Lane v Police - [2024] SASC 30

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

LANE v POLICE
[2024] SASC 30
Judgment of the Honourable Justice McDonald
7 March 2024
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 1995 the applicant was convicted of one count of unlawful sexual intercourse with a person under 12 and two counts of unlawful sexual intercourse. He was released on parole in March 1999.
Due to the nature of his offending, in October 2006 the applicant was registered on the Australian National Child Offenders Register (‘ANCOR’) and became the subject of the various restrictions and conditions imposed by the Child Sex Offenders Registration Act 2006 (SA) (‘the Act’).
The applicant seeks an order pursuant to s 38(1) of the Act that his reporting obligations under the ANCOR be suspended. The Commissioner of Police is in opposition to the application.
As required by s 38(2) of the Act, the applicant must not pose a risk to the safety and well-being of any child or children for the order to be granted.
Held: Application granted.
Child Sex Offenders Registration Act 2006 (SA) s 4A, s 15, s 16, s 17, s 37(2), s 38(2), s 38(3), s 65, s 66K(1), s 66L, s 66M, s 66N(1), referred to.
L, R v Commissioner of Police [2018] SASC 181, discussed.

LANE v POLICE
[2024] SASC 30
Criminal: Application
McDONALD J:

In 1995 the applicant pleaded guilty to one count of unlawful sexual intercourse with a person under 12 and two counts of unlawful sexual intercourse. He was released on parole in March 1999. As a consequence of the nature of his offending, in October 2006 he was registered on the Australian National Child Offenders Register (‘ANCOR’). At that time the applicant became the subject of the various restrictions and conditions imposed by the Child Sex Offenders Registration Act 2006 (SA) (‘the Act’). The applicant seeks an order pursuant to s 38(1) of the Act that his reporting obligations be suspended. The Commissioner of Police is in opposition to the application.
The Sexual Offending
For current purposes it is not necessary to descend into any great detail about the applicant’s prior offending other than to observe that the offending took place between 1989 and 1993 and was committed against a boy who was between 9 and 15 years old. Over the period of offending, the applicant had been the victim’s teacher.
With the exception of a drink driving conviction in 2016, these are the only offences that the applicant has been convicted of. There have also been no breaches of the applicant’s ANCOR obligations.
ANCOR Obligations
As the applicant is a “registerable offender who has been found guilty of two or more class 1 offences”,[1] he is subject to the ANCOR obligations for the remainder of his life. The obligations imposed by the Act are multifaceted. They include reporting obligations and also…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lane v Police

Details

AGLC: Lane v Police [2024] SASC 30
Case: [2024] SASC 30
Decision Date: 7 March 2024

CaseChat Overview and Summary

In Lane v Police, the applicant sought to have the reporting conditions under the Australian National Child Offender Register (ANCOR) suspended. The applicant had previously been convicted of serious sexual offences against children, resulting in his registration on the ANCOR. The case involved a dispute over whether the applicant posed a risk to the safety and well-being of any child, which was a crucial factor in determining whether the reporting conditions could be suspended. The primary legal issue was whether the applicant met the threshold requirements under section 37(2) of the relevant Act and if he did not pose a risk to children. This required the court to consider expert opinions on the applicant's risk of re-offending and whether these opinions indicated a low or moderate risk.

Justice Nicholson reviewed the evidence, including the opinions of three forensic psychologists: Mr Broomhall, Mr Fugler, and Mr Balfour. While two of the experts, Mr Fugler and Mr Balfour, assessed the applicant's risk as low, Mr Broomhall opined that the risk was moderate. Nicholson J acknowledged the differing expert opinions but concluded that the applicant's risk rating for future sexualised behaviour remained in the "moderate" range. Nicholson J held that although the applicant met the threshold requirements under section 37(2) of the Act, he could not be satisfied that the applicant did not pose a risk to the safety and well-being of any child or children. Consequently, Nicholson J decided against suspending the ANCOR reporting conditions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Broomhall concluded:[25]Having reviewed the psychological reports of Mr Balfour and Mr Fugler in relation to [the applicant], my opinion is unchanged. In my view, [the applicant’s] risk rating for future sexualised behaviour remains in the “moderate” range.Decision of Justice Nicholson[26][25] Report of Mr Broomhall dated 4 May 2018 at 4.[26] L, R v Commissioner of Police [2018] SASC 181. That was the state of the evidence at the time that Nicholson J came to determine the 2018 application to suspend the ANCOR reporting conditions. At the time of the 2018 application the applicant was very much motivated to have the conditions suspended by a desire to travel to Bali. He had provided an affidavit in which he deposed that in October 2003 he had travelled to Bali with a friend. Between October 2003 and May 2015, the applicant travelled to Bali a further 27 times. There was no suggestion in the evidence or arising out of enquiries that had been made by the respondent, of any untoward behaviour on the part of the applicant whilst in Bali. 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. Since that time the applicant had been unable to return to Bali. This was of particular concern to him as he was pursuing a relationship with an adult male who lived there. In his judgment, Nicholson J summarised in some detail the reports of the various experts. His Honour found that the three threshold requirements under subsection 37(2) of the Act were satisfied, however he remained concerned about whether he was precluded from making the order on the basis that he could not be satisfied that the applicant did not pose a risk to the safety and well being of any child or children. In that context Nicholson J identified the nature of the conflict in the opinions of the experts:[27]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. [27] Ibid at [49]-[52].

Ratio Decidendi

Legal Principle Established

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