SR v Commissioner of Police - [2020] SASC 195

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
SR v COMMISSIONER OF POLICE
[2020] SASC 195
Judgment of The Honourable Justice Nicholson
13 October 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - REGISTRATION, REPORTING AND LIKE MATTERS
Application for reporting obligations under the Child Sex Offenders Registration Act 2006 (SA) to be suspended.
Held: application allowed.
Child Sex Offenders Registration Act 2006 (SA) s 15A, s 37, s 38; Summary Procedure Act 1921 (SA) s 99A, referred to.
C, M v Commissioner of Police [2014] SASC 163; H, DB v Commissioner of Police [2015] SASC 2, considered.

SR v COMMISSIONER OF POLICE
[2020] SASC 195
Criminal: Application

NICHOLSON J: These reasons concern an application for an order pursuant to s 37(2) of the Child Sex Offenders Registration Act 2006 (SA) (the Act) that the applicant’s reporting obligations imposed on him by that legislation be suspended.
Introduction
On 18 March 2000, the applicant was sentenced in the District Court with respect to 12 counts of unlawful sexual intercourse to a period of imprisonment for 19 months with a non-parole period of eight months. This term of imprisonment was wholly suspended upon the applicant entering into a bond in the sum of $500 to be of good behaviour for a period of three years.
The applicant qualifies as a “registrable offender” pursuant to the Act which came into operation on or about 18 October 2007.
The applicant has provided his own sworn affidavit evidence, unchallenged by the respondent, in which he deposes to becoming registered on the Australian National Child Offender Register pursuant to s 6 and Schedule 1, Part 2 of the Act. As such, he is subject to lifelong reporting obligations, subject to any successful application to have them suspended. The applicant has further deposed to having consistently observed his annual reporting obligations. The respondent, the Commissioner of Police, has had an opportunity to enquire into the applicant’s compliance with the registration and reporting requirements imposed by the Act. There has been no suggestion that the applicant has done anything other than fully comply with his obligations.
This Court has the power, pursuant to s 38(1) of the Act, to make an order suspending the reporting obligations of certain registrable offenders that would otherwise be imposed by the Act. That power is enlivened upon an application being made to this Court by a registrable offender pursuant to s 37(2).
By application filed on 24 September 2020, the applicant has sought an order suspending his reporting obligations. In support of his application, the applicant relies on his own affidavit, sworn 11 September 2020, to which is exhibited, inter alia:
(i)the sentencing remarks of his Honour Judge Herriman dated 29 March 2000;
(ii)a clinical psychological report by Mr Allen Fugler dated 16 February 2000, relied on at sentencing;
(iii)a clinical psychological report by Mr Luke Broomhall dated 25 March 2020; and
(iv)two personal references, one dated 24 August 2020 by KC, a close friend of the last 16 years or so, and one dated 15 August 2020 by EB, a close friend for the last nine years or so.
The legislation
It is convenient to set out and consider the operation of the statutory framework that underpins an application of this nature.
A registered offender’s right to apply for a suspension of his or her reporting obligations is provided for by s 37 of the Act.
37—Supreme Court may exempt certain registrable offenders
(1) This Division applies to a registrable offender who is required to continue to comply with the reporting obligations imposed by this Part for the remainder of his or her life.
(2) If—
(a)     a period of 15 years has passed since he or she was last sentenced or released from government custody in respect of a registrable offence or a foreign registrable offence, whichever is later; and
(b)     he or she did not become the subject of a life-long reporting period under a corresponding law whilst in a foreign jurisdiction before becoming the subject of such a period in South Australia; and
(c)     he or she is not on parole in respect of a registrable offence,
the registrable offender may apply to the Supreme Court for an order suspending his or her reporting obligations.
The manner in which this Court is to approach the determination of such an application is governed by s 38 of the Act.
38—Order for suspension
(1) On an application under section 37(2), the Supreme Court may make an order suspending the registrable offender's reporting obligations.
(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.
(3) In deciding whether to make the order, the Court must take into account—
(a)     the seriousness of the registrable offender's registrable offences and foreign registrable offences; and
(b)     the period of time since those offences were committed; and
(c)     whether the registrable offender has ever been subject to a restraining order under section 99AA of the Summary Procedure Act 1921; and
(ca) whether the registrable offender has ever been subject to a declaration under Part 2A or an order under section 15A; and
(d)     the age of the registrable offender, the age of the victims of those offences and the difference in age between the registrable offender and the victims of those offences, as at the time those offences were committed; and
(e)     the registrable offender's present age; and
(f)      the registrable offender's total criminal record; and
(g)     any other matter the Court considers appropriate.
In C, M v Commissioner of Police[1] I considered an application analogous to the one currently before the Court, and in so doing made the following general observations regarding the operation of ss 37 and 38 of the Act.
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).
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.
[1] [2014] SASC 163.
