K, MP v Commissioner of Police
[2017] SASC 38
•17 March 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
K, MP v COMMISSIONER OF POLICE
[2017] SASC 38
Reasons for Decision of The Honourable Justice Hinton
17 March 2017
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 pursuant to s 37(2) of the Child Sex Offenders Registration Act 2006 (SA) for an order suspending reporting obligations.
In 1993 the applicant pleaded guilty to three counts of indecent assault. The victim was a child within the meaning of the Child Sex Offenders Registration Act 2006 (SA). The applicant is a registrable offender for the purposes of that Act.
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 s 38(2), that the applicant does not pose a risk to the safety and wellbeing of any child or children.
Held: Application granted.
Child Sex Offenders Registration Act 2006 (SA) s 3, s 37, s 38; Criminal Law Consolidation Act 1935 (SA) s 56, referred to.
C, M v Commissioner of Police (2014) 121 SASR 106, considered.
K, MP v COMMISSIONER OF POLICE
[2017] SASC 38Criminal: Application
Hinton J.
Introduction
This is an application pursuant to s 37(2) of the Child Sex Offenders Registration Act 2006 (SA) (the CSORA) for an order suspending the reporting obligations imposed on K by the operation of that Act.
In 1993 K was charged with and convicted of three counts of indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (SA). Those offences were committed in August 1991, April 1992 and July 1992. On each occasion K, when in the course of massaging the back of his step-daughter, touched her breasts.
K’s step-daughter was born in April 1977 and was 14 or 15 years old at the time of his offending. She was, therefore, a child within the meaning of the CSORA.[1]
[1] Child Sex Offenders Registration Act 2006 (SA) s 4.
K pleaded guilty in the District Court to the indecent assault charges. He was convicted and sentenced to 12 months imprisonment, suspended upon him entering into a bond in the sum of $500 to be of good behaviour for three years. In addition he was fined $1,000.
K is a registrable offender for the purposes of the CSORA due to his having been sentenced for the offences of indecent assault and the victim of those offences having been a child.[2]
[2] Child Sex Offenders Registration Act 2006 (SA) s 6(1), Sch 1 Part 3 cl 3(c).
As a registrable offender there is legislatively imposed upon K by Part 3 of the CSORA certain reporting obligations. Those obligations include providing the Commissioner of Police (the Commissioner) with identification, residence and employment details, details of intended absences from the State and details of access to children and contact with children.[3] Further, a registrable offender must make an annual report to the Commissioner in addition to reporting any changes in his or her personal details as and when they occur.[4]
[3] Child Sex Offenders Registration Act 2006 (SA) ss 13, 15, 17, 18, 19, 20, 20A.
[4] Child Sex Offenders Registration Act 2006 (SA) ss 15, 16.
The offence of indecent assault is categorised by the CSORA as a class two offence.[5] Because K has been sentenced for three class two offences he remains subject to the reporting obligations referred to above for the remainder of his life unless those obligations are suspended by order of this Court.[6] An additional consequence of his offending against his step-daughter is that K is subject to limitations as to the types of work he may undertake.[7] Relief from those constraints is within the power of the Commissioner.[8] They form no part of this application and I make no further reference to them.
[5] Child Sex Offenders Registration Act 2006 (SA) s 4, Sch 1 Part 3 cl 3(c).
[6] Child Sex Offenders Registration Act 2006 (SA) s 34(1)-(3).
[7] Child Sex Offenders Registration Act 2006 (SA) Parts 5 and 5A.
[8] Child Sex Offenders Registration Act 2006 (SA) Part 5A.
On the hearing of this application I have had regard to the affidavit of Robert Lempens, a legal practitioner, sworn 18 July 2016, and to the exhibits referred to therein. Those exhibits include a report dated 26 June 2016 prepared by Mr Richard Balfour, a forensic psychologist. In addition I have received a report from Mr Luke Broomhall, also a forensic psychologist, dated 25 January 2017. That report was order by this Court at the behest of the Commissioner of Police who is a party to this application under s 39 CSORA. The Commissioner declined to tender any further evidence nor did he seek to cross-examine Mr Lempens or either of the two forensic psychologists. In fact the Commissioner informed the Court that he neither supported nor opposed K’s application.
I turn to consider the legal principles applicable to K’s application.
Principles
The starting point is s 37 CSORA. It provides:
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.
