Police v Schmidt; Attorney-General (SA) v Schmidt - [2018] SASC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
POLICE v SCHMIDT; ATTORNEY-GENERAL (SA) v SCHMIDT
[2018] SASC 80
Judgment of The Honourable Justice Hinton
8 June 2018
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - OTHER MATTERS
Mr Schmidt appeared in the Supreme Court for three purposes:
1. To determine whether a continuing detention order should be made against him under s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act) (SCCRM-18-40);
2. To determine whether an extended supervision order should be made against him under s 7 of the High Risk Offenders Act (SCCRM-17-20); and
3. For sentence on offences he committed against the Child Sex Offenders Registration Act 2006 (SA), including:
• On SCCRM-18-142 (AMC-16-13142), two counts of failing to comply with reporting obligations contrary to s 44(1), one count of failing to comply with reporting obligations relating to reportable contact with a child contrary to s 44(1a) and one count of knowingly furnishing false information in relation to reportable contact with a child contrary to s 45(2);
• On SCRRM-18-136 (MCPAR-17-14904), six counts of failing to comply with reporting obligations relating to reportable contact with a child contrary to s 44(1a) and three counts of failing to tell an available responsible adult of particular matters contrary to s 66L(2).
Held:
As to SCCRM-18-40 and SCCRM-17-20:
1. Mr Schmidt is detained in custody pursuant to s 18(2) of the High Risk Offenders Act for fifteen months commencing 8 June 2018.
2.       Mr Schmidt is subject to an extended supervision order for a duration of three years commencing 8 June 2018.
As to SCCRM-18-142(AMC-16-13142)
3.       Mr Schmidt is sentenced to the rising of the Court.
As to SCCRM-18-136 (MCPAR-17-14904):
4.       Mr Schmidt is sentenced to a term of imprisonment of seven months and one week commencing 8 June 2018.
Criminal Law (High Risk Offenders) Act 2015 (SA), ss 7, 9 and 15; Child Sex Offenders Registration Act ss 44(1), 44(1a), 66L(2), referred to.
Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11; Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74, applied.

POLICE v SCHMIDT; ATTORNEY-GENERAL (SA) v SCHMIDT
[2018] SASC 80
CRIMINAL
HINTON J.
Introduction

David Schmidt comes before this Court for three purposes:
i.      for sentence on:
a. two counts of failing to comply with reporting obligations, one count of failing to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse, and one count of knowingly furnishing false information in relation to reportable contact with a child. Those offences were committed contrary to ss 44(1), 44(1a) and 45(2) of the Child Sex Offenders Registration Act 2006 (SA) (the Child Sex Offenders Registration Act) respectively;[1] and
b. six counts of failing to comply with reporting obligations relating to reportable contact with a child, contrary to s 44(1a) of the Child Sex Offenders Registration Act, and three counts of failing to tell an available responsible adult that he was a serious registrable offender and what the offence or offences were that resulted in him being a serious registrable offender as soon as practicable after having contact with a child or forming the intent to have contact with a child, contrary to s 66L(2) of that same Act;[2]
ii.for determination as to whether he should be subject to an extended supervision order under s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act); and
iii.for determination as to whether he should be subject to a continuing detention order under s 18(2) of the High Risk Offenders Act in consequence of his having breached an interim supervision order.
[1]    AMC-16-13142; SCCRM-18-142.
[2]    MCPAR-17-14904; SCRRM-18-136.
For the purposes of sentencing Mr Schmidt for the offences committed contrary to the Child Sex Offenders Registration Act I am to be understood as sitting as a Magistrate.[3]
[3] Judicial Administration (Auxiliary Appointments and Powers) Act 1988, s 5.
Material received
I received the following:
·the affidavit of Joseph Nguyen, sworn 23 January 2017 (exhibit P1);
·the affidavit of Samuel George Withers, affirmed 12 February 2018 (exhibit P2);
·the second affidavit of Joseph Nguyen, sworn 19 February 2018 (exhibit P3);
·the affidavit of Casey-Leigh Stephanee Austin, affirmed 1 May 2018 (exhibit P4);
·the affidavit of Clark Sim, affirmed 7 May 2018 (exhibit P5);
·the affidavit of Nickolas Fredella, sworn 7 May 2018 (exhibit P6);
·the third affidavit of Joseph Nguyen, sworn 15 May 2018 (exhibit P7);
·a report of Dr C Raeside, dated 2 April 2018 (exhibit P8);
·a second report of Dr C Raeside, dated 11 May 2018 (exhibit P9);
·the agreed factual basis for sentencing Mr Schmidt on SCCRM-18-142 (AMC-16-13142) (exhibit P10);
·the agreed factual basis for sentencing Mr Schmidt on SCCRM-18-136 (MCPAR-17-14904) (exhibit P11);
·the alleged breaches of the interim supervision order (exhibit P12);
·a draft extended supervision order as proposed by the Attorney-General (exhibit P13);
·two certificates of programs/course undertaken by Mr Schmidt in custody (exhibit P14);
·Mr Schmidt’s antecedents (exhibit P15).
Background
Mr Schmidt was born at the Lyell McEwin Hospital on 11 July 1986. He is the eldest of three children born to his parents. His mother is a Pitjantjatjara woman and a member of the stolen generation. Mr Schmidt identifies as Aboriginal.
Mr Schmidt has reported enjoying a good relationship with his father, but not a close relationship with his mother. He has described his parents as being “unhappily married”. As a child he was largely raised by his grandparents. He was always provided with the basic necessities but considered his grandparents physically punitive, authoritarian and intimidating. He has described his childhood as “a dodgy one. Just arguments and stuff, and just not feeling much loved when I was growing up”.
Mr Schmidt attended seven different schools. It was common for him to be in trouble with his teachers. His grades were poor. He was a slow learner and was placed in a special education class for most of his education. He attended Parafield Gardens High School where he continued to get into trouble including fighting. He was suspended on in excess of 30 occasions. Ultimately Mr Schmidt was expelled whilst undertaking year 10 and did not return to the education system until he was in his twenties.
Fighting others at school was a common occurrence for Mr Schmidt. It was largely the product of his being victimised because he had no friends, was overweight and had a learning disability. When he left school he was functionally illiterate and innumerate.
It was whilst Mr Schmidt was in high school and 15 years old that he was sexually assaulted by an elderly adult male on a daily basis as he went to and from school over the course of a week. He told his father what had happened which resulted in a police investigation and the trial of the perpetrator.
It was also around this time that Mr Schmidt began repeatedly running away from home, commenced using cannabis and engaged in binge drinking. Home life with his grandparents presented its own difficulties. He also reported being psychologically abused by an uncle who would refer to him as “basically hopeless, and stuff like he used to hit me and stuff like that”.
In the period following on from his being sexually abused, Mr Schmidt had some counselling. Subsequent reports suggest that it did not have any lasting benefit.
In his early twenties Mr Schmidt undertook and completed years 11 and 12 at the Para West Adult Campus. As part of year 12 he completed a Certificate II in outdoor education. It appears that he undertook a heavily modified version of year 12 developed especially for people with learning difficulties. Subsequently he enrolled in and commenced the Certificate IV course in outdoor education at TAFE but did not complete it.
Between 2005 and 2009 Mr Schmidt moved between Adelaide and Melbourne on a number of occasions. He has a 10 year old son to a woman with whom he was in a relationship when in Melbourne. Around 2010 he commenced a relationship with NC that resulted in three children being born within four years.
Prior to his offending in 2014, which is discussed below, Mr Schmidt had been relatively regularly employed since leaving school. In this period, in particular, he was employed for over four years as a cook and counter server by KFC. In the same period he attended the Aboriginal Sports Academy and volunteered as the coach of a year 6/7 basketball team for a year.
On 29 July 2014 Mr Schmidt pleaded guilty in the Magistrates Court to 13 counts of communicating to make a child amenable to sexual activity, contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), one count of making a false pretence as to his own identity, contrary to s 144B(3) CLCA, and one count of aggravated possession of child pornography, contrary to s 63A(1)(a) CLCA (the 29 July 2014 offending). The offences were committed over a period of five months commencing 17 October 2013 and concluding mid-March 2014. He was committed to the District Court for sentence.
These offences are the first sexual offences committed by Mr Schmidt. Prior to 2013 Mr Schmidt had been in relatively regular contact with the criminal justice system since 2003. Prominent amongst his prior convictions are a number for common assault. He also has convictions for breaching bail agreements, bonds and community service orders, graffiti, theft, driving without a licence and providing false details to a second hand dealer.
The 29 July 2014 offending involved the use of two false identities by Mr Schmidt to communicate with girls between the ages of 12 and 14 on a social media site. He asked 13 different girls about sexual matters including virginity. He also sent the victims photographs of his penis and asked them to send pictures of themselves in various states of undress to him. In addition, upon arrest he was found to be in possession of 25 videos featuring child pornography involving serious penetrative sex with young children.
Mr Schmidt explained that he had created false profiles pretending to be a 14 year old male so that his partner could not “look up [his] stuff”. He admitted “friend requesting” the victims and asking them about their virginity and for photographs. He also admitted sending photographs of his genitals to half of the girls. As for the child pornography, he said he had been dragged from a single parent chat group to another site, unwittingly became a member of another group, and was subsequently sent videos and images that he downloaded “because [he] didn’t know what they were”.
Pending finalisation of the 29 July 2014 offending Mr Schmidt was released on bail. He breached that bail by attending at a public library and accessing his social media account. His bail was revoked and he was taken into custody for two weeks before being released on home detention bail.
On 18 December 2014 Mr Schmidt was sentenced for the 29 July 2014 offending to imprisonment for two years and two months with a non-parole period of four months. Both the head sentence and non-parole period were to run from the date of sentence. The sentencing Judge had the benefit of reports from each of three psychologists, Ms K Hart, Mr R Balfour and Mr J Maroulis.
In her report Ms Hart traces Mr Schmidt’s medical history. She records:
Mr Schmidt’s medical records from Adelaide Hospitals and North Western Mental Health in Victoria indicate he moved back and forth between the two states from 2004 to current.
Records from Adelaide indicate he would present with self-harming behaviour in the context of arguments with his mother. His earliest records at the Lyell McEwin Hospital state he has been treated for open wounds and lacerations of the head and scalp in 2002, head injury with possible loss of consciousness in 2002 and contusions on his trunk in 2003. Flinders Medical Centre Records indicate in 2003 he was brought in by ambulance with alcohol and cannabis intoxication. In 2004 he presented at the Royal Adelaide Hospital with “other soft tissue disorder”. The same year he was bought (sic) in by ambulance to a hospital in Victoria for a reported overdose on paracetamol.
In 2006 Mr Schmidt was bought (sic) into the Lyell McEwin hospital via ambulance for self-harm when in Adelaide visiting his parents. His notes indicate over the course of a visit from Victoria there was a progressive deterioration in family relations which culminated in an altercation – after which his family was unwilling to have him back in the house. In 2007 Mr Schmidt was bought (sic) into Sunshine Hospital (Victoria) by Police and detained after a fight with a friend. He told me he pulled a knife on this friend because his friend told him to “fuck off”, his friend then called the Police and reported him as psychotic. Mr Schmidt told me he most recently self-harmed by cutting his wrists 2 weeks ago when his mother made him angry. He was subsequently told he was no longer welcome in the house and is currently residing with friends.
Ms Hart considered Mr Schmidt’s history indicative of a conduct disorder formed prior to age 15. She observed that Mr Schmidt’s self-harming appeared to have started after he was sexually abused and was primarily a response to situational crises and “intolerable feelings of rejection – indicating borderline personality traits”.
