ATTORNEY-GENERAL (SA) v MARK ANDERSON [2026] SASC 29

Applicant: ATTORNEY-GENERAL (SA) Counsel: MS S TYRRELL - Solicitor: CROWN SOLICITOR (SA) Respondent: MARK ANDERSON Counsel: MR G TRUSCOTT - Solicitor: ABORIGINAL LEGAL RIGHTS MOVEMENT Hearing Date/s: 16/03/2026 File No/s: SCCRM-26-008547, SCCRM-26-008550 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 ANDERSON [2026] SASC 29 Reasons for Decision of the Honourable Justice B Doyle (ex tempore) 16 March 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 was convicted and sentenced for maintaining an unlawful sexual relationship with a child contrary to s 50 of the Criminal Law Consolidation Act 1935 (SA) (‘index offending’). The sentencing judge described the conduct as being towards the lower end of the scale of seriousness. The respondent’s sentence is due to expire on 18 March 2026. By originating applications filed on 27 February 2026, the applicant seeks an indefinite detention order pursuant to s 57 of the Sentencing Act 2017 (SA) and, in the alternative, an extended supervision order under s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’). The applicant seeks an interim detention order under s 57(5) of the Sentencing Act and an interim supervision order pursuant to s 9 of the HRO Act. The respondent does not oppose an interim supervision order but resists an interim detention order. In connection with the indefinite detention application, the applicant proposes to rely upon a number of unproved allegations of criminal conduct both prior to the respondent’s incarceration in relation to the index offending and whilst the respondent has been in custody. The respondent submitted that there are deficits in the evidentiary material relating to those allegations and that, absent those allegations, the index offending, coupled with the objective material before the Court, does not demonstrate a risk of re-offending whilst subject to supervision that would warrant interim detention. The respondent also points to the delay in bringing the application. -- 1 of 11 -- Held, making an interim supervision order on restrictive terms but declining to make an interim detention order: 1. in deciding whether an indefinite detention order should be made, the Court may be invited to make findings about otherwise unproven allegations of criminal conduct. However, in circumstances where the applicant does not propose to supplement the otherwise indirect and imprecise evidence in support of such allegations, it is appropriate to proceed on the basis that unproven allegations will not feature in the ultimate assessment in any significant way; 2. confining attention to the index offending, the evidence suggestive of the respondent’s limited insight into his offending and his unresolved treatment needs, there remains a real question to be tried as to whether the respondent is incapable of controlling, or unwilling to control, his sexual instincts; 3. in the present case, because there is not a manifestly strong basis on the material presently before the Court for the making of an indefinite detention order, it is necessary to consider very carefully whether the deprivation of the respondent’s liberty, for a period that is longer than would have been necessary had the application been brought more promptly, can be justified; 4. for the period under consideration, intensive supervision akin to home detention is likely to mitigate any risks apparent from the material before the Court to an extent that makes the deprivation of liberty inappropriate. Criminal Law Consolidation Act 1935 (SA) s 50; Criminal Law (High Risk Offenders) Act 2015 (SA) s 9; Sentencing Act 2017 (SA) s 57, referred to. Attorney-General (SA) v DO [2026] SASC 10; Attorney-General (SA) v McRoberts [2026] SASC 12; Driver v Attorney- General (SA) [2022] SASCA 13, (2022) 140 SASR 282, discussed. -- 2 of 11 -- ATTORNEY-GENERAL (SA) v ANDERSON [2026] SASC 29 Criminal 1 B DOYLE J (ex tempore): On 18 March 2026, the respondent’s sentence of imprisonment for maintaining an unlawful sexual relationship with a child1 will expire. By applications filed on 27 February 2026, the applicant seeks an indefinite detention order pursuant to s 57 of the Sentencing Act 2017 (SA)2 and an extended supervision order pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’).3 2 The applications will not be able to be determined before 18 March 2026. The applicant seeks an interim detention order pursuant to s 57(5) of the Sentencing Act and an interim supervision order pursuant to s 9 of the HRO Act. The latter is not opposed, but the former is. 3 The issue is therefore whether an interim detention order should be made whilst the two substantive applications are heard and determined. I will resolve that issue by adopting an approach informed by the text, context and purpose of the section as illuminated by the authorities. As explained in Attorney-General (SA) v DO,4 in my view, this means that:5 … an interim order will only be appropriate where, in light of the material before the Court, it can be said that there is or will be a real question to be tried as to whether the respondent is incapable of controlling, or unwilling to control, their sexual instincts. If so, the Court must then consider whether the risk to the safety of the community makes the respondent’s detention for a period necessary for the determination of the indefinite detention order appropriate. As part of this inquiry, the Court will consider whether and to what extent an interim supervision order under the HRO Act would provide a sufficient level of protection for the community so as to render the respondent’s interim detention inappropriate. 