L, R v Commissioner of Police
[2018] SASC 181
•30 November 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
L, R v COMMISSIONER OF POLICE
[2018] SASC 181
Judgment of The Honourable Justice Nicholson
30 November 2018
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 Child Sex Offenders Registration Act 2006 (SA).
In 1995 the applicant pleaded guilty to one count of unlawful sexual intercourse with a person under the age of 12 and two counts of unlawful sexual intercourse. At the time of the offending, the applicant was a primary school teacher and the victim of the offending was one of his students. The offending formed part of a course of conduct which commenced when the victim was nine years of age and the applicant was aged 34. The applicant was sentenced to imprisonment for six years, with a non-parole period of four years.
The applicant is a registrable offender for the purposes of the Child Sex Offenders Act 2006 (SA) and is required to comply with reporting obligations under the Act. The applicant seeks an order pursuant to section 37(2) of the Act that his reporting obligations imposed by the Act be suspended. The applicant meets the threshold requirements of a registrable offender who is entitled to apply to the Court for such an order.
The primary question that arises on this application is whether the Court can be satisfied, as required by subsection 38(2) of the Act, that the applicant does not pose a risk to the safety and well-being of any child or children.
Held: application dismissed.
Child Sex Offenders Registration Act 2006 (SA) s 37, s 38, referred to.
C, M v Commissioner of Police (2014) 121 SASR 106, applied.
Attorney-General v Grosser [2016] SASC 49; K, MP v Commissioner of Police [2017] SASC 38, considered.
L, R v COMMISSIONER OF POLICE
[2018] SASC 181Criminal: Application to suspend reporting obligations pursuant to Child Sex Offenders Registration Act 2006 (SA)
NICHOLSON J.
The applicant has applied, pursuant to subsection 37(2) of the Child Sex Offenders Registration Act 2006 (SA) (the Act), for an order that his reporting obligations imposed by that legislation be suspended. The respondent to the application, the Commissioner of Police for South Australia, has been represented by counsel throughout these proceedings who advised the Court that the respondent did not wish to be heard on the application. I have taken this to indicate that the application is not opposed. Notwithstanding this, I have taken the view that, for the reasons that follow, the application should be refused.
Introduction
On 13 March 1995, after having been arrested in November 1994, the applicant pleaded guilty in the District Court to one count of unlawful sexual intercourse with a person under the age of 12 and two counts of unlawful sexual intercourse. At the time of the offending, the applicant was a primary school teacher. The victim in relation to all counts was a boy who had been a student in one of the applicant’s classes.
The applicant was convicted and (following a successful appeal by the Director of Public Prosecutions) was sentenced to imprisonment for six years, with a non-parole period of four years. The applicant was released on parole in late 1998 or early 1999. As a consequence, it has now been some 20 years since he was last in custody and some 24 years since he last offended.
The applicant has provided sworn affidavit evidence in which he deposes to first becoming registered on the Australian National Child Offender Register (ANCOR) in October 2006. The applicant further deposes to having thereafter complied with his reporting obligations under the Act. In very recent years, the applicant has experienced international travel restrictions as a result of his registration.
In support of his application, the applicant relies on his own affidavit, sworn 9 December 2015 to which are exhibited a report by the forensic psychologist Mr Allen Fugler, dated 8 September 2015, and a number of references as to the applicant’s character. The applicant also relies upon an affidavit of his solicitor, Mr Craig Caldicott, sworn 7 December 2017. Exhibited to that affidavit are three further forensic psychological reports: one by Mr Luke Broomhall dated 17 May 2016, one by Mr Richard Balfour dated 17 January 2017 and a second report by Mr Allen Fugler dated 19 November 2017.
Following a first hearing of the application, the Court sought further evidence from the parties with respect to some of the matters to which the Court is to have regard as set out in sections 37 and 38 of the Act. The respondent provided an affidavit of Detective Brevet Sergeant Kirsty Marnane of the South Australian Police, affirmed 22 March 2018, to which is exhibited a copy of the applicant’s Offender History Report. The applicant provided his own second affidavit, sworn 21 June 2018. Exhibited to this affidavit was an addendum psychological report of Mr Broomhall, dated 4 May 2018, as well as a number of documents relating to psychological tools used for risk assessment.
The legislation
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;[1] 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.
[1] Now section 99A of the Criminal Procedure Act 1921 (SA).
