ATTORNEY-GENERAL (SA) v PAUL THOMAS [2026] SASC 4

Applicant: ATTORNEY-GENERAL (SA) Counsel: MS E DIBDEN - Solicitor: CROWN SOLICITOR (SA) Respondent: PAUL THOMAS Counsel: MR A GAITE - Solicitor: VADASZ LAWYERS Hearing Date/s: 23/12/2025, 13/01/2026 File No/s: SCCRM-25-032930 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. ATTORNEY-GENERAL (SA) v THOMAS [2026] SASC 4 Reasons for Decision of the Honourable Justice B Doyle (ex tempore) 13 January 2026 CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS The respondent is a high risk offender within the meaning of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’). He was first made the subject of an extended supervision order (‘ESO’) in 2019, and a second ESO was imposed on 4 December 2024, pursuant to which he was subject to a number of strict conditions. The respondent’s index offending involved accessing child exploitation material and failing to comply with obligations under the Child Sex Offenders Registration Act 2006 (SA). He has previous convictions for: the indecent assault of a 16 year old male with a mild intellectual disability; abduction of three children under 16 years of age and causing those children to expose their bodies; and possession of child exploitation material. It is alleged that the respondent breached the conditions of his second ESO by: being outside the boundaries of his residence without approval on multiple occasions between 26 January 2025 and 8 February 2025; allowing his electronic monitoring device to go flat and failing to answer mobile telephone calls on 9 February 2025; and, on the same date, consuming gamma-hydroxybutyrate (‘GHB’). The circumstances surrounding the allegations of 9 February 2025 include that the respondent was found to be naked and to have been viewing a DVD depicting naked youths. The Parole Board directed that the respondent be detained in custody pending a determination as to whether a continuing detention order (‘CDO’) should be made pursuant to s 18 of the HRO Act. The respondent is also the subject of as yet untried charges of indecent behaviour and offensive behaviour arising out of allegations that, in September 2024, he was found wandering naked in a reserve in the early hours of the morning. The respondent is in custody or remand in respect of those charges. -- 1 of 21 -- The applicant seeks that the Court make a CDO in respect of the respondent for the remaining duration of the second ESO, that is, until 4 December 2027. In the alternative, the applicant seeks that a CDO be imposed so as to facilitate the respondent’s participation in a drug and alcohol counselling course. The respondent opposes the imposition of the HRO Act of a CDO and submits that the Court should instead detain him for a period pursuant to s 18(4a) pending suitable accommodation and supports being arranged for his release subject to the existing ESO. Held, imposing a CDO: 1. the jurisdictional facts prescribed in s 18(2)(a) and s 18(2)(b) involve satisfaction on the balance of probabilities; 2. the breaches of the second ESO alleged by the applicant are established; 3. having regard to the criminogenic link between the respondent’s substance abuse and his sexual offending and the respondent’s present inability to refrain from GHB use, the respondent poses an appreciable risk to the safety of the community if not detained in custody; 4. the Court’s discretion should be exercised so as to impose a CDO for a period less than the term of the existing ESO, and for a sufficient period to accommodate the respondent’s participation in custody in drug and alcohol counselling. Child Sex Offenders Registration Act 2006 (SA) s 66JF(1); Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 18; Criminal Law Consolidation Act 1935 (SA) ss 56, 58A(1)(b), 63A, 80(1)(a), 269UA(7); Criminal Law (Sentencing) Act 1988 (SA) s 23; Summary Offences Act 1953 (SA) ss 7 and 23, referred to. Attorney-General (SA) v Coaby [2019] SASC 137; Attorney-General (SA) v Drion [2020] SASC 120; Attorney-General (Qld) v Francis [2007] 1 Qd R 396; Attorney-General (SA) v Gogel [2025] SASC 193; Attorney-General (SA) v Grosser [2016] SASC 49; Attorney-General (SA) v GS [2025] SASC 142; Attorney-General (SA) v Jackson [2024] SASC 75; Attorney-General (SA) v Rowe [2025] SASC 189; Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74; Attorney-General (SA) v Tipping [2020] SASC 64; Craig v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 196; Garlett v Western Australia (2022) 227 CLR 1; GM v Department of Human Services [2025] SASCA 68; Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11; Thomas v Attorney-General (SA) (2019) 133 SASR 302, discussed. -- 2 of 21 -- ATTORNEY-GENERAL (SA) v THOMAS [2026] SASC 4 Criminal - application 1 B DOYLE J (ex tempore): By originating application filed on 15 August 2025, the applicant seeks a determination whether the respondent should be detained pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’). 2 On 19 June 2025, the Parole Board determined that the respondent breached conditions of his extended supervision order (‘ESO’) and directed that he be detained in custody pending attendance before this Court for a determination as to whether a continuing detention order (‘CDO’) should be made. The applicant submits that such an order should be made. 3 The issues for determination are whether: • the respondent has breached a condition of his ESO; • if not detained, the respondent poses an appreciable risk to the safety of the community; and • if those criteria are satisfied, the Court should exercise its discretion in favour of the making of a CDO and whether for the remainder of the ESO (as the applicant submits) or some lesser period. Evidence 4 The applicant relies upon: • the affidavit of Catherine Nolan made on 14 August 2025 (‘Nolan affidavit’); • the affidavit of Eloise Ruth Dibden made on 19 September 2025 (‘First Dibden affidavit’); • the affidavit of Eloise Ruth Dibden made on 12 November 2025 (‘Second Dibden affidavit’); • the affidavit of Eloise Ruth Dibden made on 25 November 2025 (‘Third Dibden affidavit’); • the affidavit of Eloise Ruth Dibden made on 5 December 2025 (‘Fourth Dibden affidavit’); • the affidavit of Eloise Ruth Dibden made on 19 December 2025 (‘Fifth Dibden affidavit’). -- 3 of 21 -- [2026] SASC 4 B Doyle J 2 5 A number of documents are exhibited to those affidavits, including sentencing remarks in relation to certain of the respondent’s previous convictions and psychologists and psychiatrists reports prepared in connection with sentencing, an application for indefinite detention order, and applications for earlier supervision orders. The Third Dibden affidavit exhibits body worn video of Brevet Sergeant Simon Lloyd recorded on 9 February 2025 (‘body worn video’). The Fourth Dibden affidavit exhibits an audio recording of the respondent’s Parole Board interview on 19 June 2025 (‘Parole Board interview’). 6 One of the exhibits comprises a police apprehension report in respect of alleged offending on 1 September 2024.1 The charges have not come to trial and, as will be explained, the document was tendered for a limited purpose. Noting that limitation, there were no objections to the receipt of it nor to any of the other affidavits or exhibits. No witnesses were required for cross-examination. Background 7 The respondent is a 57 year old Aboriginal man who identifies as a member of the stolen generation. He is presently the subject of a second ESO, the first ESO having been imposed on 12 April 2019. When the application for that ESO was made, the respondent was close to completing a term of imprisonment of one year, four months, 3 weeks and 3 days imposed to commence from 14 November 2016. 