Holland v Commissioner of Police - [2019] SASC 141

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
HOLLAND v COMMISSIONER OF POLICE
[2019] SASC 141
Judgment of The Honourable Justice Lovell
14 August 2019
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 2001 the applicant was sentenced to three counts of indecent assault. He was registered on the Australian National Child Offenders Register and was required to comply with reporting obligations. The applicant applied for suspension of reporting obligations pursuant to s 37(2) of the Child Sex Offenders Registration Act 2006 (SA).
Whether the applicant is eligible to apply pursuant to s 37(2) – whether the applicant poses a risk to the safety and well-being of any child or children pursuant to s 38(2) – considerations under s 38(3)
Held: application allowed.
Child Sex Offenders Registration Act 2006 (SA) s 6, s 37, s 38, referred to.
L, R v Commissioner of Police [2018] SASC 181, considered.

HOLLAND v COMMISSIONER OF POLICE
[2019] SASC 141
LOVELL J:
Overview

Mr Holland (‘the applicant’), being convicted in 2001 of sexual offences against a child, was registered on the Australian National Child Offenders Register (‘ANCOR’) pursuant to s 6 of the Child Sex Offenders Registration Act 2006 (SA) (‘the Act’). Mr Holland is required under the Act to comply with various reporting obligations. He has committed no offences since that time and he now seeks that his reporting conditions be suspended. The Commissioner of Police (‘the respondent’) does not oppose the application.
Background
In November 2001, the applicant pleaded guilty to three counts of indecent assault. The victim was 16 and a half at the time of the offending and Mr Holland was 54.[1] The offences occurred on a church group excursion. The applicant was sentenced by the Magistrate to a term of 18 months imprisonment which was suspended on the condition that he enter into a good behaviour bond for a period of 9 months; he completed the bond without incident.
[1] The applicant was born on 9 June 1946. The offending occurred in April 2001. He was 54 years old at the time of the offending. However, the affidavit sworn by the applicant in support of this application states that he was 51 years old at the time of the offending.
The applicant was registered on ANCOR pursuant to s 6 of the Act. Registration then requires the applicant to comply with various reporting obligations under the Act. The applicant has never breached those obligations.
The applicant seeks an order pursuant to s 38(1) of the Act that his reporting obligations be suspended.
Legislative Scheme
Sections 37 and 38 of the Act state:
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.
There is no dispute that the applicant meets the threshold requirements set out in s 37(2) and is entitled to apply for such an order. An order under s 38(1) is discretionary and relies upon a consideration of the criteria set out in ss 38(2) and 38(3) of the Act. Under s 38(2), the Court must not make the order unless satisfied that the registrable offender does not pose a risk to the safety and well-being of any child or children.
In L, R v Commissioner of Police,[2] Nicholson J made the following observations regarding what he described as the ‘potentially precluding factor provided for by s 38(2) of the Act’:[3]
1The phrase ‘does not pose a risk’ should be read in the sense: does not pose a risk and will not pose a risk in the future.
2The imposition of a burden of proof is not apposite. The fundamental question before a court when considering subsection 38(2) is whether the court is or is not satisfied that the registrable offender does not pose a risk to the safety and well-being of any child or children.
3It is the experience in courts in this and related areas that the experts will never commit themselves to an absolute position of no risk. In light of this, the requirement that a registrable offender ‘does not pose a risk’ is not to be construed literally. The question is whether there is an appreciable risk.
[2] [2018] SASC 181.
[3] L, R v Commissioner of Police [2018] SASC 181 at [10].
I agree with the observations of Nicholson J.
Factual considerations relevant to the application
The three counts occurred in close proximity to one another – on 14, 15 and 19 April 2001 – while the applicant was a supervisor on a church excursion. The applicant was 54 at the time. The victim was aged 16 and a half. The offending came to light when the applicant told his treating psychiatrist. He referred himself to the Sexual Offender Treatment Assessment Program (‘SOTAP’). The offending was reported to Families and Youth Services, and he was ultimately interviewed by police on 5 July 2001. During his interview with police, the applicant admitted the offending. He entered a plea of guilty at his first appearance before Magistrate Grasso.
Magistrate Grasso sentenced the applicant to 18 months imprisonment, a sentence which was suspended on the condition that he enter into a good behaviour bond. Magistrate Grasso sentenced the applicant on the basis that he was in a position of trust, in that he was responsible for looking after the victim. The Magistrate had regard to the applicant’s service in the Vietnam War and his diagnosis of Post-Traumatic Stress Disorder (‘PTSD’). Magistrate Grasso further had regard to the applicant’s cooperation during the proceedings, including the decision to admit himself to the Adelaide Clinic for treatment and to attend SOTAP. The applicant stayed by his own volition at SOTAP beyond the expiration of his good behaviour bond.
The applicant deposed by affidavit that he became a registered offender, pursuant to s 6 of the Act, on 20 September 2009. As a result of that registration, he is subject to a range of reporting obligations under the Act. He deposed that he has complied with those obligations. The applicant brought the application as he believes he does not pose a risk to the safety and well-being of any child or children now or in the future.