In C, M v Commissioner of Police,[2] I made the following observations with respect to the operation of sections 37 and 38 of the Act.[3]
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.
[2] [2014] SASC 163; (2014) 121 SASR 106.
[3] [2014] SASC 163; (2014) 121 SASR 106 at [11]-[12].
In her affidavit, Detective Brevet Sergeant Marnane deposes to having made enquiries with respect to, inter alia, the matters identified in subsection 37(2) of the Act. I am satisfied that each of the threshold requirements under subsection 37(2) has been satisfied, such that the applicant is entitled to apply to the Court for an order suspending his reporting obligations.
Before moving to consider the potentially precluding factor provided for by subsection 38(2) of the Act and the overarching discretion, I need to make three preliminary observations relevant to subsection 38(2).
First, subsection 38(2) employs the present tense in the phrase “does not pose a risk”. In C, M v Commissioner of Police,[4] I considered the issue of whether, notwithstanding the use of the present tense, subsection 38(2) required a consideration of future risks rather than simply the level of risk as at the time of the application or delivery of judgment upon it. For the reasons set out in C, M, I concluded that 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. I see no reason to depart from that conclusion.[5]
[4] [2014] SASC 163; (2014) 121 SASR 106 at [14]-[18].
[5] See now also, K, MP v Commissioner of Police [2017] SASC 38 at [18] (Hinton J).
The second preliminary observation concerns the standard of proof. In C, M,[6] I expressed the view that the applicant bore the onus to establish the requirement in subsection 38(2) and to do so on the balance of probabilities, albeit following the application of a Briginshaw[7] approach. I have given further consideration to this matter, bearing in mind the decision of Barr J in R v ND[8] and the observations of Hinton J in K, MP v Commissioner of Police.[9] On further reflection, I now take the view that to speak in terms of onus and the traditional formulation of the civil standard of proof, albeit with a Briginshaw approach, may not be apposite. Rather, the fundamental question before a court when considering subsection 38(2) is one of whether the court is or is not satisfied of the requirement.
[6] [2014] SASC 163; (2014) 121 SASR 106 at [19]-[20].
[7] Briginshaw v Briginshaw (1938) 60 CLR 336.
[8] [2014] NTSC 11, to which decision I referred in C, M at fn 12.
[9] [2017] SASC 38 at [19].
The third preliminary observation follows on from the first. Subsection 38(2) provides 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”. Construed literally, it would rarely, perhaps never, be the case that a 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. This is particularly acute in the present context because the courts are routinely assisted by and required to take account of psychological or psychiatric evidence which relies on both clinical assessment and psychometric testing bearing on this question. As I understand the position, it is, I think universally, the case that a forensic psychologist or psychiatrist will not express the level of such a risk other than by reference to some type of scale or spectrum of risk with low risk, usually, being the entry point for the scale. In other words, it is the experience of the courts in this and related areas that the experts will never (and rightly so) commit themselves to an absolute position of no risk.
Recognising that the expert evidence bearing on the question of risk will be inherently constrained in the manner just described and the practical difficulties that will confront any judge who is called upon to express a view as to a person’s likely or possible future conduct, subsection 38(2), where it requires a finding that a registrable offender “does not pose a risk …”, is not to be construed literally. To do so would limit the reach of the discretion to suspend reporting obligations conferred by sections 37 and 38 of the Act to such an extent as to effectively empty it of all content.
In my view, the subsection looks to an appreciable risk. As to the meaning of this notion, I adopt and adapt the observations of Stanley J (albeit in a different context) in Attorney-General v Grosser.[10]
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]
[10] [2016] SASC 49 at [29].
The type of risk envisaged by subsection 38(2) will be an appreciable one if it is such that a court comes to the view that the applicant in question remains a person with respect to whom reporting obligations should continue to apply, notwithstanding the satisfaction of the other statutory mandatory requirements for suspension, the identification of favourable discretionary considerations and the lack of any unfavourable discretionary considerations.
Factual basis underpinning the application
In considering these matters it will be helpful to set out the factual background including the circumstances of the applicant’s offending, his personal history and current circumstances and, in the next section, the opinions of the forensic psychologists who have provided reports.
The applicant was convicted of three offences committed between 1989 and 1993. The offending formed part of a course of conduct involving acts of sexual touching, fellatio and, later, anal sexual intercourse. This course of conduct extended over a period of about five years, which commenced when the victim was nine years of age and the applicant was 34 years of age. The applicant was the victim’s teacher at the time that the conduct began.