8 The index offending that resulted in that sentence involved a count of accessing child exploitation material,2 a count of aggravated accessing child exploitation material3 and failing to comply with obligations under the Child Sex Offenders Registration Act 2006 (SA) (‘CSOR Act’). The respondent had used his phone to access child exploitation material on the internet (which he had not reported). He had accessed 62 websites containing child exploitation material. Twelve of those contained images depicting erotic posing of children with no sexual activity, and 49 contained images depicting sexual activity between children or solo masturbation of a child. The websites related to people who live a naturalist or nudist lifestyle, with most of the images depicting children undertaking normal daily activities while naked. The sentencing judge remarked that his history of non-compliance with conditions and lack of willingness to engage with treatment meant he remained an unacceptable risk of re-offending. 9 The respondent has a significant history of previous offending. Of most significance to the present application: • on 21 June 1996, he was sentenced in the District Court of South Australia to a term of imprisonment for one year and six months following a guilty plea to indecent assault.4 The respondent was 26 years old at the time, and the 1 First Dibden affidavit, exhibit ERD34. 2 Criminal Law Consolidation Act 1935 (SA) (‘CLCA’), s 63A. 3 CLCA, s 63A. 4 CLCA, s 56. -- 4 of 21 -- [2026] SASC 4 B Doyle J 3 victim was a 16 year old male with a mild intellectual disability who looked up to the respondent. The respondent drank a substantial quantity of beer prior to the offence and was the instigator of the offending. The respondent ‘didn’t care’ whether the victim consented and took advantage of a youth without regard to the effect his self-gratification might have on the victim; • on 8 July 2005, the respondent was sentenced in the District Court to a term of imprisonment of three years, backdated to 15 March 2004, following guilty pleas to three counts of abduction of a child under 16 years5 and findings of guilt following trial in relation to six counts of causing a child to expose his or her body.6 The three victims were all under 10 years of age and taken against the will of their foster mother from Elizabeth Vale to Maslins Beach. The sentencing judge observed that the combination of immaturity on the part of young boys and a desire on the part of a man with paedophilic tendencies to gratify his prurient interests represented a ‘dangerous and volatile combination’. The respondent’s intention and purpose were characterised as ‘sinister and wrongful’; • on 14 October 2014, the District Court sentenced the respondent to a term of imprisonment of three months and two weeks, suspended upon entering into a good behaviour bond following a guilty plea to one count of possessing child pornography (basic).7 He had sourced 12 images of children under the age of 14 from a nudist website and naturalist magazine; • that suspended sentence was revoked by the District Court on 31 August 2015 following breaches of conditions, including his failure to attend the Owenia House Child Sexual Offender Program at its Sexual Behaviour Clinic (‘SBC’); • on 21 July 2016, the respondent was convicted in the Magistrates Court of South Australia of two counts of failing to comply with an interim control order8 (loitering near an area frequented by children and living within 500 m of a public park) and was discharged without penalty, taking into account five months he had spent in custody; and • the respondent has a number of other drug and alcohol related and non- compliance convictions. Detention and supervision orders 10 Shortly prior to the expiry of the respondent’s term of imprisonment for the index offending, the Attorney-General made an application for an indefinite 5 CLCA, s 80(1)(a). 6 CLCA, s 58A(1)(b) (as it then stood). 7 CLCA, s 63A. 8 CSOR Act, s 66JF(1). -- 5 of 21 -- [2026] SASC 4 B Doyle J 4 detention order (‘IDO’) under the then-current s 23 of the Criminal Law (Sentencing) Act 1988 (SA). An application for an ESO was by way of alternative. 11 On 5 April 2018, Stanley J granted an IDO in respect of the respondent. There was a successful appeal to the Court of Criminal Appeal. That Court decided that an IDO should not be made in circumstances where an ESO could be imposed on condition that the respondent complete a sexual behaviour program and in circumstances where the respondent could be detained in custody until he completed a sexual offender treatment program.9 12 Kourakis CJ (with whom Nicholson and Parker JJ agreed) referred to the evidence of Dr Furst to the effect that due to static risk factors the respondent was in the high range of risk of sexual reoffending if he did not receive further rehabilitation. Dr Furst had concluded that the respondent was therefore unwilling to control his sexual instincts; there was a significant risk that if he were given the opportunity to commit a relevance offence, he would act on those instincts. Kourakis CJ observed that Dr Furst:10 … also concluded that there is a significant risk that Mr Thomas would commit another sexual offence, most probably another failure to report or an offence of Child Exploitation Material. However, Dr Furst also expressed the opinion that there was a significant risk that Mr Thomas would commit a contact offence if the opportunity arose and he had not completed a course of rehabilitation. That risk would increase significantly if Mr Thomas was under the influence of drugs or alcohol. 13 His Honour emphasised the following passage of Dr Furst’s evidence:11 Q In your conclusion you express that your assessment of risk is qualified by Mr Thomas not completing treatment. What is the relevance of treatment in relation to Mr Thomas. A I think firstly there is a general principle that offenders can reduce the risk of re- offending through rehabilitation or therapy. That’s on a general principle but in particular in regard to sexual offenders the risk of a person re-offending has a lot to do with that person’s understanding of their own sexual deviance, their own ability to control instincts and impulses, their ability to understand situations which are high risk, and the better that they understand all of these things the more likely they are, or the better capacity they have, either to take steps to take themselves out of that situation or to alter their pattern of behaviour so I think that undergoing treatment or rehabilitation for someone who has had an offending history like Mr Thomas is very important. Q Taking a step back to the conclusions in your report again, I think you expressed a view that it was most likely that the form of offending that Mr Thomas was likely to engage in is in relation to child exploitation material and failing to comply with reporting obligations. 9 Thomas v Attorney-General (SA) (2019) 133 SASR 302. 10 (2019) 133 SASR 302 at [55]. 