H, DB v Commissioner of Police
[2015] SASC 2
•22 January 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
H, DB v COMMISSIONER OF POLICE
[2015] SASC 2
Reasons for Decision of The Honourable Justice Nicholson
22 January 2015
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INCEST
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
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 1993 the applicant pleaded guilty to the offences of unlawful sexual intercourse with a person aged 15 years and indecent assault of a person aged 16 years. The victim of both offences, which occurred in 1988 and 1989 respectively, was the applicant’s biological daughter. The applicant was convicted on both counts and sentenced to two years and six months imprisonment with a non-parole period of one year and six months. This sentence was suspended upon the applicant entering into a bond to be of good behaviour for a period of three years.
The applicant qualifies as a registrable offender for the purposes of the Child Sex Offenders Registration Act 2007 (SA), and is thereby required to meet certain reporting obligations. The applicant now applies to this Court, pursuant to s37(2) of the Act, for an order suspending those reporting obligations. The applicant meets the threshold requirements of a registrable offender who is entitled to apply for such an order. The primary issue arising on the application 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) s15A, s37, s38; Summary Procedure Act 1921 s99A, referred to.
C, M v Commissioner of Police [2014] SASC 163; Briginshaw v Briginshaw (1938) 60 CLR 336, considered.
H, DB v COMMISSIONER OF POLICE
[2015] SASC 2Criminal: 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 27 October 1993, the applicant pleaded guilty in the District Court to one count of unlawful sexual intercourse with a person of the age of 15 years and one count of indecent assault of a person aged 16 years. The victim in relation to both counts was the applicant’s biological daughter. The applicant was convicted on both counts and sentenced to a period of two years and six months imprisonment with a non-parole period of one year and six months. This term of imprisonment was suspended upon the applicant entering into a bond in the sum of $500 to be of good behaviour for a period of three years.
The applicant qualifies as a “registrable offender” pursuant to the Child Sex Offenders Registration Act 2006 (SA) which came into operation on or about 18 October 2007.
The applicant has provided sworn affidavit evidence, unchallenged by the respondent, in which he deposes to first becoming registered on the Australian National Child Offender Register in 2009. The applicant has further deposed to having, thereafter, consistently observed his annual reporting obligations. The respondent, the Commissioner of Police, has had an opportunity to enquire into the applicant’s compliance with the registration and reporting requirements imposed by the Act. There has been no suggestion that the applicant has done anything other than fully comply with his obligations.
This Court has the power, pursuant to s38(1), 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 s37(2).
By application filed on 17 June 2014, the applicant has sought an order suspending his reporting obligations. In support of his application, the applicant relies on:
(i)his own affidavit, sworn 27 November 2014, to which is exhibited, inter alia, a report by the forensic psychologist Mr Allen Fugler, dated 21 October 1993;
(ii)an affidavit of the applicant’s solicitor, Ms Jessica Kurtzer, sworn 17 June 2014; and
(iii)a report by the forensic psychologist Mr Luke Broomhall, dated 20 October 2014.
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 s37 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 s38 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 ss37 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.
I also considered the proper approach to the requirement under 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”. In doing so, and after considering various authorities relevant to the issue,[2] I formed the view that s38(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] [15]-[21].
A further issue that arose for consideration in C, M v Commissioner of Police was the standard of proof that needed to be satisfied before deciding that an offender did not pose the requisite risk under s38(2). I concluded that the civil standard applied. However, given the nature of such an application, a Briginshaw[3] approach should be adopted.
[3] Briginshaw v Briginshaw (1938) 60 CLR 336.
In summary, before making the order sought by the applicant that his reporting obligations be suspended pursuant to s38 of the Act, I must be satisfied that:
(i)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;
(ii)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;
(iii)the applicant is not on parole in respect of a registrable offence; and
(iv)the applicant has established, on a Briginshaw basis, that they do not pose a risk to the safety and wellbeing of any child or children, after having regard to the factors set out in s38(3) of the Act.
Counsel for the respondent reserved its position with respect to the application when it first came before the Court. At a subsequent interlocutory hearing, counsel indicated that, before forming a view, the respondent would like to see a recent report from an independent forensic psychologist. The report of Mr Broomhall was obtained. Having been provided with an opportunity to examine that report, counsel indicated to the Court on a later occasion that it did not wish to be heard on the application.
