Police v Sullivan; Attorney-General (SA) v Sullivan
[2018] SASC 11
•9 February 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
POLICE v SULLIVAN; ATTORNEY-GENERAL (SA) v SULLIVAN
[2018] SASC 11
Judgment of The Honourable Justice Hinton
9 February 2018
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS - NATURE AND CIRCUMSTANCES OF OFFENDER - INTELLECTUALLY HANDICAPPED OFFENDER
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
On 27 November 2017, Mr Sullivan was released from prison after serving sentences for sexual offences involving children. Upon his re-entering the community he was subject to an interim supervision order made under the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act) in addition to obligations imposed by the Child Sex Offenders Registration Act 2006 (SA) (the Child Sex Offenders Registration Act). He failed to comply with the terms of the order and failed to meet his obligations under the Child Sex Offenders Registration Act.
Consequently, on 12 December 2017, Mr Sullivan was taken into custody pursuant to a warrant issued under s 15 of the High Risk Offenders Act. By Information laid on 13 December 2017, Mr Sullivan was charged with three counts of failing to comply with a reporting obligation relating to reportable contact with a child, contrary to s 44(1a) of the Child Sex Offenders Registration Act (counts 1-3), and three counts of failing to comply with reporting obligations, contrary to s 44(1) of the same Act (counts 4-6).
On 19 January 2018, he was interviewed by the Parole Board in relation to breaches of the interim supervision order. The Parole Board was satisfied that Mr Sullivan had breached the interim supervision order and directed that he be detained in custody pending attendance before this Court pursuant to s 17(1)(b)(ii) of the High Risk Offenders Act.
Because of the inter-relationship of these matters, Mr Sullivan appeared in the Supreme Court for three purposes:
• To determine whether a continuing detention order should be made against him under s 18 of the High Risk Offenders Act;
• To determine whether an extended supervision order should be made against him under s 7 of the High Risk Offenders Act; and
• For sentence on the offences he committed against the Child Sex Offenders Registration Act (on AMC-17-14780).
The charges arose out of, in effect, a self-report. Mr Sullivan suffers from an intellectual disability. He admitted breaching the interim supervision order and pleaded guilty to all charges. Subsequently he applied to withdraw his plea on count 4 and the prosecution applied to withdraw count 4.
Held:
As to AMC-17-14780:
1. Permission is granted to Mr Sullivan to withdraw his plea in relation to count 4.
2. Permission is granted to the prosecution to withdraw count 4.
3. Convictions are imposed on each of counts 1, 2, 3, 5 and 6. Pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 one penalty in relation to counts 1, 2, 3, 5 and 6 is imposed being a sentence of 54 days imprisonment commencing on 12 December 2017.
As to whether a continuing detention order should be made:
4. The risk posed by Mr Sullivan to the safety of community is not such that in order to protect the community he should be detained pursuant to a continuing detention order.
As to whether an extended supervision order is to be made:
5. The Attorney-General’s application for an extended supervision order is granted for a period of 2.5 years commencing on 9 February 2018 subject to conditions.
Criminal Law (Sentencing) Act 1988 (SA); Criminal Law (High Risk Offenders) Act 2015 (SA); Child Sex Offenders Registration Act 2006 (SA), referred to.
Attorney-General (SA) v Grosser (No 3) [2017] SASC 89, applied.
POLICE v SULLIVAN; ATTORNEY-GENERAL (SA) v SULLIVAN
[2018] SASC 11Criminal
HINTON J:
Introduction
On 27 November 2017 Stephen Sullivan was released from prison after serving sentences for sexual offences involving children. Upon his re-entering the community he was subject to an interim supervision order made under the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act) in addition to obligations imposed by the Child Sex Offenders Registration Act 2006 (SA) (the Child Sex Offenders Registration Act). He failed to comply with the terms of the order and failed to meet his obligations under the Child Sex Offenders Registration Act.
Consequently, on 12 December 2017, Mr Sullivan was taken into custody under s 15 of the High Risk Offenders Act and on 13 December 2017, charged by the police with offences under the Child Sex Offenders Registration Act. He pleaded guilty to the latter offences within four weeks of the charges being laid. He now appears in this Court for three purposes:
·To determine whether a continuing detention order should be made against him under s 18 of the High Risk Offenders Act;
·To determine whether an extended supervision order should be made against him under s 7 of the High Risk Offenders Act; and
·For sentence on the offences he has committed against the Child Sex Offenders Registration Act.
Material received
I have received the following:
·The affidavit of Fiona Yumi Williams-Mitchell, affirmed 6 September 2017, and the fourteen exhibits referred to therein. This affidavit was filed in support of the Attorney-General’s application for an extended supervision order. However, my understanding is that I may have regard to its content for all purposes.
·A second affidavit of Fiona Yumi Williams-Mitchell, affirmed 28 September 2017, and the one exhibit referred to therein. I understand that, as with Ms Williams-Mitchell’s first affidavit, the content of this affidavit and exhibit can be used for all purposes.
·A report prepared by Dr C Raeside, a Consultant Forensic Psychiatrist with the South Australian Forensic Mental Health Service, dated 12 January 2018, prepared in compliance with the direction of this Court made under s 7(3) of the High Risk Offenders Act.
·The affidavit of Colin John Mercer, sworn 31 January 2018. This affidavit explains how Mr Sullivan’s breach of the interim supervision order and conditions under the Child Sex Offenders Registration Act came to light and resulted in the Parole Board issuing a warrant under s 15 of the High Risk Offenders Act for Mr Sullivan’s arrest and detention.
·The affidavit of Alyona Andreevna Haines, sworn 1 February 2018. This affidavit exhibits a report prepared by Dr C Raeside expressing an opinion as to whether Mr Sullivan was mentally competent to commit, and fit to be tried for, his 2011 offending. This report informs, in part, Dr Raeside’s 2018 report referred to above.
·The affidavit of Peter Bikic, sworn 6 February 2018, and the two exhibits referred to therein. This affidavit sets out the background against which the offences under the Child Sex Offenders Registration Act were committed.
·A Parole Board file containing records of proceedings and action taken by the Board since 12 December 2017 resulting in the exercise of the power contained in s 17(1)(b)(ii) of the High Risk Offenders Act.
·The Magistrates Court file AMC-17-14780 opened upon the police laying an Information charging Mr Sullivan with six counts of breaching reporting requirements under the Child Sex Offenders Registration Act.
·The affidavit of Paul Daniel Furst, affirmed 1 February 2018, detailing the therapeutic programs available at Owenia House.
·The affidavit of Matthew Edmond Boisseau, affirmed 6 February 2018. This affidavit annexes a letter from the Parole Board advising that it would not add any conditions under s 11 of the High Risk Offenders Act to those sought by the Attorney-General in his application for an extended supervision order unless there occurs a change in circumstances.
Background
Mr Sullivan was born on 12 November 1985. He was born whilst his mother was serving a sentence of imprisonment. Consequently he was separated from his mother and given to his grandmother. His grandmother, his aunts and uncles raised him. Mr Sullivan has described his grandmother as a “friendly old person that you can come along to. A proper mum – a real mum”. Welfare services never intervened in his care.
