R v Kimmins - [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 drug without direction from a qualified medical practitioner; submitting to drug testing; undertaking counselling; not associating or communicating with any person under the age of 16 years; not loitering in places at which children are usually present; not following or attempting to follow any person under the age of 16 years; not undertaking any remunerated or voluntary work with children or participating in an organisation which provides facilities for children; and prohibiting him from the use of any electronic equipment which may be used to access prohibited material.
The application is opposed by the respondent. The respondent submits that in circumstances where the Court is to make an order it should do so for a period of less than five years
Held, per Stanley J:
1. I reject the submission that the Act should be construed uniformly with comparable legislation in other jurisdictions (at [30]).
2. I reject the submission that an extended supervision order is unnecessary on the basis that given the supervisory measures already in place, the respondent does not currently, or in the foreseeable future, pose an appreciable risk to the community (at [44]).
3. I am satisfied that the evidence establishes that without the respondent being subject to an extended supervision order, he poses an appreciable risk to the safety of the community (at [46]).
4. I grant the Attorney-General’s application for the making of an extended supervision order (at [46]).
5. I make an extended supervision order for a period of three years (at [50]).
Criminal Law (High Risk Offenders) Act 2015 (SA) s 3, s 4, s 5, s 7, s 9, s 12, s 10, s 18; Child Sex Offenders Registration Act 2009 (SA); Criminal Law Consolidation Act 1935 (SA) s 56, referred to.
AEU v DECS (2012) 248 CLR 1; Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1, discussed.
Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; Certain Lloyd's Underwriters Subscribed to a Contract No. IH00AAQS v Cross (2012) 248 CLR 378; Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259; Attorney-General v Grosser [2016] SASC 49; R v Schuster (2016) 125 SASR 388; Bropho v Western Australia (1990) 171 CLR 1; Coco v The Queen (1994) 179 CLR 427; Lee v NSW Crime Commission (2013) 251 CLR 196, considered.

R v KIMMINS
[2016] SASC 176
Criminal
STANLEY J:
Introduction

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 drug without direction from a qualified medical practitioner; submitting to drug testing; undertaking counselling; not associating or communicating with any person under the age of 16 years; not loitering in places at which children are usually present; not following or attempting to follow any person under the age of 16 years; not undertaking any remunerated or voluntary work with children or participating in an organisation which provides facilities for children; and prohibiting him from the use of any electronic equipment which may be used to access prohibited material.
The application is opposed by the respondent.
Criminal Law (High Risk Offenders) Act 2015 (SA)
The object of the Act is to provide for the protection the community from exposure to an appreciable risk of harm posed by, inter alia, serious sexual offenders.[1] Section 7 provides that the Attorney-General may make application to this Court for an extended supervision order to be made in respect of a person who is a high risk offender. An application for an extended supervision must be made within 12 months of the relevant expiry date for the respondent. The relevant expiry date is defined in s 4 to mean the date on which the term of imprisonment of the respondent expires.[2] In the case of this respondent the expiry date is 19 June 2016.
[1]    Section 3.
[2]    relevant expiry date means—
(a) in relation to a high risk offender who is serving a sentence of imprisonment (whether the offender is in prison or on release on home detention or parole)—
(i)      if the offender is not serving a sentence of life imprisonment—the date on which the term, or terms, of imprisonment to which the offender was sentenced expire; and
(ii)     if the offender is serving a sentence of life imprisonment—the date on which the sentence of imprisonment will be taken to have been wholly satisfied; and
(b) in relation to a high risk offender who is subject to an existing extended supervision order—the date on which the extended supervision order expires;
The paramount consideration in determining whether to make an extended supervision order must be the safety of the community.[3]
[3] Section 7(5).
Pursuant to s 7(4) this Court may order that the respondent be subject to an extended supervision order if satisfied that the respondent is a high risk offender and poses an appreciable risk to the safety of the community if not supervised under the order. Relevantly, a high risk offender is defined pursuant to s 5 to mean, inter alia, a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence. A serious sexual offender is a person convicted, whether before or after the commencement of the Act, of a serious sexual offence. A serious sexual offence means a sexual offence where the conduct constituting the offence, involves, inter alia, an offence pursuant to s 56 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) where the maximum penalty prescribed is imprisonment for a minimum of 8 years.
