W, IB v Commissioner of Police
[2018] SASC 87
•26 June 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Criminal)
W, IB v COMMISSIONER OF POLICE
[2018] SASC 87
Judgment of The Honourable Justice Stanley
26 June 2018
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) (the Act) for an order suspending reporting obligations.
In 1990 the applicant pleaded guilty to three counts of unlawful sexual intercourse. The victim was a child within the meaning of the Act. As a result, the applicant is a registrable offender for the purposes of the Act and is subject to a range of reporting obligations. The applicant meets the threshold requirements of a registrable offender who is entitled to apply for such an order.
The primary issue arising on the application is whether this Court can be satisfied under s 38(2) that the applicant does not pose a risk to the safety and wellbeing of any child or children.
Held: Application granted.
Child Sex Offenders Registration Act 2006 (SA) s 3, s 6, s 37, s 38, referred to.
C, M v Commissioner of Police (2014) 121 SASR 106; K, MP v Commissioner of Police [2017] SASC 38, applied.
W, IB v COMMISSIONER OF POLICE
[2018] SASC 87Criminal
STANLEY J:
Introduction
This is an application pursuant to s 37(2) of the Child Sex Offenders Registration Act 2006 (SA) (the Act) for an order that the applicant’s reporting obligations be suspended.
In 1990 the applicant pleaded guilty in the District Court to three counts of unlawful sexual intercourse. The circumstances of that offending were that on three occasions, over a three-week period, he digitally penetrated a 15 year old girl who resided in the house in which the applicant was boarding at the time. He was convicted and sentenced to a term of imprisonment for two years, which was suspended on him entering a bond of $500 to be of good behaviour for three years.
This offending is a registerable offence within the meaning of the Act. As a result, on 9 March 2016 the applicant was registered on the Australian National Child Offenders Register pursuant to s 6 of the Act. That subjects him to a range of reporting obligations.
Reporting obligations
Those reporting obligations are substantially prescribed in Division 2 of Part 3 of the Act.
A registerable offender must report his personal details to the Commissioner of Police (Commissioner) annually.[1] The personal details are prescribed in s 13(1) of the Act as follows:
[1] Section 15.
(1)The details the registrable offender must report are as follows:
(a) his or her name, together with any other name by which he or she is, or has previously been, known;
(b) in respect of each name other than his or her current name, the period during which he or she was known by that other name;
(c) his or her date of birth;
(d) the address of each of the premises at which he or she generally resides or, if he or she does not generally reside at any particular premises, the name of each of the localities in which he or she can generally be found;
(da) his or her postal address for service of notices and documents under this Act;
(e) the names and ages of any children who generally reside in the same household as that in which he or she generally resides;
(ea) if the registrable offender knows that he or she is likely to have reportable contact during the next 12 month period with a particular child—the name and age of the child;
(f) if he or she is working—
(i)the nature of the work; and
(ii)the name of his or her employer (if any); and
(iii)the address of each of the premises at which he or she generally works or, if he or she does not generally work at any particular premises, the name of each of the localities at which he or she generally works;
(g) details of his or her affiliation with any club or organisation that has child membership or child participation in its activities;
(h) the make, model, colour and registration number of any motor vehicle owned by, or generally driven by, him or her;
(i) details of any tattoos or permanent distinguishing marks that he or she has (including details of any tattoo or mark that has been removed);
(j) whether he or she has ever been found guilty in any foreign jurisdiction of a registrable offence or of an offence that required him or her to report to a corresponding registrar or been subject to a corresponding child sex offender registration order and, if so, where that finding occurred or that order was made;
(k) if he or she has been in government custody since he or she was sentenced or released from government custody (as the case may be) in respect of a registrable offence or foreign registrable offence, details of when and where that government custody occurred;
(ka) if, at the time of making a report under this Division, he or she has a valid passport—the passport number, date and place of issue and date of expiry of the passport;
(l) if, at the time of making a report under this Division, he or she leaves, or intends to leave, South Australia to travel elsewhere in Australia on an average of at least once a month (irrespective of the length of any such absence)—
(i)in general terms, the reason for travelling; and
(ii)in general terms, the frequency and destinations of the travel;
(m) details of any carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the person;
(n) details of any internet service provider or provider of a carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the person;
(o) details of the type of any internet connection used, or intended to be used, by the person, including whether the connection is a wireless, broadband, ADSL or dial‑up connection;
(p) details of any email addresses, passwords, internet user names, instant messaging user names, chat room user names or any other access code, user name or identity used, or intended to be used, by the person through the internet or other electronic communication service;
(q) any other information prescribed by the regulations.