On the evidence which is not disputed, (i), (ii), and (iii) above have been satisfied. The remaining question of substance is whether the applicant poses the relevant risk as provided for under s38(2). Before embarking upon that enquiry, it is necessary to canvass in a little detail the circumstances of the applicant’s offending, the applicant’s personal history and current circumstances and the opinion of Mr Broomhall.
The facts
At the time of the offending, the applicant had recently separated from the victim’s mother. Their relationship had subsisted for over 15 years and resulted in three children, including the victim. Following the separation, the victim and her two siblings, a younger brother and sister, were residing with their mother in Strathalbyn. The applicant would see his children each weekend, either by visiting them at Strathalbyn or having them stay with him at a flat he was renting in Adelaide.
The offence of unlawful sexual intercourse occurred in late 1988 on a weekend when the victim was staying with the applicant. Both the applicant and the victim had consumed a considerable amount of alcohol and had smoked some cannabis. The offending involved the applicant performing oral sex on the victim. By his own admission, the applicant had actively, though not by force, procured the victim’s compliance with this conduct.
The offence of indecent assault occurred approximately 12 months later. By this time the victim was living with the applicant on a full time basis. The offending involved the applicant touching the victim in the area of the vagina while massaging her. The victim moved out of the applicant’s home shortly after this incident, and it was at this time that she first informed police of the applicant’s offending. At the time she did not seek to press charges and no further action was taken. The victim has been estranged from the applicant ever since.
The victim’s mother was informed of the applicant’s offending not long after. She was, as is to be expected, upset and angry and she confronted the applicant about his conduct. The applicant agreed not to make contact with either the victim or her mother and commenced a period of counselling. That counselling continued for about a year until the applicant moved to Mount Gambier in December 1990. The applicant continued to maintain a relationship with his two other children and his son came to live with him at around this time. The applicant’s two daughters moved with their mother to live in Melbourne.
The applicant was eventually charged in May 1993 on the instigation of the victim who, after a period of counselling, had come to the view that the applicant should be punished for what he had done. Two further charges relating to conduct alleged to have occurred in the period between 1987 and 1989 and also allegedly involving unlawful sexual intercourse and indecent assault against the victim, did not proceed upon the applicant pleading guilty to the abovementioned offences.
The sentencing Judge, in his remarks, noted that whilst the offending occurred during a tumultuous and stressful time in his life, that, in no way, excused the applicant’s conduct. The Judge also noted that, as a result of the counselling he had received, the applicant had come to accept full responsibility for his conduct. He had also come to better understand the emotional and behavioural issues that led to the offending. The Judge made reference to a report by the clinical psychologist Mr Fugler, who expressed the view that the applicant had responded well to treatment and that it was unlikely he would offend in this way again.
The Judge further noted that during the almost four years that had elapsed since the offending the applicant had taken significant steps by way of personal rehabilitation. He had moved to Mount Gambier and taken up a managerial role with his employer, he was a liked and respected member of his working environment and was noted for his outstanding work performance. The applicant had also established himself in the local community and taken an active role in community affairs. The Judge also observed that, whilst remaining estranged from the victim, the applicant had continued to provide her with financial support.
When announcing the decision to suspend the applicant’s sentence of imprisonment, the Judge expressed the view: “I think you will not be back in this court again. You have previously been of good character and I expect you will be the same in the future”. The Judge’s expectation in this latter respect has been vindicated. The applicant has not since been convicted of any offending of any nature, nor was there any breach of the good behaviour bond.
The applicant is now 67 years of age. He has not remarried but has been in a relationship with a woman for the past 10 years. He has maintained a strong relationship with his son, who is now married with two children and with whom he also has a good relationship. He also maintains contact with his youngest daughter, who has a daughter herself. Both recently came and stayed with the applicant in Mount Gambier.
The applicant works part time for a finance brokerage business that he co-founded in 1997 but since sold. His co-founder of that business, who has been aware of the applicant’s offending since his arrest in 1993, provided a character reference in support of the application. She describes the applicant as an honest, loyal, respectful and hard working member of the community. She also describes the destructive effect that the guilt and shame, associated with the applicant’s offending, has had on him over the years.