On this application there is no dispute that the respondent falls within the definition of a serious sexual offender and therefore of a high risk offender.
Before determining whether to make an extended supervision order, the Court must direct that one or more legally qualified medical practitioners examine the respondent and report to the Court on the results of the examination including, in the case of the respondent, an assessment of the likelihood of the respondent committing a further serious sexual offence.[4] Section 7(6) provides:
[4]    Section 7(3).
(6)The Supreme Court must also take the following matters into consideration in determining whether to make an extended supervision order in respect of the respondent:
(a)     the likelihood of the respondent committing a further serious sexual offence or serious offence of violence (as the case may be) if not supervised under the order;
(b)     the reports of any medical practitioner (as directed and nominated under subsection (3)) furnished to the Court;
(c) any report prepared by the Parole Board under section 64(5) of the Correctional Services Act 1982;
(d)     any report required by the Court under section 20 (including the results of any statistical or other assessment furnished to the Court as to the likelihood of persons with histories and characteristics similar to those of the respondent committing a further relevant offence);
(e)     any relevant evidence or representations that the respondent may desire to put to the Court;
(f)     any treatment or rehabilitation program in which the respondent has had an opportunity to participate, including his or her willingness to so participate and the extent of such participation;
(g)     in the case of a respondent released on parole—the extent to which he or she has complied with the conditions of his or her release on parole;
(h)     in the case of a respondent subject to an existing extended supervision order—the extent to which he or she has complied with the terms of the order;
(i)      in the case of a respondent who is a registrable offender (within the meaning of the Child Sex Offenders Registration Act 2006)—the extent to which he or she has complied with any obligations under that Act;
(j)      the circumstances and seriousness of any offence in respect of which the respondent has been found guilty according to his or her criminal history, and any pattern of offending behaviour disclosed by that history;
(k)     any remarks made by the sentencing court in passing sentence;
(l)      any other matter that the Court thinks relevant.
The terms of a supervision order are prescribed by s 10(1) of the Act. It provides:
(1)The following conditions apply in relation to an extended supervision order:
(a)     a condition that the person subject to the order not commit any offence;
(b)     a condition that the person subject to the order is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 1977) or any part of a firearm;
(c)     a condition prohibiting the person subject to the order from possessing an offensive weapon unless the Supreme Court permits the person to possess such a weapon and the person complies with the terms and conditions of the permission;
(d)     a condition that the person subject to the order—
i.be under the supervision of a community corrections officer; and
ii.obey the reasonable directions of the community corrections officer; and
iii.submit to such tests (including testing without notice) for gunshot residue as the community corrections officer may reasonably require;
(e)     any other condition that the Court thinks fit and specifies in the order;
(f)    any condition imposed by the Parole Board under section 11.
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.
In Dr Brereton’s opinion the respondent’s risk of reoffending would be low to moderate if he was able to obtain stable accommodation, be supported to structure his time constructively, attend further sex offender treatment through the Sexual Behaviour Clinic or Owenia House and be subject to ongoing supervision. Measures to restrict opportunities to offend, such as restricting his exposure to public places, would also assist. His risk of reoffending would be very high if he was isolated, unemployed, unsupervised and returned to significant cannabis use. He thinks there is a need to balance the risk the respondent poses to the community with his social isolation. In Dr Brereton’s opinion the respondent poses an appreciable risk to the safety of the community if not supervised under the orders sought.
Materials relied upon
Dr Brereton relied upon various documents pertaining to the respondent. At the hearing of the application objections were heard as to the admissibility of these documents. The objections were based on the relevance of the documents due to the timing in which they were prepared or, inter alia, the purpose for which they were prepared. After considering the objections I admitted the documents into evidence, save and except for three documents which I considered to be irrelevant to the application before the Court. Those documents were a Corrections Assessment Report dated 19 October 2010, a Treatment Summary Report from the Sexual Behaviours Clinic dated 13 August 2012 and reasons of the Parole Board for refusing to release the respondent dated 15 February 2011. The Corrections Assessment Report and the Treatment Summary Report were not relevant to the present application as they were superseded by the subsequent report of Dr Brereton which addresses the present and the future, rather than the historical, position. The Parole Board’s reasons were not relevant, or of assistance, in deciding this application.