11 (2019) 133 SASR 302 at [56]. -- 6 of 21 -- [2026] SASC 4 B Doyle J 5 A Yes, that’s correct. Q Why do you think that that is more likely than other kinds of offending. A I clarify that in terms of there is a difference between sexual offending and general offending, so general offending is more common than sexual offending and so the general principle is that he is more likely to commit a general offence rather than a sexual offence. Contact sexual offences are relatively uncommon and so it’s what we call something that has a low base rate, and they are hard to predict things that don’t happen very often, whereas other offences that do happen a lot more often are a bit easier to predict. So from my point of view Mr Thomas’ history is strongly suggestive that he has problems with supervision and he’s not complied with supervision on a number of occasions so I think that is the most likely offence he would commit if he was released without any treatment. HIS HONOUR Q The risk you are referring to there is the risk of a failure to comply with reporting obligations or accessing child exploitation material. A Yes. That is not to say that he wouldn’t commit a contact offence, I think it is more likely one of those other offences would occur firstly or more likely to occur than contact offences. XN Q Insofar as the risk of committing contact offence what is your assessment of that risk. A I think that Mr Thomas’ risk of committing a contact offence is much higher than other sexual offenders, the assessment is based on the static - the assessment of static factors which was carried about by Department of Corrections indicate he was in high risk category which suggests generally he was twice as likely as a general sexual offender to commit a further sexual offence. It’s still not necessarily a high rate, I don’t have the exact numbers of high rate, but he is twice as likely as other sexual offenders to commit a sexual offence, there is a range but that is the general principle of someone in that high risk rating. One of the difficulties with using actuarial assessment as I think I put in my report is they are good when you have a group of people in the population, people who are in the low risk, and in particular it is really good at identifying people who are in the low risk of sexual offending and it is a good tool for predicting people who are at the high level of sexual offending. The people in the middle it’s a bit more difficult but he is in the high risk area but when you are looking at a population and sorting people into groups it still doesn’t tell you whether this particular individual will go on and commit an offence and unfortunately all of the things I have read and studied say there really isn’t a good way to tell which particular individual will go on and commit a sexual offence. I am not sure if I lost my train of thought. Have I answered your question? (Emphasis added) 14 After canvassing the balance of the evidence, the Chief Justice observed:12 I make the following observations on the evidence. First, the relatively long period in which Mr Thomas has not committed a sexual assault is significant. So too is the nature of 12 (2019) 133 SASR 302 at [69]. -- 7 of 21 -- [2026] SASC 4 B Doyle J 6 the pornographic material found in his possession. Both circumstances suggest a reduced risk of serious sexual offending. Secondly, an ESO with an electronic GPS monitoring condition is well adapted to guard against Mr Thomas’ modus operandi, which has involved loitering in places where he might come across children whom he might be able to entice to accompany him. The GPS monitoring can confine him to a home, a broader locality and/or be set to exclude him from visiting particular places. Thirdly, if Mr Thomas were to breach a condition of an ESO, this Court is empowered to order his detention. For example, if Mr Thomas were not to attend the Owenia House program, he could be detained in prison until he had completed the SBC program in prison. 15 Kourakis CJ summarised the essential steps in Stanley J’s reasons as being that: (1) the community will be best protected by the respondent undertaking a sexual behaviour treatment program; (2) the respondent may not attend the sexual behaviour treatment program at Owenia House if he were released into the community on an extended supervision order; and (3) the community will be best protected by not releasing the respondent before he has completed a sexual behaviour treatment program in prison. 16 In the Chief Justice’s view, the difficulty with the reasoning was that it ignored the power of the court to order detention if a condition of an ESO was breached. He said:13 If Mr Thomas were released on an ESO, a failure to diligently attend and apply himself to the treatment course offered by Owenia House would breach one or more of the conditions of that order. So, too, would any breach of any other terms and conditions of the ESO designed to protect the public from further offending. It will be remembered that it was Dr Furst’s evidence that it was significantly more likely, if Mr Thomas were to reoffend, that he would do so by breaching a reporting condition or by possessing Child Exploitation Material, rather than by committing a sexual assault. If Mr Thomas were to breach a condition of an ESO, or be found in possession of child pornography, the provisions of the HRO Act and, in particular, s 18 would be invoked. The Court, dealing with Mr Thomas on such a breach, would then impose a CDO for a period of time that would allow Mr Thomas to complete a sexual behaviour treatment program in prison. It follows, therefore, that the Judge did not have regard to the likelihood that a failure to complete the Owenia House program would still result in Mr Thomas completing a sexual behaviour program in prison and with a relatively low risk to the community in the intervening period. The Judge proceeded as if there was only a binary choice to be made, one which would see Mr Thomas complete a sexual offender treatment program and one which would not. For the reasons I have given, the making of an ESO would also have resulted in the completion of a sexual behaviour program whilst, at the same time, affording Mr Thomas a meaningful opportunity to rehabilitate in a low-risk setting. 17 Kourakis CJ then concluded:14 There are two differences between the alternative applications of the Attorney-General. First, if Mr Thomas were placed on an ESO, there would be a period of time during which he would be released in the community whilst he was completing the course and, therefore, before any rehabilitation and reformation was realised. It can be accepted that in that period of time there was, at least potentially, a greater risk to the community than if Mr Thomas was detained until he had finished the course. However, the substantial risk identified in 13 (2019) 133 SASR 302 at [83]. 