Applicant’s background
The applicant was born on 9 June 1946 and is 73 years old. He lives by himself on Kangaroo Island. He had a stable upbringing and tertiary education in Asian studies. The applicant completed three tours of service during the Vietnam War as part of the Australian Army. In 1997, he was granted a full pension for total and permanent incapacity following a diagnosis of PTSD. He married the same woman twice. He separated from his wife in 2014, as her Parkinson’s disease required her to be in full-time care. They remain in contact and are on good terms.
The applicant often travels outside of Australia. He states that he has always sought permission from the South Australian Police Department before leaving the country. The applicant deposed that he enjoyed travelling to Asia given his military experience and the focus of his studies. He now enjoys travelling to Europe with his friends. He deposed that he does not engage with children when abroad. He intends to continue travelling overseas while still in good health. In 2016, the applicant was refused entry into Singapore, on the basis of his status on ANCOR. He deposed that he was “humiliated and embarrassed” by the situation.
The applicant did not have any criminal convictions prior to the relevant offending in 2001. He has not been charged or convicted of any crime since then. He states that his immediate family are aware of his offending and remain supportive.
Reports provided to the Court
The Court received the following reports:
·Report from Peter Toman (SOTAP) to Christina Litt (Department of Correctional Services) (‘SOTAP Progress Report’)
·SOTAP Discharge Summary dated 16 December 2003 (‘SOTAP Discharge Report’)
·Psychological report by Richard Balfour dated 29 July 2018 (‘Balfour Report’)
·Psychological report by Luke Broomhall dated 13 December 2016 (‘Broomhall Report’)
·Addendum psychological report by Luke Broomhall dated 30 October 2017 (‘Addendum Broomhall Report’)
·Psychologist’s treatment report by Tamsin Wendt dated 24 October 2018 (‘Wendt Report’)
In addition, the applicant provided a document which outlines his concerns with Mr Broomhall’s report. At the hearing, counsel for the applicant submitted that the Court should rely upon the Balfour Report rather than the Broomhall Report as it is the most recent. In his addendum report, Mr Broomhall acknowledged a change in circumstances since his assessment and the reality that risk would be best assessed by another independent expert.
I will deal with each report separately.
SOTAP Reports
The SOTAP Progress Report is an undated report by Peter Toman. Although undated, the reference to it being a time close to the end of the applicant’s period of supervision suggests it was produced in November 2002. The report documents the applicant’s progress during his attendance at SOTAP. Mr Toman remarks that the applicant successfully completed the treatment program. As to the applicant’s level of risk, he has written:
While a static risk assessment for Mr Holland will continue to place him in the Medium/Low risk category, an assessment of dynamic risk factors places him in the Low Risk category. This is mainly due to his more positive mood, his lack of hostility and his minimisation of his access to victims and changes in his attitudes and his behaviour.
The SOTAP Discharge Report was produced by Mr Toman in December 2003. It is silent as to the applicant’s level of risk but does comment on his progress while attending SOTAP. Mr Toman states that while the applicant acknowledged his sexual offending, he initially attempted to minimise it. Mr Toman remarks that the applicant had moved toward taking responsibility for his offending.
Broomhall Reports
Mr Broomhall is a registered psychologist. He is endorsed as a specialised practitioner in the field of forensic psychology. He completed a Master of Psychology (Forensic Psychology) at the University of Western Sydney in 2003. He is the past Chair of the Australia Psychological Society (APS) College of Forensic Psychologists in South Australia.
Mr Broomhall, having interviewed the applicant, reported in December 2016 that, in his opinion, the applicant should be considered a ‘moderate’ risk of re-offending. The applicant contested that conclusion and stated that Mr Broomhall had made numerous factual errors in his report.
Mr Broomhall reconsidered his opinion in light of the criticisms made by the applicant. He did not change his opinion but noted that the applicant had made positive changes to address the points made in his report. Mr Broomhall suggested a further report from a different psychologist to assess the effect of the changes.
Balfour Report
Mr Balfour is a forensic psychologist. His report sets out his extensive experience, including his Masters in Clinical Psychology from the University of NSW. He has practiced as a psychologist since 1988. He mainly works in the fields of forensic and clinical psychology. Mr Balfour is also an Adjunct Senior Lecturer in Clinical Psychology at Flinders University.
Mr Balfour conducted a clinical interview with the applicant on 14 February 2018. Mr Balfour had available to him various reports, including the Broomhall Report, the applicant’s comments on that report as well as the Addendum Broomhall Report. The Balfour Report is comprehensive; it covers the applicant’s interview behaviour, family history, educational history, occupational history, recreational history, interpersonal history, developmental history, medical history, financial history, legal history, drug and alcohol history, mental health history and psychosexual developmental history.
Mr Balfour evaluated the applicant’s level of sexual risk using the Risk for Sexual Violence Protocol (‘RSVP’) and Static-99R, which are “both widely recognised international measures of sexual risk and recidivism in sex offenders”. Mr Balfour assessed the applicant as having a low level of sexual risk. He described his probability of reoffending as ‘low’. Mr Balfour found the applicant’s prognosis to continue to remain offence free is ‘good’ (on a rating scale of poor, fair, good) for the following reasons:
1.The applicant has not reoffended since 2001. In predicting risk of recidivism, his recent lawful behaviour is more important than his past sexual offending behaviour.