Submissions

Section 7(4) of the Act requires the Court to determine the meaning of an appreciable risk to the safety of the community. Ms Wells, counsel for the Attorney-General, submits that the Court should take a contextual or purposive approach to the construction of the wording of s 7. Regard should be had to the literal meaning of the words in the provision itself; the context of the Act, including the objects of the Act to be derived from the express objects and the overall statutory scheme and the Minster’s second reading speech. Ms Wells submits the combined effect of s 5 and s 7 imposes a much less onerous test in relation to the degree of risk posed that must be proved, than is found in comparable interstate legislation. On this construction of the Act, combined with the evidence available, the respondent’s risk of reoffending can be characterised as an appreciable risk to the safety of the community.
Ms Wells submits that the respondent has expanded his repertoire into new areas of sexual offending. Any apparent decline in offending is attributed to a limitation in opportunities for direct sexual offending due to various periods of time in custody, good behaviour bonds and a paedophile restraining order. Ms Wells relies upon the evidence of Dr Brereton that the risk of the respondent reoffending is high if isolated in the community without any protective measures, if he is unemployed and resumes cannabis use. She submits there is a high likelihood this would happen.
Ms Wells acknowledges that the respondent is already a registrable offender and serious registrable offender pursuant to the Child Sex Offenders Registration Act 2006 (SA) (CSOR Act). However, she submits he is not currently subject to any conditions which would address his opportunistic offending. Even though the respondent has voluntarily committed to a South Australian Offender Management Plan, the plan does not facilitate regular supervision and is not a legislative obligation. Ms Wells submits it would be useful if the Offender Management Plan operated in tandem with the proposed extended supervision order.
Ms Luu, counsel for the respondent, submits that the appreciable risk test is higher than that enunciated by the applicant and that it is not met in these circumstances. She submits that the approach to be used in the construction of the phrase ‘appreciable risk to the safety of the community’ is the purposive or contextual approach to statutory construction. Regard should be had to s 18 of the Act which uses the same phrase to prescribe a period of detention for the balance of an extended supervision order in the event of a breach.
Ms Luu submits the appreciable risk test is not satisfied because the respondent is already subject to an extensive range of measures that prevent him posing an appreciable risk to the community. Ms Luu submits that the risk posed by the respondent is already combatted by his existing reporting conditions and monitoring conditions under the CSOR Act and under the Offender Management Plan, including GPS monitoring. Ms Luu submits the pattern of the respondent’s offending has declined so that now there is no evidence of him committing offences involving direct contact with a victim and that, but for the offence of producing child pornography, there would not be a serious sexual offence subsequent to 2009. In her submission the respondent is making genuine attempts at rehabilitation. He is on a mental health care plan and has been referred to a psychologist for individual treatment on a weekly basis. He has also resumed contact with police officers who are involved in the supervision of persons under the CSOR Act.
Ms Luu submits an extended supervision order is unnecessary or other mechanisms are currently in place that would alleviate any sense of risk that may be posed, including a paedophile restraining order and a control order under the CSOR Act. In the alternative, if an extended supervision order is imposed, the period of compliance should be for a period of less than five years.
I have been greatly assisted by the submissions of both counsel.
The statutory scheme
The making of an extended supervision order depends upon satisfaction that the respondent is a high risk offender and he poses an appreciable risk to the safety of the community if not supervised under such an order.
In determining whether to make an extended supervision order, pursuant to s 7(5), the paramount consideration must be the safety of the community. In deciding whether the respondent poses an appreciable risk to the safety of the community the Court must also take certain matters into consideration. Those matters are enumerated in s 7(6), but the safety of the community remains the paramount consideration in deciding whether an extended supervision order should be made. How a court approaches the determination is a question of statutory construction.
The contemporary approach to statutory construction looks to the text, context and purpose of the relevant statutory provision.[6] These principles were explained in Certain Lloyd’s Underwriters Subscribed to a Contract No. IH00AAQS v Cross as follows:[7]
[6] Plaintiff M70/2011 v Minister for Immigration and Citizenship [2011] HCA 32 at [13], (2011) 244 CLR 144 at 162.
[7] [2012] HCA 56 at [23] – [26], (2012) 248 CLR 378 at 388 – 390.
It is as well to begin consideration of this issue by re-stating some basic principles. It is convenient to do that by reference to the reasons of the plurality in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (18):
“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself (19). Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text (20). The language which has actually been employed in the text of legislation is the surest guide to legislative intention (21). The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision (22), in particular the mischief (23) it is seeking to remedy.”
