safety and well-being of any child or children.
The further question is whether I should exercise the discretion of the Court to make an order under s 38. In considering that question I am required to take into account each of the matters specifically identified in s 38(3) together with any other matter that I consider relevant.
Paragraph (a) of s 38(3) requires the Court to take into account the seriousness of the registrable offences committed by the applicant. I accept the correctness of the submission by the Commissioner that the offences of which the applicant was convicted in 2003 were particularly serious examples of the offence of indecent assault. I take that view because the victim was the nine-year-old daughter of the applicant who, due to the absence of her mother, was in the sole care of her father. The touching of the victim’s vagina while she slept in the applicant’s bed accompanied by his ejaculation was a grave breach of his responsibility to care for and nurture his daughter. However, I also recognise that the applicant has shown remorse for his offending and has sought to re‑establish a parental relationship with his now adult daughter.
It is also relevant that, notwithstanding the seriousness of the offending, the sentencing Magistrate found it appropriate to suspend the term of imprisonment. His Honour adopted that merciful approach in light of the matters outlined in the report of Dr Raeside, the applicant’s guilty plea, his cooperation with the police and so as to avoid a further negative impact on the victim.
I also note that the registrable offences occurred 18 or 19 years ago. Leaving aside the recent conviction for failing to comply with his reporting obligations, the applicant has not re-offended and has led a productive life. He has not ever been subject to a restraining order or a declaration under Part 2A of the Act or an order under s 15A.
Paragraph (d) of s 38(3) requires the Court to take into account the age of the registrable offender, the age of the victim and the difference in their respective ages at the time the offences were committed. The applicant was aged about 40 years at the time of the offences while the victim was aged nine years. While I take that age difference into account, as I must, in my view the more important consideration is that the victim is the applicant’s daughter and was in his sole care at the time of the offending. The age difference is integral to the parent/child relationship.
I also take into account, as required by paragraphs (e) and (f) of s 38(3), that the applicant is currently aged 59 years and that his only criminal offences are the three against his daughter, and also the very recent offence of failing to comply with his reporting obligations.
Paragraph (g) of s 38(3) requires the Court to take into account any other matter that it considers appropriate. I consider that there are two other matters that must be taken into account in deciding the application.
The first of those matters is the misunderstanding by the applicant as to the extent of the obligation to make disclosure of his convictions for sexual offences. The second issue is his recent conviction for failure to comply with his reporting obligations.
It is necessary to consider the effect that approval of this application would have upon the applicant’s reporting and disclosure obligations. Upon the Court making an order under s 38(2), s 32(1) will operate to suspend the applicant’s reporting obligations under Part 3. However, such an order will not affect the duty of the applicant to make disclosure under s 66L. That is because an order made under s 38(2) only operates to suspend the reporting obligations imposed by Part 3. However, s 66L is contained in Part 6 of the Act rather than Part 3.
If the Court exercised its power under s 38(2) to grant the application, the entirety of the obligations imposed by Part 3 of the Act that presently require the applicant to report a range of matters to the Commissioner will be suspended. For that reason, it is necessary to examine closely the nature and extent of the obligations that currently apply to the applicant under Part 3 relating to contact with children.
As matters presently stand, the applicant is required by s 16 to report a change in his personal details to the Commissioner within seven days. As I have previously noted, the term “personal details” takes its meaning from s 13(1). Thus, the applicant will be required to report to the Commissioner the names and ages of any children who generally reside in the same household as that in which he generally resides.[14] The applicant will also be required to report to the Commissioner if he knows that he is likely to have reportable contact during the next 12 months with a particular child.[15] If the order sought by the applicant is granted, the duty to report to the Commissioner a change in his personal details will be suspended.
[14] As noted at paragraph [19] above the term “generally resides” is defined in s 13(2).
[15] See paragraph [23] above as to the meaning of “reportable contact” as defined in s 13(4).
Section 20A requires the applicant to report to the Commissioner within two days the details of reportable contact with a child. The definition of “reportable contact” in s 13(4) includes any form of close physical proximity to a child. It is important to note that s 13(6) states that, to avoid doubt, reportable contact includes contact that is supervised. Thus, for example, if the applicant were to visit a house and a child was present in the same room, even if they were under the supervision of an adult family member, the applicant would be required to report that contact to the Commissioner within two days. If the present application is granted, the Court order will suspend that obligation. Thus, the applicant would no longer be required to report to the Commissioner that he had been in close proximity to a child.