Mr Balfour considered Mr Schmidt an “intellectually slow individual” and a concrete thinker who used simple English in speaking and had a limited general vocabulary. He could detect no sign of Mr Schmidt suffering from any thought disorder or delusional beliefs. Mr Balfour recorded:
The psychological profile is that of a 28 year old Aboriginal man who has a specific verbal learning disability (i.e., only 0.6 percent of the general population has a specific verbal learning disability as severe as him). His ability for verbally-mediate learning is severely impaired (i.e., on the fourth percentile of the general population for his age group). In contrast, his ability for visuo-spatially mediated learning is in the high-average range (i.e., on the 68^th percentile of the general population for his age group). His abilities for verbally-mediate problem solving and abstract social problem solving are all impoverished. His general vocabulary is very poor (i.e., 2^nd percentile). His general knowledge is also very poor (i.e., 5^th percentile). He has a history of poor educational achievements consistent with having a learning disability. He has completed most of his education in a special class system. His verbal language processing deficits means that he is prone to information overload, and can easily become frustrated. He has been disadvantaged because his learning disability has not been formally assessed earlier in his life. Consequently, since leaving school, he appears to have suffered because he was not provided with any specific rehabilitation tailored to his learning disability. His verbally-mediated learning disability would also impact upon his social behaviour.
Mr Schmidt has low self-esteem and a poor body image due to being obese. He has poor coping skills. He has a low tolerance of stress and frustration. He is prone to feeling depressed. He has made suicide attempts of high lethality. He also has a history of self-mutilating behaviour during times of personal crisis. He is a psychologically inadequate man who lacks confidence. His presentation and personal history are consistent with him having a personality disorder, characterised by both borderline and antisocial traits, which has been exacerbated by binge alcohol abuse and illicit drug usage.
For the purposes of preparing his report Mr Balfour interviewed Mr Schmidt. During that interview Mr Schmidt stated that he did not consider himself a paedophile. He considered that had his victims shown him affection matters would not have progressed further. He was not out “to do any sexual activity with anyone young”. Mr Balfour considered Mr Schmidt’s own abuse to have had a devastating and long-lasting effect upon his adult psychosexual functioning which has led to him developing an anti-personality disorder. Mr Balfour was of the opinion that:
Mr Schmidt clearly exhibits paedophilic behaviour. He has stalked young, impressionable adolescent female victims on the internet, by using deception to gain their trust and confidence. His offending is clearly very serious. I believe that his offending represents sexual displacement behaviour in a man who was frustrated and disillusioned with his de facto relationship. Furthermore, I believe that he was acting out his childhood sexual victimisation. His motive for his current offending behaviour was to satisfy his unmet needs for sexual and emotional intimacy.
In the closing stages of his report Mr Balfour stated that Mr Schmidt was clearly a paedophile and was on the cusp of becoming a “hands-on” offender. He considered Mr Schmidt’s paedophilia of the secondary and not the primary type as his focus was on adult women and his offending was a function of psychological inadequacy in participating in a relationship with an adult woman.
As at the time of preparing his report Mr Balfour considered Mr Schmidt’s prospects of rehabilitation fair.
In his report Mr Maroulis had diagnosed Mr Schmidt as suffering from reactive depressive and anxiety symptoms. At the time of preparing his report, November 2014, Mr Maroulis had been seeing Mr Schmidt once and often twice a week since September 2014. During that time Mr Maroulis had exposed Mr Schmidt to cognitive therapy treatment. He reported that there had been a significant improvement in Mr Schmidt’s condition but further treatment was necessary. With assistance he considered Mr Schmidt would be able to rehabilitate. He based this opinion on the fact that Mr Schmidt:
·    Displays remorse in therapy towards victims and their families, with negative consequences of his prior actions.
·    Does not blame his past to explain his pathetic behaviour during the offending periods.
·    In summary, takes responsibility/ownership for his sexual offences and devastating consequences on his victims, their families and his own family including his children.
·    Insight into harm/shame brought onto his family, for instance, cannot see/interact with his children.
·    Mr Schmidt frequently describes the “immense losses” in his life as direct consequences of his offending actions, with tearfulness, sorrow and remorse.
Mr Schmidt’s relationship with NC came to an end as a result of the 29 July 2014 offending. His contact with his children has been extremely limited.
After arriving at the conclusion that the appropriate sentence in relation to the 29 July 2014 offending was imprisonment for the period already mentioned, the sentencing Judge turned to consider the question of suspending that sentence. The Judge said:
I reconsider everything put and, in the final analysis, regrettably, as your offending involved both child pornography and actually approaching persons on the internet, unfortunately your offending is too serious for the sentence to be suspended.
However, as I mentioned, you are a traumatised, seriously disadvantaged individual. Rehabilitation is crucially important in your case, both in your interests and in the interests of the public who you will rejoin. I, therefore, propose to set a very considerably shorter than usual non-parole period due to your circumstances and all the matters put, in particular the psychological reports that I have received, and the importance they place on your supervision and your rehabilitation. The aim is that upon your release, which will be in the not too distant future, you will have an extended period of parole supervision to ensure that you follow through with your supervision, both for your benefit and that of the community. In that regard, I set an unusually short non-parole period of four months.

Mr Schmidt’s convictions for offences against s 63A and 63B CLCA had the consequence that he was a registrable offender, a repeat registrable offender and a serious registrable offender within the meaning of the Child Sex Offenders Registration Act.
Whilst serving his sentence for the 29 July 2014 offending Mr Schmidt was assessed by Ms Leyna Bruggemann, a forensic psychologist employed by the Department of Correctional Services, for possible inclusion on the Department’s Sexual Behaviour Clinic Program (SBC Program). On 6 March 2015 Ms Bruggemann reported:
On the basis of an actuarial risk assessment (STATIC-99R; Hansen, Phenix, Harris & Thornton, 2003; and STABLE-2007; Hansen & Harris, 2007), Mr Schmidt was estimated to be at very high risk of sexual re-offending should he not receive treatment. The dynamic risk factors identified as areas of concern in relation to his risk of sexual re-offending were his general social rejection/loneliness; deviant sexual interests; sex drive/preoccupation; emotional identification with children; impulsivity; sex as coping; cognitive problem-solving; negative emotionality; co-operation with supervision; significant social influences; and, relationship stability.
Mr Schmidt was considered suitable to participate in the SBC program. That said, Mr Schmidt’s level of literacy was identified as a potential barrier to his successfully undertaking the program. Accordingly it was recommended that he be referred to the “educational services” division of the Department of Correctional Services to improve his functional literacy. Thereafter he was to be reviewed before being accepted into the SBC program.
On 13 October 2015 Mr Schmidt commenced the SBC program at Mount Gambier prison. His involvement in the program was terminated upon his transfer to Yatala Labour Prison on 25 November 2015. That transfer occurred as a consequence of a fight that Mr Schmidt was involved in on 12 October 2015 and a further incident on 20 November 2015 when he was reported to have punched another prisoner in the face. Prior to these incidents Mr Schmidt had been involved in ten incidents that involved violence or threats of violence since January 2015.
As at the date of his termination from the SBC program Mr Schmidt had received 37 group hours and three individual hours of treatment. He had been able to provide personal information in both the group and individual contexts. He had difficulty, however, in transitioning to the next stage of the program which involved him accepting responsibility for his actions and adopting strategies to reduce his risk of re-offending. The clinicians responsible for the program considered that any future treatment afforded to Mr Schmidt would need to focus initially on internal controls, distress tolerance and impulsivity. They added:
Mr Schmidt’s behavioural presentation and emotional expression displayed features consistent with the symptomology of Borderline Personality Disorder (BPD) including affective instability, inappropriate expression of anger, impulsivity and a disturbed sense of self. Further, he reported a history of self-harm which was also consistent with BPD. Mr Schmidt said that he was often in trouble because of a strong desire to be accepted and approved by others and was paranoid about being rejected by others. Those factors would need to be taken into consideration if he was considered for further treatment.
Mr Schmidt was released into the community on parole on 23 February 2016.
On 28 February 2016 Detective Brevet Sergeant Fredella met with Mr Schmidt for the purpose of completing Mr Schmidt’s initial registration as required by s 11 of the Child Sex Offenders Registration Act and explaining to Mr Schmidt his reporting obligations under that Act.[4] At the conclusion of the meeting the Detective provided Mr Schmidt with a PD660A, being a printed notice advising Mr Schmidt of his reporting obligations under the Child Sex Offenders Registration Act including the obligation to report contact with a child within two days of the contact occurring and the obligation, where the serious registrable offender has, or intends to have, reportable contact with a child, to tell an available responsible adult that he or she is a serious registrable offender and of the offences that resulted in him or her becoming a serious registrable offender.
[4] The Australian National Child Offender Register (ANCOR) scheme is a cooperative legislative scheme that provides for information about child sex offenders to be shared between Commonwealth, State and Territory enforcement agencies, including the Australian Federal Police and the South Australia Police. The Register is administered by the Australian Crime Commission using a web based application called the National Child Offender System (NCOS). In South Australia reporting obligations are imposed under the Child Sex Offenders Registration Act 2006. Commonly reporting obligations are referred to as "ANCOR requirements" or "ANCOR supervision" and the police officers involved as "ANCOR".
On 20 April 2016 Mr Schmidt contacted the police to advise that he had had contact with NH, a child of 16 years of age. Mr Schmidt advised that the contact was limited to two telephone calls that took place the day before at 12.00 pm and 7.00 pm. He also said that he had been given NH’s number in error, that they had become friends, and that he wanted her added to his children of interest list so that he could have ongoing contact with her. He told police that he had informed NH’s father and aunt of his registrable offender status under the Child Sex Offenders Registration Act and of his relevant criminal history.
Subsequently the police undertook checks of Mr Schmidt’s telephone call charge records. Those records revealed that between 12:19 pm on 18 April 2016 and 5:34 pm on 20 April 218 Mr Schmidt had contacted NH 296 times (281 SMS messages and 15 telephone calls). The same records revealed that NH had contacted Mr Schmidt 298 times (274 SMS messages and 24 telephone calls). On 19 April 2016 Mr Schmidt had contacted NH 145 times.
The police were able to obtain the content of a significant number of the messages that passed between NH and Mr Schmidt from NH’s telephone. I have read the content of those messages. They are intimate and profess an intention to forge a relationship.
NH, who was 16 years old, was assessed by a psychologist attached to Disability SA. She had the mental age of a child of 10 or 11 years of age.
The investigation also revealed that Mr Schmidt had used a mobile phone to activate a video chat application using the name “David1999” on 9 April 2016. NH was listed in the phone contacts list for the application under the name “My Girl Princess – 0431 XXX XXX”.
Subsequently Mr Schmidt was charged on 6 October 2016 with the offences of communicating with a child intending to procure the child to engage in or submit to sexual activity and being a party to an act of gross indecency. In time those charges were withdrawn upon Mr Schmidt consenting to submit to an intervention order prohibiting him from contacting or communicating with NH either directly or indirectly in any way. In addition Mr Schmidt was charged with two counts of failing to comply with reporting obligations, one count of failing to comply with a reporting obligation relating to reportable contact with a child, and one count of furnishing false or misleading information in relation to a reportable contact with a child, contrary to ss 44(1), 44(1a) and 45(2) of the Child Sex Offenders Registration Act respectively (the NH offending).[5] On 20 February 2018 Mr Schmidt pleaded guilty to these offences. As mentioned above, I am required to sentence him for these offences. I set out in greater detail the agreed factual basis of the NH offending below.
[5] AMC-16-13142; SCCRM-18-142.
