R v Atkins - [2023] SASC 166

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v ATKINS
[2023] SASC 166
Judgment of The Honourable Justice McDonald
23 November 2023
CRIMINAL LAW - SENTENCE - RELEVANT FACTORS
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - PROPORTIONALITY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER
The defendant, Mr Atkins, was committed for sentence in the District Court, having entered guilty pleas to the offences of producing child exploitation material and failing to comply with reporting obligations on 9 December 2021. Prior to sentence, the Director of Public Prosecutions made an application pursuant to s 57 of the Sentencing Act 2017 (SA) seeking an order that Mr Atkins be detained in custody until further order of the Court on the basis that he is either unwilling, or unable to control his sexual instincts. Upon the Director making that application, Mr Atkins was remanded to appear before the Supreme Court for sentence and for the determination of the Director’s application.
Mr Atkins first appeared before the Court on 14 June 2022. On that occasion the Court ordered two legally qualified medical practitioners prepare a report in relation to whether Mr Atkins is incapable of controlling, or unwilling to control, his sexual instincts. Expert reports were provided by Dr Craig Raeside and Dr Owen Haeney on 29 July 2022 and 19 September 2022 respectively.
Three avenues for the resolution of the matter emerged during the course of sentencing: first, to sentence the defendant and make an order under s 57 which would begin at the expiration of his head sentence; second, to decline to sentence the defendant and make an order for his detention in custody until further order; or third, to sentence the defendant in the usual course and decline to make any further order.
Counsel made submissions on the application of s 54 of the Sentencing Act to the Director’s application in circumstances where the defendant is a serious repeat offender within the meaning of ss 53 and 54 the Sentencing Act, releasing the Court from the obligation to ensure that any sentence imposed is proportional to the offences charged. Owing to the amount of time already spent in custody by Mr Atkins, a proportional sentence would likely result in his immediate or near-immediate release from custody, affording the community little protection from his risk of recidivism.
Held, sentencing the defendant and declining to make an order for detention until further order: A disproportionate sentence of five years imprisonment with a four-year non-parole period is necessary for the protection of the community, having regard to the risk posed by the Defendant and the likelihood of his re-offending if released immediately into the community without further therapy. It remains open to the Director or the Attorney-General to make a further application once Mr Atkins approaches his release date, at which time the Court may assess the risk he poses to the community.
Criminal Law Consolidation Act 1935 (SA) s 63, s 63A; Criminal Law (High Risk Offenders) Act 2015 (SA) s 9; Child Sex Offenders Registration Act 2006 (SA) s 44; Sentencing Act 2017 (SA) s 3, s 40, s 53, s 54, s 57, referred to.
R v Hoare [2018] SASC 7; R v Karnage [2019] SASCFC 82; R v Mountford [2019] SASC 16; R v Schuster [2016] SASCFC 86; R v Smith [2018] SASC 185, considered.

R v ATKINS
[2023] SASC 166
Criminal: Application
McDONALD J.

Mr Atkins was initially committed for sentence to the District Court having entered guilty pleas to the offences of producing child exploitation material,[1] and failing to comply with reporting obligations.[2] The matter came before this Court as a consequence of the Director of Public Prosecutions making an application pursuant to s 57 of the Sentencing Act 2017 (SA) seeking an order that Mr Atkins be detained in custody until further order of the Court, on the basis that he is either unwilling, or incapable of controlling his sexual instincts.
[1] Criminal Law Consolidation Act 1935 (SA) s 63.
[2] Child Sex Offenders Registration Act 2006 (SA) s 44(1).
Once the Director makes that application, the District Court is required to remand the defendant to appear before the Supreme Court for sentence and to have the application determined.
The Circumstances in which the application was made
On 28 January 2022 Mr Atkins first appeared in the District Court. On that occasion he confirmed that he maintained his guilty pleas to the two counts to which I have referred.[3] Sentencing submissions were delayed for some time as the parties obtained the various materials that were required. On 8 June 2022 the Director advised the court that an application was to be made pursuant to s 57 of the Sentencing Act. Consequently, it was necessary to remand Mr Atkins to the Supreme Court to be dealt with under that section.
[3] Mr Atkins had initially been charged with and pleaded guilty to a third count. It was agreed by the Director that Mr Atkins be permitted to withdraw his plea to the third count the basis that the elements of that offence could not be established and the plea had been entered in error.
Mr Atkins first appeared before this Court on 14 June 2022. On that occasion the Court ordered pursuant to s 57(6) of the Sentencing Act 2017 (SA) that two legally qualified medical practitioners (to be nominated by the prescribed authority for the purpose) were to enquire into the mental condition of Mr Atkins and report to the Court on whether he is incapable of controlling, or unwilling to control, his sexual instincts.
Expert reports were provided by Dr Craig Raeside and Dr Owen Haeney on 29 July 2022 and 14 September 2022, respectively. The matter next came before the Court on 19 September 2022. On that occasion counsel for Mr Atkins, Mr Vadasz advised the Court that he proposed to obtain a third report, foreshadowing that report was likely to be authored by Mr Richard Balfour. On that basis the matter was adjourned to a further directions hearing on 5 October 2022.