Section 37(1) CSORA identifies a particular class of registrable offender to whom Part 3 Division 6 of the Act applies. It makes plain that Part 3 Division 6 CSORA only applies to those registrable offenders who are required to continue to comply with reporting obligations for the remainder of their lives. Section 37(2) CSORA vests a right in the registrable offender who is required to continue to comply with reporting obligations for the remainder of his or her life to apply to this Court for an order suspending those obligations. Section 37(2)(a), (b) and (c) CSORA condition that right. The requirements of s 37(2)(a), (b) and (c) are cumulative – each must be satisfied otherwise the right vested in the registrable offender is not enlivened and any application to this Court will be incompetent.
K has satisfied each of the requirements of s 37(1) and (2) CSORA. He is a registrable offender who is required to continue to comply with reporting obligations for the remainder of his life, a period of 23 years has passed since he was sentenced, he had not become the subject of a life-long reporting period under a corresponding law whilst in a foreign jurisdiction before becoming the subject of reporting obligations in this State, and he is not on parole in respect of a registrable offence. The Commissioner does not contend to the contrary.
Section 38 CSORA provides:
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.
Section 38(1) CSORA does two thing; first, it vests in this Court a discretion to order the suspension of a registrable offender's reporting obligations. Second, it confines the exercise of that discretionary power to applications made under s 37(2) with the consequence that the discretionary power vested in this Court can only be engaged by a registrable offender who first satisfies the requirements stipulated in s 37(2), such registrable offender being one falling within s 37(1).
Assuming an application made by a registrable offender to be competent, s 38(2) CSORA then conditions the exercise of the discretionary power vested by s 38(1). Section 38(1) cannot be exercised unless the Court is satisfied that the registrable offender does not pose a risk to the safety and well-being of any child or children. Section 38(2) CSORA is in the nature of a jurisdictional fact. Unless the Court reaches a state of actual satisfaction that the registrable offender does not pose a risk to the safety and well-being of any child or children, it cannot exercise the power to suspend the registrable offender’s reporting obligations. Two additional points fall to be made here; first, the risk to be assessed is to any child or children, that is to any particular child or children generally. Second, it must also be observed that satisfaction of the jurisdictional fact merely conditions the discretionary power, it does not gainsay its exercise.
Turning to s 38(3) CSORA, the chapeau indicates that the factors enumerated are applicable to the question whether the jurisdictional fact is established in addition to whether the discretionary power should be exercised in favour of the registrable offender.
From the above it may be concluded that my understanding of the operation of ss 37 and 38 CSORA accords with that of Nicholson J who in C, M v Commissioner of Police said:[9]
The power to make the order, as conferred by s 38(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 ss 37(2), 38(2) and (3). In addition to the threshold requirements in s 37(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 wellbeing of any child or children (s 38(2)) and the Court, in deciding whether to make the order, must take into account the matters set out in paras (a) to (g) of s 38(3).
A court will not be obliged to make the order in the event that it is satisfied of the requirement in s 38(2); the making of the order will remain discretionary. Nevertheless, whilst lack of satisfaction under s 38(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 s 38(3) will be relevant not just to the making of any finding pursuant to s 38(2) but to the exercise of the discretion generally. The making of an order involves a three-stage process: have the threshold matters (s 37(2)) been satisfied; if so, is the court satisfied of the requirement in s 38(2); if so, should the discretion be exercised to make the order sought.
[9] C, M v Commissioner of Police (2014) 121 SASR 106 at [11]-[12].
I also agree with Nicholson J that the focus of s 38 CSORA is not limited to an assessment of the registrable offender’s present risk but also requires assessment of the future risk he or she poses. To so construe s 38 does no violence to the text and is, as Nicholson J observes, consistent with the objects of the CSORA.[10] Nicholson J said:[11]
I am confident that it was not the intention of the legislature that a court would need to be satisfied only that, as at the time of any application, the applicant did not pose the relevant risk. Such a finding would be of limited utility when the overall scheme and objects of the legislation are taken into consideration. Such an approach would also be inconsistent with a number of the matters that must, according to s 38(3) be taken into account. A major purpose behind the legislation is to protect children in the community from being confronted with or affected by any improper behaviour of a registrable offender in the future. Insofar as the court must take into account matters of history, for example, s 38(3)(a) to (d) inclusive and (f), it will do so as an aide to predicting the future in this respect. The enquiry under s 38(2) is directed to future risks assessed by reference to existing knowledge. In addition, whilst the compound verb “does not pose” is in the present tense, indicative mood, its use in this context connotes a sense of active or continuing presentation. In my view, the phrase “does not pose a risk” should be read in the sense: does not pose a risk and will not pose a risk in the future.
