SR v Commissioner of Police - [2020] SASC 17

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
SR v COMMISSIONER OF POLICE
[2020] SASC 17
Reasons for Decision of The Honourable Justice Kelly
10 February 2020
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 pursuant to s 37(2) of the Child Sex Offenders Registration Act 2006 (SA).
Where the applicant is a registrable offender for the purposes of s 6 of the Act due to having been convicted for three counts of unlawful sexual intercourse with a child aged between 15 and 16 years old – where the applicant is required to comply with certain reporting obligations under Part 3 of the Act.
Whether the applicant poses a risk to the safety and well-being of any child or children – whether the discretion should be exercised to suspend the applicant’s reporting obligations under Part 3 of the Act.
Held: application granted.
Child Sex Offenders Registration Act 2006 (SA) s 37, s 38, referred to.
C, M v Commissioner of Police [2014] SASC 163, applied.
K, MP v Commissioner of Police [2017] SASC 38; GD v Commissioner of Police [2020] SASC 2; H, DB v Commissioner of Police [2015] SASC 2, considered.

SR v COMMISSIONER OF POLICE
[2020] SASC 17
Criminal: Application

KELLY J: On 28 January 2020, I made an order pursuant to ss 37 and 38 of the Child Sex Offenders Registration Act 2006 (SA) (‘the Act’) that the applicant’s reporting obligations under Part 3 of the Act be suspended. My reasons follow.
The s 37(2) application
By application dated 16 July 2019, the applicant sought an order suspending her reporting obligations under the Act. In support of the application, the applicant relied on:
1her own affidavit affirmed on 30 July 2019;
2her own affidavit affirmed on 16 January 2020; and
3a psychological assessment report by Mr Richard Balfour.
The application was not opposed by the Commissioner.
Offending giving rise to the reporting obligations
On 18 April 1995, in the District Court of South Australia, the applicant pleaded guilty to and was convicted of three counts of unlawful sexual intercourse. The offending was committed between 1992 and 1993 when the applicant was around 38 years old and the victim between 15 and 16 years. As a result of the offending, the applicant fell pregnant and gave birth to a son who is now around 25 years old.
The applicant was sentenced by Judge Lowrie on 18 April 1995 and released on a bond to be of good behaviour for two years in an amount of $200, without further penalty.
The applicant’s reporting obligations
The applicant is a registrable offender for the purposes of s 6 of the Act due to having been convicted for the three offences of unlawful sexual intercourse with a child.
As a consequence, the applicant has been subject to various conditions, including certain reporting obligations pursuant to Part 3 of the Act. Those obligations require the applicant to provide the Commissioner of Police with identification, residence and employment details, details of intended absences from the State, and details of access to and contact with children. Further, a registrable offender must make an annual report to the Commissioner in addition to reporting any changes in personal details as and when they occur.
I understand that the applicant is also considered a serious registrable repeat offender due to having committed the three offences of unlawful sexual intercourse on three separate occasions.
At the hearing of this application, counsel for the applicant advised that the applicant has no other offending history and has led a lawful lifestyle since the offending in 1992 and 1993. The applicant seeks suspension of her reporting obligations because they restrict her ability to be a conscientious grandmother to her five grandchildren. She says the obligations impede her interaction with friends who are grandmothers when they are with their grandchildren.
Discussion
I have had regard to the terms of ss 37 and 38 of the Act. I have been assisted by the decision of Nicholson J in C, M v Commissioner of Police,[1] and the later decision of Nicholson J in H, DB v Commissioner of Police,[2] as well as other previous decisions of this Court.[3]
[1] [2014] SASC 163.
[2] [2015] SASC 2.
[3] K, MP v Commissioner of Police [2017] SASC 38 (Hinton J); GD v Commissioner of Police [2020] SASC 2 (Parker J).
As I have done in the decision of BM v Commissioner of Police,[4] also determined by me on 28 January 2020, I again gratefully adopt Nicholson J’s reasons in C, M regarding the operation of ss 37 and 38 of the 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.
[4] [2020] SASC 16.
There is a three-stage process set out in the Act for the consideration of any application for suspension of reporting obligations.
The starting point is whether the threshold matters prescribed in s 37 of the Act have been satisfied. Section 37 relevantly provides as follows:
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.
As to this first requirement, the threshold matters in s 37(2) are satisfied because the applicant was sentenced nearly 25 years ago, was not the subject of a life-long reporting period under a corresponding law whilst in a foreign jurisdiction, and she is not on parole in respect of any of her registrable offences.
The second and third stages are set out in 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.
The second stage is whether the Court is satisfied that the requirement in s 38(2) of the Act is met, that is whether the applicant poses a risk to the safety and well-being of any child or children. As to that requirement, I have considered the applicant’s affidavits and received and considered a psychological assessment report of Mr Richard Balfour together with associated material. It is not necessary to recite the applicant’s difficulties during her early life or her marriages, whether de facto or legal. It is sufficient to emphasise that the offending took place while the applicant was in the midst of a divorce, and the complainant was a friend of one of her adolescent children. It was submitted by the applicant’s counsel that following the offending the applicant has effectively been celibate.
Mr Balfour’s report discloses that the applicant has since led a lawful and productive lifestyle, having successfully raised five adult children. She has a close relationship with her family and particularly enjoys being an active grandmother.
It is significant that there was no attempt by the applicant to do other than, as it was put by her counsel, “own this offending”. The applicant remains remorseful and ashamed by it.
Mr Balfour explains his extensive experience in the assessment and treatment of female child sex offenders and why he believes that he is able to provide a reliable risk assessment, giving what I regard as cogent reasons for why the applicant presents a low risk of sexual recidivism. Prominent amongst those reasons is that the applicant’s libido has dramatically decreased with age and, as I have mentioned, she is no longer interested in an active sexual life.
The final stage is whether the applicant should receive a favourable exercise of discretion. In exercising that discretion, the Court must take into account the factors listed in s 38(3) of the Act. I am mindful that a finding of satisfaction as to the second requirement “ordinarily will be highly favourable to the exercise of the discretion”,[5] though it is by no means decisive.
[5] C, M v Commissioner of Police [2014] SASC 163, [12] (Nicholson J).
In my review, the following matters are relevant to the exercise of my discretion:
1The circumstances of the offending have been explained in a manner which demonstrates that it was aberrant and appropriately classified towards the lower end of the scale of seriousness.
2In the nearly 25 years since, there is no evidence of further offending of any kind.
3The applicant is now nearly 64 years of age and presents what might fairly be described as a very low risk of re-offending. She does not present a risk to the safety and well-being of any child or children.
4The applicant has disclosed good reasons for seeking a suspension of her reporting obligations.
5The application is not opposed.
Conclusion
I have taken into consideration all of the matters listed in s 38(3) of the Act. In the circumstances, and pursuant to s 38(2), I am satisfied that the applicant does not pose a risk to safety and well-being of any child or children. Therefore, in accordance with s 38(1), the application is granted and the applicant’s reporting conditions pursuant to Part 3 of the Act are suspended.