Without descending into all of the details there were further significant delays in obtaining a report from Mr Balfour. Ultimately, no report from Mr Balfour was forthcoming and on 4 September 2023 Mr Vadasz advised the Court that Mr Atkins would not be putting a third report before the Court.
Offenders incapable of controlling, or unwilling to control their sexual instincts
Section 57 of the Sentencing Act creates a regime under which orders can be made to detain a defendant in custody until further order of the Court,[4] in a number of circumstances.
[4] Sentencing Act 2017 (SA) s 57(7).
Relevantly, to this application s 57(2) provides:
(2)If, in proceedings before the District Court or Magistrates Court, a person is convicted of a relevant offence and –
(a) the court is of the opinion that the defendant should be dealt with under this section; or
(b) the prosecutor applies to have the defendant dealt with under this section,
the court will, instead of sentencing the defendant itself, remand the convicted person, in custody or on bail, to appear before the Supreme Court to be dealt with under this section.
Section 57(12) sets out the approach to be adopted in circumstances in which a defendant is yet to be sentenced:
(12)If a person to whom this section applies has not been sentenced for a relevant offence, the Supreme Court will deal with the question of sentence at the same time as it deals with the question whether an order is to be made under this section and, if the Court decides to make such an order, the order may be made in addition to, or instead of, a sentence of imprisonment.
It follows that there are three options open to me. These are to sentence Mr Atkins and then make an order that he continue to be detained on the expiry of that sentence, to decline to sentence Mr Atkins and order that he be detained in custody until further order or sentence Mr Atkins in the usual manner and decline to make any further order.
Given the nature of Mr Atkins’ offending it is my view that it is appropriate to first sentence him before considering the s 57 application. His offending is serious. Mr Atkins and the community are entitled to know the penalty that has been imposed for the offences that he has committed.
The Sentence
Circumstances of the offending
As of April 2021, Mr Atkins was a registerable offender pursuant to s 6 of the Child Sex Offenders Registration Act 2006 (SA) (‘the Registration Act’). As a consequence, and in accordance with s 34 of that Act he is subject to reporting obligations for life.
Under s 13 of the Registration Act, Mr Atkins is also obliged to advise the Commissioner of Police of the details of any email addresses, passwords, internet usernames (including instant messaging and chat rooms), or any other identity used or, intended to be used, through the internet or other electronic communication service. Mr Atkins is required to report any changes to his personal details within seven days and also to report any contact with a child within seven days.
On 7 April 2021 Mr Atkins was released from custody. On 16 April 2021 a police officer from the Australian National Child Sex Offender Unit (ANCOR) met with Mr Atkins to explain his reporting obligations arising from the Registration Act.
At that time Mr Atkins advised the police officer that the only online presence he had was an email address of [email protected] and that he had no other applications or online accounts.
On 27 April 2021 ANCOR received some information that Mr Atkins had failed to comply with his reporting obligations. As a consequence, on 28 April 2021 police attended at his residence in order to conduct a search. When they arrived, Mr Atkins was in his bed asleep. Two mobile phones were located on the bed next to him. These were a new Nokia phone and an Apple iPhone.[5]
[5] Mr Atkins was also in possession of two portable hard drives and a Samsung mobile telephone although nothing of relevance was located on these devices.
Police conducted a preliminary examination of the phones and located a chat thread on the social media platform, KIK. The thread related to suggested sexual acts that Mr Atkins would like to perform on a 14-year-old female.
Overall, the examination revealed that Mr Atkins was operating two separate KIK accounts and a Facebook account. The Facebook account and one of the KIK accounts had been created 10 days prior, that is two days after Mr Atkins had met with the police officer from ANCOR.
Mr Atkins had not reported the accounts to the Commissioner within the required seven days. It is this conduct that is the basis of the charge of failing to comply with reporting obligations.
The Nokia phone and Apple iPhone were submitted for forensic analysis.
The KIK account on the Apple iPhone contained fifteen conversations in which Mr Atkins discussed sexual intercourse with children. Three of the conversations related to children between the ages of 14 and 18. The other twelve related to children under the age of 14 years. Some conversations related to children as young as 20 months and some involved sadism. A number of the conversations revolved around incestuous sexual activities, between father and daughter or brother and sister. In two conservations Mr Atkins appears to coach two children on how to engage in sexual acts/intercourse with other children. The conversations appear to be some sort of role-playing activities between adults. There is no suggestion that any children were involved in the conversations. On occasions, pictures were exchanged, including pictures of Mr Atkins’ erect penis.
The KIK account on the Nokia phone contained three conversations that took place on 28 April 2021 between Mr Atkins and three other adults. One of the conversations related to sexual activity between Mr Atkins and a 14-year-old female in a playground and another to sexual activity between Mr Atkins and a female child in a movie theatre. In the final conversations, Mr Atkins coached the other person on how to find a five-year-old girl and “take her to a busy public toilet on the male’s side and film what happens.” The conversations located on the two phones are the subject of the charge of producing child exploitation material.
