R v Kimmins

Case [2016] SASC 176

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

R v KIMMINS

[2016] SASC 176

Judgment of The Honourable Justice Stanley

18 November 2016

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS

This is an application for an extended supervision order pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act).

In September 2009 the respondent, Brett Justin Kimmins, was charged with one count of aggravated indecent assault.  This followed an incident of touching a young girl on the buttocks at a supermarket.  In 2010, while on bail for this offence, he was charged with indecent behaviour following an incident of a similar nature involving three children at the Adelaide Central Market.  He was subsequently convicted of one count of aggravated indecent assault, three counts of indecent behaviour and two counts of breach of bond.  The bonds were imposed after convictions for theft and deception and also for driving offences.  He received a 28 month imprisonment sentence.  The conviction of aggravated indecent assault brings him within the definition of a serious sexual offender in s 4 of the Act. 

On 21 February 2014 a paedophile restraining order was made against the respondent. 

The respondent has a number of convictions dating back to 2001. Predominantly his convictions have been for driving offences.  In February 2005 he was charged with three counts of indecent assault whilst he was performing community service at a primary school.  The counts of indecent assault were dismissed for want of prosecution, however, he was convicted of three counts of common assault for these matters.  In 2014 he was convicted of two offences of dishonestly taking property without consent as a result of the theft of children’s underwear.  In December 2014 he was convicted of one count of producing child pornography and one count of possessing child pornography which followed from the respondent having taken a picture on his phone of a compact disc cover which featured a drawing of a child in underwear.  In 2014 and 2015 he breached his paedophile restraining order on three separate occasions by accessing the internet and having in his possession a phone which could access the internet.  He served a subsequent period of imprisonment of 16 months and two weeks.

By an application made on 2 March 2016 the Attorney-General has applied for an order that the respondent be subject to an extended supervision order for a period of five years pursuant to s7(1) and s12(1) of the Act.  The Attorney-General submits that various conditions should apply in relation to the extended supervision order pursuant to s10(1)(e) of the Act, including reporting to his community corrections officer on a weekly basis; advising his community corrections officer of any change of address; not travelling outside the State without written approval; prohibiting him from the use of any…

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Details
AGLC
R v Kimmins [2016] SASC 176
Case
[2016] SASC 176
Decision Date

CaseChat Overview and Summary

In the matter of R v Kimmins, the respondent faced sentencing proceedings following the conclusion of his custodial sentence for serious sexual offences. The primary legal issue before the court was whether the respondent posed an appreciable risk to the safety of the community if not supervised under an extended supervision order (ESO). This determination was crucial in exercising the court's discretion pursuant to the relevant legislation, which mandates that such an order be made only if the respondent is deemed a high-risk offender and if the order is necessary to ensure public safety.

The court's reasoning hinged on the psychiatric evaluation provided by Dr William Brereton, who concluded that the respondent suffered from a disorder of sexual preference, specifically paedophilia, with a significant focus on prepubescent girls. The respondent's intellectual disability, compounded by persistent drug use, further exacerbated his risk factors. Despite the respondent's participation in sex offender treatment and demonstrated willingness to continue such treatment, Dr Brereton's expert opinion indicated that the respondent's risk of reoffending remained high, particularly given his history of opportunistic sexual offences involving prepubescent girls. The court accepted Dr Brereton's findings and determined that the respondent indeed posed an appreciable risk to the community if not under supervision.

Based on the statutory requirement to balance the protection of the community against the respondent's common law rights, the court decided to impose an extended supervision order for a period of three years, renewable if necessary. This decision aimed to strike a balance between public safety and the respondent's personal liberty, ensuring that the infringement on his rights was limited to what was strictly necessary. The court concluded that this duration would allow for an appropriate review of the respondent's behaviour and the necessity of continued supervision. The final orders included an extended supervision order for three years, commencing from the date of the decision, with terms and conditions outlined in the annexed document.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