4 Whilst any deprivation of liberty beyond the term of a sentence imposed for a person’s proved wrongdoing must have a strong justification, the length of time over which the person will need to be detained, and the reasons for that, may bear on the overall discretion to be exercised. The paramount consideration that guides the assessment whether an indefinite detention order should ultimately be made also guides the discretion whether to make an interim order.6 The evidence 5 The applicant tendered two affidavits affirmed by Stacey Marie Tyrrell on 27 February 2026 and 6 March 2026, together with 21 exhibits.7 I received the 1 Criminal Law Consolidation Act 1935 (SA) (‘CLCA’), s 50. 2 SCCRM-26-008547 (‘Section 57 proceeding’). 3 SCCRM-26-008550 (‘HRO proceeding’). 4 [2026] SASC 10. 5 [2026] SASC 10 at [15]. 6 [2026] SASC 10 at [16]-[17]. 7 The applicant filed substantially identical affidavits in respect of the HRO proceeding. -- 3 of 11 -- [2026] SASC 29 B Doyle J 2 affidavits subject to the respondent’s objection that insofar as the material discloses unproven offending either it should be disregarded or should be given little weight. The respondent’s circumstances 6 The respondent is a 58 year old man who grew up in Victoria before settling in Adelaide in the late 1990s. Following a motor vehicle accident in 1999 he suffered severe wrist injuries that left him unable to work and in receipt of a disability support pension. Index offending 7 The index offending concerned a 14 year old boy who was under the guardianship of the Minister and who was meant to be living in a residential home. The victim was not happy with those conditions and often wandered around the city with a girlfriend and a friend of his, looking for a place to say. The respondent was living in an upstairs unit on Carrington Street and knew the victim through one of his parents. He permitted the victim and his friends to come to his place and spend time there, allowing them to take illicit drugs. 8 Over a period of about three months, the respondent took advantage of the victim’s vulnerability by sexually abusing him. This involved grabbing him by his genital area and attempting to incite or procure an indecent act, namely, the respondent’s requests that the victim defecate on him or defecate so that the respondent could access the faeces. The sentencing judge observed that whilst the offending was not penetrative, the physical conduct was generally fleeting and the attempts to incite or procure indecent acts were unsuccessful, the offending nevertheless had a significant effect on the victim. Having regard to the range of conduct encompassed by an offence against s 50, her Honour considered that the respondent’s conduct was towards the lower end of the scale of seriousness. 9 In considering the respondent’s personal circumstances the sentencing judge observed that the respondent had an unusual and difficult upbringing that included being sexually abused while he was at high school. The respondent is HIV positive and had been diagnosed with bipolar disorder. He has a history of suicide attempts and inpatient psychiatry admissions and a long-term history of illicit drug use. The sentencing judge was provided with a report prepared by a forensic psychologist, Mr Alan Fugler, who considered the respondent’s sex drive had become so dominant an aspect of his personality and lifestyle that it had become his raison d’être. The respondent was not accepting of the verdict and he was therefore sentenced on the basis he had very limited insight and uncertain prospects of rehabilitation. 10 The respondent was sentenced to a term of imprisonment of five years and six months with a non-parole period of three years and six months. He was not granted parole. His term of imprisonment will expire in two days. This application therefore must be resolved with a degree of urgency. -- 4 of 11 -- [2026] SASC 29 B Doyle J 3 Other offending history 11 The respondent’s relevant offending history is quite limited. Between the mid 1980s and the mid to late 1990s the respondent was the subject of a number of convictions for summary offences in Victoria involving dishonesty and drugs, together with a conviction for breach of suspended sentence bond. He has also been dealt with in the Magistrates Court of this State for a number of relatively minor matters since he moved to South Australia. 12 It appears that he was convicted but discharged without penalty for an act of offensive behaviour involving the photographing of a 15 year old female in a bikini at Moseley Square in Glenelg, albeit the respondent’s counsel submitted that this matter was dealt with in the respondent’s absence. Unproved offending and allegedly inappropriate behaviour 13 The applicant proposes to rely upon a number of unproved allegations of criminal conduct both prior to the respondent’s incarceration for the index offending and whilst the respondent has been in custody. 14 In respect of earlier conduct, there were allegations in 2017 and 2020 involving, variously, accessing child pornography, indecently touching a five year old child, aggravated stalking of a family with two young boys (those allegations were not proceeded with but intervention orders were made) and the indecent assault of a 16 year old female. 