Returning to the narrative, on 4 May 2016 Mr Schmidt admitted to his community corrections officer that he had been staying over at the home of KC and her two children, aged seven and eight, during the April 2016 school holidays. A police investigation ensued resulting in Mr Schmidt being charged with one count of failing to inform the guardian of the children that he was a serious registrable offender, contrary to s 66L of the Child Sex Offenders Registration Act, and one count of failing to report contact with a child within two days of such contact, contrary to s 44(1a) of the same Act (the April 2016 offending).
The following day, 5 May 2016, Mr Schmidt was taken into custody on a Parole Board warrant.
On 6 July 2016 the Parole Board cancelled Mr Schmidt’s parole after he had admitted to his parole officer that he had had contact with children over a period of weeks since his release and had not reported the same under the Child Sex Offenders Registration Act. Mr Schmidt’s Community Corrections Officer, Mr C Mercer, reported:
It was apparent from the outset that Mr Schmidt was displaying he was at risk of re-offending through his continued violation of boundaries. Mr Schmidt continued to manipulate his Parole supervision and justify and minimize his inappropriate behaviour in order to avoid responsibility. Mr Schmidt’s anti-social behaviour culminated in him ‘grooming’ a vulnerable mother with 2 young children. He gained her confidence and began having direct contact with the young children. Mr Schmidt subsequently admitted his behaviour to the writer only when he was ‘cornered’.
At interview Mr Schmidt maintained that he had been concerned about the welfare of the children as “I am a father myself” and felt he would try to assist them for as long as he could. He advised the author that [the] children’s mother drank alcohol to excess and did not provide them with an appropriate environment. Mr Schmidt stated that he had told the children’s mother that he was on ANCOR and she had been “okay with it”. He advised he had not contacted ANCOR within the 2 day requirement to advise of child contact as he knew that they would contact his CCO and this would result in a breach of his parole. He advised that as he had already breached his parole by having child contact he felt he would just continue to help the children for as long as he could until he inevitably got caught.
…
Mr Schmidt went on to advise the author that he did not see himself as “a bad person”. He discussed his subject convictions for sexual offending and advised that he had never touched a child sexually. He advised that he had been sent child pornography – “I didn’t go looking for it … it came to me” – and was “silly enough” to open the file(s) on his computer. It was considered that Mr Schmidt minimised his part in the index offending and lacked insight into the seriousness of his behaviour or how it impacted on his victims and their loved-ones. He was only able to identify his mother and father as victims of his offending behaviour, noting that “they were gonna give up on me”.
As to the allegation of manipulation of his parole supervision it was reported:
Records noted that during the PSO [period surrounding the offending], Mr Schmidt continued to test and violate the boundaries of his parole during supervision with his community corrections officer (CCO). This included applying for volunteer roles, applying for a job in an ice rink, internet access, grooming potential victims and failing to comply with no contact with children condition. He also failed to provide an authentic diary of his activities/movements as directed by his CCO.
Mr Schmidt demonstrated disregard for his ANCOR requirements. Despite having the support of his parents and sister, including being welcome to engage in their company, he chose to spend his time with the adult victim and her children, who he had stated he believed were not getting appropriate parental support. Mr Schmidt did not engage in employment seeking or with training supports. He was noted by his community corrections officer to have reported for the majority of his supervision sessions as directed, however on occasions tried to manipulate his reporting regime to suit himself. He was also noted as not following-through to access an appropriate psychologist in the community as directed.
Upon his parole being cancelled Mr Schmidt served the balance of the sentence imposed for the 29 July 2014 offending. That sentence expired on 17 February 2017.
By application dated 24 January 2017 the Attorney-General applied to this Court for an extended supervision order in relation to Mr Schmidt under s 7 of the High Risk Offenders Act. On 22 February 2017 a Judge of his Court made an interim supervision order under s 9 of the High Risk Offenders Act.
On 11 April 2017 Mr Schmidt was sentenced for the April 2016 offending. The Magistrate said:
The background to these offences are that you were registered with ANCOR in December 2016 for a serious sexual offence. When you were spoken to in disclosing these matters you confessed that you had been staying with a woman and her two children from time to time. You had taken the children to the beach or met them at the beach on four or five occasions with their mother, you had stayed at their house on a couple of occasions and although you had told the woman that you were registered on ANCOR and that you had been imprisoned, you failed to tell her the full extent of the offences that you had committed, and you were in breach of your reporting conditions in that you were in company with children without reporting it. I note that the woman concerned had said that she trusted you and I hasten to point out and confirm, at this stage that there is no allegation of your exhibiting any improper conduct towards those children, other than the fact that you did not disclose your full offending and that you were in company with them without permission.
I note the circumstances in which you and that woman met. You had approached her after you saw her out of concern for her children because she appeared very drunk in charge of those children, you befriended her and you said that you were trying to help her. You said that she gave you her mobile number, you had contacted her and she said that when you contacted her on one occasion you suggested they go jetty jumping and they met you at the beach and from that time on during the course of the school holidays you met on a number of occasions and as I said before you stayed at her house.
Mr Schmidt was sentenced to imprisonment for four months and two weeks on the charge of failing to inform the guardian of the children that he was a serious registrable offender, and three months and two weeks for failing to report contact with a child within two days of such contact. Those sentences were ordered to be served concurrently and to commence on 17 February 2017 (the date upon which the sentence imposed for the 29 July 2014 offending expired).
On 31 August 2017 having completed the sentence imposed for the April 2016 offending, Mr Schmidt was released into the community. Immediately upon his release the terms of the interim supervision order made on 22 February 2017 were operative. Clause 2.1 of the interim supervision order prohibited Mr Schmidt from committing an offence whilst clause 2.17 prohibited him from contacting, attempting to contact or associating in any way whether directly or indirectly with any person under the age of 18 unless his Community Corrections Officer or a nominee of the Community Corrections Officer was present.
On 1 September 2017 Mr Schmidt met with the Community Corrections Officer responsible for his supervision under the interim supervision order. That officer, Ms Austin, went through the conditions of the interim supervision order with Mr Schmidt, and, in particular, the condition regarding contact with children. Surprisingly Mr Schmidt telephoned Ms Austin later that day seeking permission to attend a child’s birthday party. Permission was refused.
On 4 September 2017 Ms Austin again met with Mr Schmidt. She reminded him of the prohibition on his having contact with children without prior approval.
On 6 September 2017 the Department of Correctional Services Area Manager discussed with Mr Schmidt the condition in the interim supervision order regarding his having contact with children in a telephone call.
On 7 September 2017 Ms Austin went through the process for the approval of a “nominated person” for the purpose of supervising contact Mr Schmidt might have with children. He was again reminded of the prohibition on him having contact with children without prior approval.
On 10 September 2017 Detective Fredella provided Mr Schmidt with a second PD660A.
On 19 September 2017 Mr Schmidt met at his request with the Department for Correctional Services Area Manager. Mr Schmidt sought clarification regarding his having contact with children. The Area Manager spent some time with Mr Schmidt on this occasion going through the interim supervision order.
On 18 October 2017 Mr Schmidt was asked by Ms Austin about certain residential addresses he had been attending. He told her that the properties were associated with a male friend and denied that any children were present. The friend was AM. As will be seen this information was false.
In November 2017 police became aware that Mr Schmidt had visited the home of EL on numerous occasions. EL was looking after her two grandchildren, aged eight and 11, whilst there father was in custody. EL informed police that Mr Schmidt had had contact with the children. The police advised Mr Schmidt’s Community Corrections Officer of his alleged breaches of the interim supervision order. The Community Corrections Officer, in turn, advised the Parole Board.
On 7 November 2017 the Parole Board issued a warrant for Mr Schmidt’s arrest under s 15 of the High Risk Offenders Act. On 8 November 2017 that warrant was executed and Mr Schmidt was taken into custody. On 22 November 2017 the Board found the breaches of the interim supervision order proved and resolved to release Mr Schmidt subject to suitable accommodation with intensive electronic monitoring becoming available.
On 19 December 2017 the police laid an Information in the Magistrates Court charging Mr Schmidt with six counts of failing to comply with reporting obligations under the Child Sex Offenders Registration Act, contrary to s 44(1a) of that Act, and three counts of failing to tell an available adult that he was a serious registrable offender and what the offences were that resulted in him being a serious registrable offender after having reportable contact with a child, contrary to s 66L(2) of the Child Sex Offenders Registration Act (the 2017 offending).[6] The detail of this offending is set out below.
[6] MCPAR-17-14904; SCCRM-18-136.
On 6 February 2018 Mr Schmidt was interviewed by the Parole Board. In the course of his interview Mr Schmidt was given the opportunity to explain his breaches of the interim supervision order. He said:
A:What I would say about that is, like, I’m getting sick of – I’m getting sick of how I’m getting treated by the Parole Board and then how I’m getting sick of – how I’m getting sick of the thing. When I writ (sic) that letter last year – I writ (sic) a letter to the Parole Board last year, and that’s how – and that’s how I feel. Like, if – you know, if I get still stuffed around like this, you know, obviously it’s going to end my life. Like, I’m going to end my life with – in general, you know, because this – these conditions- these conditions – how often do you meet a person who’s got a kid – like who hasn’t got a kid these days? How can I move on with my life if, you know, I have to tell them every detail? I’ve asked ANCOR of how I can have a state of interest of – for reporting. You know, if I go and – if I go and meet someone and report to them about that I’ve – what I’ve been in custody for, and then I go and tell another person, do you know how easy it – for me to get – for me to get (indistinct).
…
Q:Mr Schmidt, the Supreme Court has made an order, and part of that order is that you comply with certain conditions. Now, you’ve failed to do that, and if you don’t comply with your conditions, obviously you are going to be locked up. You’re currently charged with a series of breaching your ANCOR supervision.
A:Yeah, that’s correct.
Q:Is that right? Have you breached your ANCOR supervision?
A:Yeah.
Q:Why?
A:Because the interim order and the ANCOR order doesn’t help me. They’re two different orders and they don’t comply with each other.
Q:But, Mr Schmidt, those orders are made to protect children from you.
A:Yeah, but I’m not a – I’m not a menace. And, you know, like …
…

Mr Schmidt complained of being “stuffed around” by the combined effect of the interim supervision order and his reporting obligations under the Child Sex Offenders Registration Act. He considered his reporting obligations and the conditions imposed under the interim supervision order to say two different things. He then said:
Q:I want to know – I want to know, how am I a risk? This is what I mean. Like, you know, the ANCOR has slapped me on a high-risk order. I want to know, how am I a high risk? I’ve offered a number of times since I’ve been out - a number of times, I’ve offered, myself –
Q:Because you have attempted to procure children for sexual activity.
A:That – yeah, that …
Q:You have been a party to an act of gross indecency, apart from anything else.
A:Yeah, that was at the – at the start. But I’m saying, like, a person can change, and, you know, like …
Q:Mr Schmidt, there’s no evidence that you have changed. You are not demonstrating any insight, because anyone in your situation who appreciated their criminal history and their risk of reoffending against children would never put themselves in a situation of risk.
A:Well, I haven’t put myself in – myself in a situation, because the last time, when I received them images, they were on an internet base – base. I haven’t been on the internet. And the Facebook also has an internet base as well.
When asked about his contact with EL’s grandchildren he said that it was not for the purpose of grooming them. He denied any attraction to children and said that in 2014 he was “in a difficult place”. His contact with the children at EL’s was not, he contended, his fault. He went to EL’s to visit a former inmate with whom he was friends or to pick that friend up. He did not go to EL’s for the children.
In a letter he wrote to the Parole Board he similarly complains about the difficulty he has experienced in complying with both the interim supervision order and his reporting obligations under the Child Sex Offenders Registration Act. He adds that in recent times whilst in prison he has begun to have feelings for men.