I also considered the proper approach to the requirement under s 38(2) that the Court must not make such an order unless it is satisfied that “the registrable offender does not pose a risk to the safety and wellbeing of any child or children”. In doing so, and after considering various authorities relevant to the issue,[2] I formed the view that s 38(2) was to be construed as applying not only to the time at which an application was made, but also as requiring consideration as to any future such risk. That is, the statutory injunction that an offender must not pose a risk to the safety and wellbeing of any child or children is to be interpreted as “does not pose a risk and will not pose a risk in the future”. Such an interpretation is consistent with the overall intention of the legislation, being the ongoing protection of children in the community from being subjected to any future improper behaviour by a registrable offender.
[2] [15]-[21].
In summary, before making the order sought by the applicant that his reporting obligations be suspended pursuant to s 38 of the Act, I must be satisfied that:
(i)a period of 15 years has passed since the applicant was last sentenced or released from government custody in respect of a registrable offence or a foreign registrable offence, whichever is later;
(ii)the applicant has not become the subject of a life-long reporting period under a corresponding law whilst in a foreign jurisdiction before becoming the subject of such a period in South Australia;
(iii)the applicant is not on parole in respect of a registrable offence; and
(iv)the applicant does not pose a risk to the safety and wellbeing of any child or children, after having regard to the factors set out in s 38(3) of the Act.
The respondent has had an opportunity to investigate the applicant. Counsel for the respondent advised the Court that the factual matters underpinning the application were not disputed. Nevertheless, and principally because the applicant had been convicted of 12 relevant child sex offences, the respondent opposed the application. However, counsel was instructed to make no further submissions.
On the evidence which is not disputed, (i), (ii), and (iii) above have been satisfied. The remaining question of substance is whether the applicant poses the relevant risk as provided for under s 38(2). Before embarking upon that enquiry, it is necessary to canvass in brief the circumstances of the applicant’s offending, the applicant’s personal history and the opinion of Mr Broomhall.
The facts
The applicant pleaded guilty to 12 counts of unlawful sexual intercourse which took place between June and August 1999. The applicant was a school teacher and was 24 years of age and the victim, who was 16 and a half, was one of his students. The circumstances of the offending are set out in detail in Judge Herriman’s remarks. The following bare summary is sufficient for present circumstances.
The applicant and the young girl shared common interests and started to spend time together. After a time an intimate sexual relationship developed. They behaved towards each other and, at times, presented to other persons, as boyfriend and girlfriend who thought they loved each other. The association between the two was well known to the young girl’s parents and to the school principal. It was not discouraged, indeed to the contrary, it was openly encouraged. However, neither the young girl’s family nor the principal appreciated the extent of the risk or indeed the eventuation of the risk, of a sexual relationship developing.
Judge Herriman recounted a significant number of mitigatory and aggravating features of the offending, not necessary to detail here. It should be noted that, as would be expected, the appellant has experienced quite disadvantageous extra curial consequences as a result of the offending, in addition to the suspended prison sentence penalty.
The psychological report prepared at the time by Mr Fugler was comprehensive. The applicant was described as then having an immature, naïve and inadequate personality and a person who abused his position of responsibility. As a result of counselling then being received by the applicant, the fact that the applicant thought he was in love, the existence of his basic Christian principles and the salutary experience of his contact with the criminal justice system, Mr Fugler expressed the opinion that “it would be surprising if a repeat of any offending behaviour occurred”. This prognostication has proved accurate over the last 20 years or so.
Since the offending, the applicant enjoyed a relatively successful and unremarkable lifestyle. Having lost his teaching registration in 1999, he had to rethink his career options. He, in time, entered the landscaping field. He is now 45 years old, he married his present wife some years ago and they have two young children. The applicant and his family recently moved to Queensland where the applicant is now undertaking higher education studies. He has no criminal record apart from the offending in 1999. Both KC and EB who are aware of the applicant’s past and who regularly engage with him in family activities involving young children, describe him as a caring, hardworking and genuine person. They have no concerns arising from their knowledge of his interactions with children, including his own.
The more recent psychological report by Mr Broomhall which is also comprehensive also provides strong support for the present application. Mr Broomhall found no evidence of paedophilic sexual interests.
At the current assessment [the applicant] seemed to have formed good insight around his past offending behaviours and there was no indication of externalising blame in the form of attempting to blame the victim or anyone else. [The applicant] seemed to take full responsibility for his actions and understood the wrongfulness of these behaviours with accompanying guilt and remorse and appropriate insight into the negative impact both at the time and potentially ongoing for the victim. In my opinion, [the applicant] did not display paedophilic sexual interests and over the years (particularly within his current marital relationship) has gained a level of insight and emotional maturity which has allowed him to form a more meaningful and close intimate relationship with his current wife.
Mr Broomhall described the relevance of the applicant having lived offence free in the community in these terms.