While the approval of the present application will remove the obligations to report to the Commissioner referred to in the preceding two paragraphs, such an order cannot and will not modify the obligation imposed upon the applicant by s 66L to provide information to a parent or guardian of the fact that he is a registrable offender and the offences that resulted in him becoming a registrable offender. That is because, as I have previously noted, s 66L appears in Part 6 of the Act rather than Part 3. An order made under s 38(2) does not affect obligations under Part 6.
The result is that even if the Court were to make the order sought by the applicant, he would continue to be required to tell each parent or guardian of a child who generally resides in the same household as that child of the fact that he is a registrable offender and the offences that resulted in him becoming a registrable offender before he either generally resides or stays overnight in the same household. Thus, if the applicant intended to stay overnight or to commence to live with a woman that he had met through the RSVP site (or otherwise) he must inform her that he is a registrable offender and tell her about his offences if a child was to stay overnight in the same house or generally lives in that house. That obligation will continue regardless of whether the present application is granted or rejected.
Because he is a serious registrable offender, the applicant is also subject to the obligation under the Act to inform an available responsible adult if he has or intends to have reportable contact with a child under s 66L(2). The Court cannot release him from that obligation.
For the preceding reasons, I accept the correctness of the submission made on behalf of the Commissioner that the present application has been advanced based upon a misunderstanding of the actual disclosure obligations which apply to the applicant.
So as to remove any uncertainty, I will summarise in general terms the obligations that currently apply to the applicant. They are:
·He must disclose to the Commissioner within seven days if he generally resides in the same household as that in which a child generally resides (s 16 and s 13(1)(e)).
·He must disclose to the Commissioner if he knows that he is likely to have reportable contact during the next 12 months with a particular child (s 16 and s 13(1)(ea)).
·He must report to the Commissioner within two days if he has had reportable contact with a child (s 20A).
·If the applicant is to generally reside in the same household as that in which a child generally resides or to stay overnight in a household in which a child is also staying overnight he must, before doing so, tell each parent or guardian of a child that he is a registrable offender and the offences that resulted in him acquiring that status (s 66(1)).
·Because the applicant is a serious registrable offender he is subject to the duty under s 66L(2) to inform an available responsible adult of his status and offences if he has had reportable contact with a child or forms the intention to have such contact.
Of course, this summary of the applicant’s existing obligations is only intended to refer to those duties that are directly relevant to the submissions advanced in this case.
I now turn to the question of the significance of the applicant’s recent conviction to the exercise of the judicial discretion to grant or refuse his application. I firmly consider that it would not be an appropriate exercise of that discretion to release an applicant from his reporting obligations within weeks after he had been convicted of a failure to meet those obligations and was still subject to a good behaviour bond entered following that conviction. That is not to punish the applicant further for the failure to disclose. The Magistrates Court has sentenced him for that matter and this Court cannot impose an additional penalty.
I decline to make an order suspending the reporting obligations of the applicant under s 38(2). I do so for two reasons. First, the applicant has misconceived the extent of the obligations to which he is currently subject. Thus, when properly understood, it can be seen that the obligations to which he is presently subject are less likely to interfere with his prospects of developing a relationship with a woman than he believes to be the case. Secondly, and more importantly, I consider it inappropriate for the Court to exercise its discretion to suspend the applicant’s reporting obligations so soon after he has been convicted of a failure to meet those obligations.
Notwithstanding my decision not to make the order sought by the applicant, I have found that he does not pose an appreciable risk to the future safety and well-being of any child. In that light, I consider that it is not appropriate to require the applicant to wait a further five years before he is permitted to make a further application to the Court. I therefore exercise the power conferred under s 41 to order that the applicant is entitled to make a further application to the Court after two years have elapsed from the date of the order refusing the present application.
I also note that s 40 prohibits the Court from awarding costs in respect of this application.
I will make orders in the following terms:
1The application made under s 37(2) of the Child Sex Offenders Registration Act 2006 (SA) for the suspension of his reporting obligations is refused.
2Pursuant to s 41 of the said Act the applicant is entitled to make a further application to the Court under s 37 after two years from the date of these orders.