R v Rosenzweig - [2017] SASC 51

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v ROSENZWEIG
[2017] SASC 51
Reasons for Decision of The Honourable Justice Kelly
2 March 2017
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS
This is an application by the Attorney-General for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA). The respondent has an extensive history of sexual offending and sexually inappropriate behaviour.
On 28 September 2016 an interim supervision order was made to take effect upon the release of the respondent on parole on 4 October 2016.
Held:
1. The respondent continues to pose a significant risk of further sexual offending.
2. The Attorney-General's application for the making of an extended supervision order under s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) is granted.
3. It is appropriate in the circumstances to make an extended supervision order for a period of 12 months by virtue of the provisions in s 12(1)(b) of the Criminal Law (High Risk Offenders) Act 2015 (SA).
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, s 9, s 12(1)(b), referred to.

R v ROSENZWEIG
[2017] SASC 51
Criminal: Application
KELLY J.

On 28 September 2016, upon the application of the Attorney-General, I made an interim supervision order under the provisions of s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA). That order took effect upon the respondent’s release on parole on 4 October 2016 and was expressed to continue until the determination of the application for the extended supervision order.
On 4 October 2016, as foreshadowed, the Parole Board released the respondent on parole with strict conditions attached including that the respondent not loiter in the vicinity of a school, public toilet, playground or place at which children are regularly present, take all steps to comply with the Australian National Child Offender Register (ANCOR) and not enter premises or the proximity of Angaston Primary School, Kindergarten or Good Shepard Lutheran School. The respondent is also subject to an ongoing paedophile restraining order issued on 18 April 2012.
The Attorney-General’s application for an extended supervision order is brought pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA). The object of the Act is to provide for the protection of the community from exposure to an appreciable risk of harm posed by, amongst others, serious sexual offenders. Under s 7 of the Act the Attorney-General may make an application to this Court for an extended supervision order to be made in respect of a person who is a high risk offender. The application must be made within 12 months of the relevant expiry date which by s 4 is defined to mean the date on which the term of imprisonment of the respondent expires. In the case of this respondent that date was 6 November 2016.
In determining whether to make an extended supervision order the Court is required to direct one or more legally qualified medical practitioners to examine the respondent and report back to the Court on the results of the examination. That report necessarily includes an assessment of the likelihood of the respondent committing any further serious sexual offences.
In this case I received a report from Dr Haeney dated 4 November 2016 and a further report from Dr Jennings dated 11 November 2016.
Suffice to say that the respondent has an extensive history of sexually inappropriate behaviour, some of which resulted in criminal charges being proved and some of which was never the subject of a charge. A striking feature of the reports of both doctors, and indeed any professional person who has been involved with the supervision of the respondent, is the unanimity of opinion that the respondent continues to pose a significant risk of further offending. Both Dr Jennings and Dr Haeney express the view that he is at a high risk of committing further serious sexual offending and as such it is plain that the respondent poses an appreciable risk to the safety of the community. For these reasons I consider that the only appropriate course of action is to make an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
There remains a question as to the length of that order. By virtue of the provisions in s 12(1)(b) of the Act an extended supervision order remains in force for a period of five years or such lesser period as is determined by the Court and specified in the order.
In light of the contents of the various reports I have received, I consider that it is too early at this stage to make any realistic assessment about the long term prognosis for the respondent. He has only recently commenced participating in a program at Owenia House. That program is estimated to run for a period of 12 months. The respondent has also since his release resumed his consultation with a private psychologist and it does appear from these reports that the respondent is making a genuine effort to develop greater insight into his offending thereby reducing the risk of re-offending.
I am mindful of the opinion of Ms Mifsud, a Community Corrections Officer assigned to the respondent and, who wrote in her minute to the Court on 6 February 2017:
While overall Mr Rosenzweig appears to be progressing positively, presenting as motivated to address his dynamic risk factors it is the view of the writer, in junction with assessments by SAPOL, Owenia House, Departmental records, SAPOL and in psychiatrist reports that Mr Rosenzweig remains very high risk of sexual offending. At this time it is considered that his dynamic risk factors outweigh his positive progress/ protective factors. It is recommended that electronic monitoring remains as a tool to monitor and manage his risk factors and behaviours which may be of concern or risk to the community. Additionally, the writer has received comment from ANCOR that an application for electronic monitoring was likely to be made for their supervision and risk management purposes. Given the current DCS supervision in place, this application has likely been deferred.