International best practice literature has shown that the longer an individual remains free of arrests or convictions in the community, the lower the chance of subsequent reoffending. In the majority of cases detected recidivism occurs within three years of a previous arrest and almost always within five years of a previous arrest. Research by Hanson and colleagues covering a large sample size (N = 7,740) found that recidivism risk dropped by approximately 50% for at least five years that individuals remained offence free in the community. Further, research by Hanson and colleagues related to living offence free in the community indicated that over a 19 year period living offence free in the community and with a Static-99R score of 1, [the applicant’s] risk of sexual recidivism was at the time of the assessment in the lowest risk category (level 1 very low risk). According to this research, individuals in this category were below the desistance threshold at the time of release from custody.
(Footnotes omitted)
Mr Broomhall reached these conclusions.
In my opinion it needs to be clearly stated that it is not scientifically possible to accurately predict whether or not an individual will or will not actually reoffend in the future. Therefore it is not possible to conclude categorically whether an individual is or is not a risk to the safety of children. The best which can be offered, consistent with professional opinion and literature in this area, is an estimate from “very low” to “very high” ranges which is anchored to empirical literature specifying features associated with risk along with sound clinical and forensic analysis and formulation of how these features might operate in the individual subject to the assessment. The risk assessment process is necessarily multi-faceted, combining in general terms the use of actuarial approaches and an assessment of the relative presence or absence of individual dynamic (changeable) risk factors which contribute to the pattern of sexual offending behaviour.
On the basis of the current assessment methodology including actuarial estimates, literature surrounding length of time living offence free in the community and analysis of dynamic forensic psychological risk factors, it was my opinion that [the applicant’s] risk of future sexualised offending behaviour was in the “very low” range: the lowest risk range possible. In my view there were no recommendations to be made relating to improving [the applicant’s] mental health or psychological status nor were there recommendations which would further reduce [the applicant’s] risk of future inappropriate sexualised or offending behaviours.
Conclusion
I am satisfied that a period of 15 years has passed since the applicant was last sentenced in respect of a registrable offence, that he is not the subject of a lifelong reporting period under a corresponding law whilst in a foreign jurisdiction before becoming the subject of such a period in South Australia and that he is not on parole in respect of a registrable offence. It follows that I am satisfied that the threshold requirements under s 37 of the Act have been made out, such that the applicant is entitled to apply to the Supreme Court for an order suspending his reporting obligations, otherwise applicable under the Act.
Having recently conducted a forensic psychological assessment of the applicant, Mr Broomhall has formed the view that the applicant’s risk of similar sexualised offending behaviour in the future is in the very low range. Mr Broomhall has indicated that, in accordance with the standard best-practice protocols in forensic psychology to which he adhered at the time of writing, it was not appropriate to offer an absolute opinion regarding whether an individual will or will not actually reoffend.
I accept the opinion expressed by Mr Broomhall with that qualification. Furthermore, the nature of the applicant’s sexual offending and the circumstances in which it occurred, in addition to the applicant’s behavioural history for the more than 20 years that have since passed, fully support this opinion. As far as s 38(2) is concerned, I am satisfied that the applicant does not pose a risk to the safety and wellbeing of any child or children.
I turn, briefly, to my conclusions with respect to the other matters that must be taken into account in accordance with s 38(3).
There is no doubting that the registrable offences committed by the applicant were serious (paragraph (a)). However, given the circumstances and the applicant’s behavioural history since, the offending, though serious, would seem not to indicate a propensity on the applicant’s behalf to engage in paedophilic behaviour more generally or at all. That view is consistent with the opinions expressed by Mr Broomhall.
The period of time between when the offences were committed and the date of this application, approximately 20 years, is substantial (paragraph (b)). During that period of time the applicant has demonstrated that he has not at any time since his offending posed a risk to the safety and wellbeing of any child or children.
There is no evidence before the Court to suggest that the applicant has ever been subject to a restraining order under s 99AA of the Summary Procedure Act 1921 (SA) or that he has ever been subject to a declaration under Part 2A or an order under s 15A of the Act. The Commissioner of Police is the respondent to the application. I am confident that, if there was any evidence to this effect, the Court would have been put on notice of it. Accordingly, neither paragraph (c) nor (ca) of s38(3) would seem to present any impediment to the making of the order sought.

As far as the matters in paragraph (d) are concerned, I note that the applicant was 24 years of age at the time of the offending and the victim was 16 and a half years of age. The age difference was significant. However, that age difference is to be viewed in light of the nature of relationship between the two and Mr Broomhall’s conclusions that the applicant’s offending and subsequent behavioural history is not indicative of paedophilic tendencies.
As far as paragraphs (e) and (f) are concerned, I note that the applicant is presently 45 years of age and has no criminal record other than that as discussed in these remarks. This is a significant factor in favour of the applicant.
Finally, I have not had drawn to my attention by the respondent any other matters (paragraph (g)) which would preclude an order of the type sought by the applicant from being made.
I am satisfied that an order suspending the applicant’s reporting obligations, otherwise to be observed by him pursuant to the Act, is appropriate in the circumstances of this case. I make the following order.
1.Pursuant to s 37(2) and s 38(1) of the Child Sex Offenders Registration Act 2006 (SA) the applicant’s reporting obligations under that Act are suspended.