The context and purpose of a provision are important to its proper construction because, as the plurality said in Project Blue Sky Inc v Australian Broadcasting Authority (24), “[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute” (25) (emphasis added). That is, statutory construction requires deciding what is the legal meaning of the relevant provision “by reference to the language of the instrument viewed as a whole” (26), and “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed” (27).
Determination of the purpose of a statute or of particular provisions in a statute may be based upon an express statement of purpose in the statute itself, inference from its text and structure and, where appropriate, reference to extrinsic materials. The purpose of a statute resides in its text and structure (28). Determination of a statutory purpose neither permits nor requires some search for what those who promoted or passed the legislation may have had in mind when it was enacted. It is important in this respect, as in others (29), to recognise that to speak of legislative “intention” is to use a metaphor. Use of that metaphor must not mislead. “[T]he duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have” (30) (emphasis added). And as the plurality went on to say (31) in Project Blue Sky:
“Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction (32) may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
To similar effect, the majority in Lacey v Attorney-General (Qld) (33) said:
“Ascertainment of legislative intention is asserted as a statement of compliance with the rules of construction, common law and statutory, which have been applied to reach the preferred results and which are known to parliamentary drafters and the courts.”
(Footnote omitted.)
The search for legal meaning involves application of the processes of statutory construction. The identification of statutory purpose and legislative intention is the product of those processes, not the discovery of some subjective purpose or intention.
A second and not unrelated danger that must be avoided in identifying a statute’s purpose is the making of some a priori assumption about its purpose. The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions (34). As Spigelman CJ, writing extra-curially, correctly said (35):
“Real issues of judicial legitimacy can be raised by judges determining the purpose or purposes of Parliamentary legislation. It is all too easy for the identification of purpose to be driven by what the particular judge regards as the desirable result in a specific case.”
(Emphasis added.)
And as the plurality said in Australian Education Union v Department of Education and Children’s Services (36):
“In construing a statute it is not for a court to construct its own idea of a desirable policy, impute it to the legislature, and then characterise it as a statutory purpose.”
(Footnote omitted.)
I reject the submission of the respondent that the Act should be construed uniformly with comparable legislation in other jurisdictions.
In construing the provisions of the Act little, if any, assistance, is derived from comparisons with similar legislation interstate. An analysis of the relevant provisions of those Acts demonstrate that their critical provisions relevantly differ from the provisions of the Act, including, in particular s 7(4)(b). They impose a test of “an unacceptable risk” rather than “an appreciable risk”.[8] I consider that represents a qualitative and quantitative difference. It is a less onerous test than applies interstate.
[8] Dangerous Prisoners (Sexual Offenders) Act 2003 (QLD) s 13(2), Crimes (High Risk Offenders) Act 2006 (NSW) s 5B(2), Dangerous Sexual Offenders Act 2006 (WA) s 7(1), Serious Sex Offenders (Detention and Supervision) Act 2009 (VIC) s 9(1), Serious Sex Offenders Act 2013 (NT) s 6(1).
In any event, in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority[9] the High Court said that in construing its legislation the courts of one State are not required to follow slavishly judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation.
[9] [2008] HCA 5 at [31], (2008) 233 CLR 259 at 270.
Further, I reject the submission that the Court should adopt a more onerous construction of s 7(4)(b) because the Parliament has seen fit to use the same statutory test of appreciable risk in s 18(2) which empowers the Court to order that a person be detained in custody if it is satisfied that the person has breached a condition of a supervision order. The respondent submits that Parliament is presumed to have imposed an onerous test for the detention of the subject in s 18(2) and, accordingly, a similarly onerous test should be applied to the same statutory formula in s 7(4)(b).
I reject that submission for two reasons. First, I do not accept the premise that underpins it. The meaning of the statutory formula is to be derived from a consideration of its text, context and purpose. It is not to be determined by some form of a priori reasoning predicated on legislative intention. Legislative intention is to be ascertained from a consideration of the language of the provision and its statutory purpose, not from the court imputing to the legislature its own idea of a desirable policy.[10] Second, while there is a presumption that in a statute the same word or expression is used with the same meaning, the presumption readily yields to the context.[11] In any event, the proper construction of s 18(2)(b) should be left for another occasion.