15 The respondent’s counsel has identified some difficulties or deficits with the evidentiary record relating to these allegations. For instance: • in relation to the charge that in 2017 he possessed child pornography, the police apprehension report indicates that this allegation arose from police attending at the respondent’s residence at his request and finding that an individual who was present there was in possession of two USB sticks containing child pornography which the individual claimed belonged to the respondent. The respondent for his part said that the individual had been staying with him for some time and likely took his USB sticks. Police were not ultimately able to obtain a statement from the individual; • in relation to the allegation that in 2017 he indecently assaulted a young boy, the material before the Court is an apprehension report which summarises witness accounts rather than comprising witness statements. There is no evidence before the Court as to why the charges were not proceeded with and the respondent through his counsel indicates that the offending is denied and identifies reasons why false allegations may have been made; • in relation to the stalking allegations, there are no formal statements before the Court and it appears the charges were withdrawn; and -- 5 of 11 -- [2026] SASC 29 B Doyle J 4 • in relation to the allegations in 2020 that he assaulted a 16 year old girl (being the girlfriend of the index offence victim), this apparently resulted in an acquittal. 16 In respect of the allegations of conduct whilst in custody, the applicant proposes to rely upon material before the Court in the form of Department for Correctional Services (‘DCS’) case notes which record various allegations by other prisoners of abusive, indecent and vulgar behaviour by the respondent whilst in prison. 17 The respondent’s counsel emphasises that there have been no formal findings made against the respondent as a result of any investigation of these incidents and that no charges have been laid. He submits that the context should be borne in mind: the complainants are often persons who have themselves engaged in sexual offences and there can be many reasons for false allegations to be made in a prison environment. The truth will often be difficult to discern and, here, where details of prisoner names and criminal histories are not provided, the respondent is at an added forensic disadvantage in meeting the allegations. 18 The respondent’s counsel also made the submission that care should be taken not to attach significant weight to allegations about conduct or behaviour that does not rise to the level of criminality, but which may bring with it a risk of prejudice. 19 For instance, the Parole Board’s letter dated 27 January 2026, by which the applicant was invited to give serious consideration to a s 57 application, stated that: Mr Anderson is HIV positive. He has various perverted sexual fetishes. He masturbates excessively and inappropriately. 20 The respondent’s counsel submitted that the only reference in the material before the Court that would provide a basis for understanding the latter proposition was a passing reference in his post-treatment report, in the context of the respondent’s sexual history, to ‘daily masturbation’ as well as a history of sexually compulsive behaviour that included ‘excessive masturbation, frequent use of pornography, recurrent casual sexual encounters, and verbal behaviour characterised by sexual themes’. In those circumstances, the respondent urged that care should be taken as treating the assertion as evidence tending to suggest a current inability or unwillingness to control sexual instincts in the relevant sense. 21 I observe that amongst the DCS records is a reference to the respondent admitting to having purchased a pair of used underpants from another prisoner in exchange for a packet of noodles. It does not appear to be disputed that the respondent has a fetish for worn men’s underpants, when associated with the scent of perspiration. Whilst it may go without saying, I make clear that in considering this application I have been careful not to treat behaviour which might strike many people as repulsive as being necessarily indicative of deviant interests of a criminal kind. Having said that, I recognise that impulse control in a more general way -- 6 of 11 -- [2026] SASC 29 B Doyle J 5 informs the risk of re-offending on the part of a person who it has been established has previously engaged in criminally deviant behaviour. 22 I will return in a moment to the question of the use that can be made on this application of material disclosing the existence of allegations of criminal or other inappropriate behaviour which have not been proved. Treatment, treatment reports and risk assessments 23 In the course of an individual development plan prepared in September 2023, the respondent’s attitude to the index offending was reportedly that, whilst he was not denying his actions were wrong, they were more in the nature of playfighting and were not sexual in nature. He said he believed he had been set up by the victim’s father so that the father could get access to his property and belongings. The respondent was considered eligible to participate in the Sexual Behaviours Clinic (‘SBC’) – Moderate Intensity Stream pending the outcome of further psychological assessment. The author of the plan did not recommend consideration be given to a s 57 application. 24 However, a pre-treatment report prepared the following year, apparently with reference to allegations of sexual misconduct by the respondent in prison, recorded that using the Violence Risk Scale – Sexual Offence Version (‘VRS-SO’) assessment tool, the respondent’s risk of sexual re-offending was estimated to be within the well-above average range. It was also noted that he had been diagnosed with HIV-associated dementia. 