LBJ v Commissioner of Police - [2023] SASC 129

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

LBJ v COMMISSIONER OF POLICE
[2023] SASC 129
Judgment of the Honourable Justice Stein
12 September 2023
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 2000, the applicant was sentenced to four counts of indecent assault. He was registered on the Australian National Child Offenders Register and is required to comply with reporting obligations under the Child Sex Offenders Registration Act 2006 (SA). The applicant applied to the Court pursuant to s 37(2) of the Act seeking an order to suspend those reporting obligations.
The applicant meets the threshold requirements of a registrable offender entitled to apply for such an order. The primary question arising on the application is whether the Court can be satisfied, as required by s 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:
1. Application allowed.
Child Sex Offenders Registration Act 2006 (SA) ss 37, 38, referred to.
C, M v Commissioner of Police (2014) 121 SASR 106; L, R v Commissioner of Police [2018] SASC 181; Holland v Commissioner of Police [2019] SASC 141; Attorney-General v Grosser [2016] SASC 49, considered.

LBJ v COMMISSIONER OF POLICE
[2023] SASC 129
Criminal: Application

STEIN J: The applicant was registered on the Australian National Child Offenders Register (“ANCOR”) pursuant to the provisions of the Child Sex Offenders Registration Act 2006 (SA) (“the Act”) following his conviction in May 2000 for four counts of indecent assault. The applicant is required to comply with the reporting obligations imposed by the Act and seeks an order pursuant to s 37(2) and s 38 of the Act suspending those reporting obligations.
The respondent, the Commissioner of Police, does not take a position on the application.
The Act
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; 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.
The Court must be satisfied that the threshold requirements contained in s 37(2) of the Act are met. Counsel for the respondent confirmed the satisfaction of those pre-conditions.
The power conferred by s 38(1) is discretionary.[1] The Court must not make an order unless satisfied the registrable offender does not pose a risk to the safety and well-being of any child or children. The Court must take into account the matters set out in s 38(3) of the Act when determining whether to make an order.[2]
[1] C, M v Commissioner of Police (2014) 121 SASR 106 at [11] per Nicholson J; L, R v Commissioner of Police [2018] SASC 181 at [8] per Nicholson J; Holland v Commissioner of Police [2019] SASC 141 at [6] per Lovell J.
[2] C, M v Commissioner of Police (2014) 121 SASR 106 at [11] per Nicholson J; L, R v Commissioner of Police [2018] SASC 181 at [8] per Nicholson J; Holland v Commissioner of Police [2019] SASC 141 at [6] per Lovell J.
In C, M v Commissioner of Police,[3] Nicholson J said:
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.
[3] (2014) 121 SASR 106 at [12]; referred to in L, R v Commissioner of Police [2018] SASC 181 at [8] per Nicholson J.
The phrase “does not pose a risk” in s 38(2) requires consideration of present and future risk and should be read in this sense: does not pose a risk and will not pose a risk in the future.[4] It will rarely be the case that a court could make an unqualified finding into the indefinite future that a person poses no risk.[5] Accordingly, the requirement that a registrable offender “does not pose a risk” is not construed literally and the focus is on whether there is appreciable risk.[6] An appreciable risk is a risk that is not purely speculative but is founded in evidence, is perceptible and capable of being estimated.[7] The fundamental question for the Court is whether or not the Court is or is not satisfied of the requirements contained in s 38(2). Speaking in terms of onus of proof may not be apposite.[8]
[4]    L, R v Commissioner of Police [2018] SASC 181 at [11] per Nicholson J; Holland v Commissioner of Police [2019] SASC 141 at [7] per Lovell J.
[5]    L, R v Commissioner of Police [2018] SASC 181 at [13]-[14] per Nicholson J.
[6]   L, R v Commissioner of Police [2018] SASC 181 at [13]-[15] per Nicholson J; Holland v Commissioner of Police [2019] SASC 141 at [7] per Lovell J.
[7]    L, R v Commissioner of Police [2018] SASC 181 at [15] per Nicholson J adapting the observations of Stanley J in Attorney-General v Grosser [2016] SASC 49 at [29]; Holland v Commissioner of Police [2019] SASC 141 at [7] per Lovell J.
[8]    L, R v Commissioner of Police [2018] SASC 181 at [12] per Nicholson J; Holland v Commissioner of Police [2019] SASC 141 at [7] per Lovell J.
Factual considerations relevant to the application
The offending comprised four counts of indecent assault of a 14 year old female victim, a student attending the high school at which the applicant was employed as a teacher’s assistant. All four incidents occurred on school grounds in the technical studies area. Three incidents involved the applicant touching the victim on her clothing or underwear. The last involved the applicant taking the victim’s hand and placing it on his groin on the outside of his trousers. This occurred after other contact between the victim and the applicant. The victim acknowledged she enjoyed the affection shown by the applicant to her, but she reported the conduct after she considered it got out of hand.
The applicant pleaded guilty in the Magistrates Court and was sentenced to four months imprisonment which was suspended upon him entering into a bond for a period of two years in the amount of $200. The bond contained conditions including that the applicant be of good behaviour, be under the supervision of a probation officer for 12 months and attend counselling programs as directed. The applicant completed the bond successfully in 2002.
The applicant did not have any similar convictions at the time. Twenty four years has passed since the offending and the applicant has not been convicted of any other offences in that period. In 2023, the applicant was charged with a breach of reporting obligations, but the charge was withdrawn. I accept counsel’s submission that the Court should not take into consideration the discontinued charge.
The applicant deposed by affidavit to the circumstances of his offending, becoming a registered offender pursuant to the Act, to his personal circumstances and the impact of reporting obligations.
The applicant was born in Adelaide in October 1947. He and his wife married in 1974. They have three adult children and 11 grandchildren. The applicant, among other roles, was an enlisted soldier and qualified as an armourer. He left the Australian Army in 1973 with an honourable discharge. Thereafter he worked in a range of roles, including as a school services officer assisting metal and woodwork classes in which role the offending took place. The applicant left the education sector and then worked from 2005 until his retirement in 2015 in a role as an armourer.