14 (2019) 133 SSAR 302 at [84]-[89]. -- 8 of 21 -- [2026] SASC 4 B Doyle J 7 the evidence, as I observed earlier, was a breach of a reporting condition or the commission of an offence of possession of Child Exploitation Material and not the commission of a sexual assault. Dr Brereton classified even that risk as high if measured over a period of years. The Owenia House course would be completed within a year of release unless Mr Thomas were returned to custody earlier for a breach of a condition. Secondly, an ESO cannot be made for any period longer than five years. If, in that time, Mr Thomas was imprisoned for child pornography offences, the Attorney-General could bring a fresh application pursuant to s 57 of the Sentencing Act 2017. If Mr Thomas completed the course, and complied with all of the terms of the ESO, there would be little remaining risk to the community on its completion. There is, of course, a risk that Mr Thomas would commit a sexual assault in that time, but, if constantly monitored, the evidence shows that that risk is not great. It is therefore important to place close attention to the framing of the terms and conditions of an ESO. Electronic GPS monitoring is a very powerful tool. There is no reason why Mr Thomas could not, as a term of that electronic monitoring, be required to reside at a particular address and be precluded from moving out of a defined radius from that address. Within that closely circumscribed location, exclusion zones could be imposed with respect to places at which Mr Thomas is more likely to have an opportunity to meet children. Moreover, Mr Thomas’ nominated residence might be organised through Offenders Aid and Rehabilitation Services, or similar supported accommodation where there are other residents and supervision. It will be remembered that the Judge was satisfied only that Mr Thomas presented a high risk of further sexual offending which involved sexual conduct ‘where the circumstances are propitious’. The very point of careful electronic monitoring is that it reduces the scope for Mr Thomas to place himself in those circumstances. Standing back and looking at Mr Thomas’ history, it is significant that the last offending sexual assault was in committed 1995, and that the last offending against any person was in 2004, when he took three children to Maslin Beach but had no sexual contact with them. Mr Thomas’ more recent offending has been limited to breach of terms and conditions of community release and the possession of child pornography. Moreover, the child pornography was procured from generally accessible sites on the internet operated by naturalist associations and societies. The pornography was at the lowest level of the hierarchical classification of child pornography, which comprises six levels. For the above reasons, I would hold that the Judge erred in failing to take into account the consideration that even if Mr Thomas did not complete the Owenia House course, on his release on an ESO he would most probably be taken back into detention to complete the course pursuant to s 18 of the HRO Act with little intervening risk to the public. 18 Following the decision of the Court, on 12 April 2019, the respondent was released and made subject to the terms of his first ESO. During the term of that ESO, he completed a program at the SBC at Owenia House. That entailed three- hour weekly group sessions for 25 weeks together with some individual counselling. The program was placed on hold temporarily due to COVID-19 restrictions and he then completed a number of individual sessions after it resumed. Those sessions ended in September 2020. 19 The Senior Clinical Psychologist who prepared his post-treatment report considered that the respondent made significant progress with regard to several identified treatment targets, contributing to a reduction in the estimated rate of -- 9 of 21 -- [2026] SASC 4 B Doyle J 8 sexual recidivism. She considered that the respondent had appeared to have a very good understanding of the issues related to his sexual offending. He was assessed at being ‘above average risk of sexual re-offending’, compared to the pre-treatment assessment which estimated that he was at well above average risk of sexual reoffending.15 20 On 28 March 2024, the applicant applied for a second ESO. An interim supervision order was made on 11 April 2024. Before that application was determined, the respondent was taken into custody by the Parole Board. The Board found he committed breaches of the first ESO. A referral was made for a CDO. However, that application was not pursued and was treated as overtaken by the imposition of a second ESO on 4 December 2024. 21 In connection with the application for the second ESO, a report was prepared by Mr Williams, a forensic psychologist.16 Mr Williams interviewed the respondent in custody. The respondent gave implausible explanations and made denials in relation to his previous offending behaviour. Mr Williams’ report included the following conclusions:17 Previous assessments have reported that Mr Thomas has demonstrated both limited insight and significant cognitive distortions in relation to his offending behaviour. Perhaps most concerningly, he has consistently denied any sexual motivation for his behaviour and that he had any sexual attraction to children and has maintained these assertions despite the incredible nature of his self-report. For example, he reported that he had not intentionally brought the victims of his abduction to … Maslins beach, despite his well-documented predilection for nudism, but rather that his car had coincidentally broken down there. Mr Thomas has also continued to maintain his denials of a sexual motivation for his offending and a sexual attraction to children despite previously documented admissions that he was primarily attracted to prepubescent males. Contrastingly, the Post Treatment Assessment Report dated 23/10/2020 noted that Mr Thomas was ‘open in regard to the sexual offending’ and ‘appeared motivated to understand reasons for his offending’. He reported that he was ‘uncertain as to whether he was sexually attracted to children’ however he was ‘open to considering the possibility’. It was noted that he had ‘demonstrated increased insight into his offending behaviour including the role that offence planning and victim grooming had played’. It was noted that he appeared to have ‘generally accepted responsibility for his past offending behaviours’ and was ‘able to describe his motivations for offending in an open manner’. Mr Thomas’ self-report during the current interview appeared to contradict many of the conclusions contained in the post-treatment report. He denied any sexual motivation for his offending. He refused to consider the possibility that he was sexually attracted to children. … It is clear from his self-report that Mr Thomas has not developed insight into his offending behaviour and remains unwilling to discuss the details that may have contributed to it. He was unwilling to consider that his behaviour had been motivated by sexual interest and maintained his denial that he had a sexual interest in children. He maintained a distorted 15 First Dibden affidavit, exhibit ERD31. 16 First Dibden affidavit, exhibit ERD32. 