Mr Vadasz, who appeared for Mr Atkins submitted that at least part of the explanation for his most recent offending are the circumstances into which he was released from custody. Mr Vadasz described Mr Atkins as a timid but talkative man who has great difficulty mixing socially. Mr Atkins grew up in an isolated, rural environment. His family currently reside in a relatively remote, rural location.
Both his family and Mr Atkins had an expectation that he would come and live with them upon his release. That was not to be. The conditions of the Interim Supervision Order required him to remain living in South Australia. Mr Atkins was accommodated in OARs accommodation where he found it difficult to fit in. As a consequence, he isolated himself in his bedroom and that was the context in which the offending occurred.
Criminal Antecedents
Mr Atkins has a number of prior convictions that are relevant to a consideration of the appropriate sentence to impose.
On 11 August 2011 Mr Atkins was sentenced for two counts of unlawful sexual intercourse with a person under the age of 12 years of age. These offences occurred in September or October 2009 some days apart.
The victim was the 11-year-old stepdaughter of Mr Atkins’ uncle. At the time of the offending Mr Atkins was staying at the victim’s home. He had come from Adelaide to country South Australia to look for work.
On the first occasion the victim was in bed and was awoken by Mr Atkins rubbing her vaginal area with his hand. She told him to stop but he continued and penetrated her vagina with his finger.
The second occasion was some days later. This time the victim was playing with her younger sister in the lounge room of the house. Mr Atkins joined in and during the play put his hand inside her pants. She tried to pull away but Mr Atkins held her and again put his fingers inside her vagina.
For these offences Mr Atkins was sentenced to three years imprisonment with a non-parole period of 12 months.
On 10 August 2014 Mr Atkins was released from custody having served the entirety of his head sentence and consequently was not subject to parole conditions.
On 12 March 2021 Mr Atkins was sentenced for further serious sexual offences. These were possessing child exploitation material,[6] aggravated possessing child exploitation material,[7] 3 counts of failing to comply with reporting obligations,[8] and 4 counts of producing child exploitation material.[9]
[6]    Criminal Law Consolidation Act (1935) SA s 63A(1).
[7] Ibid.
[8]    Child Sex Offenders Registration Act 2006 (SA) s 44(1).
[9]    Criminal Law Consolidation Act (1935) SA s 63.
The offences of possession and aggravated possession of child exploitation material,[10] arose from Mr Atkins having child pornography on his phone, tablet and laptop computer. On his telephone he had 188 images in the aggravated category, 84 videos in the aggravated category, and a limited number of images in the non-aggravated category. On his tablet he had videos in the non-aggravated category and aggravated videos and images on his laptop computer. A significant proportion of the images and videos depicted penetrative sexual activity between adults and children.
[10] This offence was aggravated because the children depicted in the material were apparently under the age of 14.
The four counts of producing child exploitation material were described by the Sentencing Judge as:
… being the digital preservation of a message exchange between you and another adult on the KIK app, during which together you engaged in role play where upon one adult pretended to be a very young child, and the other an adult who pretended to engage in sexual activity of what might be described as an offensive and depraved nature.
These offences were committed on 10 April, 16 April, 17 April and 26 May 2018. Although the messages were not available to be viewed by anyone other than the two participants, the Sentencing Judge nevertheless described them as “very disturbing material.”
One of the failing to report charges involved Mr Atkins communicating with a 16-year-old girl in Wellington, New Zealand in an attempt to have her travel to Australia, where it was intended that Mr Atkins would engage in sexual activity with her. It is of significance that Mr Atkins had commenced communicating with the girl in 2011 at a time when she was just nine years of age. Also that he went so far in his planning as to purchase an aeroplane ticket for her and arranged with his mother to have the girl stay at her house.
The other two fail to report offences fell into a less serious category. These were a failure to advise police that he had purchased a car and a failure to advise police that he had activated a KIK account.
For all of these offences Mr Atkins was sentenced to two years eight months and 13 days imprisonment. As by this stage Mr Atkins was a serious repeat offender there was a mandatory requirement that the non-parole period be fixed at not less than four-fifths of the sentence imposed. The non-parole was accordingly set at two years, one month and 29 days.
The sentence was backdated to commence on 25 July 2018 when Mr Atkins was first taken into custody.
Mr Atkins was released from custody on 7 April 2021. He was subject to an Interim Supervision order that had been made on 1 April 2021.[11]
[11] Criminal Law (High Risk Offenders) Act 2015 (SA) s 9.