The applicant befriended the victim and his parents through his relationship with the family as the victim’s teacher. He maintained a close friendship with the family and was a frequent visitor to the family home throughout the period during which the offending occurred.
The applicant committed the first offence of unlawful sexual intercourse when the victim was around 11 years of age. The applicant performed an act of fellatio upon the victim at the victim’s house on an occasion when the applicant stayed overnight. This charged act was one of a number of occasions over the period of five years or so when acts of fellatio were performed by the applicant on the victim, and caused to be performed by the victim on the applicant.
The second offence was committed in early 1993 when the victim was around 15 years of age. The offending involved the applicant engaging in anal sexual intercourse with the victim at the applicant’s house. The third offence also occurred in 1993 when the victim was still around 15 years of age and also involved the applicant engaging in anal intercourse with the victim at the applicant’s house.
Anal intercourse ceased in mid 1993 but the applicant continued to engage in other uncharged sexual acts with the victim until August 1994, when the sexual conduct ceased at the victim’s insistence. The applicant was arrested in November 1994.
In his remarks, the sentencing Judge noted that the applicant had no previous convictions and had an excellent work record as a teacher. After his arrest, the applicant sought treatment with respect to his sexual offending behaviour and completed a portion of a programme devised by the psychologist Mr Fugler. The Judge acknowledged that the applicant had made full and frank admissions following his arrest and accepted full responsibility for his offending. A report by Mr Fugler was provided to the sentencing Judge, in which it was noted that the applicant was sexualised at an early age and had a number of sexual experiences as a child, some of which could be described as abusive.
The applicant is now 63 years of age. He has been self-employed for approximately 15 years, having developed his own business in which he provides IT training and programming for businesses. Character references from a nephew and his wife, two former work colleagues and three neighbours of long standing have been made available. All referees have been closely involved with the applicant over many years and all speak highly of his openness about his past criminal offending and his, in their view, genuine contrition. It is apparent that these referees place a high level of trust in the applicant and particularly as to any involvement he might have with underage people.
The applicant has deposed that, in October 2003, he travelled with a friend to Bali. Between October 2003 and May 2015, the applicant visited Bali a further 27 times. There is no suggestion in the evidence and, in particular, arising out of any enquiries that may have been made by the respondent, of any untoward behaviour. However, upon arrival in Bali in May 2015, the applicant was prevented from entering. He was told by immigration officials that this was due to the Australian Federal Police having informed Indonesian authorities that he was registered on ANCOR.
In the early forensic psychological reports before the Court, the applicant reported that he had commenced a relationship with a Balinese man aged in his thirties and that he wished to be able to continue to visit Bali to further develop that relationship. However, largely as a result of his inability to visit Bali for the last three years or so, and as reported recently to Mr Fugler, that relationship has now come to an end.
Psychological reports
A number of psychological reports have been provided to the Court by the applicant.
Mr Allen Fugler
The forensic psychologist, Allen Fugler, provided two reports, one dated 8 September 2015 and one dated 19 November 2017.[11] Mr Fugler is a registered psychologist with a Masters degree in social science in clinical psychology from the University of Waikato. He has practised as a psychologist for more than 45 years. He established and was the clinical director of the Sexual Offenders Treatment and Assessment Program in South Australia for several years. He has extensive experience in assessing and treating individuals charged with and convicted of sexual offences. His evidence has been accepted in all jurisdictions in South Australia as well as in other states in Australia and in New Zealand.
[11] There is also his, somewhat dated, 1998 report provided to the Parole Board.
Mr Fugler had previous contact with the applicant over a period of four months prior to his being sentenced in 1994. During that period, the applicant was involved in a period of treatment directed towards modifying his deviant sexual behaviour and cognitive distortions. However, he was incarcerated prior to the relapse prevention part of that program being implemented. Nevertheless, the applicant continued to remain in contact with Mr Fugler by mail and during telephone assessments whilst at the Port Lincoln Prison and had a face-to-face interview with Mr Fugler on 9 August 1998. For the purpose of the 8 September 2015 report, Mr Fugler re-examined the applicant on 17 August 2015. Mr Fugler concluded his report in the following terms.