17 First Dibden affidavit, exhibit ERD32, pages 267-268. -- 10 of 21 -- [2026] SASC 4 B Doyle J 9 view of his offending that lacked credibility, even when confronted with the inconsistencies in his report. Accordingly, I would consider that the apparent treatment progress demonstrated by Mr Thomas during the program may have been the result of a deliberate attempt to manipulate and influence the outcome of his assessments. An alternate explanation would be that any insights that Mr Thomas gained into his behaviour were temporary and later overcome by his tendency to employ the psychological defence of denial. In either case, I would conclude that the post-treatment risk assessment likely represented an under- estimation of his actual risk of reoffending. I would also note that Mr Thomas’ lack of concern when confronted with the inconsistencies in his reports, as well as his tendency to quickly change his story to match the details presented to him, was indicative of the presence of an underlying personality structure of extreme antisociality and perhaps psychopathy, although my assessment did not include a comprehensive review of his personality. … In summary, Mr Thomas has a history of serious sexual offending and remains at heightened risk of committing further sexual offences. He has limited insight and maintains a highly distorted view of his offending. He has a significant history of substance abuse that has been closely related to his offending behaviour. Whilst he has participated in treatment to address his risk of sexual re-offending, it would appear that he had gained limited benefit from this given that he continues to report that his behaviour had not been sexually motivated, and that he did not have a sexual interest in children. Mr Thomas’ adherence to his previous ESO has been poor, with multiple breaches and returns to incarceration. He has continued to use illicit substances and this represents a significant risk in relation to his re-offending. Accordingly and in consideration of the above factors, I believe that Mr Thomas remains at risk of committing another serious sexual offence, and I would therefore support the imposition of an extended supervision order. Mr Thomas clearly requires further intervention to address his risk of sexual reoffending and ongoing use of illicit substances, and would be unlikely to engage in such if not mandated to. … 22 The terms of the second ESO entailed electronic monitoring with a high level of restriction on movement for the first 12 months of its operation, or unless the Parole Board determined otherwise. Effectively, the respondent was bound to remain in his residence other than in the case of emergencies or with the prior approval of his supervising officer. Breach of ESO conditions 23 It is against the background of his release in December 2024 on those terms that the alleged breaches occurred in February 2025. 24 The applicant alleges that: -- 11 of 21 -- [2026] SASC 4 B Doyle J 10 • between 26 January 2025 and 8 February 2025, the respondent was outside of the boundaries of his residence without approval on multiple occasions (alleged to be a breach of condition 5 concerning home detention); • on 9 February 2025, the respondent’s electronic monitoring device was going flat and he failed to answer mobile telephone calls (alleged to be a breach of condition 6 concerning electronic monitoring and condition 18 concerning his mobile telephone); and • on 9 February 2025, the respondent consumed and was affected by gamma- hydroxybutyrate (‘GHB’) (alleged to be a breach of condition 8 concerning drugs). 25 The evidence upon which the applicant relied to establish the consumption of drugs includes: • the affidavit of Mr Justin Markham, an Intensive Compliance Officer (‘ICO’) who attended the respondent’s residence at 8.18 am on 9 February 2025; • the affidavits of Constable Ryan Towns and Brevet Sergeant Lloyd each of whom also attended the residence; and • the body worn footage of Brevet Sergeant Lloyd. 26 When Mr Markham attended he banged on the door for several minutes before the respondent answered the door naked and incoherent. Mr Markham found the respondent to be unresponsive to all questions and directions. The respondent was asked to put some clothes on and was continuously walking backwards and forwards muttering incoherently. Mr Markham noticed a DVD paused on the TV in the lounge room which appeared to show the image of an underage naked male and female. I interpolate that the evidence of Detective Brevet Sergeant Winterfield was to the effect that the youths depicted were between 10 and 13 years old. His evidence is that the DVD was a ‘nudist video’ titled ‘Czech Freedom’. The image frozen on the screen at the respondent’s residence was part of a sequence showing naked youths exercising and lifting hand weights, and with the vision concentrated on the genital region of those youths. 27 Mr Markham observed two plastic bags on a small table next to the lounge containing a small amount of white powder and a small bottle containing liquid nearby. The respondent managed to put on a pair of shorts, a sock and one thong. 28 Constable Towns made observations that the respondent appeared to be heavily drug affected. Brevet Sergeant Lloyd made the same observation. Due to the respondent’s intoxicated state, Lloyd believed the small bottle to contain GHB. 29 The respondent was taken into custody after his arrest on 10 February 2025 on a Parole Board warrant. -- 12 of 21 -- [2026] SASC 4 B Doyle J 11 30 I have viewed the body worn footage. It shows the respondent to be in an incoherent and plainly drug-affected state. The respondent repeats the words ‘what’s up’ continually for several minutes and repeatedly stands up only to turn in a small circle and sit back down. There can be no doubt based on the foregoing evidence he was significantly drug-affected. 31 That conclusion is confirmed by admissions: • on 9 February 2025, that what was in the bottle ‘would have been’ fantasy or ‘GHB, I think. The same thing, isn’t it?’; • on 11 February 2025, to the effect that he had been frequently using GHB in the community and was in active withdrawal; and • on 12 February 2025, to the effect that he was withdrawing from GHB and was using ‘a lot’. 32 At an earlier stage in these proceedings, a question had been raised about further admissions made in a Parole Board interview on 19 June 2025. Ultimately, however, any question about the reliability of the transcript has fallen away and, in any event, having listened to the audio, I am satisfied that the admission of drug use during that interview is accurate and (relevantly) voluntary. 33 In relation to the other breaches, the evidence is contained in Department of Correctional Services (‘DCS’) records which were admitted without objection. 34 I find that each of the alleged breaches is established on the balance of probabilities. It is therefore necessary to consider whether the respondent poses an appreciable risk to the safety of the community if not detained in custody and whether, in the exercise of discretion, a CDO should be made. 35 Before doing so, I observe that whilst charges were ultimately not proceeded with in relation to other material located at the respondent’s residence, there is evidence before the Court, which I accept, that Detective Brevet Winterfield located a mobile phone which analysis revealed had accessed or displayed websites and images of pre-pubescent males. The titles of the web pages visited included: ‘children skinny dipping’, ‘blonde boy beach’, ‘nude beach’, ‘is it true that boys had to swim naked in swim class or the YMCA in 1960s and 1970s’, ‘nude swimming in US indoor pools’, ‘childhood nudity’, ‘child sexuality’, ‘nude swimming’, ‘naked swimming in PE class’, ‘naturist freedom children’s afternoon’, ‘Maslins beach as an 18yo’, ‘my girlfriend wants to go skinny dipping with me because she said she’s never seen a boy without his clothes. We’re both 13. Are we ready for this?’, ‘1960s little boy kid swims…’, ‘how do I speak to my boys about their genitals and nudity’, ‘blonde boy 5-7 standing on beach’, ‘teenage boy blond swimming trunks’, ‘pixnudeswim.com’, ‘12 year old