SP v The Chief Police Officer
[2020] ACTSC 114
•08 May 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | SP v The Chief Police Officer |
Citation: | [2020] ACTSC 114 |
Hearing Date: | 17 April 2020 |
DecisionDate: | 08 May 2020 |
Before: | Crowe AJ |
Decision: | See [30] |
Catchwords: | CRIMINAL LAW – Child Sex Offender – Reporting and other obligations under the Crimes (Child Sex Offenders) Act 2005 (ACT) – application to suspend such obligations – consideration of ss 96 and 97 – suspension order made. |
Legislation Cited: | Child Sex Offenders Registration Act 2006 (SA) – ss 37, 38. Crimes (Child Sex Offenders) Act 2005 (ACT) – ss 6, 47, 54, 96, 97, 98, 127. |
Cases Cited: | BM v Commissioner of Police [2020] SASC 16 C, M v Commissioner of Police [2014] SASC 163 W, IB v Commissioner of Police [2018] SASC 87 |
Parties: | SP (Applicant) The Chief Police Officer (Respondent) |
Representation: | Counsel K Archer (Applicant) M Kent (Respondent) |
| Solicitors O’Connor Harris (Applicant) ACT Government Solicitor (Respondent) | |
File Number: | SC 467 of 2019 |
Publication Restriction: | The Applicant is to be referred to as SP. |
Crowe AJ:
The applicant seeks an order under s 97(2) Crimes (Child Sex Offenders) Act 2005 (ACT) (the Act) which will have the effect of suspending his reporting obligations under the Act.
Background
The applicant is a 64 year old man. In July 2003, he pleaded guilty to six counts of sexual intercourse with a person under the age of 16 years. Those offences had occurred in 1991 when the applicant was 35 years of age. The applicant was then a school teacher. The victim was a 15 year old student at the school where the applicant taught and who attended one of his classes in 1991. The sexual relationship was said to be consensual, in so far as such a relationship could be.
The applicant was sentenced to three years imprisonment on each count, to be served concurrently. That sentence was suspended immediately upon the applicant entering into a recognisance in the sum of $1,000 to be of good behaviour for four years. The recognisance was conditioned on, amongst other matters, payment by the applicant of reparation to the victim of $30,000 by the end of October 2003.
The Crown appealed against that sentence on the grounds that the sentence was manifestly inadequate. Two of the judges on appeal concluded in favour of the Crown argument. However, having regard to discretionary considerations they decided that it was not appropriate to disturb the sentence of the primary judge.
The applicant complied with the conditions of his good behaviour recognisance.
On 29 June 2005, the Act commenced. I will refer to the relevant provisions of the Act below. Suffice to say, upon that commencement, the applicant became a registrable offender under the Act. Pursuant to the obligations imposed by the Act, the applicant was required to report to the Chief Police Officer on an annual basis. There were a number of associated and fairly onerous reporting obligations placed on the applicant under the Act, including as to travel and employment.
By an Originating Application dated 16 September 2019, the applicant applied to the Court for the suspension order referred to in para [1] above. The applicant, who was represented by Mr K Archer of counsel, relied on the following:
(1)Affidavit of SP affirmed on 11 September 2019; and,
(2)Report of Professor D Greenberg, forensic psychiatrist, dated 10 July 2019.
The respondent, who was represented by Ms M Kent, relied on the following:
(1)Affidavit of R Rose sworn on 20 November 2019; and,
(2)Report of Mr A Fugler, psychologist, dated 22 January 2020.
I was informed by the representatives of the parties that this is the first application under s 97 of the Act to come before the Court. The respondent did not oppose the relief sought by the applicant. I was assisted by the submissions made on behalf of the parties which I have summarised below.
Legislation
Section 6 of the Act sets out its objects and a general outline of its operation. It is in the following terms:
6Purpose and outline
(1)The purpose of this Act is to—
(a)require certain offenders who commit sexual offences to keep police informed of their whereabouts and other personal details for a period of time —
(i) to reduce the likelihood that they will reoffend; and
(ii) to facilitate the investigation and prosecution of future offences that they may commit; and
(b)prevent registrable offenders working in child-related employment; and
(c)prohibit registrable offenders from engaging in conduct that poses a risk to the lives or sexual safety of children.