2.Despite the fact that the offending was committed against an adolescent boy, there is no indication that he has a persistent sexual interest in adolescent males. He does not have a history of gravitating towards community activities involving adolescent males and does not satisfy the diagnostic criteria for paedophilic disorder.
3.His sexual interest is adult men. He has taken steps towards “openly asserting his identity as a homosexual man”. His offending occurred against the background of supressed homosexuality. He has the potential of being in consensual sexual relationships with adult men.
4.Due to the effects of ageing, he has developed a low libido.
5.He does not suffer comorbid psychopathy (such as a drug or alcohol problem) which would predispose him to recidivism.
6.He is financially stable, has stable accommodation and is an active member of his rural community. These are protective factors against recidivism.
7.He is very remorseful of his offending behaviour and has exhibited victim empathy. He maintains appropriate boundaries between himself and adolescent boys. Mr Balfour believes that this remorse is “genuine and not self-serving”.
Mr Balfour made the following concluding remarks, indicating that the applicant had “been successfully rehabilitated”:
Mr Holland has developed his own psychological strategies that have kept him offence free for the last twenty-one years. I therefore believe that he does not require any further rehabilitation for his history of child sexual offending behaviour. I cannot see any practical value in recommending that he complete the Owenia House rehabilitation programme for child sex offenders. His case clearly demonstrates that child sex offenders are capable of being successfully rehabilitated, and that they do not all go on to become sexual recidivists.
Wendt Report
Ms Wendt, the applicant’s treating psychologist, outlined in her report of 24 October 2018 the treatment the applicant has undergone more recently. Ms Wendt detailed the applicant’s progress since he was referred to her for treatment of his PTSD and depressive disorder in 2015. He has had regular appointments with Ms Wendt since that time. He attends on a voluntary basis for therapy.
Ms Wendt, in relation to the applicant’s progress, observed:
I initially worked with Mr Holland utilizing Cognitive Behaviour Therapy (CBT) for his low mood, Schema Influenced Therapy, and Interpersonal Therapy. Mr Holland has undertaken significant work in therapy to accept his sexuality as a homosexual man, and feel more confident in building healthy social and familial relationships. Throughout the course of his psychological contact, Mr Holland has rebuilt a healthy and meaningful relationship with his daughter and extended family.
She noted that the applicant has always maintained a strong community focus.
Ms Wendt considered that the applicant had made positive progress in the management of his psychological problems. In particular, Ms Wendt referred to the applicant’s exploration of his sexual identity as a homosexual man and the rebuilding of relationships in “a meaningful way”.
Ms Wendt concluded:
Whilst Mr Holland still suffers from moderate to severe depression, he has better insight into managing his depression, and through extending his social network with healthy and reciprocal relationships, and regular engagement with his immediate family, these serve as protective factors for him.
Consideration
Although this application is unopposed, I must still be satisfied that the evidence before me supports the exercise of a discretion favourable to the applicant. I must first be satisfied that he does not pose a risk to the safety and well-being of any child or children. As previously stated, this relates to an appreciable risk that the applicant will reoffend.
I have reviewed the reports of Mr Balfour and Mr Broomhall. I recognise that while Mr Broomhall found that the applicant was at a ‘moderate’ risk of reoffending, he conceded that following his assessment, the applicant’s circumstances had changed and that it would be appropriate for another psychologist to assess the change in circumstances.
In his report, Mr Balfour determined that the applicant was at a ‘low’ risk of reoffending, noting his lack of offending since 2001, the positive changes in his life and insight into his sexual identity. Mr Balfour had the benefit of considering both of Mr Broomhall’s reports.
I am prepared to act on Mr Balfour’s report.
It is 18 years since the applicant offended. The applicant’s behavioural history since 2001 indicates genuine remorse and meaningful rehabilitation. I note that, with the assistance of therapy, the applicant has come to terms with his sexuality and is now seeking consensual sexual relationships with adult men. He is embarrassed of his past offending. He has voluntarily sought treatment for his PTSD and depressive disorder. The applicant enjoys a stable life and has made a conscious effort to rebuild relationships with his family and to be part of his community. These factors inform the applicant’s risk of recidivism.

As to s 38(3)(a) (the seriousness of the offences), I note that while the offences were committed when the applicant was in a position of trust, they did not extend over a significant time period and the applicant self-reported his offending.
As to s 38(3)(e) and (f), the applicant is 73 years old and has lived the last 18 years without incident in terms of criminal liability.
The respondent has not put me on notice of anything which would indicate that the applicant was subject to a restraining order, or a declaration under Part 2A or 15A, pursuant to s 38(3)(c) and (ca) respectively.
Taking into account those factors, I am satisfied that the applicant does not pose a risk to the safety and well-being of any child or children and I therefore make the order pursuant to s 38(1) of the Act suspending his reporting obligations. I will hear the parties as to the terms of the order.