boy images’, and ‘naked swimming in school’. -- 13 of 21 -- [2026] SASC 4 B Doyle J 12 36 The applicant submits that whilst the Court should not in the circumstances embark upon a determination of whether the respondent intentionally downloaded ‘child exploitation material’, the Court can make a finding, relevant to its assessment of risk, that whilst in his possession the respondent’s phone, whether by design in every case or otherwise, accessed sites with those descriptions with the frequency suggested by the number of titles just listed. I accept that submission and find accordingly. In doing so, I have accepted, as the respondent’s counsel submitted, that some caution is required in making inferences as to the respondent’s intent in any particular instance. It is notorious that an innocent use of the internet can lead a user to access a site with inappropriate content. However, in the present case, it can at least be accepted from the number and nature of sites accessed by the device that the respondent has not taken care to avoid accessing inappropriate content. Appreciable risk to the safety of the community 37 The concept of an appreciable risk for the purposes of s 18(2)(b) of the HRO Act is the same, or is similar to, the concept deployed in determining whether an ESO should be made under s 7 of that Act.18 That is to say, the risk must not be purely speculative and must be founded in some evidence that provides a substantive basis for an apprehension of future conduct that poses a risk to community safety.19 38 However, the premise upon which that risk assessment is made differs between the two provisions. What must be assessed under s 7 is the risk posed by the respondent if they are unsupervised in the community. What must be assessed under s 18(2)(b) is the risk to the safety of the community if the respondent is not detained but remains, instead, subject to supervision. 39 Accordingly, in determining whether the relevant risk exists, the breaches of the ESO which provide occasion for the imposition of a CDO may be particularly important evidence because, by hypothesis, they have occurred whilst the respondent has been subject to supervision. The breaches may be indicative of a relevant risk even if they did not directly result in danger or harm to the community if they involve conduct with a criminogenic link to offending of a dangerous kind or if they reveal a resistance on the respondent’s part to, or the ineffectiveness of, supervision. If the circumstances or nature of the breach do not indicate a failure of the supervision order to safeguard the community, a detention order is unlikely to be appropriate.20 If the community’s safety can be adequately protected by supervision, that is to be preferred.21 18 Attorney-General (SA) v Tipping [2020] SASC 64 at [42] (Nicholson J). 19 Attorney-General (SA) v Grosser [2016] SASC 49 at [29] (Stanley J). 20 Attorney-General (SA) v Coaby [2019] SASC 137 at [19] (Hughes J). 21 Attorney-General (SA) v Jackson [2024] SASC 75 at [7] (Kourakis CJ), referring to an observation in Attorney-General (Qld) v Francis [2007] 1 Qd R 396 at [39] (Keane, Holmes JJA and Dutney J), a decision endorsed in Garlett v Western Australia (2022) 227 CLR 1. -- 14 of 21 -- [2026] SASC 4 B Doyle J 13 40 That said, all of the circumstances, including any period of supervision during which the respondent has not engaged in conduct that poses a risk to community safety, must be considered, and it must constantly be borne in mind that a CDO is not to be imposed for punitive purposes.22 There will be cases, though, in which the duration of any period of detention may be affected by the desirability of the respondent appreciating fully that their poor compliance with conditions calculated to minimise risk will have seriously adverse consequences, on the basis that such reflections in turn conduce towards protection of the community by discouraging future risky behaviour.23 41 It is necessary to identify with particularity the risk that the respondent is said to pose to the community before turning to consider whether detention is necessary to adequately protect the community from that risk. In some cases the risk to the community may be immediate and the appropriate response will be detention. In other cases, the risk may be less immediate, but no less profound, and may require detention so as to facilitate different measures associated with intervention and prevention.24 42 Turning from the nature of the risk assessment to the standard of assessment, the applicant’s primary submission was that the Court need not be satisfied of the risk according to a civil or criminal standard. In the alternative, the applicant submits that the relevant standard is the balance of probabilities. 43 In circumstances where: (1) the task of determining whether the respondent poses the relevant risk is conferred upon the Supreme Court and there is no general disapplication of the rules of evidence;25 and (2) the structure of s 18(2) suggests that the Parliament had in mind the same state of satisfaction in respect of both ‘jurisdictional facts’,26 I consider that the Court is required to be satisfied on the balance of probabilities of the relevant risk.27 That is the approach I will adopt. Behaviour during period of supervision 44 Following his term of imprisonment in respect of the index offending, the respondent was first released on an ESO in April 2019. He was subject to high intensity treatment supervision initially, and attended the SBC for treatment. 45 After a time, he was placed on a less intensive program of supervision. According to a progress report prepared on 2 February 2024, his response to treatment then began to decline. During the period of his first ESO, the respondent was found on several occasions to have breached his no alcohol and no drugs 22 Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11 at [85] (Hinton J). 23 Attorney-General (SA) v Jackson [2024] SASC 75 at [38] (Kourakis CJ). 24 Attorney-General (SA) v Drion [2020] SASC 120 at [68] (Livesey J). 25 cf. GM v Department of Human Services [2025] SASCA 68 at [164]-[172] (Livesey P, S Doyle and Bleby JJA). See also Attorney-General (SA) v Rowe [2025] SASC 189 at [71]-[73]. 26 Attorney-General (SA) v GS [2025] SASC 142 at [6] (Kimber J). 27 Whilst the position would have been clearer had explicit language like that in s 269UA(7) of the Criminal Law Consolidation Act 1935 (SA) been used (cf. Attorney-General (SA) v Rowe [2025] SASC 189 at [73]), the absence of that language does not cause me to reach a different conclusion. -- 15 of 21 -- [2026] SASC 4 B Doyle J 14 conditions. He was returned to custody on five occasions. Two of those were during the higher intensity treatment period. That said, the authors of the 2 February 2024 report did not endorse a further ESO.28 46 However, following his release on 7 February 2024, the Intensive Compliance Unit received a call from police on 9 February 2024 who had attended the respondent’s residence and determined that the respondent had fallen face-first onto the ground under the influence of GHB. He was hospitalised briefly. 47 In May 2024, the respondent’s monitoring device registered as not properly charged on a few occasions and he failed to respond to mobile telephone contact. He was found on the floor of his residence covered in vomit and blood, likely affected by GHB. 48 A warrant was issued and executed on 1 June 2024. Following an interview on 13 August 2024, on 14 August 2024, the Parole Board added more intensive supervision conditions to his ESO and he was released on 19 August 2024. 