Three of the conditions of that Order were:
2.17.The respondent will obtain the approval of his Community Corrections Officer before creating or changing any email addresses, internet user names, social network user names, streaming account details or online identities in use or intended for use by him on the internet or any other electronic communication service or application, and he will declare any relevant passwords or changes in passwords to his Community Corrections Officer as soon as practical and at least within 48 hours of having created or changed the same;
2.18.The respondent will obtain the approval of his Community Corrections Officer before he purchases, borrows, or otherwise comes into possession of any tablet, computer, mobile phone, photographic equipment, or other electronic equipment; and
2.19.In relation to any tablet, computer, mobile phone, photographic equipment, or other electronic equipment that the respondent purchases, borrows, or otherwise comes into his possession, the respondent will produce the equipment to his Community Corrections Officer or to a South Australia Police Officer upon being directed to do so, and provide any relevant passwords, for the purpose of inspect and/or analysis, to ensure that it is not being used by the respondent to associate or communicate with children, and/or to produce, possess or view child exploitation material.
It follows Mr Atkins was in breach of these conditions by his current offending.
On 28 April 2021 Mr Atkins was arrested and charged with the offences for which he is due to be sentenced. A Parole Board warrant was executed in relation to the breaches of the Interim Supervision Order.
On 15 June 2021 Mr Atkins was interviewed by the Parole Board in respect of the breaches of the Interim Supervision Order. The breaches were found proved and Mr Atkins was released from the Parole Board warrant but remained in custody as a consequence of the new offences.

On 8 September 2021 an order was made that Mr Atkins was to be the subject of an Extended Supervision Order for a period of two years. That order expired on 8 September 2023. Mr Atkins spent the entirety of that time in custody.
On 17 August 2023 the Attorney-General made an application for a further Extended Supervision Order. An Interim Supervision Order was put in place on 6 September 2023 until such time that a determination could be made on the substantive application.
Mr Atkins’ personal circumstances
Mr Atkins is a 33-year-old man who has not married and has no children. He was born in Mount Gambier and raised in Naracoorte. He had a stable early homelife without particular difficulty, although he experienced some learning difficulties and left school during year 11. Since then, he has undertaken no further study and has had limited employment.
It would seem that Mr Atkins has been a ‘loner’ for much of his life. At school he was subjected to a degree of bullying and as a result spent most of his time on his own. He had limited friends outside of school.
Much of Mr Atkins’ late adolescence and adult life has been spent online using computer games as well as accessing pornography. Mr Atkins has however had relationships with two women albeit for a relatively short time.
In an interview with Dr Raeside Mr Atkins described living in “two worlds” referring to his online sexual activity (involving fantasies about underage girls) and the women that he has met in real life. He said that when he was stressed or anxious he would go to his “safe place” meaning online.
Mental Health
Although the reports of Dr Raeside and Dr Haeney were prepared for addressing the s 57 application they are also of assistance on the issue of the sentence that I should impose.
Both Dr Raeside and Dr Haeney interviewed Mr Atkins and were provided with a significant number of materials, including numerous reports from other psychologists and psychiatrists who have had previous involvement with Mr Atkins.
Diagnosis
It would seem that right up until the time of the interviews with the psychiatrists Mr Atkins believed that he had been diagnosed with schizophrenia and suffered from “Multiple Personality Disorder” (which is now termed Dissociative Identity Disorder).
Both Dr Raeside and Dr Haeney found no evidence to suggest that Mr Atkins has experienced schizophrenia or Dissociative Identity Disorder in the past or present. They were equally strong in their views that if Mr Atkins had in fact previously been diagnosed with either of these conditions it was a misdiagnosis.
The two psychiatrists shared the view that Mr Atkins satisfies the criteria for a Paedophilic disorder. The definition of paedophilia indicates a primary sexual attraction to children. Dr Raeside explained that although Mr Atkins described some sexual attraction and activities with adults, it is clear from Mr Atkins’ own account and the information contained in the various documents, that his primary sexual activity is online involving underage females such that he meets the criteria for a paedophile.
Risk of re-offending
In their reports, both Dr Raeside and Dr Haeney expressed the view that there is a high likelihood of Mr Atkins re-offending.
Dr Raeside made the observation that against the backdrop of having previously been assessed as being at high risk of further sexual offending, the current charges are clearly concerning given the quick timeframe from being released after an extended period in custody, as well as demonstrating a continuing pattern of repetitive sexual offender behaviour.
Dr Raeside also raised concerns about the calculated nature of Mr Atkins most recent offending. He said:[12]
It is apparent that the nature of the current charges involves Mr Atkins taking measures to actively set up online accounts with a purpose of contacting a previous victim of his child sex offending, as well as making sexual communication with underage people. As such, this was more than simply finding it hard to ‘avoid’ such material in the community, but that he actively took steps within a very short period of time upon being released into the community. Again, this raises serious concerns about both his capacity and willingness to control his sexual instincts.
[12] Report of Dr Craig Raeside 29 July 2020 p.10.
In his report Dr Raeside also identified Mr Atkins’ rationalisations and explanations for his behaviour as contradictive of any insight into his behaviour, and consequently increased the likelihood that he will continue to reoffend if released into the community.
