R v Duell - [2021] SASC 146

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

R v DUELL
[2021] SASC 146
Reasons for Decision of the Honourable Justice Bampton
22 December 2021
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE - PARTICULAR CASES - OTHER OFFENCES AND MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
Instead of sentencing the defendant for failing to comply with reporting obligations contrary to s 44(1a) of the Child Sex Offenders Registration Act 2006 (SA), depositing indecent material contrary to s 33(2)(d) of the Summary Offences Act 1953 (SA), breaches of a Magistrates Court suspended sentence bond and a District Court good behaviour bond, the District Court remanded the defendant pursuant to s 57(2) of the Sentencing Act 2017 (SA) (“the Act”) to be dealt with under s 57 of the Act – the Director of Public Prosecutions applies for an order that the defendant be detained in custody until further order pursuant to s 57(7) of the Act (“the application”).
Held:
1. The application is dismissed.
2. The defendant is sentenced pursuant to s 57(12) of the Act.
Sentencing Act 2017 (SA) s 57; Child Sex Offenders Registration Act 2006 (SA) s 44; Summary Offences Act 1953 (SA) s 33; Criminal Law (High Risk Offenders) Act 2015 (SA) s 7; Criminal Law Consolidation Act 1935 (SA) s 63A, referred to.
R v Schuster (2016) 125 SASR 388; Attorney-General (SA) v Driver [2021] SASC 66; R v Hoare [2017] SASC 7; Hore v The Queen [2021] SASCA 29; Nigro v Secretary to the Department of Justice (2013) 41 VR 359, considered.

R v DUELL
[2021] SASC 146

BAMPTON J: The Director of Public Prosecutions (“the Director”) has applied for an order that Paul Anthony Duell be detained in custody until further order pursuant to s 57(7) of the Sentencing Act 2017 (SA) (“the Act”).
The July 2019 offending
On 28 November 2019, Mr Duell pleaded guilty in the Magistrates Court to one count of failing to comply with reporting obligations contrary to s 44(1a) of the Child Sex Offenders Registration Act 2006 (SA) committed on 16 July 2019, and one count of depositing indecent material contrary to s 33(2)(d) of the Summary Offences Act1953 (SA) (“the Summary Offences Act”) committed on 18 July 2019 (“the July 2019 offending”).[1]
[1] AMC-19-6729; DCCRM-20-414; SCCRM-20-190.
The breach of the suspended sentence bond entered into 26 October 2018
On 21 January 2020, Mr Duell appeared before the Magistrates Court and admitted the July 2019 offending breached a suspended sentence bond he had entered into in the Magistrates Court on 26 October 2018 (“the suspended sentence bond”).[2] Mr Duell also admitted breaching the suspended sentence bond by using illicit drugs.[3]
[2] AMC-19-9493; DCCRM-20-416; SCCRM-20-193.
[3] AMC-19-7301; DCCRM-20-415; SCCRM-20-192.
The offending underlying the suspended sentence bond comprises three counts of depositing indecent material contrary to s 33(2)(d) of the Summary Offences Act committed over a week in late February 2018 (“the February 2018 offending”).[4] Mr Duell was, following his pleas of guilty, sentenced on 26 October 2018 to 10 months’ imprisonment. He was ordered to serve eight months of the sentence in custody and the remaining two months was suspended upon him entering into the suspended sentence bond to be of good behaviour for a period of two years.
[4] MCCHB-18-798.
The breach of the District Court bond entered into 11 December 2017
As Mr Duell committed the February 2018 and July 2019 offending during the term of a bond he entered into before the District Court on 11 December 2017 (“the District Court bond”), pursuant to s 113(5)(b) of the Act he was remanded to the District Court to be sentenced for the 2019 offending and dealt with for breach of the conditions of the District Court bond as well as the suspended sentence bond.[5]
[5] DCCRM-20-213; SCCRM-20-191.
The offending underlying the District Court bond is one count of possession of aggravated child exploitation material contrary to s 63A of the Criminal Law Consolidation Act 1935 (SA). The circumstance of aggravation was that the offence was committed knowing the victims of the offence were under the age of 12. Mr Duell was convicted on 11 December 2017 and released on a bond to be of good behaviour for two years and to come up for sentence if called upon.[6]
[6] DCCRM-17-1003.
On 11 May 2020, Mr Duell appeared in the District Court and admitted the February 2018 and July 2019 offending breached the District Court bond. Upon that acknowledgement, Mr Duell fell to be sentenced for the breach of the District Court bond in addition to the July 2019 offending and the breach of the suspended sentence bond. The three matters were adjourned to 23 June 2020 for sentencing submissions.
The application pursuant to s 57(2)(b) of the Act
Mr Duell has been convicted of sexual offences which fall within the s 57(1) of the Act definition of “relevant offence”. On 23 June 2020, as Mr Duell had been convicted of a “relevant offence”, the Director applied to the District Court, pursuant to s 57(2)(b) of the Act, to have Mr Duell dealt with under s 57 of the Act. Accordingly, instead of sentencing Mr Duell, the District Court remanded him to appear before the Supreme Court to be dealt with under s 57 of the Act, which concerns the disposition of offenders incapable of controlling, or unwilling to control, sexual instincts.