Mr Sullivan does not know his father. However, his father’s side of the family is Aboriginal and he identifies as Aboriginal. He has little to do with his mother and has nothing to do with his younger half-brothers.
He is currently 32 years old. He has an intellectual disability. His IQ is 59 placing him in the bottom .3% of the population. This has had a serious impact on his progress through life so far. Despite special education, he emerged from the education system at the age of 19 functionally illiterate and innumerate. With the exception of a brief period of work at Bedford Industries he has not been able to obtain and keep employment. Since the age of 15, his main source of income has been the Disability Support Pension.
In the course of discussing below the various reports prepared in relation to Mr Sullivan I make further mention of his personal circumstances.
On 1 April 2015 Mr Sullivan was sentenced to imprisonment for two years after being found guilty by a jury of the offence of aggravated making a communication with the intention of making a child amenable to sexual activity (the 2011 offending). In sentencing Mr Sullivan the Judge summarised the circumstances of the offending as follows:
… on about 1 November 2011 you arranged for a young boy to give the 12 year old victim your mobile telephone number and a message that you wanted her to be your girlfriend. The girl communicated with you by the mobile phone but she told an adult neighbour who engaged in an exchange of texts with you. The texts suggested a willingness to meet up with you. The adult was making out that she was the girl but you did not know that.
You went along to the meeting at the Playford Tavern. A neighbour and another man came along to protect the girl. It is plain from the arrangement that you made with the boy and the text messages and the meeting that you were trying to set up some sort of sexual arrangement.
You cannot be given any credit for pleading guilty. You pleaded not guilty and the jury found you guilty.
The girl’s victim impact statement makes it clear what are likely to be the long-term consequences of this experience for her.
The maximum penalty for this offence is 12 years imprisonment. It is plain how serious this sort of offence is. Courts have to give priority to deterrent sentences to protect children from sexual predators.
Mr Sullivan’s 2011 offending breached a suspended sentence bond that he entered into on 11 December 2007 upon being sentenced for two counts of unlawful sexual intercourse. That bond was initially for a period of three years, but was extended for a further 12 months on 30 September 2010 expiring on 10 December 2011. Thus Mr Sullivan’s 2011 offending occurred a few weeks before the bond was due to expire.
As described in the sentencing remarks, the two counts of unlawful sexual intercourse were committed in the following circumstances:
In November 2005 you met SR who then lived in the Oaklands Park area. She was 14 years old and you were then 20 years old. You met her by reason of playing basketball in the same team as her mother’s partner. By Christmas of 2005 you and she were girlfriend and boyfriend. To use your words, her mother allowed you to “hang out with her”. You commenced having sexual intercourse with her at your friend’s house at Oaklands Park. You initially thought her to be 16 or 17, however, sexual relations continued even after you discovered she was only 14 years old.
…
I turn to the second unlawful sexual intercourse offence which occurred on 30 May 2006 at Elizabeth North, while you were on bail for the offence against SR. You were still 20 years old. The complainant, CS was then 15 years old and about to turn 16. You knew that.
You accept that she told you that before sexual intercourse occurred. You were then living at Elizabeth. You became acquainted with CS by reason of seeing her and speaking with her on a regular basis at the Elizabeth railway station. She was on her way home from school on those occasions. She obtained your telephone number from a mutual friend and early on Tuesday evening, 30 May, she invited you over to her house at Elizabeth North. At the time she was there alone, her father was out. You there had sexual intercourse with her in the course of the evening. She did not consent to the sexual intercourse but the prosecution accept that you were not aware of the fact that she was not consenting.
The offences of unlawful sexual intercourse were committed in breach of a good behaviour bond that Mr Sullivan entered into on 30 April 2006 after being convicted of three counts of theft.
A Paedophile Restraining Order was granted by the Magistrates Court on 8 November 2012 restraining Mr Sullivan from loitering near children at or in the vicinity of any school, kindergarten, playground, swimming pool, public toilet, public park or reserve, or a place at which children are regularly present. I know nothing about the basis on which that order was granted nor of what notice was given to Mr Sullivan or explanation. I note, however, that the terms of the order contain an express exception that Mr Sullivan be permitted to reside with his partner at that time, notwithstanding that his partner’s child is present at those premises, and to permit contact with his children on terms that their mothers (and Corrections if necessary) agreed.
Other than the sexual offending to which reference has already been made, Mr Sullivan has numerous prior convictions for property and dishonesty offences and other minor offending, often punished by a fine and frequently without conviction. In addition he has numerous convictions for failing to comply with bail agreements and on five occasions has breached bonds.
I note that in 2014 Mr Sullivan was convicted of the offence of failing to comply with reporting obligations. The related SA Police Apprehension Report states that he was arrested for failing to comply with reporting obligations under the Child Sex Offenders Registration Act in June 2011 when he changed address. Mr Sullivan said he had been trying to get to a police station to change his address but did not have time because his girlfriend was pregnant and experiencing complications requiring that they see numerous specialists. The report states that Detective Senior Constable Chamberlain registered Mr Sullivan on 14 April 2008 at Elizabeth and at that time provided him with documentation (I assume a PD660A or equivalent – see below). Mr Sullivan advised the officer at that time that he could not read and so “his obligations were carefully given to him orally”.
On three occasions Mr R Balfour, a forensic psychologist, has prepared reports to assist the courts.
The first was prepared on 18 December 2006 when Mr Sullivan was 21 years of age and to be sentenced for the unlawful sexual intercourse offences referred to above. Under Mr Balfour’s guidance Mr Sullivan undertook the Wechsler Adult Scale Intelligence Test, Third Edition. The results indicated that Mr Sullivan had an intellectual disability of mild severity (with an IQ of 59 his global level of intelligence fell in the bottom .3 % of the general population for the age group 20-24 years). Mr Balfour described him as immature, with a simple vocabulary, using simple concrete language structures. There was no evidence of thought disorder or delusional beliefs. Mr Sullivan said that he was neither sexually nor physically abused as a child. He had no history of alcohol or drug abuse. Mr Balfour opined:
In my opinion, there was no clinical evidence to suggest that Mr Sullivan suffers from a psychotic illness (break with reality), major mood disorder, drug or alcohol abuse problems, or a serious personality disorder.
Mr Sullivan possesses very few of the traditional static (historical) and dynamic (acute) criminogenic risk factors which have been identified by researchers as predisposing an individual to offending behaviour. He did not exhibit evidence of conduct disorder during his adolescence. He does not have an antiauthoritarian attitude. He had contact with a negative peer group. He does not have a history of offending as a juvenile or an adult offending. He does not suffer from alcoholism or use illegal drugs. He has a short-temper which he has developed in response to being a victim of racism and being victimized because he is intellectually disabled. He is a slow learner. This has resulted in him developing a low tolerance of frustration especially when his limited intellectually (sic) capabilities are taxed by a novel learning challenge. He does not have a history of generalized impulse control problems in the community. I would describe his overall criminogenic risk profile as being in the low range of risk.