Dr Haeney expressed similar concerns about Mr Atkins’ attempts to rationalise his behaviour. He said:[13]
Mr Atkins’ presentation at the interview gave cause for concern. While superficially he was helpful, engaging and pleasant, he had a tendency to rationalise or justify his offending. He engaged in pseudo-philosophical discussion that clouded the underlying issues. He had various epiphanies or revelations during the interviews, which he suggested helped him suddenly understand his offending or gave him reason for further cogitation.
[13] Report Dr Haeney 14 September 2022 [6-12].
In his report Dr Haeney also raised “substantial concerns” over the ability to manage Mr Atkins in the community even with suitable supports in place. He observed that:[14]
His own ability to make and implement prosocial plans is evidently limited. He has engaged in previous treatment for sexual offending but found it of little benefit and reoffended. He chose not to seek assistance for his anxiety, instead retreating into the same pattern of behaviour that contributed to his recidivism.
That occurred regardless of substantial supervision arrangements including an Interim Supervision Order, ANCOR registration and when facing an application for an Extended Supervision Order. When one could have expected him to do all that he could to adhere to his supervisory arrangements, he offended within a month of his release into the community.
[14] Ibid [6.19].
Both Dr Raeside and Dr Haeney opined that Mr Atkins was at a high risk of re-offending given the absence of any positive developments in his rehabilitation.
Sexual Behaviour Clinic
Mr Atkins undertook the SBC program whilst in custody. It was obviously unsuccessful in achieving the desired outcome.
Both Dr Raeside and Dr Haeney referred to Mr Atkins’ participation in this program in their reports.
During Dr Haeney’s interview with Mr Atkins, the topic of Mr Atkins’ involvement in the SBC program was discussed. When asked how helpful he found the program Mr Atkins identified three main reasons why it did not work for him. The first was that he was not ready to listen. The second was that he feels that he may have taken the wrong lesson from it. He talked specifically about the phrase “aversion through deniability.” He said he took that to mean that if he denied the problem for long enough it would no longer be a problem. He now believes that was not correct and that what had been meant related to identifying triggers or warning signs and pulling oneself out of that situation. Finally, Mr Atkins did not think that the course was well thought through. He said that there had been talk at the outset about aftercare following its completion, including one-to-one work in prison and support in the community afterwards. By his account, none of that had occurred.
Although not referring specifically to the SBC program, in his conclusion Dr Haeney made the following observation:
During his sentence, Mr Atkins would benefit from undertaking further work to understand and address his offending. Until he has done so, I believe a significant theoretical risk remains, particularly were he not incarcerated. On balance, I therefore believe there is a significant risk that Mr Atkins would fail to exercise appropriate control of his sexual instincts, if he was given an opportunity to commit a relevant offence. I state this with the caveat that he will likely receive further treatment in prison prior to having further opportunity to commit a relevant offence.
Dr Raeside raised Mr Atkins’ participation in the SBC program with him during his interview. Mr Atkins said that at the time he undertook the program he “probably wasn’t ready to change.” He said that the Sexual Behaviour Clinic did not help him in any way. Mr Atkins added:
They talked about denial, but I took it to mean deny everything and denying anything was wrong and it didn’t help me. I spoke to another psychiatrist who pushed more than Mr Balfour and I realised that denial hadn’t been working.
In the context of this aspect of the interview Dr Raeside made the following observation:
In my interview I found Mr Atkins, at least superficially, more accepting of the idea that he had an underlying problem and he needed help, but he seemed to suggest he had no idea either what the problem was or what help was needed. This might suggest the beginning of some insight or, more likely, that he was telling me the things that he thought I would want to hear during the interview.
Despite Dr Raeside’s overall opinion that there was little to suggest that Mr Atkins was genuinely interested in rehabilitation, he expressed the view that there may be some utility in Mr Atkins undertaking the SBC program a second time. He said:
Notwithstanding Mr Atkins has previously participated in the Sexual Behaviour Clinic following his incarceration in 2009, I would recommend that he be assessed again as to his suitability for a further SBC program, given his older years, and perhaps some emerging insight into the nature of his offending and his purported willingness to get help.
Mr Atkins expressed his willingness to participate in the program to Dr Raeside and through his counsel during submissions.
Sentencing Considerations
Guilty Plea
Mr Atkins pleaded guilty to these offences on 9 December 2021. As a consequence, he is entitled to up to 25 per cent discount on that sentence.[15]
Sentencing Purpose
[15] Sentencing Act 2017 (SA) s 40(3).
The primary purpose for sentencing a defendant for an offence is to protect the safety of the community (whether as individuals or in general).[16] That principle must underpin and inform whatever sentence Mr Atkins receives. His history of offending and the expert opinions as to the likelihood of Mr Atkins re-offending place the risk that Mr Atkins poses to the community at a very high level. It follows that the primary purpose of the Act must be given considerable weight when it comes to fashioning an appropriate sentence for Mr Atkins.
Serious Repeat Offender
[16] Sentencing Act 2017 (SA) s 3.
Mr Atkins also satisfies the criteria of a serious repeat offender.[17] He has committed and been convicted of “at least two serious sexual offences committed on separate occasions.”