The Board revoked its decision of 22 November 2017 and directed that Mr Schmidt be detained in custody pending attendance before this Court for consideration as to whether a continuing detention order should be made under s 18(2) of the High Risk Offenders Act.
On 11 April 2018 Mr Schmidt pleaded guilty to the nine offences comprising the 2017 offending.
The High Risk Offenders Act Reports
The Court received two reports under the High Risk Offenders Act from Dr C Raeside, a forensic psychiatrist. The first sought Dr Raeside’s opinion as to the likelihood of Mr Schmidt committing a further serious sexual offence. The second sought his opinion regarding whether Mr Schmidt poses an appreciable risk to the community if not detained in custody.
In his first report dated 2 April 2018 Dr Raeside provides a record of Mr Schmidt’s personal profile and personal history that is not materially different to Mr Schmidt’s personal circumstances as recorded above. With respect to Mr Schmidt’s past health Dr Raeside noticed that Mr Schmidt described experiencing significant problems related to his abuse and neglect which worsened after he was sexually abused. As to his sexual abuse, Dr Raeside records:
As is well documented in the reports before the Court, Mr Schmidt experienced a period of sexual abuse at the age of 15 in which he was groomed by an older male who purported to be a religious minister. This man showed Mr Schmidt pornographic videos and the abuse progressed to the man having him perform anal intercourse on him and vice versa, during which time Mr Schmidt was feeling quite scared. On another occasion it was oral sex. Further information in the police report I previously viewed indicated that Mr Schmidt told police that the offender threatened him that if he ever left then he would kill himself and Mr Schmidt would be responsible for his “murder”. He told police that he felt “pretty ashamed” about what happened to him.
It is noteworthy, that at the time of the offending on Mr Schmidt he was attending a special school for children with problems. The offender was convicted of six counts of unlawful sexual intercourse but did not receive a custodial sentence.
A Victim Impact Statement prepared for the court at that time by Mr Schmidt (31/10/03) refers to his difficulties with temper and anger since these offences, aggravated by no longer being allowed to stay at home with his parents and spending time on the streets, “which was really scary”. He refers to having gone to Melbourne for six months “because I was so scared that I would see Terry on the streets”. He makes comment about being “really upset and nightmares since Terry did what he did and that has made it really hard to get on with things. I also get really scared when people surround me and get scared sometimes in crowds”. He makes comments about efforts to “hurt myself” rather than hurt others due to his anger including “cutting my wrists, punching cupboards and head butting walls. When you are 15 and something like this happens it makes you really confused about a lot of things and I have been seeing a counsellor for the past two years to try and sort things out”.
One consequence of Mr Schmidt’s abuse was a difficulty in trusting men. In recent times Mr Schmidt reported a change of thinking. He admitted to Dr Raeside that in 2014 he was attracted to children. At that time he was “in a bad way”. He said he was in a bad relationship and did not feel comfortable with himself and “instead of finding someone older I went for someone younger, that was the youngest attraction”, but he said he was attracted to older people.
In his interview Mr Schmidt said that he was now attracted to men. He described to Dr Raeside sexual experiences he had had in custody with other men. Dr Raeside records:
Back at the time of my earlier report in 2011 Mr Schmidt described aggravation of his anger following the abuse, suicidal ideas and self-harm behaviour, guilt, shame and avoidance behaviour. He also reported an adverse impact on his friendships and relationships saying he did not know how to treat people with respect. Upon my enquiry about any sexual difficulties he referred to issues about some sexual practices with girlfriends, particularly anal sex, which he did not want to do and he found it hard to relate to them at times. Prior to his own abuse he said he was trying to have a girlfriend, but he first had sexual intercourse at the age of 16. He acknowledged flashbacks at times, particularly if the girl was “on top and I remember seeing Terry on top pushing down on my chest. I can’t have a girl pushing or holding me down or physically coming close to my face”. At that time he clearly disliked gay people and noted that on one occasion when he was living in a refuge he used to go “bashing people in the city who appeared gay”, but was never caught. He also referred to flashbacks at times when straining at the toilet, with vivid recollections of the pain he experienced.
Consequently, given that description of symptoms previously, Mr Schmidt appears to have experienced a significant change, both in terms of sexual attraction towards children, as well as more recently engaging in homosexual relationships notwithstanding previous significant homophobia.
Dr Raeside asked Mr Schmidt about his failures to comply with reporting requirements under the Child Sex Offenders Registration Act. Dr Raeside reports:
With respect to failing to notify ANCOR, or to tell women with children about his conditions he simply said “I didn’t tell them [ANCOR] about being in company with a woman and her two kids. I met her randomly on the street and she was drunk. We went to the park and I walked her home. I started talking to her and saw she needed help. She was abusive to the kids and had an alcohol problem. I told her a little bit about my problems, but not the full extent. Basically I was trying to help and provide for her and her kids by cooking her food, going on outings to the beach” etc. Again he seemed to have difficulty with my questions about why he would put himself in this position given his parole conditions.
Mr Schmidt explained that it was hard to find friends and hard to live with his life with the restrictions he had from the court. He understood that “obviously I have to tell them every detail, but then they won’t want to be my friends. I tried to ask ANCOR for a piece of paper explaining my situation, but they wouldn’t do it. If I just had that paperwork…” He seemed to indicate that if he could be provided with a piece of paper that explained all this then he could simply hand it someone without having to tell them.
He also asked Mr Schmidt about his failure to complete the SBC program and was told:
“…because I got into a fight”, accepting there were several fights in custody. He tried to explain to me that “gaol is not a nice place and I’m sick of people stereotyping me as putrid, a tamp, a kiddy fucker”, which really frustrated him because “I know I’m not in for that”. Upon further encouragement he admitted that he found the program helpful, looking at different scenarios. He also enjoyed talking about himself, where he came from and who he was, and was able to “get stuff of my shoulders. I got to talk to a group where we did some brainstorming, scenarios” and he said it did not bother him being around actual child molesters who have physically harmed children. Rather, he said it “opened up my mind. I knew I had a group of friends, people who had done similar things” who were in the group.
Dr Raeside observed that the difficulties Mr Schmidt experienced during the SBC program were not related to the program itself but were the product of Mr Schmidt’s borderline personality disorder with unstable mood, inappropriate expressions of anger, impulsivity, and identity disturbance leading to difficulties with others and his failing to accept responsibility for his own behaviour, not to mention his offending. If these issues can be addressed, Dr Raeside opined, it would probably be worthwhile for Mr Schmidt to attempt the SBC program a second time.
Dr Raeside was also of the opinion that Mr Schmidt’s sexual offending related to a combination of his underlying personality difficulties and his own sexual abuse. In this regard a prominent feature of Mr Schmidt’s personality disorder is intense anxiety about rejection and abandonment and the desire to be accepted and to have friends. Difficulty in heterosexual adult relationships has led him to find comfort in fostering relationships with children. Those circumstances became sexualised in part because of Mr Schmidt’s personality disorder compounded by his own sexual abuse. He adds:
Nevertheless, it is apparent that Mr Schmidt has continued to place himself in positions around young children, not just in contravention of Parole Board conditions, but also representing a lack of insight into his own underlying psychological difficulties and risk of further offending. His difficulty in notifying people of his previous offending not only seems to relate to a sense of shame, but also fear of rejection, hence his rather complicated way of trying to say that he needed something written for him, not just because of difficulty expressing the concerns, but also trying to externalise any blame to someone else rather than himself.
Accepting responsibility for his past offending is a major problem for Mr Schmidt due to issues with minimising his previous offending, lacking insight into the nature and cause of it, and again his intense desire for acceptance and fear of rejection. I noted that he referred to the other participants in a sexual behaviour program as a group of friends.
Dr Raeside notes that Mr Schmidt has not as yet received adequate treatment. He considered Mr Schmidt to continue to be a high risk of re-offending given his past offending but also because of his “ongoing dynamic risk factors including his poor impulse control, anger, instability of mood, his ongoing risk of placing himself in circumstances in which further offending could occur.” On the strength of this opinion Dr Raeside considered Mr Schmidt to present more than an appreciable risk to the community and was supportive of the making of an extended supervision order. Dr Raeside brought his first report to a conclusion suggesting that Mr Schmidt would benefit from further sexual behaviour therapy in addition to psychiatric input “given his unstable mood and significant personality disturbance.” Dr Raeside expressed concerns at the prospect of Mr Schmidt’s release into the community given his quick return to custody on two previous occasions.
In his second report Dr Raeside states that none of the new information provided (which included the agreed factual basis upon which Mr Schmidt was to be sentenced for the 2017 offending, the transcript of his interview with the Parole Board, and the affidavit of Ms Austin) caused him to change his opinion that Mr Schmidt continued to present a high risk of further sexual offending and that such risk was more than an appreciable risk to the community.
With respect to the statements made by Mr Schmidt to Ms Austin on 18 October 2017,[7] Dr Raeside considered that it could be concluded that Mr Schmidt knew of the wrongfulness of his being at premises where there were children. With respect to the transcript of Mr Schmidt’s interview with the Parole Board, Dr Raeside commented:
Finally, I note the transcript of the interview between the Parole Board and Mr Schmidt on 6/2/18. His responses show a minimisation of his behaviour with respect to breaching conditions of his parole and the other relevant orders of the Court and requirements of ANCOR supervision. When confronted with the intent of such orders to protect children Mr Schmidt asks “how am I a risk?” and seems to focus on not having sexually reoffended for three years, irrespective of any orders. When pointed out the nature of his previous offending and that nothing had changed, that he continued to lack insight, and failed to appreciate the risk of putting himself in such situations, he seems to detach his previous behaviour from how he considered himself currently and simply states “a person can change”.
[7] See above at [57].
Dr Raeside concluded his second report expressing the opinion:
In my view he continues to be a very high risk given his past offending, but also the ongoing dynamic risk factors including poor impulse control, anger, instability of mood, his ongoing risk of placing himself in circumstances in which further offending could occur. His lack of insight and appreciation of the link between various orders and protection/prevention of further sexual offending is concerning. Additionally he has distanced himself from his past offending, considering he has changed, but without any objective evidence that this is the case.
Consequently, Mr Schmidt represents more than an appreciable risk to the community at present. I would therefore support the Application for a Continuing Detention Order.
In my previous report I was only asked to offer an opinion about an Extended Supervision Order. However, as noted in that earlier report “I have concerns about Mr Schmidt being released into the community given his quick return to custody on at least two previous occasions”. Had I been asked at that stage I would have supported a Continuing Detention Order.
[emphasis in original]
Dr Raeside’s evidence
Dr Raeside also gave oral evidence. He was of the view that ideally Mr Schmidt should undertake the SBC program in custody. His primary reason for being of that opinion was the lack of insight Mr Schmidt had into the causes of his offending and into the risk of his re-offending in situations in which he may find himself. Dr Raeside considered that completing the SBC program successfully should result in Mr Schmidt gaining benefits including insight into the causes of his offending behaviour, the learning of skills and techniques to avoid the risk of his re-offending, and the development of adaptive ways of seeking appropriate acceptance, socialisation and friendship. If this were to occur, release into the community subject to an extended supervision order with conditions such as those contained in the interim supervision order should be sufficient to protect the community from the risk Mr Schmidt would then pose.
In cross-examination Dr Raeside agreed that Mr Maroulis’ report suggested that Mr Schmidt could benefit from treatment. He suggested that the benefits gained by Mr Schmidt from engagement with Mr Maroulis were short lived because the treatment commenced was not of sufficient duration or sufficiently targeted to have lasting gains.