[The applicant] has not committed any offences, including those of a sexual nature, for over 15 years since being released from prison in 1999. When I last corresponded with the Parole Board on 20 August 1998 I stated I believed your client was insignificant (sic) risk with respect to the prospect of his reoffending in a sexual manner against children. While there are obviously no absolutes when predicting the likelihood of further offending, [the applicant’s] presentation, the modifications in his previous deviant arousal pattern, application of relapse prevention skills, and behaviour over at least the last 15 years would indicate he continues to fall within a group with a very low probability of sexually re-offending offending [sic] against children.
As is evident from that conclusion, Mr Fugler in August 1998 described the applicant as being of insignificant risk with respect to the prospect of re-offending in a sexual manner against children. Following his re-assessment in August/September 2015, Mr Fugler was of the opinion that the applicant “continues to fall within a group with a very low probability of sexually re-offending … against children”.
In a further report dated 19 November 2017, Mr Fugler was asked to review a report prepared by the clinical psychologist, Mr Luke Broomhall, of 17 May 2016 (referred to below) which by its terms is less favourable with respect to the application. Mr Fugler re-examined the applicant on 24 July 2017 for this purpose. In his subsequent report, Mr Fugler maintained his earlier opinion and concluded as follows.
It is my belief Mr Broomhall’s assessment regarding [the applicant] has not taken into account the international research evidence available with regard to the matter of predicting recidivism in sexual offenders when forming his opinion about [the applicant’s] potential level of risk and recommended future management, particularly his finding, based on what would appear to be a limited information base and evidence, that he had been exhibiting signs of immaturity and as such was a risk factor with regard to emotional self regulation and subsequent behaviour. The same was the case with [the applicant] attending a gay bar in Bali, he reporting there having been no expectation there would be underage individuals present or that he would be approached. His response was an immediate rejection of the boy’s advance in line with the relapse prevention measures he had been taught. I also find Mr Broomhall’s opinion that [the applicant] is vulnerable to self-serving and requires further monitoring and challenging in a therapeutic context to be unsubstantiated by the evidence available and the argument that further engagement with a therapist skilled in the treatment of sex offenders should occur because [the appellant] has not done so since 1999 as unnecessarily over cautious, [the applicant] already having a good knowledge about the process of deviant sexual arousal and the techniques involved in relapse prevention, which he appears to have managed to successfully apply for many years.
The fact of the matter is that [the applicant] has not re-offended for 21 years and now falls within the lower two percent of individuals likely to re-offend in a sexual manner. It is on that basis that he is applying to the Court for consideration to be given to having the reporting requirement (Division 2) suspended (Division 4).
I will return to the difference of opinion between Mr Fugler and Mr Broomhall after I have briefly summarised Mr Broomhall’s findings and opinions.
Mr Richard Balfour
Mr Balfour is a forensic psychologist of significant experience. He has a Masters degree in clinical psychology from the University of New South Wales and is a former chairperson of the Australian Psychological Society’s College of Forensic Psychologists. He holds various appropriate memberships and is an adjunct senior lecturer in clinical psychology at Flinders University. He has been registered as a psychologist since 1988 and works mainly in the fields of forensic psychology and clinical psychology. Mr Balfour conducted a lengthy clinical interview of the applicant on 27 September 2016 and considered a quantity of relevant documentation, including the psychological reports of Mr Fugler dated 8 September 2015 and 20 August 1998.
Mr Balfour provided a lengthy report dealing with the applicant’s interview behaviour, his family history, his educational history, his occupational history, his recreational history, his interpersonal history, his developmental history, his medical history, his financial history, his legal history, his drug and alcohol history, his mental health history and his psychosexual developmental history. He undertook a formal assessment of the applicant’s sexual risk using the RSVP which is a standardised risk assessment tool for assessing sex offenders. According to Mr Balfour, there is now a body of research that demonstrates the RSVP to have both good reliability and validity. According to Mr Balfour’s assessment based on the RSVP, he described the applicant’s level of sexual risk and recidivism as being low.
Mr Balfour provided in quite some detail, by way of a conclusion to his report, his clinical opinions and recommendations which included the following.
(i)Mr Balfour rated the applicant’s general criminogenic profile as being in the low range of risk (on a risk severity rating scale of low, moderate and high) for committing non-sexual offences during the next 12 months.
(ii)Mr Balfour could not find any clinical evidence to suggest that the applicant suffered from a psychotic illness, an intellectual disability, major mood disorder, personality disorder, drug and alcohol abuse problems, neurodevelopmental disorder or acquired brain injury. He described the applicant’s psychological profile as including that of being a 60 year old man of high intelligence with excellent literacy and numeracy skills, with normal self-esteem and normal body image, with good coping skills and a reasonable tolerance for stress and frustration.