The psychological profile is that of a 21 year old man with an intellectual disability in the mild range of severity (i.e. a level of intelligence in the bottom 0.3 percent of the general population for his age group). He is functionally illiterate and anumerate (sic). He has a history of special education and sheltered employment. He was born a blue baby and nearly died. He would have been at-risk for hypoxic brain damage at birth. He has poor insight and tends to overestimate his ability to deal with every day situations. He is not prone to depression, has never attempted suicide, and does not engage in self-mutilating behaviours. He does not suffer from any major psychopathology.
Punctuating Mr Balfour’s first and second reports was a report prepared by Dr Craig Raeside, a forensic psychiatrist. As mentioned above, this report concerned Mr Sullivan’s mental competence to commit, and fitness to be tried for, the 2011 offending. Three things stand out in this report that are relevant for present purposes; first, to some extent Mr Sullivan played upon his disability. Second, Mr Sullivan blamed various breaches of bail on the fact that he had not been told of certain conditions or that they had not been read to him. Third, Dr Raeside was of the opinion that:
Based on the information available to me and from my interview with Mr Sullivan I would agree on clinical grounds that he has an intellectual disability, that has previously been assessed at an IQ level of 59, indicating a mild to moderate severity. He is also functionally illiterate and likely to have great difficulty when provided with written information (such as appointments etc.). It is unlikely that he would be organised in his lifestyle such that he could understand, record, and recall such information in order to be able to attend, but it is obvious that at times he has.
…
Mr Sullivan’s past personal history suggests an underlying Antisocial Personality Disorder. This represents a lifelong history of difficulties with relationships, unlawful behaviour, impulsivity, irritability and anger, failure to sustain consistent work, and a childhood history of Conduct Disorder. This is a personality style that is often associated with a history of childhood abuse and neglect, and poor educational and social opportunities and attainments. However I have insufficient information to be certain about this...
…
I do not believe Mr Sullivan requires any specific psychiatric treatment. His intellectual impairment is not likely to change over the course of the years, although the incapacity in his functioning might be assisted by practical support such as through Disability Services.
…
…Unfortunately, his history suggests that he is at significant risk of further offending, or at least breaching conditions of bail. Assertive community corrections support would be necessary in order to help him to comply with these conditions. If he was simply left to his own resources then he almost certainly will fail. Frequent verbal reminders, assistance to pick him up or to make contact with him, and other such measures would be necessary. Whether community corrections are agreeable to do so is another question.
I do not pause to summarise in great detail Mr Balfour’s second report dated 2 December 2013. The report was prepared at the suggestion of Dr Raeside for the purposes of determining whether Mr Sullivan was fit to stand trial on the 2011 offending. By this time Mr Sullivan was 28 years old. His grandmother had passed away in 2009. He had three children aged 9, 6 and 1 to three different women. He had no ongoing relationship with his children. His presentation was largely the same as in 2006. Mr Balfour described him as immature and jovial, with poor enunciation, a limited general vocabulary, and a concrete thinker whose short-term memory was intact, but who had poor insight into his offending due to his low level intellectual functioning. Unlike in 2006, however, Mr Sullivan reported having been sexually abused between the ages of 7 and 13 by a male cousin older than him. The abuse encompassed all forms of penetrative sexual activity. He did not tell anyone for fear. He told Mr Balfour that he became suicidally depressed as a result. He had attempted suicide on more than one occasion. In 2010 a failed suicide attempt resulted in him being hospitalised for a week. He had been prescribed anti-depressant medication. He now felt prone to feeling depressed.
Mr Balfour’s third report dated 23 March 2015 was prepared to assist the judge sentencing Mr Sullivan for the offence of aggravated making a communication with the intention of making a child amenable to sexual activity. Mr Sullivan was then 29 years old. Mr Balfour describes his presentation in terms similar to his previous two reports. He was now in a relationship with a woman considerably older. He had ceased taking his anti-depressant medication. He did not report feeling suicidal, although being in custody did make him feel depressed. He disclosed that he was sexually abused at age 14 or 15 when staying at Minda Home. He did not know his abuser’s name and said he was too frightened to tell anyone. Mr Sullivan had a limited sexual knowledge. He was “devoutly heterosexual” and reported being attracted to women between 18 and 47 years. He had no history of gravitating toward activities in the community that would necessarily bring him into contact with children.
Mr Balfour said:
I continue to believe that Mr Sullivan’s primary diagnosis is an intellectual disability of mild severity (i.e. a level of intelligence in the bottom 0.3 percent of the general population for his age group). He is currently suffering from an adjustment disorder, characterised by depression and anxiety, in response to the seriousness of his current legal circumstances, and being incarcerated.
He added:
Intellectually disabled individuals experience strong adult sexual passions and libidos, but lack the intellectual ability to fully comprehend their sexual feelings and to resolve them in a socially acceptable manner. Due to their intellectual immaturity, they can experience a bewildering array of emotions ranging from confusion, guilt, to naïve sexual experimentation characteristic of preadolescent children. Intellectually disabled individuals are conceptually poorly equipped to deal with complex sexual issues …
Mr Balfour considered Mr Sullivan likely attracted to adolescent females because he found them less threatening and intimidating as they approximated his own mental age. Mr Balfour expressed the opinion that:
With the assistance of a supervised, structure (sic) rehabilitation programme, I believe that Mr Sullivan’s prognosis to cease offending is fair for the following reasons:
1. I believe that he clearly satisfies the diagnostic criteria for having paedophilia. However, he does not suffer from primary paedophilia, but secondary paedophilia. His primary sexual interest is adult women, and not children. During 2006, he was 21 years old when he pleaded guilty to having unlawful sexual intercourse with a 14 year old female who subsequently gave birth to a baby. Surprisingly, he was never referred to Owenia House. Hence, he has not had any treatment for his paedophilia. I therefore believe that he has been disadvantaged by having not been referred to treatment. Consequently, the community has been unnecessarily placed at-risk because he has never had optimal treatment for his paedophilia.
2. He does not believe that he has paedophilia. Nevertheless, he has belatedly accepted the jury’s guilty verdict. He realises that he should not communicate with adolescents.
3. He does not suffer from any comorbid psychopathology which would predispose him to further offending behaviour, or complicate his rehabilitation (e.g. Antisocial Personality Disorder, drug and alcohol abuse problems, etc).
4. His general criminogenic profile is in the low range of risk for general offending behaviour.
5. I believe the type of psychosocial problems which have led to his offending behaviour would respond well to strict community supervision and assertive case management. I believe that he would comply with any court orders. However, due to his poor literacy skills, the conditions would need to be carefully explained to him to verify his understanding.
6. He does not have a history of entrenched sexual offending behaviour. He is still very amenable to rehabilitation. The last time he came into significant legal conflict was during 2006.