(2)In outline, this Act —
(a)provides for the establishment of a child sex offenders register; and
(b)requires certain offenders who are sentenced for registrable offences to report particular personal details for inclusion in the child sex offenders register; and
(c)allows the sentencing court to order young offenders to comply with the reporting obligations of the Act; and
(d)requires the offenders to keep their details up to date, to report their details annually and to also report certain travel details; and
(e)imposes the reporting obligations for a period of between 4 years and life, depending on the number, severity and timing of the offences committed, and the age of the offender when an offence was committed; and
(f)allows for the recognition of the period of reporting obligations imposed under laws of foreign jurisdictions; and
(g)makes it an offence for registrable offenders to work in child-related employment; and
(h)allows the chief police officer to apply to the Magistrates Court for orders prohibiting registrable offenders from engaging in conduct that poses a risk to the lives or sexual safety of children.
Section 96 of the Act prescribes the criteria to be met before a registrable offender can apply for relief under s 97, which allows the Court to make a suspension order. It is convenient to set out both of these provisions:
96 Eligibility of offender to apply for suspension order
A registrable offender is eligible to apply for an order suspending the offender’s reporting obligations (a suspension order) only if—
(a) 15 years have passed (excluding days in government custody) since the offender was last sentenced or released from government custody for a registrable offence or a corresponding registrable offence, whichever is later; and
(b)the offender did not become the subject of a life-long reporting period under a corresponding law while in a foreign jurisdiction before becoming the subject of a life-long reporting period in the ACT; and
(c) the offender is not on parole for a registrable offence.
97Supreme Court may make suspension order
(1)This section applies if a registrable offender is eligible to apply for a suspension order.
(2)On application by the offender, the Supreme Court may make a suspension order.
(3)The court may make the order only if satisfied that the registrable offender does not pose a risk to the sexual safety of 1 or more people or of the community.
(4)In deciding whether to make the order, the court must take into account —
(a)the seriousness of the offender’s registrable offences and corresponding registrable offences; and
(b)the period of time since the offences were committed; and
(c)the age of the offender, the age of the victims of the offences, and the difference in age between the offender and the victims of the offences, when the offences were committed; and
(d)the offender’s present age; and
(e)the offender’s total criminal record.
(5)Subsection (4) does not limit the matters the court may take into account.
Section 98 of the Act provides that the Chief Police Officer is a party to any application under s 97 and may make submissions in relation to the application.
Similar legislation to the Act has been the subject of a number of decisions in the Supreme Court of South Australia. It is apparent that there has been something of an evolution in the construction of s 38 of the Child Sex Offenders Registration Act 2006 (SA) (the SA Act), which is the equivalent of section 97 in the Act. I was referred to the following cases:
· C, M v Commissioner of Police [2014] SASC 163 (C, M);
· H, DB v Commissioner of Police [2015] SASC 2;
· K, MP v Commissioner of Police [2017] SASC 38;
· L, R v Commissioner of Police [2018] SASC 181 (L, R);
· W, IB v Commissioner of Police [2018] SASC 87;
· Holland v Commissioner of Police [2019] SASC 141; and,
· BM v Commissioner of Police [2020] SASC 16.
In the first of these cases (C, M) Nicholson J said the following in relation to the operation of ss 37 and 38 of the SA Act:
[11] The power to make the order, as conferred by s38(1), is discretionary. By the use of the word “may”, in the context of the legislation as a whole, the legislature has indicated that a court is to exercise a judicial discretion. However, any exercise of this discretion by the Court is constrained by the requirements set out in s37(2), s38(2) and s38(3). In addition to the threshold requirements in s37(2), the Court must not make the order unless it is satisfied that the registrable offender does not pose a risk to the safety and well being of any child or children (s38(2)) and the Court, in deciding whether to make the order, must take into account the matters set out in paragraphs (a)-(g) of s38(3).
[12] A court will not be obliged to make the order in the event that it is satisfied of the requirement in s38(2); the making of the order will remain discretionary. Nevertheless, whilst lack of satisfaction under s38(2) is described as a matter of preclusion, a finding of satisfaction ordinarily will be highly favourable to the exercise of the discretion. Findings with respect to the matters to be taken into account under s38(3) will be relevant not just to the making of any finding pursuant to s38(2) but to the exercise of the discretion generally. The making of an order involves a three stage process: have the threshold matters (s37(2)) been satisfied; if so, is the court satisfied of the requirement in s38(2); if so, should the discretion be exercised to make the order sought.
