ATTORNEY-GENERAL (SA) v LUKE COLANGELO [2025] SASC 2

Applicant: ATTORNEY-GENERAL (SA) Counsel: MS S WILSON - Solicitor: CROWN SOLICITOR (SA) Respondent: LUKE COLANGELO Counsel: TIMOTHY BLAKE - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 17/12/2024, 23/12/2024 File No/s: SCCRM-24-044414, SCCRM-24-044418 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 COLANGELO [2025] SASC 2 Judgment of the Honourable Justice McDonald 15 January 2025 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 This is an application for an Extended Detention Order (EDO) pursuant to s 57(3) of the Sentencing Act 2017 (SA). The respondent is currently serving a term of imprisonment which is due to expire on the 20 January 2025. In the alterative, the Attorney-General makes an application for an Extended Supervision Order (ESO) pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA). As these applications will not be determined prior to the respondent’s release date, the Attorney-General has made an application for an Interim Detention Order (IDO) or an Interim Supervision Order (ISO). The respondent does not contest the imposition of an ISO or an ESO, however opposes the making of any form of detention order. The applicant brings both the applications on the basis that the respondent remains at a high risk of reoffending, due to his unwillingness to fully address his sexual offending, the protracted history of such offending and the pattern of escalation overtime, coupled with poor compliance with orders and directions, including breaches of suspended sentence bonds and breach of bail. It is further contended that respondent continues to a pose a significant risk to the community due to his expressed concerns regarding the possibility of reoffending, including the potential for escalating to a contact offence and a concern arising from the lack of strategies and mechanisms available to the respondent in managing these risk factors if released back into the community. The applicant thus contends that the imposition of an EDO (IDO), or alternatively an ESO (ISO), is paramount to protecting the safety of the community. The application for an IDO is contested on the basis that the purported risk that the respondent may pose upon release into the community, can be managed under a strict regime of ISO conditions. The respondent further contends that the support from his family and community members will serve as a deterrent against reoffending, while also helping him remain compliant with any proposed -- 1 of 20 -- conditions. The respondent further contends that the delay by the Attorney-General in bringing the application should be given relevant consideration. Held; application granted. 1. The application for an IDO is granted. 2. The respondent is to be subject to an IDO pending the determination of the proceedings in respect of the CDO. Sentencing Act 2017 (SA) s 57(5); Child Sex Offenders Registration Act 2006 (SA); Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, s 9(1); Correctional Services Act 1982 (SA) s 64(5), referred to. R v Bolbot [2013] SASCFC 110; R v Padberg [2010] SASC 189, applied. -- 2 of 20 -- ATTORNEY-GENERAL (SA) v COLANGELO [2025] SASC 2 Criminal: Application McDONALD J: 1 The Attorney-General has made an application for an extended detention order (‘EDO’) pursuant to s 57(3) of the Sentencing Act 2017 (SA) and, in the alternative, an application for an extended supervision order (‘ESO’) pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’). 2 Before I can determine either application, it is necessary for me to receive and consider reports from qualified medical practitioners. 3 I have ordered those reports. It will be some months before the reports will be written and available to me. As Mr Colangelo’s current sentence is due to expire on 20 January 2025, I have been asked by the Attorney-General to make either an interim detention order1 (‘IDO’) or, in the alternative, an interim supervision order (‘ISO’).2 4 Mr Colangelo does not oppose the imposition of an ISO or an ESO, however opposes the making an of extended detention order of any form. The material relied upon by the Attorney-General in support of the applications 5 As is the usual practice, the Attorney-General has filed a number of affidavits with various exhibits in support of the applications. Mr Colangelo objects to the admissibility, in whole or in part, of a number of these documents. 6 It is therefore necessary that I consider the admissibility of the documents that are the subject of objection before I consider the issue of what order, if any, I should make. 7 As this matter has progressed, the ambit of the contest has narrowed, with the Attorney-General electing to not rely on some of the exhibits, without making any broader concession on the issue of the admissibility of these categories of documents more generally. The documents that fall into this category are annexures to the affidavit of Jade Maree Porter, sworn on 6 November 2024. These are three police apprehension reports dated 8 November 2005,3 22 February 20064 and 2 January 2011.5 The Attorney-General also does not rely upon a 1 Sentencing Act 2017 (SA) s 57(5). 2 Criminal Law (High Risk Offenders) Act 2015 (SA) s 9(1). 