7. He is fortunate to have the ongoing support of his 47 year old girlfriend.
In June 2015, whilst serving the sentence imposed for the offence of aggravated making a communication with the intention of making a child amenable to sexual activity, Mr Sullivan was assessed by Ms Hamann, a senior psychologist attached to the Department for Correctional Services, Sentence Management Unit. Ms Hamann describes Mr Sullivan’s presentation in terms very similar to Mr Balfour. She administered the Wechsler Adult Scale Intelligence Test, Fourth Edition, to Mr Sullivan. She concluded:
Overall, Mr Sullivan’s profile indicated that he was an individual with significant cognitive limitations. His performance on the WAIS-IV indicated that he fell within the Extremely Low range of intellectual functioning (as determined by his FSIQ [Full Scale Intelligence Quotient]), and was considered to meet diagnostic criteria for a Mild Intellectual Disability. He performed consistently poor over measures of verbal and perceptual ability, as well as working memory, however he had a relative strength in processing speed abilities. Despite this, it was determined that his FSIQ was not an under-representation of his cognitive capacity, and was considered to be an accurate depiction of his global ability.
It was recommended that Mr Sullivan undertake the “Sexual Behaviour Clinic – Me” program (the SBC-Me program). The same recommendation was made one month later in an Assessment Report undertaken to identify Mr Sullivan’s risks and needs.
In a minute dated 8 July 2015 prepared for the Sentence Management Unit Ms Hamann expressed the opinion that:
On the basis of an actuarial risk assessment, Mr Sullivan 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 Mr Sullivan’s risk of re-offending included a lack of pro-social influences, unstable relationships, emotional identification with children, poor attitudes towards women, minimal victim awareness, difficulties with impulse control, poor problem solving skills, self-victimisation and negative emotionality, heightened sexual drive and deviant sexual interests, and poor compliance with community supervision.
Mr Sullivan was assessed as suitable for involvement in the low-functioning SBC-Me program.
In August 2015 Mr Sullivan applied for release on parole. The Parole Board deferred interviewing him until such time as he had completed the SBC-Me program.
Mr Sullivan commenced pre-group work for the SBC-Me program at the start of November 2015 and participated in group sessions as of 9 December 2015. He was terminated from the program on 14 April 2016 without completing it. He was terminated because of his limited willingness to truly participate and because he conducted himself in a manner detrimental to other participants. He had received 74 hours of group treatment and 15 hours of individual treatment. However, all treatment targets remained outstanding. Importantly:
Due to Mr Sullivan’s termination, facilitators were unable to provide a formulation of Mr Sullivan’s offending pathways, other than to provide some general observations. Mr Sullivan was observed to disagree with, or deny, the presence of sexual offending and on more than one occasion described victims of his offences as approaching him for a relationship. He did not evidence a clear understanding that a person under the age of 17 cannot consent to a sexual relationship. Mr Sullivan denied any sexual attraction to pubescent girls. Mr Sullivan repeatedly stated that he could not change and he did not want other people to try to change him.
Mr Sullivan will not receive a further opportunity to complete the SBC-me program in prison due to his ERD of 27/11/2017.
I note that it was recorded that, to the extent that Mr Sullivan did participate, the program was proving detrimental to his own well-being. He described experiencing nightmares and traumatic memories which were symptomatic of his suffering post-traumatic stress disorder related to his past abuse. His experiences and coping behaviours operated as a responsivity barrier to his engagement in the program.
The Parole Board interviewed Mr Sullivan in August 2016. In March 2017 the Parole Board resolved to release Mr Sullivan on parole subject to confirmation that accommodation suitable for electronic monitoring could be found. Ultimately Mr Sullivan was released on parole on 15 September 2017.
Prior to Mr Sullivan’s release on parole, on 6 September 2017, the Attorney-General filed an application in this Court seeking an extended supervision order in relation to Mr Sullivan.
On 19 September 2017 Mr Sullivan breached the condition of his parole that prohibited him from loitering at places frequented by children. The Parole Board responded by ordering that Mr Sullivan be subject to an intensive supervision regime.
Mr Sullivan is a registrable offender within the meaning of the Child Sex Offenders Registration Act. In consequence of this he is subject to certain reporting requirements under that Act. He was required to make an initial report within seven days of his release from prison under s 11 of the Child Sex Offenders Registration Act. He did not do so, stating that he thought someone would come to him. He was forgiven his breach.
The reporting requirements in the Child Sex Offenders Registration Act include, under s 16, that he is required to report any change in his personal details (which, under s 13(1), includes his place of residence and details of any email addresses, passwords, internet user names, instant messaging user names, chat room user names or any other access code, user name or identity used, or intended to be used through the internet or other electronic communication device) to the Commissioner of Police within seven days of such change occurring, and, under s 20A, he must report the details of contact with any child within two days of such contact occurring.
On 4 October 2017, Detective Brevet Sergeant Bikic, who was attached to the South Australia Police, Sexual Crimes Investigation Branch, met with Mr Sullivan who was at this time living at an address in Christie Downs. The Detective’s purpose was to obtain an initial report from Mr Sullivan as required by s 11 of the Child Sex Offenders Registration Act. In accordance with his usual practice the Detective explained to Mr Sullivan his ongoing reporting requirements under the Child Sex Offenders Registration Act. This was done with the aid of a standard form that sets out in detail a registrable offender’s reporting obligations – a PD660A. A copy of the PD660A used by Detective Bikic in his meeting with Mr Sullivan was exhibited to his affidavit. Mr Sullivan signed it on 4 October 2017 indicating an acceptance that the content of the document and his reporting obligations as outlined in the document were explained to him.
The PD660A is a seven paged document. On page two under the heading, “Reporting Changes to Personal Details”, it states that under s 16 of the Child Sex Offenders Registration Act a change of personal details would include a change in address and any other localities where the registrable offender might be found. On page five under the heading, “Reportable Contact with a Child”, the registrable offender’s obligations under s 20A of the Child Sex Offenders Registration Act are set out.
Whilst the Detective does not say so in his affidavit, I assume that a copy of the PD660A is left with the registrable offender. It appears that the document is intended to be an ongoing reference for registrable offenders.
Detective Bikic deposes to having an independent recollection of his interview with Mr Sullivan. In his affidavit he tells how he went through Mr Sullivan’s reporting obligations with Mr Sullivan while sitting in Mr Sullivan’s kitchen, likely stressing the requirement that he report contact with children within two days, and at times asking Mr Sullivan to explain back his understanding of particular obligations. He satisfied himself that Mr Sullivan, who appeared “a bit simple”, understood his obligations.