49 More recently, the respondent has been in custody since his arrest following the events of 9 February 2025, whilst subject to the second ESO. 50 He is also remanded in custody for alleged further offending comprising a count of indecent behaviour and a count of offensive behaviour.29 The police apprehension report in respect of those allegations states that at about 3.30 am on Sunday 1 September 2024, DCS contacted police regarding the respondent being detected moving through Willcocks Reserve in breach of condition 24 of his first ESO. It is alleged that an officer attended and sighted him naked, with his genitals exposed, running through the reserve. It is alleged that he had been walking a number of streets in the area for about an hour prior to that. 51 The respondent was charged in respect of this matter on 2 September 2024. He did not initially apply for bail but was later granted bail on 12 December 2024. Bail was revoked, however, at a hearing on 26 May 2025 (by which time he was being detained on the basis of the Parole Board’s determination that he had breached his ESO conditions). 52 The September 2024 allegations have not been the subject of any determination. The applicant’s counsel made clear that the Court is not being asked to determine offences were committed. That makes it unnecessary to consider whether, had that course been urged, a consideration of whether the alleged facts occurred would have been appropriate.30 28 As at the date of that report, the respondent had been detained in custody on a Parole Board warrant since 14 November 2023. 29 Summary Offences Act 1953 (SA), ss 7 and 23. 30 cf. Attorney-General (SA) v Rowe [2025] SASC 189 at [111]-[119] (in the context of a risk assessment required by Part 8A of the CLCA), Attorney-General (SA) v Gogel [2025] SASC 193 at [17]-[20] (in the context of a risk assessment required for the purposes of imposing a supervision order). -- 16 of 21 -- [2026] SASC 4 B Doyle J 15 53 The applicant contends that the fact of the allegation is itself salient in the context of the risk assessment required and the discretion to be exercised. In the absence of an invitation to find that the alleged events (or some of aspects of them) occurred, the use and weight to be given to the mere fact of the allegations is obviously limited. 54 In some cases, non-controversial features of the allegations may serve to illustrate the extent of the opportunity for offending of a particular kind, or the potential risks to the community, notwithstanding the extent of the supervision and restrictions to which a respondent is subject. In the present case, the respondent’s counsel informed me that the fact of Mr Thomas’ presence, whilst naked, at the location and time alleged was not likely to be in dispute; that is, identity is not in issue. Rather, the issue is likely to be whether his conduct at that location either generally or specifically amounted to the elements of the charged offences. To that extent, the allegations may be said to illustrate at least the opportunity for the respondent to engage in conduct of the kind alleged despite very strict monitoring conditions. On the other hand, to some extent, it also highlights the efficacy of monitoring, given the respondent was apprehended within an hour or so of leaving his residence and had not in fact threatened any individuals. 55 In other cases, the fact that the person is subject to allegations may throw a more serious light on later proved conduct. 56 So, here, it is of some significance that the February 2025 conduct occurred whilst the respondent was subject to charges arising from the September 2024 allegations. In a letter written by the respondent after his return to custody in late September 2024, the respondent wrote that ‘I also promise this will be my very last time in custody as I only want to move forward with a positive outlook from now on’. That he was not able to avoid significant drug use despite his awareness of the serious consequences for him in doing so speaks to the difficulties the respondent is having even under supervision. 57 Other than in these limited respects, I do not propose to attach significance to the September 2024 allegations. 58 As was earlier noted, the respondent was taken into custody in early September 2024 pending consideration being given to the imposition of a CDO, but events were overtaken by the making of a second ESO and then, within approximately two months after his release on bail in respect of the September 2024 charges in December 2024, the events of 9 February 2025 occurred, following which the respondent has been in custody. Consideration 59 It can therefore be seen that the respondent has been in and out of custody on a number of occasions in the period following his imprisonment in respect of the index offending. -- 17 of 21 -- [2026] SASC 4 B Doyle J 16 60 He has been persistently non-compliant in relation to drug use and some other conditions, but he has not been accused of any contact offending during that period. 61 The respondent has not committed any offending of a kind involving direct physical contact or harm towards a victim for over 20 years. He has, however, committed offending involving the possession of child pornography in 2014 and 2016 (the index offending). Bearing in mind the limited use I may make of the September 2024 allegations, much turns on the significance of the respondent’s repeated substance abuse in clear breach of the terms of the ESOs to which he has been subject, and the criminogenic link between drug use and offending that poses a risk to the safety of the community in a more direct and concrete way. 62 The surrounding circumstances of the respondent’s conduct on 9 February 2025 are of significance in this respect. At a time when the respondent was subject to an ESO and facing charges relating to public indecency whilst affected by drug use, the fact that the respondent was viewing an image or a DVD depicting naked youths whilst himself naked and significantly drug-affected is of serious concern, even though it has not been established that the images comprised ‘child exploitation material’. 63 That is because it tends to support the concern expressed by those who have assessed him that there is a clear criminogenic link between his history of substance abuse and his sexual interest in young people, and because it also appears from the respondent’s interactions with Mr Williams that the gains thought to have been made by the respondent when he attended the SBC program following the imposition of the ESO were either feigned or subsequently lost. These concerns are heightened by the evidence relating to the web sites accessed on the respondent’s mobile telephone. 