25 The respondent participated in the SBC program at Mount Gambier Prison between 19 September 2024 and 21 August 2025. He missed only one session due to being required to move accommodation units. He received approximately 18 hours of individual treatment and attended around 11.5 hours of optional group sessions. 26 The post-treatment report notes that he was an active participant but that his contributions were often tangential and may have reflected difficulty with understanding boundaries and social norms. He was observed to struggle with self-reflection and to be sensitive to personal criticism. The authors observed that during the program, the respondent shifted from denial to acknowledging parts of his offending. He accepted that he had engaged in sexually inappropriate behaviour with the victim of the index offending but maintained his denial around attempting to incite or procure an indecent act. The authors considered that despite this shift, his understanding of his offending remained underdeveloped. Whilst he was able to see that substance use was a contributing factor to his offending, he demonstrated a lack of insight into other factors affecting his unlawful sexual behaviour. 27 The authors observed that: -- 7 of 11 -- [2026] SASC 29 B Doyle J 6 He also appeared to develop some recognition that he had externalised blame for his actions to the victim and his substance abuse. However, despite that increased insight, Mr Anderson’s capacity for genuine responsibility taking was limited by his ongoing rationalisations, minimisation, and displacement of blame. For example, Mr Anderson continually spoke of the victim instigating the inappropriate sexual touching, maintained that he was not thinking clearly due to his methadone use, viewed ‘wrestling’ with victim to be fun and ‘guys being guys’, and perceived the victim as his friend. … Throughout the program, Mr Anderson maintained that there was no planning involved in his offending, despite clear evidence to suggest otherwise. It was apparent that Mr Anderson engaged in grooming behaviours by making his home appealing to the victim, for example, having illicit substances around his premises, and fostering a sense of trust and dependency through presenting himself as a caring and trustworthy figure who provided both emotional and practical support to a vulnerable teenage boy. 28 The post-treatment report indicated a risk of sexual re-offending that remained at the same level that had been assessed in the pre-treatment report. The authors’ view was that the respondent appeared to be in the pre-contemplation stage of change for the majority of his identified dynamic risk factors, indicating limited insight. Submissions 29 The parties provided written submissions and these were supplemented in the course of oral argument this morning. Without being exhaustive I will summarise some of the contentions. 30 The applicant submits that there is or will be a real question to be tried as to whether the respondent is incapable of controlling or unwilling to control his sexual instincts in the sense in which those expressions are used in the Sentencing Act. The discretion to detain the respondent on an interim basis should be exercised in circumstances where the nature of the risk posed by the respondent is high, where he has significant unmet treatment needs and where he lacks obvious employment and social supports of a kind that would act as protective factors on his release. The applicant submitted that intensive electronic monitoring effectively amounting to home detention would not suffice to limit the risk of re- offending because the index offending occurred at his home. His breach of a SSB in Victoria gave little confidence about how he would respond to supervision. 31 The applicant acknowledged that unexplained delay may count against the exercise of discretion to make an interim detention order but submitted here that the application had to await the outcome of the post-treatment report of 30 October 2025. 32 The respondent’s counsel contends that if the unproven allegations are put out of consideration, or given little weight, the index offending coupled with the objective material before the Court does not demonstrate a risk of re-offending whilst subject to supervision that would warrant interim detention. The risk -- 8 of 11 -- [2026] SASC 29 B Doyle J 7 assessment tools involved reliance on unproved allegations and were of questionable value. Drug testing and electronic monitoring would mitigate the relevant risks. The respondent’s single breach of a suspended sentence bond in Victoria some time ago was not indicative of a person who was not generally amenable to supervision and compliance. 33 The respondent’s counsel submitted that the Court should take comfort from some modest progress the respondent had made during treatment, and bear in mind the opinion expressed some time ago by Mr Fugler to the effect that the respondent’s ongoing treatment and rehabilitation may be better facilitated in the community. 