Dr Raeside explained that most of Mr Schmidt’s problems relate to his underlying personality disorder which, in turn, puts him at risk when in the community of being in a situation where he is likely to re-offend. A prominent feature of his borderline personality disorder is his intense anxiety about rejection and abandonment. He has a strong desire to be accepted and have friends. Dr Raeside said:
He certainly would potentially benefit from it [from individual targeted psychological therapy]. The difficulty is that, leaving aside his offending behaviour the personality disturbance he has is quite severe, as outlined in my reports and Mr Maroulis’, and that they are persistent over time and it is unlikely that relatively brief individual therapy would significantly alter those underlying core features of his personality disorder. There are specific types of treatment that can help with borderline personality disorder, less so antisocial personality disorder. Really the benefit is to help them modify their behaviour to be more adaptive rather than maladaptive but I think my impression is that Mr Maroulis targeted some of the symptoms that Mr Schmidt was experiencing but probably in that type of program he did and the time involved would not have made much difference to the underlying core problems, which is I think why after a relatively short period back in the community Mr Schmidt continued in the same pattern of behaviour that he had been used to based on his personality disturbance. So I don’t think the individual therapy there made much difference to the personality disorder but may have given some symptomatic relief and therefore he was feeling better by the end of that treatment. For example, one thing that I have some question about is he mentions that Mr Schmidt gained insight during that treatment. Now I’m not sure if he – I will have to look at it again – whether he is referring to insight specifically to his sexual offending or insight into the nature of his underlying psychological problems but one of the main problems Mr Schmidt presented to me and to the Parole Board and elsewhere is his ongoing lack of insight into the linkage between his behaviours and risk of offending.
Dr Raeside agreed that Mr Schmidt would benefit from one on one therapy but did not consider there to be any realistic prospect of his accessing such therapy in the community. He required more than the 10 sessions available in a calendar year on Medicare. In reality then the ideal treatment for Mr Schmidt was not available in the community unless he had the means to pay for it privately.
Dr Raeside agreed with Mr Balfour’s opinion that Mr Schmidt’s offending behaviour represented sexual displacement caused by frustration and disillusionment. In those circumstances Mr Schmidt acted out his childhood sexual victimisation. Dr Raeside also accepted the opinion that Mr Schmidt was a secondary paedophile in the sense that he was primarily attracted to adult women but would find himself in a situation where he would form non-sexual attachments to children which became sexual. He was asked if individual therapy could address this behaviour. He said:
A:… it tends to be more addressed in a group – sorry, leaving aside – are you talking about the offending behaviour or the causes of the offending behaviour?
Q:I suppose both.
A:If you look at, for example, needing help to satisfy unmet needs for sexual and emotional intimacy that certainly can be addressed in individual psychological therapy. Many psychologists would see many people with those types of issues, intimacy issues, feelings of rejection, wanting affection and helping them to look at that in adaptive ways. In this case of course there’s the – it’s resulted in the offending behaviour. As a result that can be more difficult and then if the person has paedophilia … then that’s even more difficult to address in the individual therapy and usually needs group therapy to address it. In my reports I’ve commented on some changes in Mr Schmidt’s sexual attraction, commenting that he’s now more homosexual attractions, to adult men, which is somewhat surprising given his past experiences but I think it represents ongoing attempts to satisfy his own unmet needs in that regard. So in a sense it’s still under development and still free-floating and hasn’t settled in any particular way.

Dr Raeside was not prepared to accept that there had been a change in Mr Schmidt’s sexual preference. Rather he considered Mr Schmidt’s attitude toward adult men to be the product of his situation – “he’s been locked up with men and it seems he’s befriended some of them who also have homosexual attraction”. He added that when in the community Mr Schmidt had quickly reverted to some of his previous behaviours in terms of befriending adult women. He said:
Q:… Is it your opinion that Mr Schmidt no longer exhibits signs of sexual attraction towards children.
A:I wouldn’t form that opinion, I think there’s no reason to suggest that that has changed. Other things may have changed in terms of his behaviour given his circumstances but given the previous behaviour I think Mr Schmidt may genuinely believe that but there’s no evidence that that’s changed and that’s why he would still need a sexual offender program. Mr Schmidt, I think, gets frustrated because people – as evidenced before the Parole Board – he gets frustrated when people keep focussing on his past offending. In his mind he sees that in the past, it’s no longer an issue, ‘Why don’t you leave me alone’ type of attitude which I think is partly his psychological way of detaching that from how he would like to see himself and moving forward.
Q:Wouldn’t that proposition be supported by the fact that there have been no further substantive offences against children since 2014 despite apparently placing himself in situations.
A:That would be supportive of that but I don’t think that’s sufficient to conclude that he’s no longer attracted sexually. Again, given the secondary paedophilia, as discussed, it’s not that he then goes out looking for children. I think he makes choices that puts him in the situation where children are in that environment and that it could then become sexual.
The absence of further offending may simply be because contact did not advance before the authorities intervened. It is also to be remembered that since 2014 Mr Schmidt has spent the bulk of his time in custody. Dr Raeside accepted that Mr Schmidt did not want to offend in the first place and that he did not sit down and plan to offend. He noted that in Mr Schmidt’s mind he appreciates that he has broken the law but does not think he has done anything wrong; he did not do anything and so did not harm a child.
The 29 July 2014 offending was consistent with Mr Schmidt’s borderline personality disorder as was the more recent offending. In each case the situations in which he found himself were the product of his desire to make and maintain friendships. He does not set out to offend against children, however, the complexity of adult relationships has the consequence of him seeking comfort in relationships with children. Accepting this, it is not the case that he seeks relationships with adult females who have children as a planned means of gaining access to and grooming the child. Dr Raeside considered it more likely that Mr Schmidt considered single mothers with children more likely to accept him.
Dr Raeside was questioned about Mr Schmidt’s capacity to understand and comply with reporting obligations and conditions contained in an interim supervision order. Whilst Mr Schmidt was in the borderline range of intellectual disability Dr Raeside considered that he would be able to understand his obligations under the Child Sex Offenders Registration Act and under an interim supervision order. As to his failure to report, Dr Raeside said:
A. … It is more to do with the emotional aspects. So, for example, in the offending itself previously, his emotional level helps him to identify more with the children in those relationships than with the adults. So he feels less threatened and more at an intellectual maturity level of the younger child, but I don’t think that prevents him from reporting, that’s more to do with his emotional state and what you said before about he knows that if he does tell someone about his conditions, then they won’t want to be his friend.
Toward the end of his evidence Dr Raeside was asked about the effectiveness of home detention with electronic monitoring in ameliorating the risk posed by Mr Schmidt. He agreed that such condition if complied with, would significantly reduce the risk that Mr Schmidt posed if coupled with assertive supervision. However incapacitative conditions would only address the risk whilst they remained in place similar to detention in custody.
Sentencing
The factual bases upon which Mr Schmidt is to be sentenced for the NH offending and the 2017 offending were agreed by the parties. Those bases are set out below.
a.The NH Offending[8]
[8] AMC-16-13142; SCCRM-18-142.
As mentioned above, counts one and two in the Information charging the NH offending were withdrawn on 17 January 2018 upon Mr Schmidt consenting to be subject to a non-contact Intervention Order in relation to NH.
Count three: Mr Schmidt commenced telephone contact with NH after being given her number. Initially he believed NH to be 18 years of age. As indicated above Mr Schmidt and NH were in communication via text and MMS messages between 18 April 2016 and 20 April 2016.
On 19 April 2016 Mr Schmidt received a message from NH’s aunt stating, “I’m warning you to stay away from [NH]. The police are scanning all her messages and phone calls. [NH] is only 16 and we are aware you have been charged for being a paedophile already and unless you want to be charged then you had better block her number and never contact her again”. Thus Mr Schmidt became aware that NH was only 16 years of age and of possible police involvement.
Above I have set out how on the morning of 20 April 2016 Mr Schmidt reported his contact with NH and the content of that report. The information he provided was misleading to the extent that subsequent inquiries revealed that he had communicated with NH on more than 142 separate occasions via telephone and text message on 19 April 2016.
Count four: Following his report on 20 April 2016 regarding the contact he had with NH on 19 April 2016, Mr Schmidt had further contact with NH on 20 April 2016 between midnight and 5:34pm. Mr Schmidt was obliged to report such contact on or before 23 April 2016 by the Child Sex Offenders Registration Act. Mr Schmidt was spoken to by Detective Fredella on the evening of 20 April 2016, and all contact with NH ceased from that time.
Count five: Between 28 February 2016 and 21 April 2016, Mr Schmidt activated and used the internet connection on his mobile phone to download and use the application “Line”. He used this application to communicate with NH. Pursuant to section 16 of the Child Sex Offenders Registration Act Mr Schmidt was required to report any changes to relevant personal details which include commencement of the usage of an internet connection within 7 days of the change occurring. Mr Schmidt did not do so.
Count six: Between 17 April 2016 and 21 April 2016 Mr Schmidt acquired the mobile phone application “Line” and used it to communicate with NH. The reporting requirements imposed by s 16 of the Child Sex Offenders Registration Act included an obligation to report any changes to any relevant personal details including the usage of any access code, username or identity used on the internet within 7 days after the change occurred. Mr Schmidt did not do so.
b.The 2017 offending[9]
[9] MCPAR-17-14904; SCCRM-18-136.
Count one: Between 3 October 2017 and 25 October 2017 at Brahma Lodge, Mr Schmidt had reportable contact with MJM (11 years) and BEM (8 years) whilst their guardian EL was present. He did not, as soon as practicable after that contact, tell an available adult that he was a serious registrable offender and what the offences were that resulted in him becoming a serious registrable offender.
Counts two and three: Between 3 October 2017 and 25 October 2017 Mr Schmidt on numerous occasions had reportable contact with MJM (count 2) and BEM (count 3). He did not report this contact.
With respect to counts one, two and three, EL, the grandmother of MJM and BEM, advised police that her son AM was released from prison on 3 October 2017 and resided with her until 25 October 2017. During that time Mr Schmidt attended at EL’s home to visit AM on around 8-10 occasions. On all of those occasions Mr Schmidt had contact with MJM and BEM. That contact included playing soccer with MJM and otherwise was incidental to Mr Schmidt sitting at the kitchen table or on the porch talking with AM.
Mr Schmidt never spoke or communicated with BEM but accepts she was present at times when he attended the address. It was also the case that all contact with the children occurred in the presence of EL and was never unsupervised.
On 25 October 2017 Mr Schmidt accompanied AM to EL’s home. AM advised EL that Mr Schmidt had been in gaol for child pornography offences. EL became angry and told them both to leave and not return.
Count four: Between 25 October 2017 and 8 November 2017 at Elizabeth Vale, Mr Schmidt had reportable contact with CEDW (13 years), KAY (10 years) and HLSY (8 years) whilst their parent CED was present. Mr Schmidt did not tell CED that he was a serious registrable offender and did not tell her what the offences were that resulted in him becoming a serious registrable offender.
Count five: Between 25 October 2017 and 8 November 2017 at Elizabeth Vale Mr Schmidt had reportable contact with SW (6 years) whilst her parent EW was present. Mr Schmidt did not tell EW that he was a serious registrable offender and did not tell her what the offences were that resulted in him becoming a serious registrable offender.
Counts six, seven, eight and nine: Between 25 October 2017 and 8 November 2017 at Elizabeth Vale, Mr Schmidt had reportable contact with CEDW, count six; KAY, count seven; HLSY, count eight; and SW, count nine – whilst their guardians were present. Mr Schmidt failed to report such contact within two days as required by the Child Sex Offenders Registration Act.