64 In assessing whether there is a non-speculative risk that the respondent will, if released back into the community, but subject to supervision, engage in conduct that is a danger to the safety of the community, it is natural to focus upon the risk of contact offending or other inappropriate interactions of an indecent kind. Conduct of that kind has an immediate effect and demonstrable impact upon community safety. The possession of child exploitation material has a less direct, and potentially less localised, but nevertheless real, effect on community safety. As Jagot, Bromwich and O’Callaghan JJ observed in a different context:31 [T]here is an obvious and logical connection between any dealing with child exploitation material, and such dealing contributing to a market for the creation of more such material and thereby the exploitation of children to produce that material. That may include children in Australia. Specific evidence to support such an obvious and logical conclusion from the nature of such offending is not required, including identifying, as a matter of ordinary logic, the contribution of such dealing towards market motivation to create such material. This is not mere guess work or speculation. 31 Craig v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 196 at [16]. -- 18 of 21 -- [2026] SASC 4 B Doyle J 17 65 The position is more nuanced in respect of material of a kind that may be relatively low level in terms of the hierarchical classification of child pornography and widely available from ‘naturalist associations and societies’. It is doubtful that there is a causal relationship between a person such as the respondent accessing material of that kind and the exploitation of children. 66 In my view, the risk to community safety in Mr Thomas’ case arising from his proclivity to access such material whilst engaging in substance abuse, is that it may be precursory to offending with a more direct and immediate effect on members of the community, and that, as well, it is indicative of either an unwillingness or inability to comply with the restrictions to which he is subject. 67 It is true that, whilst supervised, there are protections against offending of a more direct and serious kind occurring. It would likely only occur away from his residence, and thus may be forewarned by his electronic monitoring device. As well, if the respondent’s conduct on 9 February 2025 is any indication, the same substance abuse which may manifest a preparedness to act on paedophilic desires may also affect his physical capacity to act on those desires. I also bear in mind that the respondent is not a young man. All that being said, there remains a risk of opportunistic and brief offending that may have a lasting impact on members of the community. 68 Further, the fact is that the 9 February 2025 conduct occurred against the background not only of the promise made by the respondent in the context of the September 2024 allegations, but the proposition made on more than one occasion by Kourakis CJ in his reasons for not imposing an IDO, namely, that any breach of the terms of an ESO would subject the respondent to the risk of detention pursuant to s 18. The significance of this context is not that the respondent must be penalised for failing to heed the warning given to him. It is that his repeated failure to comply with the terms of the ESO speaks to a worrying unwillingness or disinclination to avoid the risks to which the ESO is directed.32 69 The respondent’s counsel submitted that the respondent’s non-compliance with monitoring conditions was causally linked to his GHB substance abuse difficulties. He submitted that the respondent had in his Parole Board interview and elsewhere in more recent times acknowledged his difficulties with substance abuse. It was submitted that this insight overtook or at least lessened the concern that the Court might have entertained about the lack of insight to which Mr Williams’ report had drawn attention. 70 However, in my view, the respondent’s preparedness to accept his difficulties with substance abuse cannot be equated with a preparedness to acknowledge and proactively minimise his risk of sexual offending. Whilst he had previously received some drug and alcohol counselling during the term of his first ESO, and had commenced engagement with Uniting Communities in the period he was most 32 See, to similar effect, Attorney-General (SA) v GS [2025] SASC 142 at [55] (Kimber J). -- 19 of 21 -- [2026] SASC 4 B Doyle J 18 recently in the community, the fact is he has not been able satisfactorily to address his substance abuse issues whilst subject to supervision. 71 Whilst I have hesitated before so concluding, I am satisfied in all the circumstances that the respondent poses an appreciable risk to the safety of the community if not detained. The baseline risk arising by virtue of the respondent’s apparently persistent sexual interest in youths is an appreciable risk that may be able to be adequately managed by supervision if the respondent is able to make progress in relation to his substance abuse issues. However, as matters stand, I consider that the risk is not able properly to be managed by supervision and that treatment in relation to substance abuse issues in the community, whilst undoubtedly available, is not likely to be successful. Discretion and duration 72 Turning then to the question of discretion and the duration of any order, the applicant’s primary position is that there should be a CDO for the remaining term of the ESO; that is, until 4 December 2027. In the alternative, the applicant contends that the CDO should be for a period that would facilitate the respondent’s participation in the SMART Recovery program which is available in Mount Gambier prison and could be commenced on 22 January 2026. 73 The respondent contends that even if there is an appreciable risk in this case and bearing in mind that the discretion to impose a CDO is not exercised lightly given its drastic nature,33 the Court should not subject the respondent to another year or more in custody. The respondent’s counsel fairly and appropriately drew to my attention that if the application for a CDO were to be dismissed, and if the respondent were to be granted bail in respect of the September 2024 allegations, he presently has nowhere to live. 74 The respondent submitted, however, that rather than impose a CDO of any duration, a preferable course would be to defer the respondent’s release pending the Court being satisfied that the respondent can identify appropriate accommodation as well as gain access to appropriate supports in the community including as relates to substance abuse treatment. 75 Whilst I accept that such a course might be entertained utilising s 18(4a) of the HRO Act, having been satisfied of the jurisdictional requirements, and having regard to the paramount consideration identified in s 18(3), I propose to impose a CDO for a term sufficient to facilitate completion of the SMART Recovery program. In my judgment, treatment of the respondent’s substance abuse problem, which is a major risk factor concerning his risk of sexual offending, is more likely to be effective in custody, and the protection of the community also points in favour of his detention for a period whilst that occurs. In striking an appropriate 33 Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74 at [9] (Hinton J), Attorney-General (SA) v GS [2025] SASC 142 at [57] (Kimber J). -- 20 of 21 -- [2026] SASC 4 B Doyle J 19 balance between the protection of the community and the respondent’s liberty, I am not disposed to impose a CDO for the entire remaining period of the ESO. 76 I am informed that the SMART Recovery program typically spans 12 weeks. It is appropriate to allow for potential delay and disruption to some extent. I will hear the parties as to the precise duration of the order. -- 21 of 21 --