The s 57(6) of the Act examinations inquiring into Mr Duell’s mental condition
On 14 July 2020, as mandated by s 57(6) of the Act, the Supreme Court ordered two psychiatrists inquire into Mr Duell’s mental condition and report to the Court on whether he is incapable, or unwilling to control his sexual instincts. Dr Craig Raeside assessed Mr Duell on 6 August 2020, having assessed him in early 1998 when Mr Duell was first prosecuted for sexual offending in relation to two charges of indecent assault. Dr Paul Furst assessed Mr Duell on 3 October 2020.
The meaning of “unwilling”
“Unwilling” is defined in terms that differ from the ordinary meaning of the word.[7] Mr Duell is “unwilling” to control sexual instincts “if there is a significant risk that” he “would given an opportunity to commit a relevant offence, fail to exercise appropriate control of” his “sexual instincts”.[8]
[7] Hore v The Queen [2021] SASCA 29 at [14].
[8] Sentencing Act 2017 (SA) s 57(1).
In R v Schuster,[9] it was held that it is implicitly mandated by s 57(7) that the Court is required to be satisfied a person is either incapable of controlling or unwilling to control their sexual instincts before making an order for indefinite detention. That is, the question of whether a person is unwilling to or incapable of controlling their sexual instincts is a threshold question required to be answered “Yes” or “No”. It is to be noted that while an affirmative answer to the threshold question provides a foundation to making an order for indefinite detention, a residual discretion remains. As such, there may be circumstances where it is inappropriate for an indefinite detention order to be made even if the person to whom the section applied is incapable of or unwilling to control their sexual instincts.[10]
[9] R v Schuster (2016) 125 SASR 388 at [97]-[98].
[10] Attorney-General (SA) v Driver [2021] SASC 66 at [22]; R v Hoare [2017] SASC 7 at [63].
An order for indefinite detention based on what it is apprehended a person might do is an exceptional step which has grave consequences for the personal liberty of a person.[11] In Attorney-General (SA) v Driver,[12] Livesey J (as he then was), citing the reasons of Hinton J in R v Hoare,[13] noted the making of such an order demands a cogent evidentiary foundation:[14]
It is for this reason that an order should only be made where there is cogent evidence producing the required state of satisfaction. As this Court explained in R v Hoare with respect to s 23:[15]
An order for indeterminate detention should only be made where there is cogent and reliable evidence justifying the making of the order. In this regard Bleby J’s observations in R v England made in relation to a prior version of s 23 remain apposite. He said:
…satisfaction as to the inability of a person to control their sexual instincts is a matter of assessing the opinions to that effect, their strengths and their weaknesses, to a point where the court can be satisfied that the incapacity is present. In doing so, the court will need to take account of the seriousness of the declaration it is asked to make and the gravity of the consequences of giving the direction. To borrow the words of Dixon J in Briginshaw v Briginshaw, the necessary degree of satisfaction cannot be produced “by inexact proofs, indefinite testimony or indirect inferences”. It will require cogent and acceptable evidence in order to justify the making of the declaration and the giving of the direction. But even then, there is a residual discretion conferred by the use of the word “may” in the subsection. In that respect it may also be appropriate to consider, as in the case of R v Fahey and R v Riley whether, if a sentence is also imposed, the defendant is likely, at the end of the custodial period, to resume similar sexual activities. This will, in turn, require consideration, among other things, of the defendant’s access to and the likely effect of various regimes of treatment, and whether they can be effected in the prison setting or in some other institution contemplated by the section.
(Footnotes omitted)
(Footnote in original)
[11] Attorney-General (SA) v Driver [2021] SASC 66; Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at [7].
[12] [2021] SASC 66.
[13] [2017] SASC 7.
[14] Attorney-General (SA) v Driver [2021] SASC 66 at [24].
[15] R v Hoare [2017] SASC 7, [65] (Hinton J).
In determining whether to make an order for indefinite detention, s 57(8) of the Act provides that the paramount consideration is to “protect the safety of the community (whether as individuals or in general)”.
Section 57(9) defines the matters that the Court must take into consideration in the disposition of an application pursuant to s 57 which include reports of medical practitioners provided pursuant to s 57(6), evidence and representations put by the person to whom the s 57 applies and any other matter that the Court thinks relevant.
The hearing
During the hearing on 20 July 2021, the Director tendered the reports of Dr Raeside dated 10 August 2020 and Dr Furst dated 26 October 2020 and called both psychiatrists to give evidence.[16]
[16] As Mr Duell is not serving a sentence, s 7 of the Criminal Law (High Risk Offenders) Act 2015 is not enlivened and an extended supervision order cannot be applied for by the Attorney-General. Both Dr Raeside and Dr Furst addressed the matters prescribed by s 7(3) regarding the likelihood of Mr Duell committing a further serious sexual offence. I infer they were asked to do so in the event the Court declined to make an order pursuant to s 57(7) of the Sentencing Act2017 and, upon being sentenced, an application pursuant to s 7 of the Criminal Law (High Risk Offenders) Act2015 (SA) is made.