[17] Sentencing Act 2017 (SA) s 53, s 54.
There are two consequences that follow.
The first is that in sentencing the person the Court is not bound to ensure that the sentence it imposes for the offence is proportional to the offending.
The second is that any non-parole period fixed must be at least four-fifths the length of the head sentence unless exceptional circumstances can be established.
The four-fifths consequence of being a serious repeat offender is mandatory unless the offender can establish special circumstances. It has not been suggested that there are any special circumstances in this case that would warrant fixing a non-parole period less than the mandated four-fifths.
On the question of proportionality, the section says no more than the Court is not bound or required to ensure it imposes a proportionate sentence. The section gives no further guidance; a sentencing Court is free to depart from what has been regarded, at common law, as a fundamental guiding principle when sentencing offenders.
In R v Smith,[18] Hinton J was required to consider the application of s 54(1). He made the following observation:
I return to s 54(1). It is an exceptional step for a Court to impose a sentence that is not bounded by proportionality. Where s 54 is enlivened it can be expected that a sentencing Court will impose a disproportionate sentence if the risk of re-offending is particularly high such that the community cannot be adequately protected by a proportionate sentence and the likely offence that may be committed is one that calls for the offender’s incapacitation. Such case is one where the offender will not likely respond to a proportionate sentence calling for a more severe approach.
[18] [2018] SASC 185 at [93].
In R v Smith the serious nature of the offences for which Mr Smith was being sentenced resulted in him receiving a sentence of a very lengthy term of imprisonment such that a disproportionate sentence was not required in order to protect the community.
Similarly, in R v Mountford,[19] although satisfied that Mr Mountford was a serious repeat offender, Nicholson J was of the view that a disproportionate sentence was not needed for the proper protection of the public. Mr Mountford had committed multiple sexual offences, on multiple victims over many years. It necessarily followed that he was to be sentenced to a lengthy term of imprisonment which was sufficient to protect the community. That will often be the case in sentencing a serious repeat offender.
[19] [2019] SASC 16 at [53].
Mr Atkins’ circumstances are however different. Whilst he is a serious repeat offender and has committed numerous very serious offences, the offences for which he is due to be sentenced are not the most serious. A proportionate sentence is likely to result in his immediate or almost immediate release from custody. That result will offer the community little protection from his risk of recidivism.
The gravamen of Mr Atkins conduct is how quickly he commenced re‑offending and the potential for that re-offending to rapidly escalate to more serious offending.
Mr Atkins almost immediately upon his release, under an Interim Supervision Order with very restrictive conditions, set about acquiring multiple electronic devices and setting up multiple social media profiles. On 16 April 2021 Mr Atkins was reminded of his ANCOR reporting obligations and two days later he created a Facebook page and the first of two KIK accounts. Social media accounts that he then used to communicate with others about the sexual abuse of children in a manner that can only be described as socially repugnant.
Whilst no children were involved in these communications, given Mr Atkins history it was only a matter of time before his attention transferred to children as opposed to adults pretending to be children. Significantly, in his interview with police, Mr Atkins admitted to using the Facebook account to send a message to one of his previous victims in an attempt to contact her.
Should a disproportionate sentence be imposed?
As I have set out previously the primary sentencing purpose of the Sentencing Act is to protect the safety of the community.
Under s 54 the paramount consideration includes not only the safety of the community but also personal and general deterrence. As Nicholson J observed in R v Karnage:
The legislature has characterised the appellant as a serious repeat offender and, as such, he is to be sentenced in accordance with subsection s 54(1) parameters. Underlying this is the legislature’s determination, that, for such an offender, protecting the safety of the public and personal and general deterrence is the paramount consideration. In order to avoid this outcome, the appellant must demonstrate that his personal circumstances are so exceptional as to displace the paramountcy of this consideration. The appellant’s personal circumstances are to be considered in the context of all of the factors ordinarily relevant to sentence, including the nature and seriousness of the offence committed, the risks of re-offending, the need to protect the public and the prospects for rehabilitation.[20]
[20] [2019] SASCFC 82 at [70].
The consequences of a sentence imposed under subsection s 54(1) is not only a four fifths non-parole period but the exposure to the risk of a sentence that will be disproportionate to the offences committed.
During the course of submissions, I ordered a report from the Department of Correctional Services (‘DCS’) requesting information about the SBC program. I did so on the basis that Dr Raeside in particular expressed the view that there may be some utility in Mr Atkins undertaking the program again. The response that I received from the DCS was not particularly helpful. As to Mr Atkins’ eligibility to attend the next SBC program it stated the following:
The Rehabilitations Program Branch further advised that Mr Atkins eligibility cannot be determined without a comprehensive assessment. Once he is sentenced, he will undergo the relevant assessment processes, including a review of his eligibility for any DCS core programs. Given this, the department is unable to comment on Mr Atkins’ eligibility for the SBC program at this time.
I was further advised that it was anticipated that SBC programs will be commencing in April and May 2024.