On 20 November 2017 the Attorney-General’s application for an extended supervision order was called on before me. At that time the report required under s 7(3) of the High Risk Offenders Act was not yet available and not likely to be available until after Mr Sullivan’s sentence and related parole expired on 27 November 2017. In the circumstances the Attorney-General sought an interim supervision order under s 9 of the High Risk Offenders Act. Mr Sullivan consented to an interim supervision order being made against him. I made the order that day. It included the following conditions:
(d) the respondent will wear an electronic monitoring device, to be fitted and maintained as required by his Community Corrections Officer and at the direction of the Parole Board, and will comply with the rules of electronic monitoring;
(e) if the Parole Board so directs and for such period as the Parole Board directs, the respondent will not leave his residence at any time without the prior approval of his Community Corrections Officer, except for the purpose of remunerated employment, urgent medical or dental treatment, to minimise the risk of serious injury or death to himself or to any other person, or any purpose approved or directed by his Community Corrections Officer;
(f) the respondent will not change his place of residence without the prior written permission of his Community Corrections Officer;
(s) the respondent will not contact, attempt to contact or associate in any way, whether directly or indirectly, with any person under the age of 16 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 or approved by that Officer is present.
The interim supervision order also contained a requirement that Mr Sullivan comply with his requirements under the Child Sex Offenders Registration Act. Such clause was unnecessary bearing in mind that Mr Sullivan’s obligations under the Child Sex Offenders Registration Act apply by force of that Act, but it would have served as some reminder to Mr Sullivan when explained of his obligations.
On 12 December 2017, Mr Sullivan attended at the Noarlunga Community Corrections Centre for a supervision session with Mr C J Mercer, a Senior Case Manager with the Department for Correctional Services responsible for supervising Mr Sullivan in accordance with the terms of the interim supervision order. Mr Sullivan was accompanied by Ms M Jarvis, a person with whom he had recently commenced a relationship. Ms Jarvis has five children, three of which are under the age of 18. During the supervision session Mr Sullivan informed Mr Mercer that since his release from custody he had stayed at Ms Jarvis’ home on around 20 occasions at which times the children were present. Mr Mercer also became aware that Ms Jarvis had helped Mr Sullivan create Facebook and Instagram accounts. Mr Mercer formed the view that Mr Sullivan had committed a number of breaches of the interim supervision order and failed to comply with his obligations under the Child Sex Offenders Registration Act. Mr Mercer informed Mr Sullivan that he would advise the Parole Board and the Police of Mr Sullivan’s breaches. Mr Sullivan did not oppose that course, stating that he had told Mr Mercer what was going on because he wanted to be “upfront”.
That same day Mr Mercer advised the Parole Board and police of what he had learned. The Parole Board immediately issued a warrant for Mr Sullivan’s arrest and detention. That warrant was executed later on 12 December 2017 by police who, with the assistance of electronic monitoring equipment, located Mr Sullivan at Ms Jarvis’ home. They located him there despite Ms Jarvis’ denial that he was present at the premises.
Mr Sullivan was taken into custody and has remained in custody ever since.
On 13 December 2017 the Police laid an Information in the Magistrates Court charging Mr Sullivan with three counts of failing to comply with a reporting obligation 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 comply with reporting obligations, contrary to s 44(1) of the same Act (AMC-17-14780).
On 8 January 2018 Mr Sullivan pleaded guilty to all counts contained in the Information laid on 13 December 2017.
On 16 January 2018 Mr Sullivan was interviewed by the Parole Board. Mr Sullivan admitted that he had breached the interim supervision order. The Board was aware of two other breaches of Mr Sullivan’s parole conditions – he had been in the company of his cousin’s children and had left his place of residence on an occasion without permission. The Board had previously deferred consideration of those breaches. By 16 January 2018 Mr Sullivan’s parole had expired. The interim supervision order remained current however.
Under s 17(1)(b)(ii) of the High Risk Offenders Act the Board resolved that Mr Sullivan be detained in custody pending his attendance before this Court for determination as to whether a continuing detention order should be made under s 18 of that Act.
The s 7(3) High Risk Offenders Act Report
Section 7(3) of the High Risk Offenders Act provides, relevantly, that this Court must, before determining whether to make an extended supervision order direct that one or more legally qualified medical practitioners examine the respondent and report to the Court on the results of the examination including, if the offender is a serious sexual offender, an assessment of the likelihood of the respondent committing a further serious sexual offence. Mr Sullivan is a serious sexual offender within the meaning of the High Risk Offenders Act. The relevant direction under s 7(3) was made on 16 October 2017.
On 10 January 2018 Dr Raeside interviewed Mr Sullivan and on 12 January 2018 he provided a report to the Court in accordance with the direction made.
Dr Raeside is a forensic psychiatrist well known to this Court. His experience is extensive. His expertise was not challenged. Neither were the opinions he expressed in his report.
At the time of the 10 January 2018 interview Mr Sullivan was 32 years old. Dr Raeside includes in his observations of Mr Sullivan’s presentation at interview a reference to Mr Sullivan having a somewhat “immature manner and interaction”. He adds:
… His conversation was clearly affected by his low IQ, with lack of understanding of some aspects including of his ANCOR orders. As will be noted, he did not see himself as a predator. At times he appeared to voice learned phrases from previous involvement with the SBC-Me clinic with limited understanding of what the terms actually meant or he was unable to explain them. He did not appear to be depressed or elevated in mood, did not have any significant anxiety, did not demonstrate any psychotic features such as perceptual disturbances, delusional ideas, or psychotic thought disorder, and showed no evidence of mental illness.
Mr Sullivan explained to Dr Raeside that he understood that he was back in custody because he had breached reporting conditions. He indicated that he knew what he was doing at the time but thought that because he was the subject of electronic monitoring and on home detention he would be at a low risk of re-offending despite knowing that he should not be around children. He further attempted to explain that he was a low risk because he was not a sexual predator and had served his time.
I note that Mr Sullivan asserted that he was equipped not to re-offend against children having learned how not to do so and how to control his urges in the course of taking part in the SBC-Me program. He could not, however, explain the assistance that the program had provided him short of repeating phrases he had heard.
Dr Raeside states:
I note the previous opinion of Mr Balfour that Mr Sullivan has secondary paedophilia, by which he means that although Mr Sullivan might be attracted to underage girls, it is more likely that this is a function of his intellectual capacity and feeling less threatened in sexual relationships with females of a similar intellectual age rather than in adult relationships.
I would add that it appears that he has had some adult relationships with women significantly older than him and it may be that he has some sort of maternal bonding with these women who take care of him in various ways. As noted, Mr Sullivan did not consider himself a “predator”, with him not seeing his behaviour in relation to underage females as predatory in nature, with him still maintaining his innocence to some degree in relation to the charges of arranging to text message a 12 year old girl, seemingly with at least some intention of having a sexual relationship with her, blaming other parties rather than himself.
Consistent with all previous reports Dr Raeside considered Mr Sullivan to suffer from a mild to moderately severe intellectual disability. He did not believe Mr Sullivan to suffer from any underlying psychiatric illness. Substance abuse did not appear to have been a particular problem. Consistent with his 2011 report Dr Raeside considered that Mr Sullivan’s personal history was suggestive of Mr Sullivan having an antisocial personality disorder. Dr Raeside was of the opinion:
… that Mr Sullivan is at least a moderate risk of further offending generally, primarily based on his underlying Antisocial Personality Disorder and low intellectual functioning that makes it difficult for him to cope adequately in the community. However, his impulsivity, irritability, and anger are also significant factors that have caused him difficulty at times, including in the termination of his participation in the more recent SBC-Me program whilst in custody.