Following the hearing, the Director filed written submissions on 18 August 2021 and written submissions were filed on behalf of Mr Duell on 2 September 2021. Oral submissions were heard on 16 September 2021.
The Director contended the opinions of Dr Raeside and Dr Furst provide a cogent evidentiary basis upon which to find the threshold issue of whether Mr Duell is unwilling to control his sexual instincts within the meaning of s 57 is satisfied such that I should exercise the discretion prescribed by s 57(7) to detain him in custody until further order.
Mr Duell opposes the making of the s 57(7) order and submitted he should be sentenced, whereupon it will then be a matter for the Attorney-General to make application for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk) Offenders Act 2015 (SA) if so advised.
Mr Duell’s history of convictions and sentences for sexual offending
Indecent assaults committed 1995 – 1997
On 6 April 1997, Mr Duell attended the Adelaide Police Station stating he wanted to hand himself in for molesting numerous children over the past ten years. Mr Duell was arrested, charged with and subsequently convicted of two counts of indecent assault involving a 10-year-old boy committed in about 1995-1996, when Mr Duell was about 20 years old. The first count involved Mr Duell entering the victim’s bedroom after he had gone to bed. Mr Duell told police he sat on the bed, slid his hand under the sheets and down the front of the victim’s pyjamas and rubbed the victim’s penis for about five seconds. The second count occurred about three days later when the victim was laying down on a lounge, watching television. The victim pulled his pants down and asked Mr Duell to touch him. Mr Duell then rubbed the victim’s penis up and down for about five seconds whilst asking the victim if he enjoyed it.
Mr Duell told police voices in his head kept telling him to touch children and that he had done similar things to other children; but could not count how many.
On 26 March 1998, Duell was sentenced to 12 months’ imprisonment with a non-parole period of six months suspended upon his entry into a bond to be of good behaviour for 18 months.
Being on premises for an unlawful purpose committed 21 – 24 March 2016
On 21 March 2016, when Mr Duell was 41 years old, he committed the offence of being on premises for an unlawful purpose. Mr Duell’s neighbours, a husband and a wife with an 18-month-old daughter, discovered a note stuck on the doorhandle to their house, which read as follows:
Please do not throw away. I will be waiting outside by the fence tonight. If you do not invite me over there I will report you to the police and the authorities and you will never see your daughter again. Also you will go to gaol for a very long time so I suggest that you let me come over and have some fun too. Also I have pics that you would love to see so let me join with you and your daughter next door. Paul.
On 23 March 2016, a person matching Mr Duell’s description was seen in the victims’ backyard (constituting another offence of being on premises for an unlawful purpose). Police were ultimately called and reviewed three mobile phones in Mr Duell’s possession. Seventy eight images of child exploitation material were located on the devices. The material was predominantly animated depicting children engaged in sexual poses or activities.
Mr Duell was sentenced on the basis that he acquired the child exploitation material for his own use to further and satisfy his sexual interest in children. He was also sentenced on the basis that the note was left because he wished to make contact with the family as he had a sexual interest in children.
On 10 February 2017, Mr Duell was sentenced for two counts of unlawfully on premises and one count of possessing child exploitation material to 11 months’ imprisonment, backdated to March 2016, with an order that he be released after serving 10 months’ imprisonment and the remaining sentence suspended upon him entering into a suspended sentence bond to be of good behaviour for 12 months. A condition of the bond was that Mr Duell be referred upon release from custody for assessment at Owenia House for an appropriate program including the Child Exploitation Material 10-week program or an appropriate program as recommended by his community corrections officer.
Being on premises for an unlawful purpose committed 15 February 2017
On 15 February 2017, Mr Duell committed a further offence of being on premises for an unlawful purpose which breached the suspended sentence bond imposed 10 February 2017.
Mr Duell left a note of the backdoor of his neighbour’s house. In the note, Mr Duell said he could hear what was going on and expressed the desire to visit and meet his neighbour’s daughter.
On 27 June 2017, Mr Duell was sentenced to five weeks’ imprisonment. The suspended balance of the sentence imposed on 10 February 2017 was carried into effect, resulting in a head sentence of nine weeks’ imprisonment.
Mr Duell’s sexual offending convictions and breach of bonds to de dealt with under s57(12) of the Act
The District Court bond
Aggravated possessing child exploitation material committed 17 February 2017
On 17 February 2017, Mr Duell committed the offence of aggravated possessing child exploitation material. The offence related to Mr Duell’s possession of eight images of “very young and naked children” torn from a medical text which were located in his pocket when he was being processed after being arrested (I infer the eight images were located after Mr Duell was arrested for the 15 February 2017 offending).
Mr Duell was sentenced on the basis that he had torn the images from the medical text for his own sexual gratification. The sentencing Judge remarked that the children depicted were well under 12 years of age but acknowledged that the images fell into the less serious classification of child exploitation material and that the images were not pornographic in the ordinary sense.