On 30 May 2016 I made an order for an interim extended supervision pursuant to s 9 of the Act. This order will continue in force until the application for the extended supervision order is determined.[5]The evidence[5] Section 9(2).Report of Dr Brereton The Court received a psychiatric report from Dr William Brereton dated 4 July 2016. The report was prepared following an interview with the respondent and a review of previous reports and other documents concerning the respondent. Pursuant to s 7(3)(a) of the Act Dr Brereton was asked to provide an opinion on the likelihood of the respondent committing a further serious sexual offence. In doing so he was asked to keep in mind that the Court will be asked to determine whether the respondent poses an appreciable risk to the safety of the community if not supervised under the order sought. Dr Brereton also gave evidence at the hearing of the application. Dr Brereton considered the respondent’s extensive forensic history. He concluded that his sexual offending appears opportunistic but does not involve acts of penetration or the use of force, although he does have sexual fantasies that involve such acts. Dr Brereton concluded that the respondent has a disorder of sexual preference, namely paedophilia. His sexual preoccupations are at least 50 per cent to do with sex with prepubescent girls and his fantasies involve a sadistic element. He has a premorbid intellectual functioning in the borderline range. This has declined through persistent drug use and he now performs in the mild intellectually disabled range. This has impacted his life management skills and his ability to develop a stable relationship with an adult female, which has increased his risk of offending against children. Dr Brereton gave evidence that the respondent’s understanding of the psychological and emotional impact of his offending on children is limited. In Dr Brereton’s opinion, if the respondent did reoffend, his offences would follow a similar pattern, that being opportunistic touching of prepubescent girls. He has troubling sexual fantasies but makes attempts to suppress these thoughts. In this regard, he considers the risk of his offending escalating is low. He considers that the fact that the respondent has moved away from offending involving direct physical contact with girls does not indicate, however, a decrease in the risk of his reoffending. Dr Brereton gave evidence that the respondent has participated meaningfully in sex offender treatment and reports a willingness to undertake further treatment. The respondent has attended at the Sexual Behaviour Clinic, both for individual therapy and modified group therapy. He engaged reasonably well and has developed mechanisms for coping with deviant thoughts and managing his own risks. He demonstrates internal controls, such as understanding that his offending is wrong, his intrinsic desire to avoid reoffending and his desire to remain out of prison. He has demonstrated a level of understanding about his risk factors, such as idleness and boredom.

Decision

Reasons for decision

In all the circumstances I consider it appropriate that there should be a review of the terms of the order sooner than five years. I consider that three years is appropriate. That will permit the Court to review whether the respondent’s behaviour necessitates a continuation of the extended supervision order beyond that time. In reaching this conclusion I consider it important that the interference with the respondent’s personal liberty should not occur any longer than is necessary to ensure the safety of the community. I consider a three year period of operation of the extended supervision order, which if necessary can be renewed, strikes the appropriate balance between protecting the community from the risk of the respondent reoffending and the protection of the respondent’s common law rights of personal liberty and freedom of movement. The making of the order for a period of three years will limit the infringement of those rights and freedoms to the extent necessary to ensure the safety of the community. Conclusion I make an extended supervision order for a period of three years commencing from this date in accordance with the terms and conditions annexed hereto.

Ratio Decidendi

Legal Principle Established

The Act requires the Court to interfere with the liberty of the subject by making an extended supervision order only if it is satisfied that the respondent is a high risk offender and an order is necessary to ensure the respondent does not pose an appreciable risk to the safety of the community. The discretion to be exercised pursuant to s 7 of the Act, like the discretion conferred pursuant to s 24 of the Sentencing Act, demands a normative judgment which is quite different from traditional judicial discretions. The Court has been entrusted with a mandate to ensure public security by interfering with the right to liberty of a person who is a high risk offender and poses an appreciable risk to the safety of the community if not supervised. The discretion is to be exercised having regard to both the interests of the community and the interests of the respondent, but by according the consideration of public safety paramountcy.[17] Here there are two competing considerations. On the one hand, the respondent to an application by the Attorney-General has completed his or her sentence. There is a common law rule that his personal liberty and freedom of movement will not be infringed absent clear, unambiguous lawful authority.[18] On the other hand, there is the need to protect the community from the risk of him reoffending. In construing a statute which infringes those rights and freedoms the court will do so in a manner which limits the infringement to what is strictly required to effect the purpose of the statute.[19] In this case, given the terms of this legislation, specifically the paramount consideration of public safety, in the exercise of the Court’s discretion relatively smaller degrees of risk will outweigh considerations which, even strongly, would militate against the making of an extended supervision order. [17] R v Schuster [2016] SASCFC 86 at [82], (2016) 125 SASR 388 at 406. [18] Bropho v Western Australia [1990] HCA 24, (1990) 171 CLR 1 at 17-18; Coco v The Queen [1994] HCA 15, (1994) 179 CLR 427 at 437-438.[19] Lee v NSW Crime Commission [2013] HCA 39 at [29], [126], (2013) 251 CLR 196 at 217, 250.Consideration In this case there is no issue that the respondent is a high risk offender. At issue is whether he poses an appreciable risk to the safety of the community if not supervised pursuant to an extended supervision order. In deciding that question, I accept the opinion of Dr Brereton. I find that the respondent suffers from a paedophilia disorder. He is sexually preoccupied with prepubescent girls and he experiences fantasies involving the infliction of violence upon them. He suffers from a mild intellectual disability which reduces his ability to understand the nature of his offending. It also derogates from his capacity to develop a stable relationship with an adult woman which might reduce his risk of offending against children. The evidence establishes that the respondent’s offending is opportunistic. Importantly, while Dr Brereton acknowledges that the respondent’s offending has moved away from direct physical contact with young girls, that does not indicate a decrease in the risk of his reoffending.