(iii)According to Mr Balfour, the self-reporting of the applicant disclosed a sexually aberrant childhood which Mr Balfour outlined in some detail.
(iv)According to Mr Balfour, the applicant has successfully participated in rehabilitation for his sexual offending behaviour and has not sexually re-offended or offended in any other way (apart from a driving under the influence offence) since his offending in the 1990s.
(v)Mr Balfour assessed the applicant as having a low level of sexual risk – “the probability of him re-offending is very low”.
(vi)Overall, Mr Balfour is of the view that the applicant’s prognosis to continue to remain offence free is excellent (on a prognosis rating scale of poor, fair, good and excellent). He provided a number of reasons for this conclusion.
In brief, the factors relied upon by Mr Balfour in support of his ultimate conclusion as just set out are the following.
(i)One of the best predictors of sexual offending behaviour is past behaviour and the applicant has not re-offended since his original and only sexual offending in the 1990s. In this respect, Mr Balfour observed that “no person who has committed a child sex offence could ever be considered zero risk. However, his level of sexual risk to adolescent males is in the lowest range”.
(ii)Whilst the applicant satisfies the diagnostic criteria for homosexual paedophilia, this has been in remission for more than 20 years and he has not exhibited an ongoing exclusive sexual interest in adolescent boys.
(iii)The applicant has gone to great lengths to rehabilitate himself, has developed insight into the role of his childhood sexualisation and into his adult sexual offending behaviour and has developed a reasonably sophisticated relapse prevention strategy which has worked well to this point.
(iv)According to Mr Balfour, the applicant’s primary sexual interest is adult males not adolescent males. It is Mr Balfour’s view that the applicant’s past sexual offending represented a sexual displacement activity in a sexually frustrated man who feared being ostracised for his homosexuality. Given the changes in the law and social values since those times, the applicant is now able to openly express and explore his homosexuality in consensual relationships with adult men.
(v)Due to the effects of aging, the applicant’s libido has declined. According to his self-reporting to Mr Balfour, the applicant has not been sexually active since 2004 (apart from masturbation) but ideally would like to have sexual relations with a consenting adult partner.
(vi)The applicant does not suffer from any co-morbid psychopathology that would predispose him to further offending behaviour.
(vii)The applicant has a number of protective factors in his life against further sexual offending behaviour.
(viii)According to Mr Balfour, the applicant is very remorseful regarding his offending behaviour and has exhibited victim empathy. He made frank admissions during the police interview and pleaded guilty at the earliest opportunity. According to Mr Balfour, the applicant maintains appropriate role boundaries between himself and adolescent males and is not in denial about his offending behaviour.
Mr Balfour expressed this conclusion.
In conclusion, since he sexually offended twenty-one years ago, [the applicant] has re-built a positive and rewarding life. He simply has too much to lose by re-offending. Furthermore, the personal deterrent effects of imprisonment have had a long-lasting punitive effect upon him. He does not want to reoffend and be re-imprisoned, and lose all that he has accomplished. He wants to be in a stable homosexual relationship with an adult male, and to eventually retire to Bali.
Mr Balfour is of the belief that the applicant does not require specific rehabilitation and cannot see any practical value in requiring him to attend rehabilitation programs for child sex offenders. According to Mr Balfour:
His case clearly demonstrates that child sex offenders are capable of being successfully rehabilitated, and they do not all go on to become sexual recidivists.
Mr Luke Broomhall
Mr Broomhall is a registered psychologist and endorsed specialised practitioner in the field of forensic psychology. He was first registered as a psychologist in New South Wales in 1998 and completed a Master of Psychology (Forensic Psychology) at the University of Western Sydney in 2003. He is a published author, has a number of appropriate memberships and is a past chair of the APS College of Forensic Psychologists in South Australia. Mr Broomhall provided a report dated 17 May 2016 and a supplementary report dated 4 May 2018 after taking into consideration the psychological reports of Mr Balfour dated 17 January 2017 and Mr Fugler dated 19 November 2017.
Mr Broomhall interviewed the applicant for evaluation purposes over approximately three hours on 31 March 2016. He also completed various psychometric testing. Mr Broomhall had available to him various relevant documentary materials including the most recent report of Mr Fugler.