On 11 December 2017, Mr Duell was convicted and released on the District Court bond, referred to above, to be of good behaviour for two years and to come up for sentence if called upon.
The suspended sentence bond entered into in the Magistrates Court
The February 2018 offending
Between 19 and 28 February 2018, Mr Duell committed three offences of depositing indecent material, by leaving letters in the padlock of the gate of the Cool Frogs Early Education Centre at Christies Downs. Mr Duell was living nearby at the time.
On the morning of 19 February 2018, a staff member of the centre found the first letter. In the first letter addressed to a couple at the premises, Mr Duell wrote that he had recorded the couple having sex with their little girl on his phone. He made reference to the girl crying, screaming and being held in a wardrobe. Mr Duell wrote that he would meet the couple at a nearby bus stop and asked to be let in so that he could “have some fun too” and threatened that if they did not accede to his request, he would send the recording to the police.
In the second letter found on 25 February 2018, Mr Duell referred to himself as a “pedo”, and stated he knew what the people inside were doing with their daughter and that they were denying him being let in to “have some fun” with the daughter. Mr Duell threatened that he would put a recording on the internet if he was not let inside.
The third letter deposited on 28 February 2018 was in similar terms to the first and second letters, in which Mr Duell demanded he be let in and threatened to report the occupants to the police if they did not accede to his request.
Mr Duell’s sentence of 10 months’ imprisonment imposed in the Magistrates Court on 26 October 2018 was partially suspended after serving eight months in custody, upon him entering into the suspended sentence bond referred to above. Conditions of the bond required Mr Duell to wear an electronic monitor for the first eighteen months of the bond, to be assessed for and if found suitable attend and participate in treatment programs and to abstain from alcohol and illicit drugs.
The July 2019 offending
Failing to comply with reporting obligations committed 14 – 16 July 2019
On 16 July 2019, Mr Duell committed the offence of failing to comply with reporting obligations.

On 14 July 2019, whilst Mr Duell was staying at a lodge in Medindie, he attended the room of another occupant of the lodge. At that time the other occupant was being visited by a female friend and her four-year-old daughter. Mr Duell was described as being fixed on the child, at one point making a comment to the effect of “aren’t you a little darling”.As the witnesses present were concerned with the attention Mr Duell was giving to the child, he was asked to leave.
This interaction constitutes a reportable child contact within the meaning of the Child Sex Offender’s Registration Act 2006 (SA). Mr Duell failed to report this contact within two days as he was required to do so as a registrable offender.
Depositing indecent material committed 18 July 2019
On 18 July 2019, the occupant of the lodge, Mr Duell had visited on 14 July 2019, located a three-page handwritten letter addressed to him under his door which accused him of sexual abuse. The letter also appeared to refer to the four-year-old child who had visited him on 14 July 2019. Mr Duell stated in the letter he was unhappy at being unable to “have some fun with your little girl”.
A search of Mr Duell’s mobile phone revealed a recent search of “little girls naked” and a search of his room located two novels about underage sexual relationships with girls.
Assessments of Mr Duell 1998 – 2020
Mr Duell is now aged 46. He has reported to those who have assessed him over the years he was subjected to physical and sexual abuse as a child. Dr Raeside reported in his report pursuant to s 57(6) of the Act Mr Duell appears to have a borderline or mild intellectual disability together with significant personality disturbance arising out of the early physical and sexual abuse perpetrated against him. Dr Raeside is of the opinion the sexual abuse and other trauma Mr Duell endured as a child led to dysfunction and deviance in his psychosexual development such that he has a sexual interest in prepubescent boys and girls.
Dr Furst commented in his report pursuant to s 57(6) it appears Mr Duell’s problems arising from childhood sexual abuse have not ever been formally addressed and may be associated with his early formulation of paedophilic thoughts.
Dr Craig Raeside 1998
Mr Duell was assessed by Dr Raeside in 1998 at the time he was charged with two counts of indecent assault. Dr Raeside reported in a report to Mr Duell’s solicitors dated 28 May 2020 that Mr Duell had been in receipt of a Disability Support Pension for an intellectual disability since 1994. Mr Duell told Dr Raeside when he self-reported the indecent assaults he asked for help and was referred to the Sexual Offenders Treatment Assessment Program (“SOTAP”), the predecessor to Owenia House. Mr Duell said he thought the program helped him, but his sexual problems continued, particularly when he gained access to pornography on a computer. Dr Raeside reported due to a number of difficulties Mr Duell had experienced over the years, he was reviewed extensively by the Management Assessment Panel in 1997. Dr Raeside stated Mr Duell’s intellectual disability is presumed to be the result of hypothyroidism. Dr Raeside said Mr Duell has a history of engaging in sexually inappropriate behaviour, has experienced significant difficulties in finding stable supported accommodation, and has been unable to find work or to manage his finances.
Dr Greg Ireland 2013
In April 2013, the psychologist, Greg Ireland, reported Mr Duell was a poorly functioning individual who maintains a very marginal level of judgement. He noted Mr Duell was unable to hold down any long-term open employment, was frequently homeless and relied on supported residential facilities, and had been – and continues to be – dependent on alcohol and marijuana. He considered that Mr Duell met the criteria for a severe borderline personality disorder and he was fit to stand trial. He concluded his report by saying Mr Duell is significantly impaired as an individual by his marked problems in regulating both his emotions and his thinking, which are reflected in his borderline personality diagnosis.
