Mm v Commissioner of Police

[2025] SASC 13

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

MM v COMMISSIONER OF POLICE

[2025] SASC 13

Judgment of the Honourable Justice Stein  

14 February 2025

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

This application under s 37(2) and s 38(1) of the Child Sex Offenders Registration Act 2006 (SA) sought to suspend the reporting obligations of the applicant, who has been on the Australian National Child Offenders Register (ANCOR) since 2007 following convictions for indecent assault. The applicant has not since reoffended and provided evidence of sustained rehabilitation, support from referees, and a psychological report indicating a low to very low risk of reoffending. The Commissioner of Police did not oppose the application.

Held: The applicant does not pose an appreciable risk to the safety and wellbeing of children. It is appropriate, in the circumstances, to allow the application and suspend the applicant's reporting obligations under s 38(1) of the Child Sex Offenders Registration Act 2006 (SA).

Child Sex Offenders Registration Act 2006 (SA) ss 15A, 37, 38; Summary Procedure Act 1921 (SA) s 99AA, referred to.
C, M v Commissioner of Police (2014) 121 SASR 106; Holland v Commissioner of Police [2019] SASC 141; L, R v Commissioner of Police [2018] SASC 181; Lane v Police [2024] SASC 30, considered.

MM v COMMISSIONER OF POLICE
[2025] SASC 13

Criminal: Application

1. STEIN J:   Since 2007, the applicant has been registered on the Australian National Child Offenders Register (“ANCOR”) pursuant to the provisions of the Child Sex Offenders Registration Act 2006 (SA) (“the Act”). This registration followed his conviction after he pleaded guilty in the Adelaide Magistrates Court to three counts of indecent assault. The applicant seeks an order pursuant to s 37(2) and s 38(1) of the Act suspending his reporting obligations under the Act.

2. The respondent, the Commissioner of Police, did not oppose the application.

   The Act

3. 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.

4. The Court must be satisfied that the threshold requirements set out in s 37(2) of the Act are met. The Commissioner accepts those preconditions are satisfied.

5. Section 38(1) confers a discretionary power.[1] The Court must not make an order unless satisfied that a registrable offender does not pose a risk to the safety and wellbeing 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] However, the Court is not obliged to make the order if it is satisfied the requirements in s 38(2) are met. The making of the order remains discretionary. Nevertheless, a finding of satisfaction ordinarily will be highly favourable to the exercise of the discretion.[3] The making of an order involves a three-stage process: first, have the threshold requirements been satisfied; second, is the Court satisfied of the requirement in s 38(2); and, third, should the discretion be exercised to make the order sought.[4] 

   [1]    C, M v Commissioner of Police (2014) 121 SASR 106 at [11] (Nicholson J); Holland v Commissioner of Police [2019] SASC 141 at [6] (Lovell J); L, R v Commissioner of Police [2018] SASC 181 at [8] (Nicholson J).

   [2]    L, R v Commissioner of Police [2018] SASC 181 at [8] (Nicholson J).

   [3]    C, M v Commissioner of Police (2014) 121 SASR 106 at [12] (Nicholson J); L, R v Commissioner of Police [2018] SASC 181 at [8] (Nicholson J).

   [4]    C,M v Commissioner of Police (2014) 121 SASR 106 at [12] (Nicholson J); L, R v Commissioner of Police [2018] SASC 181 at [8] (Nicholson J).

6. The phrase “does not pose a risk” in s 38(2) requires the Court to consider present and future risk and should be read in the sense: does not pose a risk and will not pose a risk in the future.[5]  It will rarely be the case that the Court can make an unqualified finding into the indefinite future that a person poses no risk.  Accordingly, the requirement that a registrable offender does not pose a risk is not construed literally.  The focus is on whether there is appreciable risk.[6]  An appreciable risk is a risk which 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 satisfied of the requirements contained in s 38(2). Speaking in terms of onus of proof may not be apposite.[8] 

   [5]    L, R v Commissioner of Police [2018] SASC 181 at [11] (Nicholson J); Holland v Commissioner of Police [2019] SASC 141 at [7] (Lovell J).

   [6]    L, R v Commissioner of Police [2018] SASC 181 at [13]-[15] (Nicholson J); Holland v Commissioner of Police [2019] SASC 141 at [7] (Lovell J).

   [7]    L, R v Commissioner of Police [2018] SASC 181 at [15] (Nicholson J); Holland v Commissioner of Police [2019] SASC 141 at [7] (Lovell J).

   [8]    L, R v Commissioner of Police [2018] SASC 181 at [12] (Nicholson J); Holland v Commissioner of Police [2019] SASC 141 at [7] (Lovell J).

   Relevant factors

7. The offending comprised three counts of indecent assault of a 15-year-old female victim.  The remarks of the Magistrate in sentencing indicate that the three offences occurred on three separate occasions within a period of about 10 days.  At the time, the victim was nearly 20 years younger than the applicant.  The Magistrate described the three offences as a course of conduct in which the applicant pursued the victim.  The applicant’s offending came to light after a member of the victim’s family saw a SMS message on the victim’s phone.  The applicant was a friend of the family of the victim and the applicant was aware that the victim had previously been subjected to sexual abuse by an older man.  The sentencing remarks do not contain further reference to the details of the offending. 

8. At the time of the offending, the applicant was 34 years old.

9. The applicant pleaded guilty in the Magistrates Court.  When confronted by the victim’s parents, the applicant acknowledged having abused their daughter and admitted to the offences when interviewed.  The applicant notified the Child Abuse Report Line and voluntarily attended the Sexual Offenders Treatment Assessment Program (“SOTAP”).  The applicant lost his employment as a result of his offending.