Pursuant to s 16(1) a registerable offender must report to the Commissioner any change in his personal details within seven days after the change occurs. Pursuant to s 17(2) a registerable offender must report to the Commissioner any intentions to leave South Australia at least seven days before doing so. Pursuant to s 18(2) a registerable offender must report any change of travel plans to the Commissioner. Pursuant to s 19(2) a registerable offender must report to the Commissioner his return to the state. Pursuant to s 20(2) a registerable offender must report to the Commissioner other absences from the state. Pursuant to s 20A a registerable offender must report the details of any reportable contact with a child to the Commissioner within two days of such contact occurring.[2]
[2] “Reportable contact” has the meaning set out in s 13(4) of the Act.
Application for exemption
Section 37 of the Act provides:
(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.
On an application under s 37(2) the Court may make an order suspending the registerable offender’s reporting obligations.[3] The Court must not make the order unless it is satisfied that the registerable offender does not pose a risk to the safety and wellbeing of any child or children.[4] In deciding whether to make the order the Court must take into account:[5]
[3] Section 38(1).
[4] Section 38(2).
[5] Section 38(3).
(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 this case the Commissioner neither supports nor opposes the application for an order suspending the applicant’s reporting obligations.
Applicant’s background
The applicant was raised by adoptive parents. He did not know his biological parents. He describes being physically and emotionally abused by his adoptive mother, particularly from the age of five when his twin sister drowned. He says his adoptive mother blamed him for her death. As a result, at the age of 11 he attempted suicide and suffered a severe electric shock resulting in burns to 82 per cent of his body, which has left him with severe scarring from his neck to his ankles. He spent nine months as an inpatient at the Adelaide Children’s Hospital. He required extensive skin grafts. He ran away from home and was sent to a reformatory on some six occasions. From the age of 14 until 18 he resided at a boys’ home. Thereafter, he was homeless for approximately nine months before obtaining employment. He is a hard worker who has done well and is financially secure.
In adult life, however, he has not escaped further tragedy. In 1988, his de facto partner, and the mother of his second and third children, left him, taking the children with her. This was the background to his registrable offending. In 2008, his eldest daughter died from a drug overdose. In 2012, his wife of 22 years had a heart attack, fell into a bath and drowned. The applicant was devastated and became severely depressed.
In addition, he has suffered severe physical injury. In 1980, the applicant nearly lost his right foot in an industrial accident. He suffers ongoing chronic pain in his right foot as a result. In 2004, he suffered an horrific industrial accident which resulted in a traumatic amputation of his penis and testicles, and a rupture of his femoral artery. He nearly died. He required major genital reconstructive surgery. This has caused significant sexual dysfunction.
The applicant is now 60 years of age. He has been in a relationship for the last four years, with a Thai woman. She is a widow with two daughters aged 15 and 22. She is employed as a high school teacher in Thailand.
The applicant’s past offending, apart from the registrable offence in 1990, mostly consists of driving offences and some property offences from his youth. However, he does have an earlier conviction for indecent assault which occurred when he was 14 years old. He gives a history of this involving consensual sexual contact with his 15 year old girlfriend.
Previous breach of reporting obligations
In 2018 the applicant was convicted of failing to comply with his reporting obligations. The conviction resulted from the applicant’s failure to report a change of address within the prescribed timeframe.
The circumstances of this offence are explained in the affidavit of PO.
PO has been a friend of the applicant for some 12 years. In 2013 he moved into a rural property situated at Mallala. He became a hobby farmer. In 2015, PO’s property was badly affected in the Pinery bushfire. Extensive damage was caused to the property.
PO deposes to various physical ailments which have restricted his capacity to undertake work on his property. The applicant offered to assist PO with work around the farm. It was agreed that the applicant would stay at the farm and do this work in October 2017. Initially, it was anticipated he would be there for a few days only. Once on the property, the applicant noticed there was a lot of machinery which required maintenance and repairs. The applicant offered to assist PO with this work. To that end, he stayed for approximately five weeks.
PO resided at the property with his wife and two adult children and the boyfriend of his daughter. Mr and Mrs O had previously been informed by the applicant of his offending. At no time during the period when the applicant resided at PO’s property were there any children present.
The applicant explained that he overlooked the need to report his change of address. He was charged with a breach of his reporting obligations and pleaded guilty in the Adelaide Magistrates Court. He was convicted and a 12 month good behaviour bond in the sum of $200 was imposed.
The psychological evidence
The Court received reports from two consultant forensic psychologists, Richard Balfour and Luke Broomhall, who assessed the applicant. They considered various factors, including the applicant’s family, educational, occupational, recreational, interpersonal, developmental, medical, financial, legal, drug and alcohol, mental health and psychosexual development histories against the background of his offending. It is unnecessary to recite the detail of their reports.
Mr Balfour interviewed the applicant in August 2016, and on 27 March 2018. He provided two reports dated 30 December 2016 and 28 March 2018. He obtained an extensive history from the applicant.