Mr Broomhall’s report of 17 May 2016 is comprehensive and summarises his findings under the headings of Presentation and Assessment, Personal Educational History, Vocational History, Sexual and Relationship History, Offending Behaviour, Engagement with Therapies and Strategies, Substance Use, Mental Health, Psychometric Evaluation, Psychological Assessment and Summary and Risk Assessment.
Whilst Mr Broomhall offered a general psychological analysis, a significant feature of his first report is his findings following psychometric evaluation and, in particular, following a personality assessment inventory (PAI), Static-99R testing and STABLE-2007 testing. The PAI is a self-administered inventory of adult personality designed to provide information on a number of clinical scales including depression, anxiety, drug and alcohol use, aggression and suicidality. The Static-99R tool is designed to assist in the prediction of sexual and violent recidivism amongst men who have committed sexual offences, by exploring static factors which include prior sexual offences, current non-sexual violent offences, history of non-sexual violence, number of previous sentencing dates, age, having male victims, never living with a partner for two years, history of non-contact sexual offences and unrelated and stranger victims. Static factors are, in simple terms, factors that cannot be changed. According to Mr Broomhall:
The Static-99R provided group estimates of recidivism based on groups of individuals with these characteristics who do not receive treatment.
The STABLE-2007 psychometric tool is a guide for conducting a clinical interview with people convicted of sexual offences. It explores a number of dynamic risk factors, that is, risk factors that can be modified. These include an individual’s significant social influences, intimacy deficits, emotional identification with children, hostility towards women and social rejection or loneliness, as well as lack of concern for others.
As far as a general psychological assessment of the applicant is concerned, Mr Broomhall expressed the following opinion.
It was my view that, in regards to his offending behaviour, [the applicant] would have met the diagnostic criteria for paedophilic disorder. Based on the current assessment there were no longer indications or evidence of recurring, intense sexual arousal or fantasies regarding children under the age of 13 years, no indication of behaviour of acting upon these sexual urges, and measures in place to monitor and maintain sexual fantasy or situations regarding children. As such, [the applicant] no longer meets the diagnostic criteria for paedophilic disorder.
However, the applicant’s score on the Static-99R psychometric tool as recorded by Mr Broomhall placed him in the “low-moderate” range for risk of further offending and his score as recorded by Mr Broomhall on the STABLE-2007 psychometric tool placed him in the “moderate” range for risk of inappropriate sexualised behaviour in the future.
By way of conclusion (under the heading “Summary and Risk Assessment”), Mr Broomhall expressed the following opinions.
(i)That the applicant, through treatment with Mr Fugler and through his own application of cognitive monitoring and behaviours, had made considerable progress and reduced his risk of similar future offending behaviour from the previous most likely “very high” range (which would have combined both static and dynamic variables relevant to the applicant’s presentation at the time).
(ii)That, in terms of assessment of future risk, it needs to be stated that it is not scientifically possible to accurately predict whether an individual offender will or will not actually re-offend. The best that can be offered is an estimate that is anchored to empirical literature specifying features associated with risk and sound clinical analysis and formulation of how these features might operate in the individual subject to the assessment.
(iii)When considering the applicant’s static and dynamic risk factors, the actuarial measures indicated a moderate level of risk range. In particular, Mr Broomhall identified a number of dynamic risk factors which in his view were of concern and which might form the basis for treatment targets to reduce these risk areas.
(iv)That the applicant’s psychological profile portrayed an individual who lacked insight into his emotional state, experienced difficulty in managing his frustrations and denied common shortcomings and faults. According to Mr Broomhall, these factors left the applicant vulnerable to self-serving cognitive distortions which, if not monitored and challenged in therapeutic context, could become problematic and increase dynamic risk variables such as deviant sexual arousal or impulsivity.
(v)The fact that the applicant had not engaged in any further therapeutic relationship since 1999 presented an area of risk for Mr Broomhall. Mr Broomhall’s recommendation is that the applicant would benefit from engaging again either with Mr Fugler or a suitably trained forensic psychologist.
Mr Broomhall expressed the following conclusion.
In summary, it was my opinion, based on the information gathered in the current assessment, that [the applicant’s] risk of similar future sexualised offending behaviour was in the moderate range. This opinion takes into consideration that [the applicant] had engaged with therapy with Mr Fugler (in the 1990’s) and worked on cognitive distortions, which reduced [the applicant’s] risk from the very high range to the moderate range. However, as noted above, there were still aspects of his presentation which highlighted areas of risk which are still yet to be mitigated.