And:
… Mr Sullivan remains at very high risk of sexual reoffending having never received any adequate treatment, notwithstanding recent efforts whilst he was in custody for reasons that are explained in the body of the report. However, in that regard it is difficult to make an accurate assessment as to whether upon completing an appropriate sexual offenders’ program his risk would be significantly reduced. As noted by Mr Balfour previously his involvement with underage females appears to be a function of his intellectual disability rather than a direct result of sexual predatory behaviour, notwithstanding the nature of the more recent offences involving text messaging.
Accordingly, Dr Raeside was supportive of an extended supervision order being made in Mr Sullivan’s case. He recommended that Mr Sullivan be required to engage with the Owenia House sexual offender program, particularly adapted to his low intellectual capacity, and seek assistance from Disability SA. Dr Raeside was of the opinion that Mr Sullivan would find it difficult to engage voluntarily with Disability SA because of his low IQ and difficulty in organising himself. He repeated the opinion he expressed in 2011 that in Mr Sullivan’s case assertive community support would be necessary. Dr Raeside brought his report to a close recommending:
Finally, although Mr Sullivan does not see himself as a sexual predator (in that he does not see that he represents a risk to children in general and somewhat different than others he might have associated with in custody), I would recommend that strict requirements be upheld in relation to him not being in a domestic situation in which there are underage children present, as well as the other various requirements that would be necessary as part of his ANCOR requirements.
I do not believe Mr Sullivan requires any specific psychiatric treatment. He was previously on an antidepressant, but I found no evidence of any current depressive illness.
The offences under the Child Sex Offenders Registration Act
Because of the inter-relationship of the charges under the Child Sex Offenders Registration Act, the breach of the interim supervision order, and the question of whether to make an extended supervision order, with the consent of the parties, arrangements were made for the Magistrates’ Court file concerning the offences charged in the Information laid on 13 December 2017 to be transferred to this Court to be dealt with. Accordingly, for the purposes of sentencing Mr Sullivan for the offences committed against the Child Sex Offenders Registration Act as contained in the Information laid on 13 December 2017, I sat in the capacity of a Magistrate.[1]
[1] Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA), s 5.
The Information contains the following counts:
1.Between the 27th day of November 2017 and the 12th day of December 2017 at HACKHAM WEST in the said State, being a registrable offender without reasonable excuse failed to comply with a reporting obligation relating to reportable contact with a child.
Section 44(1a) of the Child Sex Offenders Registration Act 2006
2.Between the 27th day of November 2017 and the 12th day of December 2017 at HACKHAM WEST in the said State, being a registrable offender without reasonable excuse failed to comply with a reporting obligation relating to reportable contact with a child.
Section 44(1a) of the Child Sex Offenders Registration Act 2006
3.Between the 27th day of November 2017 and the 12th day of December 2017 at HACKHAM WEST in the said State, being a registrable offender without reasonable excuse failed to comply with a reporting obligation relating to reportable contact with a child.
Section 44(1a) of the Child Sex Offenders Registration Act 2006
4.Between the 27th day of November 2017 and the 12th day of December 2017 at HACKHAM WEST in the said State, being a registrable offender without reasonable excuse failed to comply with his reporting obligations without reasonable excuse. (sic)
Section 44(1) of the Child Sex Offenders Registration Act 2006
5.Between the 27th day of November 2017 and the 12th day of December 2017 at HACKHAM WEST in the said State, being a registrable offender without reasonable excuse failed to comply with his reporting obligations without reasonable excuse. (sic)
Section 44(1) of the Child Sex Offenders Registration Act 2006
6.Between the 27th day of November 2017 and the 12th day of December 2017 at HACKHAM WEST in the said State, being a registrable offender without reasonable excuse failed to comply with his reporting obligations without reasonable excuse. (sic)
Section 44(1) of the Child Sex Offenders Registration Act 2006
I have referred generally to the circumstances of this offending in recounting the content of Mr Mercer’s affidavit above. The related South Australia Police Apprehension Report (AP 18/C91636) indicates that counts one to three concern contact had by Mr Sullivan between the dates as charged with each of Ms Jarvis’ three children under the age of 18 (i.e. count one – the 14 year old boy, count two – the 10 year old girl, and count three – the eight year old boy). Count four concerned the failure by Mr Sullivan to report a change of address, count five, his failure to declare his Facebook account, and count six, his failure to declare his Instagram account.
When the Information was called on before me on 2 February 2018, Mr Sullivan applied to withdraw his plea on count four. That application was not opposed and I made the order accordingly. The prosecution then withdrew count four.
When interviewed by police Mr Sullivan admitted that he had stayed with Ms Jarvis every second night since 27 November 2017 when the interim supervision order was made. He admitted the three children subject of the charges were present on each occasion and admitted playing video games with them. Ms Jarvis was present at all times and knew of the fact that he was a registrable offender, hence her attendance with him upon Mr Mercer. It was Ms Jarvis who assisted Mr Sullivan in setting up the Facebook and Instagram accounts.
When asked why he had not discharged his reporting obligations Mr Sullivan told police he forgot.
Ms Jarvis is 45 years old. She gave brief evidence before me. She remains supportive of Mr Sullivan and interested in continuing her relationship with him. She was aware of his offending history and that he was subject to supervision. She did not appear fearful for her children, making plain that at all times Mr Sullivan was present she was also in the house. When Mr Sullivan stayed the night, he slept in bed with her. She told the Court that she had two older children who also lived with her and that the eldest, a 22 year old woman, was also aware of Mr Sullivan’s circumstances.
I do not discount the threat posed by Mr Sullivan to Ms Jarvis’ children in reflection of her confidence and vigilance or in any way consider that her confidence and vigilance in some way lessens his culpability.
I acknowledge, as Mr Balfour indicated, that any relationship that Mr Sullivan forms with a woman of appropriate age can only assist him generally and in particular in avoiding re-offending. Such relationship should be encouraged by the authorities, but not, of course, at the expense of the safety of the children or any children.
The maximum penalty for the offence created by s 44(1) of the Child Sex Offenders Registration Act is $10,000 or imprisonment for two years, and for the offence created by s 44(1a) of the same Act, $25,000 or imprisonment for five years.
As indicated Mr Sullivan pleaded guilty to all five counts on 8 January 2018, not more than four weeks after he first appeared in court in relation to the charges. Accordingly, under s 10B(2) of the Criminal Law (Sentencing) Act 1988 (SA), he is entitled to a discount of up to 40%.
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. I add immediately, that in Mr Sullivan’s particular case, bearing in mind his intellectual disability and the impact it has on his day to day functioning, the requirements of general deterrence must be tempered.
The prosecutor referred me to the authorities of Newson v Police[2] and Police v Hore.[3] The circumstances in those cases differ markedly from this case. I have found them of only the most general assistance.