(footnotes omitted).
[10] The object of the CSORA is contained in s 3. It provides:
[11] C, M v Commissioner of Police (2014) 121 SASR 106 at [17].
It is plain that the burden of persuading the Court that it may be satisfied that the registrable offender does not pose a risk to the safety and well-being of any child or children lies upon the registrable offender. In C, M v Commissioner of Police Nicholson J concluded that the standard of proof applicable to the jurisdictional fact was the civil standard.[12] I refrain from arriving at any final conclusion on this issue. It 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.
[12] C, M v Commissioner of Police (2014) 121 SASR 106 at [19].
The grounds on which the application is made
K contends that his reporting obligations should be suspended because:
1. It has been over 23 years since he was sentenced in respect of the registrable offences to which reference has already been made;
2. He has committed no further offences since the date that he was sentenced;
3. He does not pose a risk to the safety and well-being of any child or children nor does he exhibit any paedophilic tendencies.
Points one and two may be accepted and, again, the Commissioner does not contend to the contrary. With respect to the third point, K relies upon the content of the reports of Messrs Balfour and Broomhall.
Mr Balfour’s report
In forming his assessment, Mr Balfour considered a number of factors including K’s family, educational, occupational, recreational, interpersonal, developmental, medical, financial, legal, drug and alcohol, mental health and psychosexual development histories. I do not recount the detail.
Mr Balfour also considered K’s account of the events which constituted the initial offences. He reports:
[K] said that he had always enjoyed a good stepfather relationship with his step-daughter prior to committing the current sex offences. He said that she was fifteen years old when he committed the current offences. She played various sports, and complained of lower back pain. He gave her a remedial massage. He only massaged her intermittently. She laid chest down on her bed while he massaged her. He said that in the process of massaging her, he had brushed against the side of her breast. He said that this had happened on three occasions across an eleven month period. He said that she made a formal complaint to the police approximately a year after he had left the household following his first marriage’s breakdown. When he was interviewed by the police, he provided frank information about the matter. [K] exhibited victim empathy. He admits what he did was wrong. His main motivation for pleading guilty was that he wanted to spare the victim any further distress by having to participate in a jury trial. He said the over-riding factor in his decision to plead guilty was that his stepdaughter felt violated about what he had done to her.
Mr Balfour considered K’s original offending “atypical behaviour in a man who was psychologically struggling because of a failing marriage”.
Mr Balfour found no clinical evidence to suggest that K suffers from a psychotic illness, intellectual disability, major mood disorder, drug or alcohol abuse, neurodevelopmental disorder, personality disorder or acquired brain injury. He commented that K enjoys excellent psychological health and has developed a high degree of psychological resilience.
Mr Balfour described K as possessing few of the traditional (historical) and dynamic (acute) criminogenic risk factors which researchers have identified as predisposing an individual towards offending behaviour. He noted that K did not exhibit evidence of a conduct disorder during his adolescence and did not have a history of gravitating towards a negative peer group. Further, K did not have an anti-authoritarian attitude, suffer from pathological boredom or have any drug and alcohol problems or anger management issues. Mr Balfour categorised K’s general criminogenic profile as being in the low range of risk (on a severity scale ranging from low to high) for coming into conflict with the authorities within the next 12 months.
Mr Balfour noted that there is no clinical evidence to suggest that K has succumbed to any temptation to sexually interfere with children, socially engineered situations to abuse children, or groomed children to make them amenable to sexual exploitation. He could not point to any evidence of role boundary violation.
Mr Balfour did not consider that K currently satisfied the diagnostic criteria for paedophilia. K did not exhibit any of the characteristics commonly found in paedophiles. Further, Mr Balfour considered that there is no evidence to suggest that K socially gravitated towards community activities that would bring him into more frequent contact with children. He also found that K had always been frank and candid about his past offending and demonstrated remorse not only for his actions but also the effect that it has had on the victim and his family.
Mr Balfour said:
If he were a paedophile, [K] has been exposed to numerous opportunities to reoffend. For example, he has had frequent contact with children in the following roles:
1. He has babysat his young niece and nephew. He enjoys a good relationship with them and their mother who completely trusts him. They have never made any allegation of sexual impropriety against him.
2. He has had clinical responsibility for unconscious adolescent patients recovering from a general anaesthetic, and he has done medically invasive procedures on them as medically warranted and required. These are not sexually explicit medical procedures.