Mr Rosenzweig was unable to complete appropriate intervention during his period of imprisonment, therefore it is advocated that all measures are in place to ensure that he successfully completes this intervention in efforts to reduce his risk of recidivism. Upon completion of Mr Rosenzweig’s participation in the Owenia House program (scheduled with an approximate date in November 2017) a post treatment report will be completed by rehabilitative intervention staff further assessing Mr Rosenzweig’s post treatment risk of sexual reoffending. It is recommended that until Mr Rosenzweig completes this program, that strict supervision conditions remain in place to effectively manage his risk to the community and to promote successful completion of his treatment program.
Her opinion has been echoed to come extent in other material I have received. In light of these circumstances I consider it appropriate to make an extended supervision order for a period of 12 months from today.
Therefore, I will make an order today in the following terms:
1.The respondent is to be subject to an extended supervision order for a period of 12 months from the date of this order.
2.The conditions to which the respondent is subject are:
2.1.that the respondent not commit any offence;
2.2.that the respondent is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 1977) or any part of a firearm or 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;
2.3.that the respondent will not possess 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;
2.4.that the respondent will be under the supervision of a Community Corrections Officer and will obey the reasonable directions of that Officer;
2.5.that the respondent will submit to tests (including tests without notice) for gunshot residue, as reasonably required by his Community Corrections Officer;
2.6.that the respondent will not change his place of residence without the prior written permission of his Community Corrections Officer;
2.7.that the respondent will not depart from or attempt to depart from the State of South Australia without obtaining the written approval of his Community Corrections Officer at least seven (7) days prior to travel;
2.8.that the respondent will wear an electronic monitoring device, to be fitted and maintained as required by his Community Corrections Officer and at the direction of the Parole Board, and that the respondent will comply with the rules of electronic monitoring;
2.9.further to condition 2.8, that the respondent be subject to electronic monitoring and not leave the residence at any time, except for the purpose of remunerated employment, urgent medical or dental treatment, to minimise the risk of serious injury or death to himself or to any other person, or for any purpose approved or directed by a Community Corrections officer;
2.10.that any service number for a mobile telecommunications service used by the respondent (which may not include internet data service) be approved by his Community Corrections Officer;
2.11.that the respondent will not consume alcohol;
2.12.that the respondent will submit to such tests (including tests without notice) for alcohol use as reasonably required by his Community Corrections Officer;
2.13.that the respondent will not enter or remain upon the premises of any licensed hotel, clubroom or licensed entertainment venue without the prior approval of his Community Corrections Officer or a person delegated by the Department for Correctional Services;
2.14.that the respondent will attend and undertake counselling, sexual offender treatment or any other mental health intervention as directed by his Community Corrections Officer or as ordered by the Parole Board;
2.15.that the respondent will not contact, attempt to contact or associate in any way, whether directly or indirectly, with any person under the age of 16 years, whether or not that person is in the company of another adult and whether or not that association or communication is in person or written correspondence, unless his Community Corrections Officer is present, or a person nominated or approved by that Officer is present;
2.16.that the respondent will not undertake any remunerated or voluntary work with children or participate in any organisation which provides recreational, social, educational or other activities or facilities for children;
2.17.that the respondent will declare to his Community Corrections Officer any tablet, computer, mobile phone, photographic equipment or other electronic equipment that he purchases, loans or which otherwise comes into his possession within 48 hours of it coming into his possession;
2.18.in relation to any item declared in accordance with 2.17, if directed to do so by his Community Corrections Officer, the respondent will produce the equipment to that Officer for the purpose of inspection and/or analysis to ensure that it is not being used by the respondent to associate or communicate with children and/or to produce, possess or view child exploitation material;
2.19.that the respondent will take all steps necessary to comply with the requirements of the Australian National Child Offender Register;
2.20.that the respondent will attend, undertake and complete any psychological or psychiatric assessment (and take any relevant prescribed medication) at the direction of his Community Corrections Officer;
2.21.that, between the hours of 7.30am and 9.00am, and 3.00pm and 6.00pm on Mondays to Fridays (inclusive), the respondent will not attend within 100 metres of the Angaston Primary School;
2.22.that the respondent will not be at or within 50 metres of a bus stop at any time children are present; and
2.23.any condition imposed by the Parole Board under section 11 of the Act.
3.This order takes effect on 2 March 2017.