[2] [2015] SASC 105.
[3] [2015] SASC 150.
I bear in mind the content of the various reports to which reference has been made above, that Mr Sullivan has an intellectual disability and the consequences of that disability for his day to day functioning. I accept the lengths to which Detective Bikic went in explaining to Mr Sullivan his obligations. I bear in mind that this was the second occasion on which reporting requirements had been explained to Mr Sullivan and that he has previously been convicted of failing to discharge his obligations under the Child Sex Offenders Registration Act.
I find Mr Sullivan’s explanation totally unacceptable at one level, but bearing in mind his intellectual disability, expectations of him cannot be high. I also bear in mind Dr Raeside’s observation of the difficulties Mr Sullivan likely experiences in organising himself and the need for frequent reminders and contact in order that Mr Sullivan meet his obligations. I would not be surprised if his prior convictions for breaching bail and failing to comply with bonds can also be traced to his diminished ability to order his affairs.
I find it significant that the charges arose out of, in effect, a self-report. Equally significant, that report was made in an effort to regularise matters. I do not treat Mr Sullivan’s offending as amounting to a wanton disregard of his statutory obligations in the sense that he turned his mind to his obligations and simply chose to ignore them. Whilst I am satisfied that he was generally aware that he had reporting obligations, bearing in mind that he is functionally illiterate, I do not think he would have retained a memory of all that he is required to do under the Act or the applicable timeframes.
Whilst his failure truly to take responsibility for his offending has not gone unnoticed by me, it is to some extent understandable that he would operate on the basis that, being subject to electronic monitoring and supervision, he would quickly be told if he was doing anything gravely wrong.
I bear in mind Mr Sullivan’s limited insight into his nature and the threat he poses to children. I appreciate his lack of insight makes it difficult for him to understand the imperative of the reporting obligations in his case. The sentence I impose must bring home to him his responsibilities.
I impose convictions on all five counts. I impose one penalty as permitted by s 18A of the Criminal Law (Sentencing) Act 1988 (SA). In my view, a head sentence of 90 days imprisonment is the appropriate penalty. I reduce that sentence by 40% on account of Mr Sullivan’s pleas of guilty. I see no reason not to afford him the full discount. Accordingly, for counts 1-3, 5 and 6 on Information filed 13 December 2017 (AMC-17-14780), I impose a period of imprisonment of 54 days. That sentence is to be backdated to 12 December 2017, the day upon which Mr Sullivan was taken into custody.
I have given anxious consideration to the question of whether good reason exists to suspend the sentence. Mr Sullivan’s intellectual disability and its practical consequences attracts significant weight. However, time and again he has been advised of responsibilities he has to discharge under bail agreements, bonds, orders and statutes. He has a prior conviction for failing to comply with reporting obligations under the Child Sex Offenders Registration Act. Twice his obligations under that Act have been carefully explained to him. I bear in mind his illiteracy and difficulty in organising his affairs, however here by his own admission to Dr Raeside he knew generally that he was in breach of his obligations. Further, when interviewed by the Parole Board on 16 January 2018, Mr Sullivan demonstrated some understanding of his obligations, explaining that when visited by his cousin in the presence of her child, he made his cousin aware that he could not have her child in his presence. In the circumstances I have concluded that good reason does not exist to suspend the period of imprisonment.
Mr Sullivan must pay the compulsory victims of crime levy of $800.
I waive all prosecution and court fees.
Should a continuing detention order be made?
As mentioned above, on 16 January 2018 the Parole Board, being satisfied that Mr Sullivan had breached a condition of the interim supervision order, directed that he be detained in custody pending his attendance before this Court for determination as to whether he be subject to a continuing detention order. By force of s 18(1) of the High Risk Offenders Act, upon a direction being made by the Parole Board under s 17(1)(b)(ii) of that same Act, the jurisdiction of this Court to make a continuing detention order is engaged.
The question of whether to make a continuing detention order was first called on in this Court on 19 January 2018. I did not determine the matter that day, but ordered pursuant to s 18(4) that Mr Sullivan be detained in custody pending determination.
Section 18(2) provides:
(2)The Supreme Court may, if satisfied that the person –
(a) has breached a condition of the supervision order; and
(b) poses an appreciable risk to the safety of the community if not detained in custody.
order that the person be detained in custody (a continuing detention order) until the expiration of the supervision order, or for such lesser period as may be specified by the Court.
Supervision order is defined in s 4 as including an interim supervision order.
Through his Counsel Mr Sullivan admitted that in staying at Ms Jarvis’ house he had breached the interim supervision order.
Section 18(3) of the High Risk Offenders Act provides that the paramount consideration for this Court in determining whether to make a continuing detention order must be the safety of the community.
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.
For the reasons set out below in dealing with the question of whether an extended supervision order should be made, I am satisfied that Mr Sullivan poses an appreciable risk to the safety of the community. However, I am not satisfied that the risk is such that to protect the community Mr Sullivan should be detained pursuant to a continuing detention order.
I bear in mind Dr Raeside’s assessment of the risk that Mr Sullivan poses. I bear in mind Mr Balfour’s diagnosis that Mr Sullivan suffers secondary paedophilia and the circumstances that would likely lead Mr Sullivan to approach an adolescent female and Dr Raeside’s agreement with that diagnosis and opinion.
I bear in mind the positive influence upon Mr Sullivan of being in a relationship with Ms Jarvis. I also have regard to the fact that by virtue of his intellectual disability Mr Sullivan is functionally illiterate and can be expected, as Dr Raeside suggested, to experience difficulty in organising himself without assertive supervision and reminders, such that he can capably meet the obligations imposed under a supervision order. Once again it is relevant here to recall that the breach was, in effect, a self-report undertaken in an effort to regularise matters. Further, the breach lacks any sinister aspect.
I appreciate that Mr Sullivan’s lack of insight into his nature is concerning and that he has failed to understand and comply with the rules of home detention, not to mention other conditions in the interim supervision order and, indeed, his obligations under the Child Sex Offenders Registration Act. But my impression is that he has largely been left to his own resources. Dr Raeside has now twice recommended “assertive supervision”. Self-evidently that recommendation does not require detention in custody.
It is a drastic step to detain Mr Sullivan. I am not persuaded that it is necessary at this time to do so in order to protect the community from the risk he poses. I decline to make a continuing detention order.
Should an extended supervision order be made?
The Attorney-General filed a draft extended supervision order containing some 28 conditions. Mr Sullivan conceded that it was appropriate that an extended supervision order be made against him and did not quibble with the 28 conditions. He did, however, take issue with the order being for a period of five years.
In the circumstances no reason exists not to accept the opinion of Dr Raeside. That opinion is grounded in the functional impact of Mr Sullivan’s intellectual disability. That is, Mr Sullivan’s involvement with underage females is a function of his intellectual disability in that he gravitates to underage females because they are of a similar intellectual age and less threatening. Dr Raeside’s opinion is consistent with that of Mr Balfour. No mental health specialist that Mr Sullivan has seen in the prison environment suggests to the contrary. I accept Dr Raeside’s opinion.