3. His work as … has brought him into direct contact with children. Where practical, he has always adhered to work guidelines about having a legal guardian present when medically assisting children.
4. He worked as an … , and had unsupervised access to adolescent patients in his care …
5. During his second marriage, he became a stepfather to his wife’s niece who was thirteen years old when she commenced residing with them. He now enjoys an excellent stepfather relationship with her. She is now twenty-three years old. She now considers him a father figure.
If [K] suffered from untreated paedophilia, I expect that he would have eventually reoffended by now. The primary clinical feature of paedophilia is an overwhelming sexual preoccupation with children. The untreated paedophile will eventually succumb to sexual temptation and sexually re-offend usually in the short-term.
Mr Balfour concluded that K does not suffer from paedophilia or present an ongoing sexual risk to children and adolescents. He does not believe that K requires either psychological or psychiatric treatment or referral to Owenia House. He said:
I believe that [K]’s prognosis to remain offence free is good (i.e., on a prognosis rating scale of poor, fair, and good). Overall, I believe that [K]’s risk of sexually re-offending is low for the following reasons:
1. I do not believe that [K] currently satisfies the diagnostic criteria for having paedophilia.
2. One of the best predictors of future behaviour is past behaviour. However, he has not sexually reoffended during the last twenty-three years. Therefore, his current lawful behaviour is more relevant to assessing his level of sexual risk than his past sexual offending behaviour.
3. He does not exhibit any of the behaviour characteristics commonly found in paedophiles. For example, there is no evidence of him predominantly socially gravitating towards community activities that would bring him into more frequent contact with children. His employment has incidentally brought him into contact with adolescent patients. However, there is no evidence to suggest that he has specifically gravitated towards … roles that would bring him into increasingly more exclusive contact with children. In fact the converse, since he has become a manager, the number of his direct client contact hours has decreased to the bare minimum to maintain his registration; and for convenience, he has increasingly become more reliant on in-house training instead of direct client contact to maintain his registration.
4. Paedophiles go to create (sic) lengths to disguise their past offending history to enable them to prey on unsuspecting families and children. He has always been candid and frank in acknowledging his past offending behaviour as required when undergoing security screens. His employer is fully aware of his past sexual offending behaviour. His past convictions have not impeded his career in any way. He has previously passed DCSI clearances.
5. He possesses a number of protective psychological factors that have significantly decreased the chances of his reoffending. He is in an excellent marriage. He has excellent employment. He has a range of healthy hobbies. He is dedicated to his career. He is also psychologically resilient as evident by him coping adequately with many work-related traumatic events over the years. He was a very happy man who enjoys life; and contributing to the community.
6. His primary sexual interest is adult females and not adolescent females. He does not have any ongoing deviant sexual fantasies with a paedophilic content. He does not have any intimacy deficits. He is in a stable marriage, and has an enjoyable sex life with his current wife. He is also an older man who is experiencing the normal age-related decline in his libido. Overall, [K] simply has too much to lose by reoffending.
Mr Broomhall’s report
Like Mr Balfour, Mr Broomhall inquired into and considered K’s psychological state, his personal, educational, employment, relationship, sexual, substance abuse and mental health history against the background of his known offending. Also like Mr Balfour, Mr Broomhall detected no indication that K suffered thought or perceptual disturbances. He reported that K’s cognitive functioning was “grossly intact”, in fact, so much so (there being no indicators of difficulty) formal testing was not conducted.
K told Mr Broomhall that his offending occurred in the context of a difficult relationship with his wife, with accompanying stressors, sexual frustration and, Mr Broomhall considered likely, mild symptoms of depression. Mr Broomhall said:
In regards to the behaviours toward [the victim], [K] stated that, in the context of his deteriorating relationship with [his ex-wife] (as described above), he was experiencing sexual frustration and loneliness. [K]’s account of his behaviours towards [the victim] were generally consistent with the reports viewed in the preparation of this report. He stated that [the victim] had been participating in sport and experienced soreness and wanted a back rub. [K] said he did not think anything of it at the time. He had massaged her on a number of occasions and stated that during these occasions “…my hand brushed against the side of her breast”. It was pointed out to [K] that [the victim]’s statement indicated that he deliberately fondled her breasts, which seemed at odds with his account of having brushed the side of her breasts. It was also pointed out that there seemed to be some disparity then that [K] had pleaded guilty to the charges as led, but indicated that his version of events was slightly different. [K] stated that when he attended “…the Coach House” (later Sexual Offender Treatment Assessment Program/Owenia House) the therapist there recommended he plead guilty to the charges as led in order to save [the victim] any trauma and embarrassment in having to give evidence at court.