I have arrived at the view that this is a case in which it is appropriate to utilise s 54(1) of the Sentencing Act and sentence Mr Atkins to a sentence that is longer than would ordinarily be imposed for the offences that he has committed. The circumstances are such that a disproportionate sentence is necessary to protect the community. I acknowledge that it is an exceptional step for a Court to impose a sentence that is not bounded by proportionality however the risk that Mr Atkins poses is so high that the community cannot be adequately protected by a proportionate sentence and the nature of the offences that he is likely to commit if released immediately into the community call for the Court to ensure Mr Atkins’ incapacitation, at least until he has the opportunity to undertake further therapy.
The sentence that I propose will also serve the dual purpose of enabling Mr Atkins to commit the SBC program. I accept that at the moment there is no certainty that Mr Atkins will be offered a place in the course. That is an unfortunate consequence of the processes employed by the DCS in providing rehabilitative services to prisoners. Given the views expressed by Dr Raeside and Dr Haeney, as well as Mr Atkins’ obvious need for such therapy, I am optimistic that he will be provided with the opportunity to undertake the SBC program.
It will then be a matter for Mr Atkins as to whether he takes up that opportunity and engages with the program. His attitude towards any such rehabilitation programs will have a significant effect on his future and decisions as to whether his risk has been sufficiently reduced for him to be released back into the community.
I propose to impose one sentence for both offences. Given it will be a disproportionate sentence it is not appropriate that there be a discount for the pleas of guilty.
That sentence is five years imprisonment. I set a non-parole period of four years. The sentence will be backdated to 28 April 2021 when Mr Atkins was first taken in custody.
The Director’s s 57 application
I turn then to consider the Director’s application that an order be made that Mr Atkins be detained in custody until further order pursuant to s 57(7) of the Sentencing Act.
By virtue of s 57(7) and s 57(13) when, as in this case, any such further detention would be in addition to the sentence of imprisonment that I have imposed, the further detention is to commence on the expiration of the term of imprisonment. In R v Hoare,[21] Hinton J undertook a thorough and detailed analysis of the statutory scheme and applicable legal principles for an application made pursuant to s 23 of the Criminal Law (Sentencing) Act1988 (SA). This section was the predecessor of s 57 and was substantially the same. During the course of that analysis Hinton J made the following observations about the operation and purpose of such orders:
Whilst the exercise of the power contained in s 23(4) is not expressly conditioned upon the Court finding that the offender subject of an application is incapable of controlling, or unwilling to control, his or her sexual instincts, the Full Court has stated that the question whether the subject is incapable or unwilling to control his or her sexual instincts is a threshold question that must be answered yes or no, otherwise, bearing in mind the scheme created by Part 2 Division 3 of the Sentencing Act, no proper foundation exists for the Court to consider the risk that the offender poses to the safety of the community. Having answered the threshold question, there remains vested in the Court a residual discretion – despite the Court finding that a person to whom the section applies is incapable or unwilling to control his or her sexual instincts, it may be inappropriate that an order for indeterminate detention be made. Here it is important to bear in mind, for example, that the application may be made well in advance of the completion of an offender’s determinate sentence, when there is much time remaining for the offender to take advantage of courses and programs offered by the Department for Correctional Services.
While a conviction for a “relevant offence” is a precondition to the engagement of the scheme, the scheme’s purpose is not punitive. Rather, it is concerned with preventing recidivist sexual offending through incapacitation and rehabilitation. The scheme does not punish an offender twice for the same offences or increase the punishment for those offences. While it operates by reference to an offender’s status as a person convicted of a relevant offence, it sets up its own normative structure. The purpose of an order of indeterminate detention is to protect the community from sexual offenders where the risk posed by such a person is such that it is inappropriate that they be released, even when they have completed what would otherwise be their period of imprisonment for the offences that they have committed. Additionally it is to ensure that the person “receives appropriate treatment, review and supervision”.
(Footnotes omitted).
[21] [2017] SASC 7 at [62]-[73].
Is Mr Atkins incapable of or unwilling to control his sexual instincts?

In his interview with Dr Raeside, Mr Akins expressed the view that he was both willing and able to control his sexual urges but referred to his sexual offending as “almost like an addiction. I have urges and I need to control it.”
In the context of discussing his first sexual offences involving his 11 year old cousin he told Dr Raeside “It was like really weird, almost like a compulsion I’m not saying it wasn’t my fault, by the way I felt it was like I was pushed towards it.”
When asked about why he continued to use child exploitation material Mr Atkins said:
My mind has been stuck in that spot, even before jail. Emotionally it was because I couldn’t connect with people so I would go online and be whoever I thought I could be or wanted to be. It wasn’t just viewing, but it was also writing and exchanging material.
Mr Atkins went on to say that it was an “addiction” and he used child exploitation material “to get a fix”. Throughout the course of the interview with Dr Raeside, Mr Atkins repeatedly referred to his offending as an addiction. He said that his “addiction” had “power over him that he had difficulty resisting” and described “an overwhelming compulsion to return to the behaviour to get a fix” or experience some form of emotional benefit.