10. The Magistrate sentenced the applicant to a period of seven months and two weeks imprisonment, suspended on the entry of a bond to be of good behaviour for a period of 18 months and in a monetary amount of $50.  The conditions of the bond required, among other things, attendance at counselling or treatment as recommended by the SOTAP. 

11. At that time, the applicant did not have any convictions, similar or otherwise.  In the intervening period of in excess of 17 years, the applicant has not been convicted of any other offences. 

12. The applicant was born on 7 August 1972 and is 52 years old.  He is married and has been for 28 years.  He has two adult children aged 22 and 25 years.  He is currently employed and has been employed by the same employer continuously for 18 years.  He is a product specialist for claims insurances services.  He does not work with children.

13. The applicant deposed to complying with his reporting obligations.

14. The applicant deposed to wishing to travel around Australia on an extended caravan holiday with his wife, staying more than seven days at various locations, which would require him to notify local authorities.  He also deposed to wishing to travel to Italy to visit relatives of his father, who passed away in 2019.  This would require him to complete voluminous paperwork before he could travel.  He deposed to a concern of a risk of being returned from overseas even if allowed to travel by Australian authorities. 

15. The applicant has never been subject to a restraining order under s 99AA of the Summary Procedure Act 1921 (SA) and has never been subject to a declaration under Part 2A or an order under s 15A of the Act.

16. I was provided with a report of a psychologist, Mr Fugler.  Mr Fugler has practised as a psychologist for 53 years, primarily in the area of forensic psychology.  He established and was the clinical director of the SOTAP.  He has assessed, treated, and prepared psychological reports on a large number of sexual offenders.

17. Mr Fugler’s report states that the offending involved the applicant kissing and touching the victim’s breasts and rubbing his erect penis against her buttocks.  The applicant also sent the victim sexually suggestive text messages.

18. During a meeting with Mr Fugler, the applicant reported he had not developed an urge to commit a further sexual offence and acknowledged the wrongful nature of the offending and expressed contrition.  The applicant told Mr Fugler of his desire to travel and, having been permitted to travel on one occasion, being removed from a family cruising holiday which caused distress. 

19. Mr Fugler observed that the applicant responded to questions about the offences in a direct manner with no obvious attempt to deny responsibility or sanitise.  He expressed sympathy for the victim. 

20. After the offending, the applicant voluntarily attended the SOTAP for about 12 months.  He reported acknowledging responsibility and having learned the negative impact his behaviour had on the victim, his parents and relatives, having developed shame and having learned methods of relapse prevention.

21. During the clinical interview Mr Fugler conducted, Mr Fugler addressed the most relevant factors relating to sexual offending and their influence on possible recidivism, including sexual deviancy, antisocial personality traits, tolerance of sexual crime, poor social skills, conflicts in intimate relationships, an adverse childhood environment such as sexual or physical abuse, poor mental health, and denial and a lack of victim empathy.  Mr Fugler concluded that the applicant did not report any obvious indications that any of those factors were present. 

22. Mr Fugler required the applicant to complete a widely used sexual risk assessment tool.  He measured 10 relevant items resulting in a score of one, which predicted a risk of sexual recidivism in the below average risk if the risk assessment had been conducted in 2007 following sentence.  The longer an individual remains offence-free, including non-sexual offending, the lower the risk.  After 17 years, and having completed a sexual offenders program, Mr Fugler considered it was likely the applicant’s risk was low or very low.  Further, Mr Fugler observed that research has demonstrated that very little recidivism occurs after 20 years and, therefore, he would not anticipate the applicant’s present level of psychological functioning to influence his level of recidivism. 

23. I was provided with many references filed on behalf of the applicant in support of the application.  Each referee was aware of the applicant’s offending and the purpose of the reference.  Among other things, the referees observed that the consequences of the applicant’s conviction have had a profound impact on him and his family, and the applicant displays qualities of integrity, responsibility, and strong moral character.  The referees expressed confidence in the applicant’s ability to maintain high moral standards and conduct himself with dignity.  The references indicate that the applicant has been open with his friends and colleagues about the circumstances of his conviction and the impact upon him.  The applicant is regarded as trustworthy, honest and a man of integrity.  The referees observed the applicant’s great remorse and determination to be a better person. 

24. If reporting obligations are suspended, the applicant will nevertheless remain on the ANCOR and continue to be subject to other obligations imposed by the Act.[9] 

    [9]    Lane v Police [2024] SASC 30 at [57] (McDonald J).

    Consideration

25. I am satisfied the threshold requirements contained in s 37(2) of the Act are met. The applicant is entitled to make the application pursuant to the Act.

26. The offences were serious.  The applicant pleaded guilty.  Mr Fugler’s report indicates the applicant was ashamed of his behaviour and took active steps to address it through voluntarily attending treatment.

27. A substantial period of time has elapsed since the offending and the applicant has not committed any further offences, including of a sexual nature, which would give rise to concerns about a potential risk to the safety and wellbeing of children.  Mr Fugler’s report shows the applicant presented as being aware of the wrongfulness of his behaviour, accepting full responsibility for his actions and displaying empathy to the victim of his offending. 

28. The age difference between the applicant and the victim was significant as he was about 34 and she was about 15.  However, the applicant is now 52 years old and has been married for 18 years.  I do not consider the age difference between the applicant and the victim is sufficient of itself to result in refusal of the application. 

29. Mr Fugler is of the opinion that the applicant represents a low risk of reoffending.  The references provided to the Court support Mr Fugler’s opinion. 

30. I am satisfied on the test set out in the authorities that the applicant does not pose a risk to the safety and wellbeing of any child or children.

31. The material before me does not raise any other matters which may militate against making an order in accordance with the Act.

32. I am satisfied I should exercise my discretion to make the order sought.

    Order

33. Pursuant to s 38(1) of the Act, the applicant’s reporting obligations are suspended.