In his first report, Mr Balfour concludes that the applicant possesses few of the traditional static and dynamic criminogenic risk factors that have been identified by researchers as predisposing an individual towards offending behaviour. Mr Balfour considers the applicant does not suffer from any major psychopathology. Since the age of 19 years, he has lived a largely lawful and productive life occupied by work and family commitments. He has been exposed to several traumatic events during his life.
In relation to the registrable offence, Mr Balfour considers that the offending was opportunistic rather than highly premeditated and predatory. He observes that the applicant is very remorseful and has exhibited victim empathy. He has not sexually reoffended since 1990. On the contrary, he has re-established a lawful and productive life.
Mr Balfour administered the RSVP, a widely-recognised international measure of sexual risk and recidivism in sex offenders. The applicant was assessed as having a low level of sexual risk. Mr Balfour considers that one of the best predictors of sexual offending behaviour is past behaviour. He describes the possibility of the applicant reoffending as being very low. In his first report, Mr Balfour considers that the applicant’s prognosis to continue to remain offence free is excellent. He forms his opinion on the basis of various factors, being: the fact that the applicant has not reoffended for the past 28 years; that he assesses the level of sexual risk the applicant poses to adolescent females as being in the lowest range possible; that the applicant has developed a low libido and suffers from sexual dysfunction; that the applicant does not suffer from any co‑morbid psychopathology that would predispose him to further offending; that he has a stable life; and that he is very remorseful and has developed his own psychological strategies to ensure he does not reoffend.
In his more recent report, Mr Balfour adheres to the opinions he expressed in his earlier report, notwithstanding that, in the interim, the applicant breached his reporting obligations. Mr Balfour considered there was no evidence of any sinister intent in this breach. He continues to believe that the level of sexual risk and recidivism posed by the applicant is extremely low.
The applicant was assessed by Mr Broomhall in February 2018. He could find no evidence that would support a finding of a diagnosis of paedophilia or paedophilic tendencies in the applicant. There were no indications that he engaged in sexual fantasy or sexualised behaviours towards pre-pubescent children under the age of 13 years. Further, he considered there was no evidence that the applicant held sexualised fantasies or engaged in sexualised behaviours, nor felt sexual attraction towards children aged 13 to 17 years. He formed the opinion that the applicant’s registrable offending was most likely due to a lack of stable romantic attachment at the time, frustration at the breakdown of his earlier relationship with the mother of his children, and opportunistic behaviour in the context of a boundary violation within a relationship of trust. He considers the applicant did not deliberately seek out the victim due to her age but, rather, took advantage of the situation which he knew to be inappropriate.
Mr Broomhall undertook an assessment of both static and dynamic risk factors for sexual reoffending. Having regard to static risk factors, he considered that the applicant’s past offending behaviour placed him in the low-moderate range for future risk of similar offending behaviour but, having regard to dynamic risk factors, he was in the low risk range for such offending. Mr Broomhall concluded that there were no indications of paedophilic tendencies, nor deviant sexual fantasies, arousal or behaviour towards females under the age of 17 years. He said:
The current assessment has been undertaken with the awareness that ultimately the court will decide whether [the applicant] poses a risk to the safety of any child or children. As noted above, in my opinion (following best practice, literature and guidelines in forensic psychology), it would be inappropriate to offer a determination which concludes whether [the applicant] will or will not pose a risk to the safety of any child or children. The best that can be offered to assist the court in making this determination follows best practice literature and guidelines using structured professional judgment (a combination of actuarial and forensic assessment) to reach a determination on a scale from very low to very high on the likelihood of an individual reoffending in a sexualised manner. It was my opinion based on the information gathered at assessment that [the applicant’s] risk of similar future sexualised offending behaviour was in the low range.
The applicant is supported by his younger adoptive sister and his adult children. He is currently residing with his step-granddaughter, SB, aged 27 years. She lives with her partner and three young sons, all under the age of six years. The applicant lives in a caravan in the backyard. He has disclosed to SB and her partner that he is a registered sex offender. This is supported by an affidavit from SB, affirmed 28 May 2018. She deposes to the fact that the applicant has been residing with her and her family since February 2018. She is aware that he was convicted of three counts of unlawful sexual intercourse with an under-age girl in 1990. She considers the applicant to be of great assistance around the home. She does not consider he poses any risk to her children.
It appears the applicant notified the police, in accordance with his reporting obligations, at the time he took up residence in SB’s house.[6]
[6] Affidavit of Niklas Stollznow, affirmed 27 April 2018.
Relevant considerations
In C, M v Commissioner of Police,[7] Nicholson J said:[8]
The power to make the order, as conferred by s 38(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 s 37(2), s 38(2) and s 38(3). In addition to the threshold requirements in s 37(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 (s 38(2)) and the Court, in deciding whether to make the order, must take into account the matters set out in paragraphs (a)-(g) of s 38(3).