In relation to counts six to nine CED informed police that she lived at an address in Elizabeth Vale with her three children CEDW, KAY and HLSY. Around the end of October 2017 (possibly the 28^th) up until about 7 November 2017, Mr Schmidt visited almost daily. He first came around at the end of October and arrived with her friend from Queensland, CA, who had come to South Australia to visit her ex-boyfriend, AM. Her friend EW told her that she knew Mr Schmidt from school. EW and her daughter SW were at CED’s house on some of the occasions when Mr Schmidt visited. Whilst Mr Schmidt was at her house he had contact with all the children, but all contact occurred in the presence of either CED or EW. Mr Schmidt never said anything to her about his criminal history or that he was a registered child sex offender.
EW told police that she lived at an address in Elizabeth Grove with her daughter SW. She said she was friends with CED. Sometime around early November EW was at CED’s house with SW and CED’s three children. While she was there, she opened the front door to Mr Schmidt who was known to her from High School. Mr Schmidt came in and stayed for a few hours talking to EW and playing with the children.
EW also told police about a separate occasion when she was at CED’s house. It was about 9.00 am and they were getting the children ready for school when Mr Schmidt arrived. Mr Schmidt was talking to the children and was around them.
EW also said that Mr Schmidt attended at her house a couple of times whilst the children were present. Further, on one occasion Mr Schmidt transported CED’s children in his car between CED’s home and EW’s home. Aside from this occasion, all contact with the children occurred in the presence of either CED or EW.
Mr Schmidt never told EW that he was a registered child sex offender and did not tell her what he had done to become a serious registrable offender.
c.Time in Custody
The parties agree that in sentencing Mr Schmidt he should be given credit for the time he has spent in custody from 1 July 2017 to 31 August 2017 (two months) and 17 November 2017 to the date of sentence (six months and three weeks) being a total period of eight months and three weeks.
d. Permissible discount for pleas
In relation to both the NH offending and the 2017 offending Mr Schmidt is entitled to a discount in penalty of up to 30%.[10]
e.Maximum penalties
[10] Sentencing Act 2017 (SA), s 39(2)(b).
The applicable maximum penalties are as follows:
NH offending:
·count three - s 45(2) Child Sex Offenders Registration Act: $25,000 or imprisonment for 5 years.
·count four - s 44(1a) Child Sex Offenders Registration Act: $25,000 or imprisonment for 5 years.
·counts five and six - s 44(1) Child Sex Offenders Registration Act: $10,000 or imprisonment for 2 years.
The 2017 offending:
·counts one, four and five - s 66L(2) Child Sex Offenders Registration Act: $25,000 or imprisonment for 5 years.
·counts two, three, six, seven, eight, and nine - s 44(1a) Child Sex Offenders Registration Act: $25,000 or imprisonment for 5 years.
f. Sentence
In Police v Sullivan; Attorney-General (SA) v Sullivan I said:[11]
[11] [2018] SASC 11.
The object of the Child Sex Offenders Registration Act is set out in s 3 which provides:
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 offense that are committed; and
(b) preventing such persons from engaging in child-related work.
Self-evidently the object of the Act will be frustrated if a registrable offender does not assiduously discharge his or her reporting obligations. It follows that any sentence imposed for failing to meet reporting obligations must deter other registrable offenders from the temptation not to meet their statutory obligations. …
Those comments were made in relation to offences committed contrary to ss 44(1) and 44(1a) of the Child Sex Offenders Registration Act. I remain of this view.
Here Mr Schmidt has also pleaded guilty to offences committed contrary to s 66L(2) of the same Act. Section 66L(2) provides:
(2) A serious registrable offender who has, or intends to have, reportable contact with a child must, as soon as practicable after the contact, or after forming the intention to have contact, tell an available responsible adult—
(a)that he or she is a serious registrable offender under this Act; and
(b)what the offence or offences were that resulted in him or her becoming a serious registrable offender.
Maximum penalty: $25 000 or imprisonment for 5 years.
In s 66L(3) an available responsible adult, in relation to a serious registrable offender's contact with a child, is defined as meaning a parent or guardian of the child that is known to the serious registrable offender, or, an adult person apparently responsible for the supervision of the child at the time of the contact or when the serious registrable offender forms the intention to have the contact. Reportable contact is defined in s 13(4) of the Child Sex Offenders Registration Act as follows:
(4)     For the purposes of this section, a person has reportable contact with a child—
(a)     if—
(i)    the person has contact with the child consisting of—
(A)any form of physical contact or close physical proximity with the child; or
(B)any form of communication with the child (whether in person, in writing, by telephone or other electronic device); and
(ii)the contact with the child—
(A)occurs in the course of—
•    the person or the child visiting or residing at a dwelling (whether the person and the child are alone or with others); or
•    the person (whether alone or with others) supervising or caring for the child; or
(B)involves the person providing contact details to the child or obtaining contact details from the child or otherwise inviting (in any manner) further contact or communication between him or her and the child; or
(b)     if the person has contact of a kind, or occurring in circumstances, prescribed by the regulations.
The breadth of the means of communication caught by the definition of reportable contact reflects the corrupting influence that sexually related communication without any physical contact may have on children in addition to the link between corruptive communications as a step in the process leading to sexual acts all too often heard of in our criminal courts. Section 13(4) taken with s 66L(2) intends to forewarn and forearm available responsible adults in order that they might protect children from the risk posed by contact with a serious registrable offender, that is to say a repeat registrable offender.
The knowledge that s 66L(2) insists be imparted to available adults provides a protective layer in addition to that which ss 20A and 44 of the Child Sex Offenders Registration Act in particular, and the reporting obligations imposed by the Act generally, are intended to have. Without knowledge of the risk a person poses to children, unsuspecting parents, guardians and carers cannot take steps to protect and deter. Such parents, guardians and carers are reliant upon the authorities who cannot always best protect their children from the serious registrable offender as he or she moves about the community and who all too often gains the trust of adults with whom he or she comes into contact.
Obviously the effectiveness of s 66L(2) as a protective measure, and as a means of deterring the serious registerable offender from offending, is dependent upon the serious registrable offender complying with the obligation that s 66L(2) imposes. The importance that Parliament attaches to empowering an available responsible adult is reflected in the maximum penalty. It is also reflected in the fact that the measure is applied to the serious registrable offender and not to the registrable offender. That is, Parliament has determined that the intrusion on the serious registrable offender’s privacy that the required disclosure represents and the opprobrium it may attract is the price that must be paid, bearing in mind that they are a registrable repeat offender, in order that children be protected.
The seriousness with which Parliament views the reporting obligations imposed by the Child Sex Offenders Registration Act generally is evident in the duty imposed upon the Commissioner of Police to give a registrable offender written notice of his or her reporting obligations and to advise them of the consequences that may eventuate if those obligations are not complied with.[12] Absent an event or condition that prevents or seriously impedes a report being made where reportable contact has occurred, the serious registrable offender and the registrable offender who have had the benefit of notice provided in accordance with s 48(1) of the Child Sex Offenders Registration Act will be hard pressed to point to anything that mitigates non-compliance. In such circumstances the serious registrable offender and the registrable offender must expect a strongly deterrent sentence.
[12] Child Sex Offenders Registration Act 2006 (SA), s 48(1).
The above considerations demonstrate that for offences committed contrary to s 44(1), 44(1a) and 66L(2) of the Child Sex Offenders Registration Act general deterrence attracts significant weight.
In the present case Mr Schmidt was provided with notice of his reporting requirements on 28 February 2016. He also had the benefit of Detective Fredella explaining those requirements to him. Within two months he had breached those requirements by committing the 2016 offending and the NH offending. In October 2016 he was charged with the NH offending. On 11 April 2017 he was sentenced for the 2016 offending. Thus when he was released into the community in August 2017 he knew that the NH offending remained unresolved and knew from the sentence he received for the 2016 offending the likely penalty he faced.

On 1, 4, 6 and 7 September 2017 Mr Schmidt was reminded of the non-contact with children condition contained in the interim supervision order.
On 10 September 2017 Detective Fredella served a second PD660A upon Mr Schmidt. Within three weeks of this occurring, and having only being in the community around 2 months after serving a sentence for being in breach of his reporting obligations, Mr Schmidt committed the 2017 offending.
Clearly in this case specific deterrence also attracts significant weight.
In the background to the matters presently before the Court set out above I have detailed Mr Schmidt’s personal circumstances. I make plain that in sentencing him for the NH offending and the 2017 offending I have had regard to those circumstances. I have also had regard to a letter written to the Court by Mr Schmidt dated 28 May 2018. In it he suggests that he seeks out friends with families as he misses his own children. He also apologises for his offending. He offers as an explanation that he sometimes feels scared and lonely that he might end up with no-one. He accepts, however, that his obligations to report and comply with any extended supervision order come first. Looking to the future he expresses an intent to undertake counselling with Relationships Australia in order that he might better understand and cope with rejection and to focus on improving his own self-esteem and well-being. He is concerned that his grandmother may pass away whilst he is in custody and wishes to spend time with her.
I deal with the NH offending first.
Counsel for Mr Schmidt submitted that the s 45(2) offence aside, the offending was of a technical nature. In support of this submission counsel submitted that it was Mr Schmidt who advised NH’s aunt and father of his status under the Child Sex Offenders Registration Act, that he reported his contact albeit late, and that he thought the report he had made satisfied future obligations in relation to NH.
The first submission does not square with the content of the text messages. It is more likely that he reported after realising that his status was known and a real risk of police involvement had arisen. Whilst it must be accepted that Mr Schmidt is on the borderline of people with an intellectual disability, it appears that his report of the extent of his contact (specified as being only on two occasions at approximate times given) was deliberately misleading. Further it is also difficult to characterise the non-disclosure of the use of the Line application as technical. It is not suggested that he did not understand his obligations.
Mr Schmidt’s attempt at minimising the extent to which he had reportable contact with NH is concerning. I accept that initially he thought NH was 18 years of age, but he soon learned otherwise and yet continued to contact her. Whilst he did self-report, it is likely that his doing so was the consequence of NH’s aunt becoming involved.
What is particularly illuminating is that by this time Mr Schmidt had either had contact with KC and her children and yet made no mention of it on 20 April 2016, or, shortly afterwards, within days, had such contact and declined to report it. Either way it gives me cause to doubt the sincerity of his report on 20 April 2016 and to conclude that he deliberately minimised his conduct and deliberately mislead police. In this light his offending cannot be said to be technical. Rather it is very serious. All the more serious when one has regard to the content of the text messages and the speed with which a relationship was being forged with the intent of engaging in sexual conduct.
Mr Schmidt has offered no firm explanation for his offending. It may be that he did not report fully because, as he indicated when before the Parole Board, he did not consider that he posed a risk to any child. It may be that he did not want to risk the loss of the relationship he had gained as he has said in his letter. What is plain is that he must have known of his obligations. As I have said I consider that he deliberately misled police. Any penalty imposed must foster timely, full and frank reporting.
For the offence committed contrary to s 45(2) of the Child Sex Offenders Registration Act I consider a sentence of 6 months imprisonment appropriate. For the offence committed contrary to s 44(1), 6 weeks, and for the offence contrary to s 44(1a), 3 months. The act subject of the s 45(2) offence and the omissions subject of the s 44(1) and s 44(1a) offences are separate and distinct, however the latter offences are more appropriately viewed as arising out of the one course of conduct being the disregard of his obligations to advise the police. The former is of a different order. It is constituted of a deliberate misleading act. For these reasons I would order that the sentence imposed on the s 44(1) and s 44(1a) offences be served concurrently but that those sentences be served cumulative upon that imposed for the s 45(2) offence. The result is a sentence of nine months’ imprisonment. I would reduce that sentence by 30% on account of Mr Schmidt pleading guilty to six months and one week. That sentence must be further reduced to take into account time already spent in custody. Doing so I arrive at the conclusion that for the NH offending Mr Schmidt be sentenced to imprisonment until the rising of the Court.