Dr Jules Begg 2016
In August 2016, the psychiatrist, Dr Jules Begg, assessed Mr Duell when he was aged 41 following the offences of being on premises for an unlawful purpose and possession of child exploitation material committed in March 2016. Dr Begg concluded that Mr Duell was fit to stand trial, that he had problems with self‑awareness, problems with coping, and problems resulting from child abuse. Dr Begg considered that Mr Duell suffered from sexual deviation; that is, an interest in children. He said Mr Duell did not have a major mental illness and he has significant problems with substance abuse, predominantly alcohol and marijuana. Dr Begg was of the opinion there was a low/moderate risk Mr Duell would reoffend and recommended referral for outpatient sexual offender treatment.
Sexual offender treatment program assessment 2019
Following sentencing for the three counts of depositing indecent material committed in February 2018, Mr Duell was assessed for suitability to participate in a sexual offender treatment program at Owenia House.
In an Owenia House suitability report dated 26 July 2019, a senior social worker, Fiona Dawes, stated Mr Duell was estimated as being well above average risk range of sexual offending in the pre-treatment phase. The treatment targets identified related to sexual deviance issues including a sexual deviant lifestyle, sexual compulsivity, the presence of a sexual offending cycle and demonstrable deviant sexual preference. Mr Duell was noted to have previous history of poor response to supervision as well as a long-standing history of cannabis and alcohol misuse. His key emotions were noted to include boredom, loneliness and feeling rejected with low self-worth. He was noted to have significant cognitive distortions and low insight. Ms Dawes stated Mr Duell’s dynamic risk factors suggested he would be suitable for the Sexual Behaviours Clinic – Me Group (“the SBC-Me program”), a program for sexual offenders who have a developmental, intellectual, or learning difficulty.
Of note, Ms Dawes stated despite Mr Duell stating he was very committed to attending the previous treatment program at SOTAP, he missed large portions of the program due to using drugs and alcohol, and homelessness.
Ms Dawes reported Mr Duell would not successfully complete the SBC-Me program in the community without an unprecedented level of structured support to meet his significant needs in nearly all life domains. Ms Dawes stated Mr Duell should have a comprehensive psychiatric assessment with a view to establishing any relevant diagnoses, determine whether there is an illness component driving his note writing, and to possibly explore with him the options for medication to reduce his sex-drive/urge.
Ms Dawes suggested that Mr Duell would benefit from a comprehensive National Disability Insurance Scheme (“NDIS”) package to provide extensive wraparound care for a person who needs significant assistance to manage a range of functions in his life.
Ms Dawes stated that immediately after his assessment on 18 July 2019, she was informed that police would be arresting Mr Duell on 19 July 2019 for a breach of reporting conditions and bond conditions for allegedly being alone with a four‑year-old child, having consumed cannabis and alcohol, and delivering a note with sexual content to a hostel resident (this is the July 2019 offending).
Dr Craig Raeside’s s 57(6) report
In his report provided pursuant to s 57(6) of the Act, Dr Raeside stated Mr Duell appears to have developed significant personality disturbance, probably consistent with a borderline personality disorder, which could also present as a chronic post‑traumatic stress disorder with enduring personality change arising out of the early physical and sexual abuse perpetrated against him.
Dr Raeside stated the combination of Mr Duell’s childhood abuse and other trauma led to dysfunction and deviance in his psychosexual development, resulting in a fixation on prepubertal boys and girls. He said this was further fuelled and stimulated through the use of child exploitation material and associated masturbation intensifying that attraction.
Dr Raeside diagnosed Mr Duell as having a paraphilia – mixed type with primary sexual attraction to prepubertal girls and boys. He stated that Mr Duell has a sexual attraction to adult females (and males) but appears to have difficulty with his willingness to control his sexual impulses towards children.
In response to Mr Duell’s report about hearing young girls being sexually abused, Dr Raeside opined this does not represent true auditory hallucinations but rather is a function of Mr Duell’s underlying personality disorder and paraphilia with intense fantasy and a desire to join in. Dr Raeside suggested they may represent obsessional sexual thoughts and at times of intoxication with alcohol and/or cannabis, Mr Duell might have some perceptual disturbance.
Dr Raeside said Mr Duell reported a period of extensive sexual offending against children prior to his arrest in 1997 for indecent assault. Mr Duell denied any further contact offending since that time, which Dr Raeside said may or may not be true. Mr Duell reported to Dr Raeside that he has had ongoing sexual attraction to children and has acted on that with recurrent offending in recent years, either wanting to join in on what he thought was sexual abuse of children or at least in fantasy. Dr Raeside said Mr Duell’s substance abuse has also been a factor in the past which probably led to a degree of inhibition and possible perceptual disturbance. Dr Raeside considered Mr Duell’s limited intellectual ability and poverty of social functioning further limits his ability to adaptively deal with these various issues, notwithstanding his expressions of not wanting to reoffend.