The applicant deposed to complying with his reporting obligations. Whenever he has contact with a grandchild, he is required to advise police within 24 hours by email. The applicant deposed to his feelings of guilt and shame and also to the impact on his wife who has been diagnosed with cancer and suffers from depression and anxiety. The applicant is in poor health and is 76 years old. The applicant and his wife wish to spend their last years without the stigma of reporting.
The Court received a report of Mr Richard Balfour in support of the application.
Mr Balfour has practiced since 1988 as a psychologist and works in the field of forensic and clinical psychology. He has extensive experience including a Master’s in Clinical Psychology. He is an Adjunct Senior Lecturer in Clinical Psychology at Flinders University.
Mr Balfour conducted a three hour clinical interview of the applicant on 24 July 2023 and reviewed a range of documents which are referred to in his report. Mr Balfour considered the applicant’s interview behaviour, family history, education, occupation history, recreational history, interpersonal history, developmental history, medical history, financial and legal history, drug and alcohol history, mental health history, psychosexual developmental history and events antecedent to the sexual offences.
Mr Balfour used three formal risk assessment tools to assess the applicant’s level of sexual recidivism. Those tools employ both actuarial methodology and structured professional judgment. Those risk assessment tools confirmed the applicant was in the low category of sexual recidivism on a risk severity rating of low, low-moderate, moderate, moderate-high and high.
Mr Balfour stated that he does not consider the applicant represents an acute risk to children in the community. Mr Balfour set out a number of reasons for his conclusion which I summarise below.
1.The applicant does not satisfy the diagnostic criteria for a paedophiliac disorder and he does not have paedophiliac orientation, a sexual obsession with adolescent females or a deviant paedophilic sex drive.
2.The applicant’s risk of sexual recidivism is in the lowest category such that his level of sexual risk is the same as the base rate in the general population for men.
3.The applicant is 76 years old and has multiple physical health problems with consequential normal age related decline in libido. He suffers from age and health related sexual impotence and has no desire to become sexually active again. Research shows that risk of sexual recidivism significantly decreases from the age of 60 years.
4.The seriousness of the applicant’s past offending behaviour has had a major salutary effect upon him and is a powerful personal deterrent against further offending.
5.The applicant does not exhibit any evidence of pro-offending attitudes. He fully accepts responsibility for the offending and does not attempt to blame the victim. The applicant demonstrates remorse and exhibits victim empathy. Mr Balfour believes the applicant’s remorse is sincere.
6.The applicant does not suffer from a comorbid psychopathology that would predispose him to further offending.
7.The applicant’s strong supportive relationship with his family is a protective factor against further offending. The applicant has been married for 48 years, has three adult children in their 40s and 11 grandchildren between the ages of 2 and 15 years. The applicant enjoys a close, supportive relationship with his extended family. The applicant has spent the last 23 years making amends to his family by trying to be a good husband, father and grandfather. The applicant would not contemplate offending because he does not want to cause his family further distress and jeopardise his relationships with family members.
Mr Balfour did not have any concerns regarding the applicant’s ANCOR reporting obligations being suspended.
Consideration
I am satisfied that the threshold requirements contained in s 37(2) of the Act are met and the applicant is entitled to make the application pursuant to the Act.
The offences were serious. The applicant pleaded guilty. The applicant deposed to feeling guilty and ashamed of his behaviours. These feelings have been exacerbated since he was placed on the Child Sex Offenders Register.
The period of time since the offending took place is substantial. The applicant has not committed any further offences, including of a sexual nature, during that interval of time which would give rise to concerns about a potential risk to the safety and well-being of children. Mr Balfour’s report indicates the applicant presented as cognisant of the wrongfulness of his behaviour, empathetic to the victim of his offending and accepted full responsibility for his actions. There are no indications of paedophiliac disorder or orientation or pro-offending attitudes.
The age difference between the applicant and the victim was significant as he was in his early 50s and his victim was 14 years old, which is an issue of concern. However, the applicant is now 76 years old, of poor health and suffering impotence. The age difference between the victim and applicant at the time of the offending is not sufficient of itself to override the other relevant factors addressed in the report of Mr Balfour.
While Mr Balfour referred to the applicant as not representing an “acute” risk to children, his report read in its entirety demonstrates Mr Balfour’s view that the applicant represents a low risk, being a level of sexual risk which is the same as the base rate in the general population for men.
The material before me does not raise any other matters which may militate against the making of an order in accordance with s 38(3)(g).
Conclusion
I have determined that I ought to exercise the discretion in favour of granting the application. I am prepared to act on Mr Balfour’s opinion. I have considered the matters referred to by Mr Balfour including the applicant’s age, his health issues, the length of time since the offending, his attitude to the offending, the lack of any further sexual offending and the applicant’s strong motivation not to re-offend to, among other things, avoid jeopardising his family relationships. Taking into account those matters, I am satisfied that the applicant does not pose a risk to the safety and well-being of any child or children.
Orders
I will make an order pursuant to s 38(1) of the Act suspending the applicant’s reporting obligations. I will hear the parties as to the terms of the order.