A report by the forensic psychologist Mr Broomhall, dated 23 October 2014, was obtained by the solicitors for the applicant in support of the application. That report specifically addresses the issue of recidivism. I have read and considered this report which is detailed and appears to be comprehensive. For present purposes, it is sufficient to note the following extract summarising Mr Broomhall’s opinion.
[The applicant] had engaged in therapeutic treatment with a psychologist well regarded in the field of sexual behaviour therapy. Even at the date of assessment, there were indications from language used by [the applicant] in this regard that some of the learnings from this therapeutic interaction continued to resonate with him. In my opinion there were indications of a genuine level of remorse, shame and guilt regarding his offending behaviour. [The applicant] displayed appropriate victim empathy and did not seek to blame his daughter for the inappropriate sexualised behaviour which occurred.
In the time since the offending behaviour, charges and conviction, [the applicant] has maintained long term romantic relations with appropriate sexual intimacy boundaries. There were no indications of sexual deviance or hyper-sexualised behaviour. There were no indications of deviant sexual arousal. [The applicant] had maintained financial obligations towards his children and worked hard to build a successful business. He had maintained contact with his daughter from a previous relationship, as well as his two youngest children.
Whilst [the applicant] presented in the current assessment with mild symptoms of depression and anxiety, these would not be considered unusual, in my opinion, given the current court-related matters and assessment process. These were not indicative of a diagnosable psychological or psychiatric condition, in my view. [The applicant] continued to express guilt, shame and remorse in regards to his offending behaviour and could not bring himself to tell his current partner, which may be detrimental to their future relationship.
Actuarial assessment of [the applicant’s] static risk of similar offending behaviour was in the low range. More pertinently, actuarial risk of dynamic (current/changeable) risk factors was also in the low range. This indicated that there were no issues found at assessment with any dynamic risk variables, shown as being relevant from research and literature to correlate with high risk of future sexualised offending behaviour.
In summary, it was my opinion based on the information gathered at assessment, that [the applicant’s] risk of similar future sexualised offending behaviour was in the low range. As noted, it is not standard best practice in forensic psychology to offer a definite and fixed opinion regarding 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 best practice.
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 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.
Having recently conducted a forensic psychological assessment of the applicant, Mr Broomhall has formed the view that the applicant’s risk of similar sexualised offending behaviour in the future is in the low range. Mr Broomhall has indicated that, in accordance with the standard best-practice protocols in forensic psychology to which he adhered at the time of writing, it was not appropriate to offer an absolute opinion regarding whether an individual will or will not actually reoffend.
I accept the opinion expressed by Mr Broomhall with that qualification. 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, fully support this opinion. As far as s38(2) is concerned, I am satisfied, on the balance of probabilities and after acting with much care and caution,[4] that the applicant does not pose a risk to the safety and wellbeing of any child or children.
[4] Briginshaw v Briginshaw (1938) 60 CLR 336 at 347 (Latham CJ).
I turn, briefly, to my conclusions with respect to the other matters that must be taken into account in accordance with s38(3).
There is no doubting that the registrable offences committed by the applicant, particularly given that they concerned his own daughter, were very serious (paragraph (a)). However, given the circumstances (the emotional environment in which the offending took place) and the applicant’s behavioural history since, the offending, though serious, would seem to not 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 Mr Broomhall.
The period of time between when the offences were committed and the date of this application, approximately 26 years, is substantial (paragraph (b)). During that period of time 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.
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 that the applicant was aged 41 and 42 years of age respectively at the times the two offences were committed, and the victim was 15 and 16 years of age. The age difference was significant. However, that age difference is to be viewed in light of Mr Broomhall’s conclusions that the applicant’s offending and subsequent behavioural history is not indicative of paedophilic tendencies.
As far as paragraphs (e) and (f) are concerned, I note that the applicant is presently 67 years of age and has no 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. I make the following order.
1.Pursuant to s37(2) and s38(1) of the Child Sex Offenders Registration Act 2006 (SA) the applicant’s reporting obligations under that Act are suspended.
I will hear the parties on any consequential matters.
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