The 2017 offending is more grave than the NH offending and the 2016 offending if for no other reason than that it is committed after Mr Schmidt had had the benefit of his obligations under the Child Sex Offenders Registration Act being explained to him a second time, whilst he was under supervision and subject of a no contact with children clause which could only have served to remind him of the peril he was in, in the knowledge of the likely penalty he would face if he failed to meet his obligations under the Child Sex Offenders Registration Act having been sentenced for the 2016 offending, and continued after he was charged with the NH offending.
Bearing in mind Parliament’s attitude as reflected in s 66L(2) of the Child Sex Offenders Registration Act, I do not consider the fact that most of the contact occurred in the presence of adults to be a factor in Mr Schmidt’s favour that can attract much weight, if any.
Pursuant to s 26 of the Sentencing Act 2017 I impose one penalty for counts one, four and five being imprisonment for 6 months, and, pursuant to the same power, one penalty for counts two, three, six, seven, eight, and nine being imprisonment for eight months. There is a difference in the nature of the offending subject of the two groups of offences. In relation to the offences committed contrary to s 66L(2) the decision is taken not to inform the available adult. In relation to the offence committed contrary to s 44(1a) the decision is taken not to inform the police. The physical and fault elements are then separate and distinct with different outcomes. That suggests the periods of imprisonment should be cumulative. The result is that for the 2017 offending I would impose a sentence of 14 months imprisonment. I reduce that sentence by 30% on account of Mr Schmidt pleading guilty to nine months and three weeks.
There remains a period of time totalling two months and two weeks that Mr Schmidt has already spent in custody for which he has not received credit. Accordingly I further reduce the sentence for the 2017 offending by that two months and two weeks to imprisonment for seven months and one week.
It was not suggested that good reason to suspend any sentence imposed for either the NH offending or the 2017 offending existed and I find none. Mr Schmidt’s history of non-compliance with supervision also counts against the suspension of the sentence. Further, it was not suggested that any sentence of imprisonment be suspended and served on home detention. In my view to suspend the sentence and order that it be served on home detention would be inappropriate.
Standing back and considering the penalties I have imposed as a response to Mr Schmidt’s overall criminality, bearing in mind his personal circumstances, I decline to make any further adjustment. I do not think the totality of the punishment I impose disproportionate to the offending.
The sentence of imprisonment for seven months and one week is to commence from today.
Should an extended supervision order be made?
Mr Schmidt conceded that he was a high risk offender within the meaning of the High Risk Offenders Act and that he posed an appreciable risk to the safety of the community if not supervised under an extended supervision order. He further conceded that it was appropriate that he be subject to an extended supervision order containing all conditions included in Exhibit P13, a draft of the extended supervision order sought by the Attorney-General, save he submitted that it was not necessary that such order be for a period of three years.
In Police v Sullivan: Attorney-General (SA) v Sullivan I said:[13]
An extended supervision order should only interfere with the liberty of a respondent to the extent, and for only so long, as is necessary to protect the community from the appreciable risk that the respondent poses. Whilst an extended supervision order may be made for up to five years, it is for the Attorney-General to justify the period of any order sought. It is not to the point that a respondent can subsequently apply for the revocation of an order made for 5 years if in the interim it is no longer required. It is for the State to justify interference with the liberty of the subject.
[13] [2018] SASC 11 at [97].
I remain of this opinion.
In the present case, as Dr Raeside stated, the risk posed by Mr Schmidt is a function of his borderline personality disorder and previous offending. The Attorney-General’s application proceeds on the basis that within the framework of the order Mr Schmidt will receive treatment in the community that addresses the risk he poses. That treatment will likely take the form of individual therapy coupled with participation in the SBC program offered by Owenia House. In the latter regard Ms Austin deposed that in the event that a continuing detention order was not made and an extended supervision order granted she would require Mr Schmidt to undertake the SBC program commencing in the middle of this year. That program, she states, takes between 12 and 15 months to complete. Individual therapy will be more difficult for Mr Schmidt to access. A care plan only provides for 10 sessions with a psychologist paid for by Medicare. The assistance of a psychiatrist as suggested by Dr Raeside may also not be readily available.
In my opinion the lifespan of the extended supervision order should allow for Mr Schmidt to be assessed for participation in the SBC program at Owenia House, for the course to be undertaken, and for the results to be assessed. In addition it should allow for Mr Schmidt to consult a doctor for the purpose of developing a care plan and, within the framework of that plan, to work with a psychologist and hopefully a psychiatrist. Bearing in mind the limits on public funding for the latter services, it is likely Mr Schmidt may also have to resort to counselling as may be provided by charitable institutions. It is also likely that to gain lasting benefits Mr Schmidt will have to consult mental health professionals for a period beyond his completion of the SBC program.
Having regard to the above considerations I consider an extended supervision order of two and a half years warranted. However, before finally settling the length of time for which the extended supervision order should operate it is necessary to take into account the fact that Mr Schmidt will be in custody for the next seven months and one week. During that time it is unlikely that he will commence the SBC program next to be offered at Port Lincoln Prison if for no other reason than it is pointless him beginning the program and taking the place of another prisoner if he will not be in custody to complete it. It is also unlikely that he will have the benefit of intensive psychological input. It follows that nothing will really occur to address the risk he poses until he is released. This being so, I accept the Attorney-General’s submission that an extended supervision order commencing today and being of three years in duration is appropriate. The conditions of that order shall be:
The Court orders that the following conditions apply in relation to the extended supervision order:
1.    the Respondent will not commit any offence;
2.    the Respondent will not possess a firearm or ammunition or any part of a firearm;
3.    the Respondent will not possess an offensive weapon;
4.    the Respondent will be under the supervision of a Community Corrections Officer and will obey the reasonable directions of that officer;
5.    the Respondent will submit to tests (including tests without notice) for gunshot residue as required by his Community Corrections Officer;
6.    the Respondent will reside where directed by his Community Corrections Officer, and will not change his place of residence without the prior written permission of his Community Corrections Officer;
7.    the Respondent will attend for interviews as and when required by his Community Corrections Officer;
8.    the Respondent will report as and when required or directed by his Community Corrections Officer;
9.    the Respondent will not depart or attempt to depart from the State of South Australia without obtaining the written approvals of his Community Corrections Officer at least 7 days prior to travel;
10.     the Respondent will not, other than in strict accordance with the directions given to him by a legally qualified medical practitioner, use, possess or administer any drug which cannot be legally obtained without prescription from a legally qualified medical practitioner unless the Respondent has a prescription from a legally qualified medical practitioner for such a drug;
11.     the Respondent will advise his Community Corrections Officer of any drug that has been prescribed to him by a legally qualified medical practitioner;
12.     the Respondent will submit to urine testing (including testing without notice) as directed by his Community Corrections Officer;
13.     the Respondent will follow his Community Corrections Officer’s direction in relation to the people with whom he associates;
14.     the Respondent will attend, undertake and complete counselling, sexual offender treatment and mental health or psychological assessment and intervention at the direction of his Community Corrections Officer;
15.     the Respondent will wear an electronic monitoring device, to be fitted prior to being discharged from custody, with liberty to apply to the Parole Board for variation or revocation of this condition;
16.     the Respondent will not leave his residence at any time, except for the purpose of remunerated employment, urgent medical or dental treatment, to minimise the risk of serious harm or death to himself or to any other person, or for any purpose approved or directed by his Community Corrections Officer, with liberty to apply to the Parole Board for variation or revocation of this condition;
17.     except with contact with his own children [names withheld], and his nephews [names withheld] with prior approval of his Community Corrections Officer, the Respondent will not contact, attempt to contact or associate in any way whether directly or indirectly, with any person under the age of eighteen (18) years whether or not that person is in the company of another adult and whether or not that association or communication is in person or written correspondence unless his Community Corrections Officer is present, or a person nominated by his Community Corrections Officer is present;
18.     the Respondent will not undertake any remunerated or voluntary work with children or participate in any organisation which provides recreational, social, educational or other facilities for children;
19.     the Respondent will not loiter without reasonable excuse, at or in the vicinity of a school, public toilet, playground or place at which children are regularly present at the school, toilet, playground or place;
20.     the Respondent will declare and produce to his Community Corrections Officer any computer, tablet, mobile phone, photographic equipment or other electronic equipment that he purchases, loans or which otherwise comes into his possession within 48 hours of it coming into his possession;
21.     in relation to any item declared in accordance with clause 20 above if directed to do so by his Community Corrections Officer the Respondent will provide the equipment to his Community Corrections Officer for the purpose of having the equipment analysed to ensure that it is not being used by the Respondent to associate or communicate with children and/or produce, possess or view child exploitation material; and
22.     the Respondent is not to access or utilize the internet to access social media and messaging platforms.
Should a continuing detention order be made?
Mr Schmidt admitted that:
1.   between 3 October 2017 and 25 October 2017 on numerous occasions he had contact with MJM and BEM in breach of condition 2.17 of the interim supervision order;
2. between 3 October 2017 and 25 October 2017 he failed to inform the guardian of MJM and BEM that he was a serious registrable offender and of the offences that resulted in him becoming a serious registrable offender as required by s 66L of the Child Sex Offenders Registration Act, in breach of condition 2.1 of the interim supervision order;
3. between 3 October 2017 and 27 October 2017 he failed to report to the Commissioner of Police contact that he had with MJM and BEM within two days of such contact occurring as required by ss 20A and 44(1) of the Child Sex Offender Registration Act in breach of condition 2.1 of the interim supervision order.
4.   Between 25 October 2017 and 8 November 2017 on numerous occasions he had contact with CEDW, KAY and HLSY in breach of condition 2.17 of the interim supervision order;
5. Between 25 October 2017 and 8 November 2017 he failed to inform the guardian of CEDW, KAY and HLSY that he was a serious registrable offender and of the offences that resulted in him becoming a serious registrable offender as required by s 66L of the Child Sex Offenders Registration Act in breach of condition 2.1 of the interim supervision order;
6. Between 25 October 2017 and 8 November 2017 he failed to report to the Commissioner of Police contact that he had with CEDW, KAY and HLSY within two days of such contact occurring as required by ss 20A and 44(1) of the Child Sex Offender Registration Act in breach of condition 2.1 of the interim supervision order.
7.   Between 25 October 2017 and 8 November 2017 on numerous occasions he had contact with SKW in breach of condition 2.17 of the interim supervision order;
8. Between 25 October 2017 and 8 November 2017 he failed to inform the guardian of SKW that he was a serious registrable offender and of the offences that resulted in him becoming a serious registrable offender as required by s 66L of the Child Sex Offenders Registration Act in breach of condition 2.1 of the interim supervision order;
9. Between 25 October 2017 and 8 November 2017 he failed to report to the Commissioner of Police contact that he had with SKW within two days of such contact occurring as required by ss 20A and 44(1) of the Child Sex Offender Registration Act in breach of condition 2.1 of the interim supervision order.
In view of Mr Schmidt’s admissions I am satisfied that he has breached the interim supervision order. I turn to the questions of whether Mr Schmidt poses an appreciable risk to the safety of the community if not detained in custody and, if he does, whether a continuing detention order should be made.
Dr Raeside’s evidence of the nature of the risk posed by Mr Schmidt to the community was not challenged. That risk is the complex product of Mr Schmidt’s mixed personality disorder with borderline and antisocial traits and his own sexual abuse. A prominent feature of this is his intense anxiety about rejection and abandonment and strong desire to be accepted and have friends. Difficulty in adult heterosexual relationships has led to Mr Schmidt attempting to seek comfort in fostering relationships with young females. As Mr Balfour said in 2014, Mr Schmidt was on the cusp of becoming a “hands on” paedophile. The same may be said in relation to the NH offending.