[K]’s account of the impact of his behaviours on [the victim] was also consistent with information viewed in the preparation of this report. He indicated that he understood that [the victim] would have been upset by his actions and experienced distress, for which he was very sorry. Further [K] seemed to remain quite frustrated and angry in relation to [his ex-wife]’s actions of accusing him of assaulting the children and poisoning the children against him, such that he had no further relationship with any of his children, particularly his biological sons.
Mr Broomhall suggests that K provided no evidence or report of symptoms consistent with a diagnosable psychological or psychiatric condition in the years prior to the offending. Thus, it did not appear that K suffered from a diagnosable psychological condition of any kind prior to 1992. Mr Broomhall reported:
In regards to his mood state, [K] believed that this was generally quite stable until the separation from [his ex-wife] and the accusations as outlined above in 1992. Following this there were periods of reactive depression and anxiety. These were adequately reported by Dr Black in his psychiatric report. Dr Black was seeing [K] for psychiatric treatment at that time. In regards to suicidal ideation, this was discussed at the current interview in the context that Dr Black had stated that [K] experienced suicidal thoughts at the time. [K] recalled that he had discussed with Dr Black that suicide was considered as one option, but never considered seriously, nor plans made or actions taken in this regard. [K] believed that such suicidal thoughts were relatively short-lived and did not impact him in the rest of his adult life.
Mr Broomhall considered that K had suffered reactive depression and anxiety subsequent to the allegations, charges, conviction and breakdown of his marriage in the early 1990s. However, these conditions were suffered at levels consistent with the stressors that K was facing at the time. He considered that K displayed an adequate understanding of the impact of his behaviour on the victim and had reflected upon the inappropriate nature of his actions. K had been open and transparent with his current employer and there were no indications that he had tried to disguise or hide the nature of his past convictions from his current wife, nor his family members or close friends. Mr Broomhall considered this to be a positive factor.
Mr Broomhall acknowledged that an assessment as to whether K would have, at that time, fulfilled the criteria for a diagnosable psychological or psychiatric condition is difficult to determine. However, in his opinion, it seemed likely that a mood related disorder and anxiety would have been an appropriate diagnosis. Mr Broomhall formed the opinion that the symptoms related to those conditions were alleviated by a combination of time and treatment and did not re-occur at clinical levels throughout the remainder of K’s life to this point.
At the date of the assessment, Mr Broomhall considered that K did not present with any symptoms which would fulfil the diagnostic classification of any psychiatric or psychological disorders.
Mr Broomhall reported on K’s current stress and reactive sadness relating to the necessity of these proceedings and the current state of his employment (he is currently suspended with pay awaiting clearance in consequence of his being on the register of registrable offenders). However, Mr Broomhall believed that these factors were typical given the nature of the stressors K is facing and that they did not significantly impact on his interpersonal, social or adaptive functioning.
Mr Broomhall did not believe that K at any time, past or present, would have fulfilled the requirements for diagnosis as suffering a paraphilic disorder. More particularly, Mr Broomhall did not believe that K would fulfil the diagnostic criteria for paedophilia given the lack of any indication of sexual behaviours or fantasies directed toward children.
Under the heading, “Risk Assessment and Opinion” Mr Broomhall states:
… There were no indications of social rejection, loneliness or impulsive or antisocial behaviours generally. There were no indications of emotional identification with children specifically, or child focused hobbies or interests. I could not find any evidence of deviant sexual preference in [K]’s current presentation. The only aspect of deviant sexual preference and arousal evident were contained within his behaviour relating to his conviction of sexual behaviours towards [his step-daughter]. There were no other indications of deviant sexual arousal or underage pornographic material or other paraphilic disorders. I did not believe that [K] displayed symptoms consistent with a paedophilic disorder or sexual preference. According to the scoring criteria from the STABLE-2007, [K]’s risk of similar future offending behaviour was in the low range.
Engaging the empirical forensic aspects of SPJ it was my view that there were aspects of [K]’s presentation which supported his risk level, currently assessed in the low range. [K] had been involved in a stable, loving relationship with his wife, [C], and a fulfilling sexual relationship within this context. There were no further indications of inappropriate sexualised behaviours towards children or any underage persons.
Consideration
As indicated above, I am satisfied that the requirements contained in s 37(1) and (2) CSORA are satisfied.