A court will not be obliged to make the order in the event that it is satisfied of the requirement in s 38(2); the making of the order will remain discretionary. Nevertheless, whilst lack of satisfaction under s 38(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 s 38(3) will be relevant not just to the making of any finding pursuant to s 38(2) but to the exercise of the discretion generally. The making of an order involves a three stage process: have the threshold matters (s 37(2)) been satisfied; if so, is the court satisfied of the requirement in s 38(2); if so, should the discretion be exercised to make the order sought.
[7] [2014] SASC 163, (2014) 121 SASR 106.
[8] [2014] SASC 163 at [11]-[12], (2014) 121 SASR 106 at 109-110.
The assessment of whether a registrable offender poses a risk to the safety and wellbeing of any child or children is not confined to an assessment of present risk, but also requires an assessment of any future risk he or she poses.[9]
[9] C, M v Commissioner of Police [2014] SASC 163 at [17], (2014) 121 SASR 106 at 112; K, MP v Commissioner of Police [2017] SASC 38 at [18].
Consideration
The applicant submits that his reporting obligations should be suspended because it has been 28 years since he committed a registrable offence; he has not committed any further sexual offending in that period; his recent conviction for breach of his reporting obligations is not evidence that he poses a risk to the safety and wellbeing of any child or children; and, in fact, he does not pose such a risk, nor does he exhibit any paedophilic tendencies.
I am satisfied that the applicant has met the threshold requirements prescribed in s 37(2) of the Act.
Further, having regard to the provisions of s 38(3), I find that, while the registrable offences committed by the applicant in 1990 are serious offences, 28 years have elapsed since that offending and there has been no further sexual offending by the applicant in that time; the applicant has not been subject to a restraining order, nor a declaration under Part 2A or an order under s 15A of the Act; the applicant was 32 years of age at the time of the registrable offences and the victim of those offences was 15 years old; and the applicant is now 60 years of age. I have also had regard to the applicant’s total criminal record as described above.
I rely upon the opinions and the reports of Mr Balfour and Mr Broomhall. They are relevant to the question of whether I am satisfied that the applicant does not pose a risk to the safety and wellbeing of any child or children.
Any suggestion that the applicant poses any risk to the safety or wellbeing of a child or to children, at present or in the future, arises from the fact of his offending some 28 years ago. He does not satisfy the diagnostic criteria for paedophilia. His sexual orientation is not to children, whether pubescent or pre-pubescent. From 1990 to 2016, he was not the subject of any reporting obligations, and yet there is no evidence of any sexual offending of any kind during that period. There are a range of factors, identified by Mr Balfour, which evidence the unlikelihood of him offending against children in the future.
I do not overlook the breach of his reporting obligations in 2017. However, I am satisfied that the circumstances of that offence do not evidence him posing a risk to the safety and wellbeing of any child or children. Both Mr Balfour and Mr Broomhall assessed the applicant’s risk of offending against a child in the future as low. Again, I note that, in forming that evaluation, Mr Broomhall considered that the actuarial assessment of his static risk factors indicate that his past offending behaviour place the applicant in the low-moderate range for future risk of similar offending. For reasons explained by each of the psychologists, they could not assess the applicant as posing no risk of reoffending. The constraint upon the psychologists in that regard does not apply to this Court, as was observed by Hinton J in K, MP v Commissioner of Police.[10]
[10] [2017] SASC 38 at [46].
I am satisfied that the applicant’s past behaviour provides cogent evidence of his future behaviour. The Court can rely on that history in being satisfied that he does not pose a risk to the safety and wellbeing of any child or children now or in the future.
I am satisfied that his offending in 1990 can be considered an aberration.
In arriving at this conclusion, I have had regard to the factors prescribed in s 38(3). I have had regard to the seriousness of his offending, his age at the time, the age of his victim, the period of time since those offences were committed, and his total criminal record.
The jurisdictional fact in s 38(2) being satisfied, the issue is whether it is appropriate for this Court to exercise the discretion conferred by s 38(1) and order the suspension of the applicant’s reporting obligations. In my opinion, it is appropriate to do so. The same reasons that have led me to conclude that the applicant does not pose a risk to the safety and wellbeing of any child or children lead me to conclude that the discretion should be exercised suspending his reporting obligations. I am satisfied that the Act’s object of protecting children from sexual predators[11] will not be compromised by making the order sought.
[11] Section 3.
Conclusion
I would allow the application. I am satisfied that the applicant does not pose a risk to the safety and wellbeing of any child or children at present and, on the evidence before me, I am satisfied that he poses no such future risk. I am satisfied that it is appropriate to exercise the discretion conferred on this Court by s 38(1) of the Act to suspend the applicant’s reporting obligations as a registrable offender.
Pursuant to s 38, I order the suspension of the applicant’s reporting obligations.
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