The speed with which Mr Schmidt can foster and pursue a relationship with a female under 18 years of age is evident in his communication with NH.
To date Mr Schmidt has not had the benefit of completing a program of treatment. Treatment would be aimed at addressing both Mr Schmidt’s personality disorder, which would require largely individual therapy, and his sexual deviance, which would require group work. With respect to Mr Schmidt’s interest in female children, I accept Dr Raeside’s opinion and do not consider that in recent times Mr Schmidt’s sexual interest has changed.
It is not disputed that such risk is appreciable. Nor is it disputed that such risk merits the imposition of an extended supervision order in order to ensure that the community is adequately protected. I understood counsel for Mr Schmidt also to accept that in the long term the protection of the community from the risk posed by Mr Schmidt was best secured by Mr Schmidt having the benefit of treatment addressing his sexual deviance and borderline personality disorder. Accepting this, her submissions had two primary components; first, the extended supervision order, which included home detention with electronic monitoring and the capacity to check Mr Schmidt’s use of communications devices, was sufficient to protect the community from the immediate risk that Mr Schmidt posed. Second, the treatment he required was available in the community.
The force of the first submission turns on two things; compliance on the part of Mr Schmidt and the effectiveness of the supervision provided.
As to the former, Mr Schmidt’s history of breaching orders of various kinds counts against him. So too his breaches of his reporting obligations. Here I bear in mind his failure to report his contact with KC’s children around the time when the importance of his reporting would have been brought home to him when he reported his contact with NH and his misleading minimisation of his contact with NH. I also have regard to his subsequent contact with the children subject of the 2017 offending. All this is to be considered in the context of his being twice provided with a PD660A and, after 31 August 2017, having the benefit of supervision. Here too it is to be recalled that when Ms Austin asked Mr Schmidt whether children were present at any of the addresses he had visited he lied. Then there is Mr Mercer’s observations of Mr Schmidt as someone who would test the boundaries and who attempted to manipulate his supervision. That same attitude was perhaps on show in September 2017 when Mr Schmidt made regular contact with corrections. Further, Mr Mercer noted difficulty in getting Mr Schmidt to comply with a direction that he seek psychological assistance.
Mr Schmidt’s lack of insight into the risk his conduct poses as referred to by Dr Raeside is particularly troubling. Mr Schmidt does not consider that he poses any risk. He does not consider that he has done anything wrong, despite accepting that he has broken the law, and has distanced himself from his past stating that he has changed without any objective evidence to indicate as much. I agree with Dr Raeside that the speed with which he has previously been returned to custody on more than one occasion due to breaching conditions upon his liberty is particularly concerning. If he does not possess insight into the risk he poses in certain circumstances, it cannot be expected that he will deploy strategies to avoid such circumstances nor adequately invest himself in treatment in the community.
In all these circumstances, I have little confidence that Mr Schmidt will comply with the terms of an extended supervision order.
Dealing with the second aspect. When released on 31 August 2017 Mr Schmidt was subject of the interim supervision order. That order included electronic monitoring in addition to requiring that he inform his community corrections officer of all electronic communication devices he possessed and made the same available for inspection on demand. The former condition did not prevent the 2017 offending. There is no evidence that the latter condition was breached. I bear in mind, however, that in 2014 whilst on bail and contrary to the terms of his bail agreement Mr Schmidt was prepared to use publicly available computers to access social media.
In my view in the immediate future only release on home detention conditions with electronic monitoring can be contemplated. However, that is not the end of the matter.
The submission that the conditions contained in the extended supervision order are apt to protect the public from the risk posed by Mr Schmidt carried with it an acceptance that protection of the community required that he undertake treatment. I think that implicit concession correct. I accept Dr Raeside’s evidence that absent treatment it is highly likely that Mr Schmidt will commit a sexual offence involving a child.
Contrary to the opinion of Dr Raeside, counsel for Mr Schmidt contended that the appropriate treatment could be accessed by Mr Schmidt in the community. Three considerations arise here; first, can Mr Schmidt be relied upon to cooperate and access the treatment. Second, what treatment is available in the community, and third, is that treatment, coupled with supervision, adequate to contribute to the protection of the community.
With respect to the first consideration, for the reasons already given I do not think any assurance of Mr Schmidt’s full and continuing cooperation can be relied upon. Dr Raeside stated that he required assertive supervision. That is to say, left to his own devices Mr Schmidt was unlikely to explore and exploit treatment and rehabilitative opportunities. This is evident in his past failure to follow-through with the direction that he obtain psychological assistance. Further, typically community corrections officers do not provide assertive supervision. The fact is, it is more likely that Mr Schmidt will more effectively participate in treatment in the custodial setting.
With respect to the second consideration, Dr Raeside was of the opinion that much more could be done, and intensely done, for Mr Schmidt in the custodial setting than in the community. I understood his evidence in this regard to focus upon Mr Schmidt’s lack of resources to privately fund the therapy that Dr Raeside considered he needed over and above what was on offer from Medicare. That is to say, whilst Mr Schmidt could likely undertake the SBC program at Owenia House, he also required individual therapy to address the criminogenic factors he possessed related to his borderline personality disorder. The frequency of such therapy in order to make lasting gains far exceeded the 10 sessions with a psychologist that Medicare provides for as part of a care plan monitored by a doctor. Then there was the suggestion that Mr Schmidt would also benefit from psychiatric intervention.
There is an added complication here. In view of the sentence I have imposed for the 2017 offending, Mr Schmidt will not be able to undertake the next SBC program offered by Owenia House. Because the SBC program involves group work it is only offered as and when a group of sufficient size is available. I do not know how long Mr Schmidt would have to wait upon his release for a sufficient sized group to assemble and the Owenia House program to commence. In the meantime, on the evidence before me, the treatment he would receive could only be considered minimal at best and largely ineffective.
Turning to the third consideration, whilst in theory Mr Schmidt could access all the treatment he required in the community, the reality was that, to the extent that public funds permitted, he could not obtain the intensity of input in the ideal timeframe to best promote the likelihood of his obtaining lasting benefits. In the custodial setting that intensity of input is far more assured.
If a continuing detention order is made the Department for Correctional Services has indicated that it will prioritise Mr Schmidt’s referral to the SBC program next to be offered at Port Lincoln Prison. As Mr Schmidt has previously been assessed as suitable for participation in the program his placement in it appears probable. The upcoming SBC program at Port Lincoln Prison is due to commence in November 2018 and is expected to run for approximately 10 months. Unlike the program at Owenia House, the delivery of the program in the custodial setting is more intense in that it involves three group sessions and one individual session a week as opposed to one group session a week.
I return to the adequacy of home detention with electronic monitoring to protect the community. Obviously it affords Mr Schmidt greater liberty than detention in custody, but it comes at the expense of the safety to the community in that, whilst the immediate risk he poses is ameliorated by his incapacitation, his true risk to the community is not best addressed in all the circumstances nor addressed in a manner resulting in lasting gains for the reasons already given. I am not satisfied that Mr Schmidt would not consider home detention an obstacle to be navigated without truly committing to the rehabilitative regime imposed by the extended supervision order. Here his lack of insight is particularly relevant.
For the reasons I have already given, I consider that Mr Schmidt will better engage with treatment in the custodial setting and will more likely receive the sort of intensive treatment he requires to gain insight into the risk he poses and make lasting gains equipping him with the skills necessary to avoiding re-offending resulting in the community being safe from the threat he poses.
In Attorney-General (SA) v Sullivan (No 2) I said:[14]
[14] [2018] SASC 74 at [10]-[14].
In Police v Sullivan; Attorney-General (SA) v Sullivan (Sullivan No 1) I said:
The power to make a continuing detention order is not a power to punish a person for breaching a supervision order. It is a power to be exercised for protective not punitive purposes. The question is whether the drastic step of incarcerating the high risk offender for the duration of the extended supervision order or some lesser period is necessary to protect the community from an appreciable risk to its safety as posed by the high risk offender. That question is to be answered in the knowledge that the alternative is the continuation of the supervision order, possibly varied. Obviously the risk posed by the offender subject of the breached supervision order must be reassessed in the light of the nature and circumstances of the breach.
I remain of this view. The question posed in the passage quoted immediately above reflects the fact that Parliament has said that the paramount consideration in determining whether to make a continuing detention order must be the safety of the community. In R v Schuster the Full Court was required to determine the significance of Parliament making public safety the paramount consideration in determining whether to release a person subject to indeterminate detention on licence. The Court said:
What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility. More fundamentally, it is in the very nature of a discretion that the level of risk, whatever it is, may nonetheless be sufficiently outweighed by other factors to justify release on licence. For example, an offender with some degree of short term risk of reoffending who has excellent prospects of medium to long-term rehabilitation might be released on licence, when an offender with the same risk profile but poor prospects of rehabilitation would not. The effect of making public safety the paramount consideration is that, speaking generally, relatively smaller degrees of risk will outweigh considerations which, even strongly, support release. The exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety.
The same may be said about s 18(2) considered in the light of s 18(3) of the Act.
The Full Court also said:
... it demands a normative judgment which is quite different from traditional judicial discretions. This Court has been entrusted with a mandate to ensure public security by sacrificing, for the remainder of their natural lives if necessary, the right to liberty of persons who are found to be unable or unwilling to control their sexual instincts. There are good reasons to commit this function to the independent judiciary of this State even though it is foreign to the traditional judicial function. However, the discretion having been conferred, it is important for the community to understand that it will be exercised having regard to both the interests of the community and the interests of the person in question, but by according the consideration of public safety paramountcy.
This approach is reflected in the judgment of the Queensland Court of Appeal in relation to applications for indefinite detention under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003(Qld). In Attorney-General (Qld) v Francis,Keane and Holmes JJA and Dutney J said:
The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.
[footnotes omitted]
The same may be said of the task committed to this Court under s 18(2) of the Act (save of course that it is not a matter of whether the respondent is incapable or unwilling to control his or her sexual instincts and the duration of detention cannot exceed the term of the extended supervision order). Although consideration of a continuing detention order is triggered by the breach of an extended supervision order, the measure of the period of detention is not the units of punishment. The respondent is detained to prevent what he or she might never do. This being so, the respondent should not be detained for any longer than is necessary to ensure adequate protection of the community. Accepting this it is self-evidently important to identify with some particularity the risk that a respondent poses before turning to consider whether detention is necessary to adequately protect the community from that risk. In some cases the risk may be immediate and the appropriate response may simply be incapacitation. In other cases it may be less immediate but no less profound and may require detention in order to facilitate different measures of intervention and prevention. Where a continuing detention order of a shorter duration than the period of the extended supervision order is contemplated, that period will be determined by the anticipated effect of detaining the respondent, including all interventions and treatments that may be undertaken whilst in detention, upon the risk posed by the respondent.
[footnotes omitted]
I have approached the present case in the same way.
In my view, adequate protection of the community from the risk that Mr Schmidt poses requires that he receive the sort of intensive treatment only available to him in custody. I consider the intrusion on the liberty of Mr Schmidt warranted in order that the community be adequately protected against the risk he poses.
For the reasons given I consider that Mr Schmidt poses an appreciable risk to the community if not detained in custody. Accordingly, I consider it appropriate that a continuing detention order be made. I do not consider, however, that the risk he poses requires that he be detained for the duration of the supervision order. In my view it is sufficient that he be detained pending his completion of the SBC program in custody. Accordingly, pursuant to s 18(2) of the High Risk Offenders Act I order that Mr Schmidt be detained in custody for 15 months commencing today.