Dr Raeside stated Mr Duell has shown significant difficulty controlling his sexual impulses, but this might fall just short of being unable to control. Dr Raeside said, in his opinion, Mr Duell is unwilling to do so within the meaning of the terms of the Act. Dr Raeside considered if Mr Duell had an opportunity to sexually offend against a child there is a high risk he would choose to do so. Dr Raeside said Mr Duell continues to have strong sexual attraction to children and his more recent actions suggest he is willing to act on them. Dr Raeside considered Mr Duell requires intensive sexual behaviour therapy in custody which includes a module on drug and alcohol abuse.
Dr Raeside gave evidence that the sexual abuse Mr Duell suffered as a child is a critical part of understanding him:[17]
… his sexual abuse as a child which is common, fixated him at that stage so that his sexual development sort of stopped when he was 10 and therefore he’s maintained his sexual arousal, sexual interest at prepubescent boys and girls. That is a common thing that happens in sexual offenders when they have been abused as children. Instead of going through the post-pubertal development he’s remained fixated at 10 and therefore his primary sexual attraction is towards 10 or younger aged children.
[17] T25.17-27 (20 July 2021).
Dr Raeside said there had been an increase in Mr Duell’s use of alcohol and cannabis, as well as his consumption of child exploitation material over the last five years which have been associated with an increase in his offending.[18]
[18] T11.2-7 (20 July 2021).
Dr Raeside said Mr Duell had obsessional and fantasy thoughts which he struggles to control. He said that alcohol and cannabis use would make it harder for Mr Duell to control these thoughts and the other contributing factor was Mr Duell’s loneliness and depression.
Dr Raeside said he did not doubt that Mr Duell did not want to reoffend in order to avoid gaol. However, he considered that this appeared to be a separate issue to Mr Duell dealing with his strong sexual interest in children. Dr Raeside referred to the fact that Mr Duell took steps to act on his sexual interest and fantasies by depositing notes and being on premises where children were present. He had significant doubts about Mr Duell’s denials such that should an opportunity present itself, it would very unlikely that he would simply restrict himself to “watching”.[19] Dr Raeside was of the opinion that Mr Duell was likely to continue to offend in the same way he had in recent years, that is by depositing indecent material and viewing child exploitation material. When asked about whether this was likely to lead to contact offending, Dr Raeside said he thought if Mr Duell had the opportunity he would act on his fantasies.[20] Further, Dr Raeside stated Mr Duell is likely to seek out situations and find himself in situations where the opportunity to offend exists. Dr Raeside qualified this by saying there is a much higher likelihood of Mr Duell engaging in less serious offending (non-contact offending) as he has done recently. However, Dr Raeside stated there was still a moderate to high risk of Mr Duell committing contact offending if the opportunity to do so arose. Dr Raeside said that without treatment he considered Mr Duell’s overall risk remains high and imminent in the sense that it might occur within a year or so. Dr Raeside said that even after treatment with the SBC-Me program, Mr Duell would still remain at high risk with only minor to modest improvement.[21]
[19] Report of Dr Raeside dated 10 August 2020 at p 14.
[20] T16.17-19 (20 July 2021).
[21] T22.37-23.3 (20 July 2021).
Dr Paul Furst’s 57(6) report
Dr Furst, in his s 57(6) report, stated Mr Duell was a paedophile who had sexual fantasies about children and who reported that he was ashamed and angry with himself. When Dr Furst asked Mr Duell about his involvement at SOTAP following his conviction for the indecent assault charges, Mr Duell said he learned he had hurt the victim and the victim’s family. He said that after attending SOTAP he continued to have paedophilic thoughts and fantasies and masturbated to these fantasies on occasion. Mr Duell told Dr Furst that he had been looking at child exploitation material for about three years, he spent about one to two hours per day looking at it and would masturbate to it about two to three times a week.
Mr Duell told Dr Furst that at the time of the July 2019 offending he had experienced increasing frustration that he was not able to act on his sexual fantasy. He said he started to incorporate the child, who had visited the Medindie lodge with her mother, into his fantasies and had been fantasising about her for about three to four days before he made the note he deposited. Mr Duell told Dr Furst that he could not count the number of children he had offended against and admitted he had offended against other children before handing himself into police in 1997. When pressed, Mr Duell said there had been about three or four children between the ages of six and seven.
Dr Furst was of the opinion Mr Duell met the criteria for cannabis use disorder and alcohol use disorder. He was also of the opinion Mr Duell had mixed personality disorder with antisocial and borderline traits.
Dr Furst considered Mr Duell’s claims of being ashamed and sick about his sexual misconduct “appear to be trite phrases that he trots out when caught out”.[22] Dr Furst highlighted the disconnect between Mr Duell reporting the sound of a child crying as horrific on the one hand but then wanting to join in on the other. Dr Furst considered, having regard to this, it was quite likely Mr Duell had a sadistic streak and found the idea of a child crying whilst being sexually abused arousing.
[22] Report of Dr Furst dated 26 October 2020 at p 16-17.