It cannot be doubted that Mr Sullivan’s intellectual disability also contributes in the main to the criminogenic factors he possesses – a lack of pro-social influences, unstable relationships, emotional identification with children, poor attitudes towards women, minimal victim awareness, difficulties with impulse control, poor problem-solving skills, self-victimization and negative emotionality, heightened sexual drive and deviant sexual interests, and poor compliance with community supervision.
Without the benefit of treatment, possessing the criminogenic factors identified above, and being poorly equipped to deal with complex issues that he will confront in his life as a consequence of his intellectual disability, I accept the assessment that, left to his own resources, Mr Sullivan poses a very high risk of sexual reoffending. In my view, it is not difficult to think of circumstances arising where Mr Sullivan would seek the attention of an underage female. I consider that risk appreciable in the sense that there exists a substantial basis for apprehending that, left to his own resources, he will seek a sexual relationship with an underage female. I am satisfied that Mr Sullivan poses an appreciable risk to the safety of the community if not subject to an extended supervision order.
The conclusions I have arrived at have the consequence that the discretion vested in this Court to make an extended supervision order is enlivened. As to the exercise of the discretion in Attorney-General (SA) v Grosser (No 3), Stanley J said:[4]
... [it] is to be exercised having regard to both the interests of the community and the interests of the respondent, but by according the consideration of public safety paramountcy. Here there are two competing considerations. On the one hand, the respondent to an application by the Attorney-General has completed his or her sentence. There is a common law rule that his personal liberty and freedom of movement will not be infringed absent clear, unambiguous lawful authority. On the other hand, there is the need to protect the community from the risk of him reoffending. In construing the statute which infringes those rights and freedoms the Court will do so in a manner which limits the infringement to what is strictly required to effect the purpose of the statute. Given the terms of the Act, specifically the paramount consideration of public safety, in the exercise of this Court’s discretion relatively smaller degrees of risk will outweigh considerations which, even strongly, would militate against the making of an extended supervision order. The same principles inform consideration of what are appropriate conditions to impose in making an extended supervision order and in determining the length of that order. The efficacy of the order is determined by the conditions it imposes. That warrants the same consideration applying to the conditions imposed as to the making of the order per se.
(footnote omitted.)
[4] [2017] SASC 89 at [12] (Stanley J).
The draft supervision order contains the conditions required by s 10(1)(a)-(d) of the High Risk Offenders Act. In addition it imposes home detention with electronic monitoring, prohibits Mr Sullivan from changing address or leaving the State without permission, prohibits Mr Sullivan from drinking alcohol or taking illicit drugs and facilitates testing for the same, empowers his supervising Community Corrections Officer to require him to attend for counselling and treatment by and in accordance with the recommendations of mental health professionals, empowers his supervising Community Corrections Officer to direct Mr Sullivan to attend the Aboriginal Prisoner and Offender Support Service (APOSS) and other Aboriginal Support Agencies, and contains a raft of conditions intended to prevent Mr Sullivan coming into contact with children including provisions controlling his use of electronic devices. As mentioned, Mr Sullivan does not object to any of these conditions. He does, however, dispute the necessity that the order be in existence for five years.
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,[5] 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.
[5] High Risk Offenders Act, s 12.
In the present case it is critical that Mr Sullivan receive treatment under the extended supervision order. Mr Mercer states in his affidavit that in the event of an extended supervision order being made, he will direct Mr Sullivan to attend Owenia House with a view to his undertaking the SBC-Me program.
It appears that a critical piece in any treatment regime fashioned for Mr Sullivan will be his participation in the SBC-Me program at Owenia House. The program requires attendance for two hours twice a week for approximately 12 months resulting in around 100 hours of face-to-face therapy time. In addition attendees are required to undertake tasks in their own time and may be required to attend for individual sessions. Before a person can undertake the SBC-Me course he or she must attend at Owenia House for assessment. If they have an insufficient level of cognitive functioning the individual may be denied entry to the program. Dr Furst, a forensic psychiatrist and head of the Forensic Community Mental Health Service with responsibility for the programs at Owenia House, advised:
… It is my experience and belief that offenders who drop out of sexual offender programs have worse outcomes and are at an increased risk of sexual re-offending although I am not sure whether this is causative or merely an association. It is a well-recognised principle that offenders should not be accepted into programs unless they are likely to complete the entire program. This applies to all of the programs at Owenia House, but it is most commonly an issue with the SBC and SBC-Me programs because of the large time commitment. In my experience at Owenia House, offenders drop out of the program as soon as his or her period of supervision is complete and this has negative consequences not only for the individual offender, but also the rest of the group. The drop-out rate in similar programs around the world is about 50%, although the drop-out rate for Owenia House is considerably lower and mostly affected by offenders being returned to custody, the majority for either non-sexual offending or historical sexual offences. …
As mentioned above, Mr Sullivan took part but did not complete the SBC-Me program in custody. Despite this Dr Raeside recommends that he undertake the program afresh. Some comfort can be taken from the fact that he was found sufficiently cognitively able to undertake the program in custody that he will likewise be found to have the cognitive capacity to do the same program at Owenia House. His willingness to participate is another thing. To the extent that he now consents to an order requiring that he attend any treatment as directed, I assume he is at present willing to participate in the SBC-Me program.
Because the SBC-Me program involves a lot of group work and work in pairs, it is only offered when there are a sufficient number of participants for it to be viable. Further, participants are screened with a view to ensuring that a sufficient number have a level of cognitive capacity where they can contribute to group work for the sake of all participants. The normal minimum number of participants is eight. Currently three people are on Owenia House’s waiting list. If Mr Sullivan is accepted to the program by Owenia House, he will join the waiting list. I was informed that the numbers wishing to undertake the program can change very quickly, equally it may take some months and possibly the best part of a year for the desired compliment to be reached.
Dr Furst further advised:
The only real alternative in the community for a person waiting to commence the SBC-Me program is to attend a GP and obtain a mental health care plan to enable referral to a psychologist. Under current Medicare rules the individual would be entitled to ten sessions with a psychologist within a twelve month period. I consider it would be important to attend with a psychologist with particular skills in sexual offending.
In my view, having regard to the intended centrality of the SBC-Me program to Mr Sullivan’s treatment regime, the period of the extended supervision order should, at this stage, be no greater than necessary to allow for Mr Sullivan to participate in the program and the effect of his participation to be assessed. Thus, accepting that Mr Sullivan’s Community Corrections Officer will refer him to Owenia House, and, on the assumption that he is assessed as fit to undertake the SBC-Me program and admitted to the waiting list, allowing 6-12 months for the program to commence, 12 months for it to be completed, and a further 6 months for Mr Sullivan’s progress to be assessed, the order will be made for two and half years commencing today. If at the end of that period Mr Sullivan continues to pose an appreciable risk to the safety of the community, the Attorney-General can apply for the order to be extended.
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