The next question is whether I am satisfied that K does not pose a risk to the safety and well-being of any child or children.
No challenge is made to the opinions and content of the reports of Messrs Balfour and Broomhall. No reason arises for me to reject those reports and the opinions expressed therein. I accept them.
I note that in Mr Broomhall’s report there is a suggestion of a complaint that has been made against K. I know nothing of the nature of that complaint, who is investigating it, and why it has not as yet been determined. K informed Mr Broomhall that he is unaware of the nature of the complaint. He has not been challenged in this regard. I assume from the absence of any evidential material from the Commissioner that the complaint is not one that SAPOL are investigating and the Commissioner has deemed it unnecessary to inquire into the nature of it. Alternately, it is being investigated by SAPOL but the Commissioner has determined that it has no bearing on this application. I note that it does not appear to have influenced Mr Broomhall’s opinion. In the circumstances, the complaint must be put to one side.
K is 57 years of age. The only suggestion of him posing any risk to the safety or well-being of a child or to children at present or in the future arises from the fact of his offending against his step-daughter now on 24 years ago. He does not satisfy the diagnostic criteria for paedophilia, nor does he have a paraphilic disorder. His sexual orientation is not to children. There is no evidence of deviancy (other than his offending against his step-daughter) and no evidence of any cognitive distortion. There is no evidence of him having ever positioned himself in life so that he could gain access to children for sexual purposes. Stress played a role in his offending. Since that time he has been in situations of high stress. In fact his chosen field of employment carries with it many stressors. Despite this he has not re-offended. K is surrounded by protective factors that show no sign of abating – a fulfilling marriage, a satisfying sex life, an employer who knows of his prior offending, a family that knows of his prior offending, a career in which he has acquitted and continues to acquit himself admirably, social interests that he finds interesting and engaging.
I have also borne in mind that for a very considerable time since he was sentenced K has lived in the community without any level of supervision by the authorities and without any reporting obligations. In that time he lived and has continued since to live an exemplary life.
Both Messrs Balfour and Broomhall assess K’s risk of offending against a child in the future as low. That conclusion is the product of K’s having an immovable static factor – his prior convictions. The constraint upon the psychologists does not apply to this Court. As the psychologists indicate, past behaviour provides a good indicator of future behaviour. K offended in the early 1990s, but more than 24 years have since passed without blemish. His offending has not been repeated despite him being in a position to do so. What has been repeated over and over again is his commitment to his career and the community, the rebuilding and maintenance of his personal and professional integrity, his friendships and his marriage.
In my view K’s offending against his step-daughter may be regarded as an aberration. Nothing in the evidence before me suggests to the contrary.
I am satisfied that K does not pose a risk to the safety and well-being of any child or children at present and on the evidence before me I am satisfied that he poses no such future risk.
I make plain that in arriving at this conclusion I have had regard to the factors stipulated in s 38(3) CSORA. Section 38(3)(c) and (ca) do not apply. I have not overlooked the seriousness of K’s offending, although on the scale of seriousness for offending of that type it occupies the lower end. Further, I have not overlooked the difference in age as at the time of his offending between K and his step-daughter, K’s present age or his criminal record.
The jurisdictional fact contained in s 38(2) CSORA being satisfied, the question that remains is whether it is appropriate for this Court to exercise the discretion vested by s 38(1) CSORA and order the suspension of K’s reporting obligations. In my opinion it is appropriate to do so. The same reasons that have lead me to conclude that K does not pose a risk to the safety and well-being of any child or children lead me to conclude that the discretion should be exercised suspending his reporting obligations.
Again, I make plain that in arriving at that conclusion I have had regard to the factors set out in s 38(3) CSORA with the exception of s 38(3)(c) and (ca).
Conclusion
I would allow the application. I am satisfied that K does not pose a risk to the safety and well-being of any child or children at present and on the evidence before me I am satisfied that he poses no such future risk. I am satisfied that it is appropriate to exercise the discretion vested in this Court by s 38(1) CSORA suspending K’s reporting obligations as a registrable offender.
Pursuant to s 38 CSORA I order the suspension of K’s reporting obligations.
3—Object
The object of this Act is to protect children from sexual predators by—
(a) requiring certain persons who may have a propensity to commit sexual offences against children to keep the Commissioner of Police informed of their whereabouts and other personal details for a period of time—
(i) to reduce the risk of such offences being committed; and
(ii)to facilitate the investigation and prosecution of any offences that are committed; and
(b) preventing such persons from engaging in child-related work.
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