[10] AEU v DECS [2012] HCA 3 at [28], (2012) 248 CLR 1 at 14.
[11] Clyne v Deputy Commissioner of Taxation [1981] HCA 40, (1981) 150 CLR 1 at 15.
Section 7 of the Act is to be construed by reference to its text, context and purpose.
In Attorney-General v Grosser[12] I considered the meaning of an appreciable risk under the Act. I said:[13]
I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible.[14] Necessarily, a risk must be anticipatory. An appreciable risk is a risk that is not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in future in a manner that poses a risk to the safety of the community. It is a question of degree. The extent of the appreciable risk is informed by the consideration that in determining whether to make an extended supervision order the safety of the community is paramount. I construe that requirement to mean that where a court considers that the question of whether to make an order is finely balanced, the protection of the community would favour making the order rather than declining to do so. I do not suggest that this consideration is exhaustive of the work to be performed by s 7(5) of the Act. The full extent of the operation of this provision falls to be considered on another occasion.
[12] [2016] SASC 49.
[13] [2016] SASC 49 at [29].
[14] Concise Oxford Dictionary.
Subsequent to my judgment in Grosser the Court of Criminal Appeal in R v Schuster[15] considered the meaning of the expression “the safety of the community is paramount” in the context of sections 23 and 24 of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act). The Court said:[16]
What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility.
More fundamentally, it is in the very nature of a discretion that the level of risk, whatever it is, may nonetheless be sufficiently outweighed by other factors to justify release on licence. For example, an offender with some degree of short term risk of re-offending who has excellent prospects of medium to long term rehabilitation might be released on licence, when an offender with the same risk profile but poor prospects of rehabilitation would not. The effect of making public safety the paramount consideration is that, speaking generally, relatively smaller degrees of risk will outweigh considerations which, even strongly, support release. The exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety.
[15] [2016] SASCFC 86, (2016) 125 SASR 388.
[16] [2016] SASCFC 86 at [79] – [80], (2016) 125 SASR 388 at 405 – 406.
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.
Even allowing for the qualifications in Dr Brereton’s opinion based on him being able to obtain stable accommodation, structuring his time constructively, attending further sex offender treatment and being subject to ongoing supervision, all of which would result in Dr Brereton reassessing the respondent as being at a low to moderate risk of reoffending, even that risk poses an appreciable risk to the community.
Dr Brereton’s opinion is supported by the other evidentiary material before the Court and upon which he relied in forming his opinion. It is unnecessary to analyse this material in detail. It is sufficient to say that I have undertaken an independent consideration of that evidence and I am satisfied it supports Dr Brereton’s opinion.
Further, I reject the respondent’s submission that an extended supervision order is unnecessary on the basis that given the supervisory measures already in place, the respondent does not currently, or in the foreseeable future, pose an appreciable risk to the community. I do not accept that the respondent’s classification as a registerable offender, serious registerable offender and participant in the Offender Management Plan means he is currently subject to strict reporting and monitoring conditions as a consequence of which he does not pose an appreciable risk to the safety of the community.

In my view there are lacunae between the existing supervision, which is the result of the Offender Management Plan and the monitoring conditions under the CSOR Act, and the conditions the Attorney-General seeks to have imposed pursuant to an extended supervision order. The existing measures will not prevent or prohibit the respondent from associating, having contact with, communicating or attempting to communicate with children, or being in places where they congregate. This is critical given the opportunistic nature of his offending. In addition, the existence of reporting conditions are unlikely to prevent the respondent from reoffending. In my view, the terms and conditions of an extended supervision order are necessary to protect the community.
In summary, I am satisfied that the evidence establishes that without the respondent being subject to an extended supervision order, he poses an appreciable risk to the safety of the community. Even if the risk is low, it is appreciable. Giving paramount consideration to the safety of the community, I grant the Attorney-General’s application for the making of an extended supervision order.
That leaves the question of the duration of the order. Pursuant to s 12(1)(b), once an extended supervision order takes effect it remains in force for a period of five years or such lesser period as is determined by the Court and specified in the order.
The respondent submits that in circumstances where the Court is to make an order it should do so for a period of less than five years having regard to the respondent’s compliance with his obligations as a registerable offender and a serious registerable offender under the CSOR Act, his compliance with the interim supervision order and his participation in the Offender Management Plan, including the obligation at all times to wear a tracking device.
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.