Dr Furst said Mr Duell met the criteria for paedophilia, non-exclusive type, the latter on the basis that he was also attracted to adults. Dr Furst explained in his evidence:[23]
Mr Duell has had self-report of longstanding sexual fantasies about prepubertal children. He has acted upon these fantasies, not just through masturbation but also he’s engaged in offending behaviour. So, clearly, he not only has the sexual fantasies that give rise to the diagnosis but he’s got actions that are dysfunctional, it makes it a disorder.
[23] T59.23-29 (20 July 2021).
Dr Furst considered that Mr Duell’s offending appeared to show a pattern of escalation in that he had progressed from viewing child exploitation material, to fantasies about a child being abused and being frustrated that he could not join in, to then making contact via the depositing of a written note and approaching the victim’s premises. Dr Furst commented on how quickly things escalated for example, in relation to the February 2017 offending (which occurred within six days of the family moving in next door to him) and the July 2019 offending (where there were only a few days between coming into contact with the child and writing a note about wanting to participate in sexual abuse while the child was crying).
Dr Furst considered Mr Duell represents a high risk of further sexual offending if he was released into the community and that this would be irrespective of whether he was subject to supervision. Dr Furst said:[24]
I believe that his risk of attempting to obtain [child exploitation material] is very high, and there is a very high risk that he would again become fixated on a young girl if one was to come across his path and this would likely result in similar behaviour to his previous offending with an attempt to coerce her care-givers into allowing him to abuse the child, or a more direct attempt to assault a child.
[24] Report of Dr Furst dated 26 October 2020 at p 21.
Dr Furst said the SBC-Me program would be the most suitable form of therapy and expressed concern that Mr Duell’s risk of non-completion of the program in the community would be very high. Dr Furst considered Mr Duell was unwilling within the meaning of s 57(1) of the Act to control his instincts, referring to his previous sexual offending and placing particular emphasis on the July 2019 offending having occurred whilst under supervision.
Disposition of the application for an order pursuant to s 57(7) of the Act
I accept the evidence of Dr Raeside and Dr Furst and find Mr Duell is unwilling to control his sexual instincts within the meaning of s 57(1) of the Act.
Having answered the threshold question in the affirmative, the discretion to order Mr Duell’s indefinite detention prescribed by s 57(7) of the Act is enlivened. In considering the exercise of the discretion, the Director submitted the following matters are of central importance:
1Mr Duell presents a high risk of further sexual offending.
2Whilst Mr Duell is unlikely to benefit materially from therapy, therapy in a custodial setting is more likely to be beneficial compared to therapy in the community.
3Despite there being potential for therapy to reduce Mr Duell’s dynamic risk factors, he would remain a high risk of further sexual offending. Of significance is the nature of his psychosexual development, which has resulted in him being fixated at 10 years of age and sexually attracted to prepubertal male and female children.
4Mr Duell’s use of alcohol and cannabis is a significant causal factor in his offending as it has the effect of disinhibiting him and in turn leads to an increase in his viewing of child exploitation material and increases his risk of contact offending.
5Mr Duell has not been deterred from sexual offending despite receiving custodial sentences and being subject to supervision, illustrated by the fact that on 10 February 2017 Mr Duell was sentenced for offences of unlawfully being on premises where he deposited letters and possessed child exploitation material, and on 15 February 2017 he committed a further offence of being unlawfully on premises and again deposited a letter which was in similar terms.
6Mr Duell continues to offend despite being subject to supervision and Court‑imposed bonds. The suspended sentence bond imposed following the three counts of depositing indecent material included electronic monitoring, a prohibition on the consumption of alcohol and drugs, and a direction that he engage in counselling, treatment, and programs. Further, the February 2018 and July 2019 offending were committed whilst Mr Duell was subject to the District Court bond and the July 2019 offending was also committed in contravention of the Magistrates Court suspended sentence bond.
7Whilst Mr Duell’s recent offending has not involved contact offending, he has taken steps to act out his sexual fantasies regarding children. He has written material, attended premises, and deposited that material on four occasions against a background of possessing and viewing child exploitation material.
8Mr Duell’s offending evidences a pattern of rapid escalation. For example, the offending committed 15 February 2017 occurred just six days after the victims moved in. This pattern is similarly evidenced by the July 2019 offending where Mr Duell saw the child only briefly and then four days later deposited a letter (in circumstances where he acknowledged to Dr Furst incorporating the child into his fantasies for three or four days before he wrote the letter).
The SBC-Me program

Dr Raeside, Dr Furst and Ms Dawes are all of the opinion Mr Duell would not successfully complete the SBC-ME program in the community.
Dr Raeside said that even after treatment with the SBC-Me program, Mr Duell would still remain at high risk of sexual offending with only minor to modest improvement. Dr Furst considered Mr Duell represents a high risk of further sexual offending if he was released into the community and that this would be irrespective of whether he was subject to supervision.