The above analysis by Nicholson J has been applied in the subsequent South Australian decisions. I adopt it as appropriate in the context of ss 96 and 97 of the Act with the reference by his Honour to s 37(2) being to s 96, s 38(2) being to s 97(3) and s 38(3) being to ss 97(4) and 97(5).
Three issues have arisen in the South Australian cases in relation to the operation of the relevant provisions in the SA Act. They are (by reference to the Act):
(1)Is the risk in s 97(3) to be assessed only at the time of the application?
(2)Does the applicant for a suspension order carry a burden of proof and if so what is the appropriate standard of proof?
(3)What is meant by “a risk” in s 97(3)? Does it mean “any risk”?
In relation to these issues, by the time of L, R, Nicholson J expressed himself as follows:
[11] First, subsection 38(2) employs the present tense in the phrase “does not pose a risk”. In C, M v Commissioner of Police, I considered the issue of whether, notwithstanding the use of the present tense, subsection 38(2) required a consideration of future risks rather than simply the level of risk as at the time of the application or delivery of judgment upon it. For the reasons set out in C, M, I concluded that the phrase “does not pose a risk” should be read in the sense: does not pose a risk and will not pose a risk in the future. I see no reason to depart from that conclusion.
[12] The second preliminary observation concerns the standard of proof. In C, M, I expressed the view that the applicant bore the onus to establish the requirement in subsection 38(2) and to do so on the balance of probabilities, albeit following the application of a Briginshaw approach. I have given further consideration to this matter, bearing in mind the decision of Barr J in R v ND and the observations of Hinton J in K, MP v Commissioner of Police. On further reflection, I now take the view that to speak in terms of onus and the traditional formulation of the civil standard of proof, albeit with a Briginshaw approach, may not be apposite. Rather, the fundamental question before a court when considering subsection 38(2) is one of whether the court is or is not satisfied of the requirement.
[13] The third preliminary observation follows on from the first. Subsection 38(2) provides that the court must be satisfied that the registrable offender “does not pose a risk to the safety and well-being of a child or children”. Construed literally, it would rarely, perhaps never, be the case that a court could make an unqualified finding that any person, let alone a person with a history of underage sexual offending, posed no such risk, particularly as to the indefinite future. This is particularly acute in the present context because the courts are routinely assisted by and required to take account of psychological or psychiatric evidence which relies on both clinical assessment and psychometric testing bearing on this question. As I understand the position, it is, I think universally, the case that a forensic psychologist or psychiatrist will not express the level of such a risk other than by reference to some type of scale or spectrum of risk with low risk, usually, being the entry point for the scale. In other words, it is the experience of the courts in this and related areas that the experts will never (and rightly so) commit themselves to an absolute position of no risk.
[14] Recognising that the expert evidence bearing on the question of risk will be inherently constrained in the manner just described and the practical difficulties that will confront any judge who is called upon to express a view as to a person’s likely or possible future conduct, subsection 38(2), where it requires a finding that a registrable offender “does not pose a risk ...”, is not to be construed literally. To do so would limit the reach of the discretion to suspend reporting obligations conferred by sections 37 and 38 of the Act to such an extent as to effectively empty it of all content.
[15] In my view, the subsection looks to an appreciable risk. As to the meaning of this notion, I adopt and adapt the observations of Stanley J (albeit in a different context) in Attorney-General v Grosser.
I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible. 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 [of the type in question]. It is a question of degree.
[footnote omitted]
[16] The type of risk envisaged by subsection 38(2) will be an appreciable one if it is such that a court comes to the view that the applicant in question remains a person with respect to whom reporting obligations should continue to apply, notwithstanding the satisfaction of the other statutory mandatory requirements for suspension, the identification of favourable discretionary considerations and the lack of any unfavourable discretionary considerations.
[footnotes omitted]
His Honour’s analysis and conclusions have been approved and applied in the subsequent South Australian decisions. I accept the correctness of his Honour’s approach to each of these issues and apply them in the context of this application.
The Applicant’s Reporting Obligations
The evidence discloses that the applicant has been in breach of his reporting obligations on two occasions in the last 15 years. The first breach was, in 2012. The applicant was summonsed in relation to a failure to report within the prescribed time as required by s 47 of the Act after returning to the ACT from the South Coast of New South Wales. The applicant pleaded guilty and a non-conviction order was made.
The second breach occurred in 2014. The applicant had refereed two soccer matches in which children were playing, which was contrary to s 127 of the Act. The applicant also failed to report that fact which was in breach of s 54. The applicant pleaded guilty. The applicant was sentenced to four months periodic detention in relation to each charge, such sentences to run concurrently.