Based on his interview with Mr Atkins, as well as the other material available to him, Dr Raeside expressed the view that there are serious concerns about Mr Atkins’ willingness and ability to control his sexual instinct. Dr Raeside observed that on his own account Mr Atkins seemed to have “little capacity to control his sexual instincts and clearly major difficulty in terms of his willingness”. Dr Raeside raised a concern that notwithstanding that Mr Atkins acknowledged that his behaviour was wrong and he needed help to prevent his offending from reoccurring, he indicted a strong likelihood that he would act the same again in the future when given the opportunity.
Ultimately Dr Raeside expressed the view that whilst there are issues surrounding Mr Atkins’ capacity, to not commit further offences the real issue here is that Mr Atkins is unwilling to control his sexual urges and if he was given the opportunity he would likely reoffend.
Dr Haeney expressed a similar view although in different terms. In order to consider whether Mr Atkins is unable or unwilling to control his sexual instincts, Dr Haeney utilised the framework of the Risk for Sexual Violence Protocol (‘RSVP’). This is a structural professional judgment tool that assists in the measurement of the risk that an individual poses.
On the basis of the results generated by the RSVP assessment, Dr Haeney described Mr Atkins as having a deviant sexual interest in children and adult/children relationships. He said that Mr Atkins’ cognitive distortions, justifying or rationalising his offending maintain his deviant behaviours. Further, Mr Atkins is not dissuaded by statutory supervision, repeatedly breaching his obligations and re-offending.
Dr Haeney arrived at the following conclusion:
Accordingly, I believe that Mr Atkins’ previous conduct, despite prior SBC treatment and supervision under ANCOR and an Interim Supervision Order, demonstrates habitual failure to control his sexual instincts. In prison, he is far less likely to offend, not having access to online media or children. Role-play or sexual writing could still occur, however. During his sentence, Mr Atkins would benefit from undertaking further work to understand and address his offending. Until he has done so, I believe a significant theoretical risk of re-offending remains, particularly where he is not incarcerated. On balance, I therefore believe there is a significant risk that Mr Atkins would fail to exercise appropriate control of his sexual instincts if he was given an opportunity to commit a relevant offence. I say this with the caveat that he will likely receive further treatment in prison prior to having further opportunity to commit a relevant offence.
(Emphasis Added)
I accept the evidence of Dr Raeside and Dr Haeney and I find that Mr Atkins is unwilling to control his sexual instincts. It follows that the discretion to make an order pursuant to s 57 is enlivened.
Should an order be made pursuant to s 57(7)?
The question that then arises is whether it is appropriate to make an order that Mr Atkins should be detained in custody until further order of the Court, pursuant to s 57(7) of the Sentencing Act. By virtue of s 57(13) where, as in this case, any further detention would be in addition to the sentence of imprisonment that I have imposed, the further detention is to commence on the expiration of the term of imprisonment.
An order for indeterminate detention should only be made if it is necessary to protect the community from the risk that an offender poses.
In R v Schuster,[22] the Full Court considered the significance of making public safety the paramount consideration on the application for the release on licence. In that context 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 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 been limited utility.[23]
[22] [2016] SASCFC 86.
[23] Ibid at [79].
These observations apply equally to s 57(7). The exercise to be undertaken is a balancing exercise between competing considerations with the greatest weight to be placed upon the need for public safety. The question that must be considered is whether there is some other mechanism falling short of ongoing incarceration that will afford the public adequate protection.
Often an order for supervised released with restrictive conditions will be sufficient for that purpose. Given Mr Atkins’ history such an order would provide the community with little comfort.
The Director submits that the only means by which the purposes of the section can be given effect is by making an order pursuant to s 57(7). It was submitted that even though I have imposed a sentence that will ensure that Mr Atkins will serve a term of imprisonment of sufficient duration that he will be able to undertake the SBC or other appropriate rehabilitation program, there are no guarantees that he will successfully complete it. It was the Director’s position that given the risk that Mr Atkins poses to the community, it should be for him to demonstrate that his risk has sufficiently reduced for him to be released. By making the order the onus effectively moves onto Mr Atkins to establish that the order should be revoked.
I do not accept that submission. I am of the view that the sentence that I have imposed will protect the community for a significant period of time. Ideally during that time Mr Atkins will take up whatever opportunities are made available to him for the purpose of rehabilitation. If at the end of that period Mr Atkins continues to pose an unacceptable level of risk to the community it will be open for the Director or the Attorney General to make a further application for continuing detention or supervision. At that time further up to date reports can be ordered. Under the course that I propose the State loses nothing other than the time and expense of a further application. Given it is the State that seeks to deprive Mr Atkins of his liberty even once he has completed his sentence, the time and expense are justified.
I decline to make an order pursuant to s 57(7) of the Sentencing Act.
It is appropriate to indicate that had Mr Atkins’ release into the community been imminent in all likelihood I would have made the order that he be detained until further order of the Court pursuant to s 57.