In response to questions raised by me, counsel for the Director undertook to contact the Department for Correctional Services and report back to the Court regarding Mr Duell’s suitability for the SBC-Me program, when the next program was due to start, and the duration of the program. The Director’s counsel in an email dated 1 September 2021 advised the following was an amalgamation of information provided by email both by Jane Farrin (Director of Sentence Management Unit) and Dr Henry Pharo (Director of Offender Rehabilitation Services):
Mr Duell has a history of mostly non-contact sex offences, but one contact offence. He was charged in the district court on the 11/12/17 for Aggravated Possess Child Exploitation Material he received a Bond with supervision for a period of 2 years. He was assessed in 2018 as being High Risk of Sexual Reoffending and due to low cognitive functioning was found suitable for the SBC Me program, however at that time he had insufficient time on his sentence to complete that program in custody and was recommended for referral to Owenia House to complete it in the community. He was referred to Owenia House by SMU on 5/11/2018 and by his Community Corrections Case Manager on 2/7/2019. He had an appointment at Owenia House on 18/7/2019 for an assessment. Owenia House found him suitable for their SBC Me program. He was arrested on 20/7/2019 on new offences and did not commence the program. He has been in custody since this time.
On 27 Feb 2020 Mount Gambier Prison made an NDIS referral for Mr Duell. A re-referral was identified to be made to Owenia House if he was released from court.
Once Mr Duell is sentenced he will undertake a new assessment and sentence plan which will include an updated risk assessment and referral to SBC-Me. Due to the length of the SBC - ME program the Rehabilitation Programs Branch has advised that he would require a sentence of at least 2 years to be able to have sufficient time to complete the program in custody. I note he has court on 3 September 2021.
SMU have made a note of his court dates and will prioritise his assessment as soon as he is sentenced. The assessment process and scheduling to a Serious Offender Committee meeting for endorsement could take approximately 6-8 weeks from sentencing.
Our next SBC-ME program is scheduled for March 2022 at Mount Gambier Prison
Note that Mr Duell would need to be receive a sentence which kept him in prison up until June/July 2023 in order to be eligible for that program.
It is of note, by reference to the information provided to the Director’s counsel by the Department for Correctional Services, Mr Duell was assessed in 2018 as being at high risk of sexual reoffending and, due to his low cognitive functioning, was found suitable for the SBC-Me program. However, at the time of that assessment he had insufficient time on his sentence (the partially suspended sentence imposed in the Magistrate’s Court on 26 October 2018) to complete that program in custody and was recommended for referral to Owenia House to complete it in the community. I infer, having regard to Ms Dawes’ comment in the Owenia House suitability report dated 26 July 2019 regarding Mr Duell missing large portions of the SOTAP program he was enrolled in following the 26 March 1998 sentence for the indecent assaults, he has not successfully participated and completed any sexual treatment program. Ms Dawes suggested Mr Duell would benefit from a comprehensive NDIS package to provide extensive wraparound care for a person who needs significant assistance to manage a range of functions in his life. In this regard, I note the Mount Gambier prison has made a NDIS referral for Mr Duell.
I consider it is an appropriate exercise of the residual discretion under s 57(7) to dismiss the application, giving Mr Duell the opportunity, once sentenced (noting that he has been in custody since July 2019 without a sentence), to undergo an updated risk assessment and referral to the SBC-Me program. This will also allow time for the NDIS assessment to be undertaken. If Mr Duell is accepted as a NDIS client, upon completion of the SBC-Me program, it will be known, when post program risk assessments are undertaken, whether or not he will have access to a comprehensive package providing extensive wraparound care referred to by Ms Dawes.
As submitted by Mr Duell’s counsel it will be, within 12 months of the expiry of the sentence I impose, a matter for the Attorney-General to make application for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk) Offenders Act 2015 (SA) if so advised.
Sentence – breach of Magistrates Court suspended sentence bond, offending underlying District Court bond, and July 2019 offending
The breaches of the suspended sentence bond are neither trivial nor are there proper grounds to excuse them. Accordingly, the suspended sentence bond is revoked and the remaining sentence of two months’ imprisonment is carried into effect, commencing on 19 July 2019 when Mr Duell was taken into custody.
The breaches of the District Court bond are also not excused and Mr Duell will be sentenced for the offence of aggravated possession of child exploitation material underlying the District Court bond. Mr Duell is sentenced to one penalty, utilising s 26 of the Act, for the offending underlying the District Court bond and the July 2019 offending to six years’ imprisonment reduced by 20 per cent on account of his guilty pleas. That results in a head sentence of four years, nine months, and 19 days. A non-parole period of three years and five months is fixed.
The head sentence and non-parole are reduced by seven months and 21 days Mr Duell spent in custody (on DCCRM-17-1003 in respect of the aggravated possession of child exploitation material) leaving a head sentence of four years, one month, and 29 days and a non-parole period of two years, nine months, and 10 days.
The resulting sentence of four years, one month, and 29 days with a non‑parole period of two years, nine months, and 10 days is to be served cumulatively upon the revoked suspended sentence of two months.
Conclusion
Having considered the opinions of Dr Raeside, Dr Furst, information provided by the Department for Correctional Services and the submissions of counsel, I dismiss the application for an indefinite detention order.