In relation to the second breach, the applicant explained that he had not understood that he was engaging in “child related employment” by refereeing the games, even though he was receiving payment for refereeing on a per game basis.
Expert Evidence
Both parties provided expert evidence. Professor Greenberg was qualified by the applicant. Professor Greenberg assessed the applicant on 13 May 2019. In his report of July 2019, Professor Greenberg expressed his final conclusions as follows:
In summary, I am therefore of the opinion that the ultimate issue of whether (SP) will or will not re-offend cannot be stated with absolute scientific certainty, as would any prediction of future sexual behaviour with any male person in the general population… Based on the above STATIC 99-R and combined limited application of the RSVP tool, and a clinically guided judgement risk assessment approach, (SP’s) current risk for likelihood of committing a further sexual offence should be regarded as in the “lowest risk” category range relevant to other sex offenders.
I am of the view that relative to all other sex offenders, his current risk towards the sexual safety of one or more people or the community, should be regarded as extremely low at this time.
In relation to the breaches summarised above, Professor Greenberg commented:
However, although I have not dismissed these relevant incidents, I have given them less weight given that he has not sexually offended since 1991 (28 years ago) and is now 63 years old. Also, when looking at the totality of all the risk factors mentioned in this report, the risks identified are relatively few in number. He has been otherwise essentially been [sic] largely compliant with both his supervision which ended in 2007 and his reporting obligations over the past 16 year period. The feedback from his therapists at the ACT Corrections Adult Sex Offender Program was generally very positive and he was compliant with the program.
Mr Fugler was qualified by the respondent. In his report of January 2020, Mr Fugler concluded as follows:
I am of the opinion SP falls within the Low Risk range with respect to the likelihood of reoffending. While the two breaches of the conditions of the Child Sexual Offenders Act were considered relevant factors in the assessment on balance I do not believe those offences and the differing versions put forward by SP markedly influenced my opinion that SP does not currently pose a risk to the sexual safety of anyone in the community. I provide that opinion based on the understanding that it is not possible to predict that any individual will not commit a sexual offence, but rather that SP it is unlikely to do so.
Consideration
The first issue for consideration is whether the applicant meets the eligibility requirements of s 96 of the Act. The period of 15 years prescribed by s 96(a) passed on 16 September 2018. Neither of ss 96(b) or 96(c) apply to the applicant. The applicant is thus eligible to make the present application.
The second question which arises is whether the applicant is disqualified by reference to s 97(3). That is, does the applicant now pose an appreciable risk to the sexual safety of anyone in the community, and will he pose such a risk in the future?
I am satisfied on the basis of the applicant’s history and the opinions expressed by Professor Greenberg and Mr Fugler that the applicant does not, and will not, pose a relevant risk. The fact that the applicant has not committed a further sexual offence in the nearly 29 years since his initial offending is, to my mind, powerful evidence that the course of criminal conduct of which he was convicted represented a one-off loss of judgment, and moral failure.
The third matter for consideration is whether, having regard to the considerations in s 97(4) of the Act, it is appropriate to suspend the applicant’s reporting obligations under the Act. I will deal briefly with each consideration.
(a) Seriousness of the Offences
The maximum penalty for the offences when they were committed was 14 years imprisonment. There is no doubt that a sexual relationship between a teacher and one of his/her students is towards the serious end of the spectrum.
(b) Time Elapsed since the Offending
As noted above, nearly 29 years has elapsed since the offending.
(c) Age Difference between the Offender and the Victim at the Time of the Offences
The age difference was nearly 21 years.
(d) Applicant’s Present Age
Again, as noted above, the applicant is now 64 years of age.
(e) Applicant’s Criminal Record
The only other offences on the applicant’s record are those which occurred in 2012 and 2014 which are referred to in paragraphs [19]-[21].
Having regard to the matters set out in s 97(4) of the Act, and all of the circumstances of this matter (as required by s 97(5)), I am satisfied that it is appropriate to suspend the reporting obligations imposed on the applicant by the Act. In particular, I am satisfied the risks of the applicant committing any sexual offences against a child in the community are sufficiently low to warrant the removal of the restrictions placed on him by the Act.
Order of the Court
Pursuant to ss 96 and 97(2) of the Crimes (Child Sex Offenders) Act 2005 (ACT) the applicant’s reporting obligations under that Act are suspended.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Crowe. Associate: Date: |
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