Mr Fugler and Mr Broomhall
In his report of 19 November 2017, Mr Fugler raises a number of criticisms directed at the psychometric testing assessment undertaken by Mr Broomhall and calls into question the reliability of the scoring arrived at by Mr Broomhall with respect to the Static-99R and the STABLE-2007 testing. According to Mr Fugler, if those tests had been scored in the manner by which Mr Fugler would score them, the applicant would fall within the low risk range for sexual re-offending. Mr Fugler strongly expressed a view to the effect that, because the applicant has not re-offended for well more than 20 years, he now falls within the lower two per cent of individuals likely to re-offend in a sexual manner.
In his responding supplementary report of 4 May 2018, Mr Broomhall accepted some but not all of Mr Fugler’s criticisms but nevertheless maintained the opinion he had expressed, that is, that the applicant’s risk rating for future sexualised behaviour remains in the moderate range with recommendations for therapeutic maintenance sessions to be undertaken to ensure a continuing decrease in risk over time.
Consideration and conclusion
I am mindful that as a starting point, the Act imposes lifelong reporting obligations. The intention is to put in place a regime designed to protect the public, in particular children, from the risk that a known or established child sex offender will offend again. The present application is not one to secure a release from custody or to modify strict conditions of supervision, but only one to suspend reporting obligations. These obligations and the consequences that can ensue, such as restrictions on movement, do impose constraints on the lifestyle of an applicant. However, the imposition of these relatively limited constraints must be balanced against the risk that a suspension of reporting conditions may give rise to an environment, likely to subsist over many years, during which the scope for opportunistic offending may be enhanced. This balancing exercise must inform the strictness with which the legislative requirements for a successful application to suspend are to be observed.
I have before me sufficient evidence such that each of the threshold requirements under subsection 37(2) of the Act are satisfied. Further, when considering the overarching discretion as to whether or not to make the order, the evidence bearing on the various considerations that must be taken into account in accordance with subsection 38(3) is such as, ordinarily, might lead to a favourable exercise in the discretion. However, the matter that has troubled me throughout is whether or not the making of an order with respect to this applicant is precluded by virtue of the requirement in subsection 38(2) which I again set out.
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.
In this respect, I have before me the expert opinions of both Mr Fugler and Mr Balfour, each of whom categorised the applicant as being in the low range of risk for future sexual offending against children and bearing in mind that, as a matter of practice, this is the most positive opinion that might be expressed in favour of any applicant. Indeed, Mr Fugler expressed the opinion in 1998, from which he does not appear to have departed, that the applicant’s risk of re-offending in this way could be described as insignificant.
As against these opinions, held by two very experienced forensic psychologists, I have before me the opinion of Mr Broomhall, also a very experienced forensic psychologist. His opinion is informed largely, but not entirely, by his psychometric testing of the applicant and is to the effect that the applicant presents a moderate risk of re-offending and that in order to reduce this risk, further rehabilitation efforts need to be undertaken.
I recognise that Mr Broomhall’s opinion is largely based on a classification of the applicant as falling within a cohort of persons that statistically pose a moderate risk and that, at least to the extent that his opinion is based on this analysis, it is not specifically directed at the risk posed by this particular individual. However, Mr Broomhall has also based his opinion on his clinical assessment of the applicant. This has not caused him to moderate his view based on the psychometric testing.
I am also conscious of the fact that Mr Fugler has had an ongoing therapeutic relationship with the applicant in the past and as such is well placed to form a view concerning this person independently of whatever the statistical analysis might show.
In my view, it is not appropriate in a matter such as this to resolve this issue by forming a view as to which of the competing psychological assessments is to be preferred, much less by accepting one and rejecting the other. At the end of the day, the Court has to be satisfied that the applicant does not pose a risk to the safety and well-being of any child or children. The question before me is whether or not there remains an appreciable risk of this, bearing in mind how that notion should be characterised as earlier explained in these reasons.
In my view, I cannot simply put to one side the view of Mr Broomhall. There remains an appreciable risk that the applicant might re-offend in the future. In my view, the necessary pre-condition as required by subsection 38(2) has not been satisfied and the application must be refused.
I dismiss the application that the applicant’s reporting obligations imposed by the Child Sex Offenders Registration Act 2006 be suspended.
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