34 In relation to discretionary considerations, the Court should bear in mind the respondent’s age and health and the fact that he is eligible for NDIS support and has accommodation potentially available to him if released on supervision at Christies Beach through Offenders Aid and Rehabilitation Services. The respondent submitted that the relatively late bringing of the application was a matter that militated against the imposition of an interim order. Consideration 35 There will be cases where fairness may preclude an inquiry in the course of a s 57 application into whether unproven allegations have been committed. However, it is in principle open to a court, in making an assessment of the ultimate statutory question, to entertain making findings on the civil standard, albeit informed by Briginshaw considerations, about criminal allegations that have not been the subject of convictions.8 36 In the present case, however, there are likely to be problems with such an endeavour. In respect of one or more of the allegations, acquittals may stand in the way of such a course. But in respect of others, the greater obstacle is likely to be the capacity of the evidence proffered to establish the allegations to any relevant standard. Some of the evidentiary issues have already been identified. In the course of submissions, I inquired whether the applicant anticipated adducing additional evidence. The answer was that this is not the applicant’s present intention. The applicant’s counsel pointed instead to an underlying unity or commonality between the allegations as giving the evidence a greater cogency. In the circumstances of this particular application, I will consider this matter without any substantial reliance upon the unproven allegations. That is to say, whilst I do not exclude that proper reliance upon them may ultimately be permissible on the substantive hearing, I am unpersuaded on the basis of the evidence and arguments before me today that I should assume that they are likely to feature in that assessment in any significant way. 37 Having said that, and confining myself to the other material, I would, despite some initial hesitation, be prepared to find that there remains a real question to be 8 See, eg, Driver v Attorney-General (SA) (2022) 140 SASR 282. -- 9 of 11 -- [2026] SASC 29 B Doyle J 8 tried as to the respondent’s willingness or capacity to control his sexual instincts. Notwithstanding the judge’s fair characterisation of the seriousness of the offending in the scheme of offences against s 50, the respondent’s limited insight into that offending and the unresolved treatment needs of the respondent are at least capable of suggesting an underlying sexual interest that may still present a risk of the requisite kind even whilst subject to supervision. In my view the opinions of the medical practitioners from whom the Court will hear once orders are made pursuant to s 57(6) will be important in assessing whether that is in fact the case. 38 But there remains an evaluative exercise to be undertaken, or discretion to be exercised, and in the same way that the apparent strength of the case and the practical consequences of interim relief are inter-related in the context of injunctions and stays, the fact that there is not a manifestly strong basis in the present case on the material before the Court means that I should consider very carefully whether, in all the circumstances, the deprivation of the respondent’s liberty for a period of around six months is clearly justified in circumstances which include that the application might have been brought at least a little more promptly following receipt of the 30 October 2025 post treatment report. 39 In this case, if interim detention is not ordered, the interim supervision order to which the respondent consents will, for at least six months (or until the Parole Board otherwise orders), involve electronic monitoring on a basis that is commonly referred to as intensive supervision. This is a fairly restrictive form of home detention. 40 Whilst the applicant’s submission that the index offending occurred in the respondent’s home was well made, the offending does seem to have involved a degree of grooming that seems to be unlikely to be achieved during the relatively confined period of supervision that I am contemplating. The respondent does not have a history that is indicative of sudden and violent opportunistic offending of a kind that electronic monitoring may be ill-equipped to prevent.9 41 I bear in mind the guiding influence of the paramount consideration but I remind myself that it does not dictate the outcome of every case. I am not persuaded that the respondent should be subject to interim detention. I repeat that this is not to suggest that the substantive application may not succeed once the medical professionals’ reports have been considered. It is simply to reflect that for the limited period under consideration I consider that intensive supervision is likely to mitigate the risks patent from the material before me to an extent that makes the deprivation of liberty inappropriate. 9 See, eg, Attorney-General (SA) v McRoberts [2026] SASC 12 at [64] and compare Attorney-General (SA) v DO [2026] SASC 10 at [39]. -- 10 of 11 -- [2026] SASC 29 B Doyle J 9 Disposition 42 I therefore dismiss the application for an interim detention order, but I will make orders in the Section 57 proceeding as contemplated by s 57(6). In the HRO proceeding, I will make an interim supervision order in the terms agreed between the parties. 43 Those terms of supervision will include: • intensive electronic monitoring for a period of six months, or until the Parole Board determines otherwise, followed by simple electronic monitoring; • the usual conditions relating to assessment and participation in programs; • abstinence from drug and alcohol use and a requirement to submit to tests; • comprehensive non-association with persons under the age of 18 and non- loitering conditions; and • internet usage restrictions. -- 11 of 11 --