3 JMP 3. 4 JMP 4. 5 JMP 5. -- 3 of 20 -- [2025] SASC 2 McDonald J 2 document referred to as a “Department for Correctional Services (‘DCS’) Offender History Display” dated 20 September 2024.6 8 As a consequence of those concessions, the five documents that remain the subject of dispute are two Sexual Behaviour Clinic (‘SBC’)7 pre-treatment assessment reports, two SBC post-treatment assessment reports,8 and a letter from the Parole Board dated 3 October 2024.9 9 I deal firstly with the letter from the Parole Board. 10 The Parole Board letter sets out Mr Colangelo’s custodial status and makes reference to his participation in the SBC treatment program in 2024. The author of the letter discusses Mr Colangelo’s response to participating in the course and suggests that he remains at high risk of reoffending. This aspect of the letter appears to be based on the SBC post-treatment assessment. 11 The letter concludes with a recommendation for an ESO for the period of three years and suggests appropriate conditions. 12 Section 7(6)(c) of the HRO Act requires the Court to take into account any report prepared by the Parole Board under s 64(5) of the Correctional Services Act 1982 (SA) in determining whether to make an ESO. On that basis, it was the submission of the Attorney-General that I should rely on the Parole Board letter for the purpose of determining the ISO/ESO applications however disavowed any reliance on it for the purposes of a CDO. This was a pragmatic concession. 13 Given that Mr Colangelo consents to the making of an ISO, there is no need to give the admissibility of the Parole Board letter any further consideration. 14 Turning then to the SBC assessment reports. 15 As Mr Colangelo undertook the SBC program in 2019 and again in 2023/2024 there are two sets of reports. 16 The authors of the reports differ. Rachael Bartolo and Sarah Martin prepared the 2019 reports and Nicola Graham prepared the 2023/2024 reports. 17 The reports contain a mixture of direct evidence of observations of, and conversations with, Mr Colangelo and expert opinion evidence. None of the reports provide details about the authors’ areas of expertise. Initially this was one of the bases upon which Mr Colangelo objected to their admissibility. 18 In light of that challenge, the Attorney-General filed further affidavits to prove expertise, however again for pragmatic reasons, only did so for the more 6 JMP 7. 7 JMP 9 and JMP 11. 8 JMP 10 and JMP 12. 9 JMP 13. -- 4 of 20 -- [2025] SASC 2 McDonald J 3 relevant 2023/2024 reports. In those circumstances, and again making no broader concession, the Attorney-General elected to only rely on the opinion evidence in the later reports. He does still however rely on the non-opinion components in the 2019 reports. 19 Having received the new affidavit material, Mr Blake, who appeared for Mr Colangelo, advised the Court that it was now accepted that as a general proposition that Ms Graham has the requisite expertise to run the SBC program, prepare the reports and provide expert opinion evidence. He did however maintain an objection to limited aspects of the reports. 20 Before dealing with the impugned passages of the reports, it is necessary to say something about the nature and contents of these reports more generally. 21 The SBC pre-treatment and post-treatment reports are not documents that are prepared for Court purposes but rather for DCS in their care and management of prisoners. No doubt, with one eye on the fact that they are commonly placed before the Court on applications of the nature of those currently be more. Both pre and post-treatment reports are generally multi-faceted and relatively lengthy. They tend to follow the same format. 22 The relevant SBC pre-treatment assessment report for Mr Colangelo is dated 1 September 2023. It commences by setting out details of the offending for which Mr Colangelo is currently incarcerated and his relevant criminal history. Whilst the source of that information is not always apparent, this aspect of the report appears to be relatively uncontentious. 23 Also contained within this section of the report are limited details of the conversations that took place with Mr Colangelo as part of the process of assessing his suitability to participate in the program. The only objection that was taken to this aspect of the report was the inclusion of two driving related offences that had been withdrawn – the Attorney-General agreed that those matters would not be relied on. 24 The second section of the report is headed “Risk assessment and responsivity factors”. Within this section, Ms Graham attempts to measure Mr Colangelo’s risk of reoffending and provides a prediction of the likelihood of a positive outcome or response if he was to be included in the program. In order to do so Ms Graham relied upon four sources. These were her interviews with Mr Colangelo, a neuropsychological assessment conducted by Dr Scamps in 2017, DCS records relating to Mr Colangelo’s previous participation in the SBC program and the results generated using the sexual offence version of the “Violence Risk Scale”. Mr Colangelo only objected to the admissibility of the last source of information. 25 The next heading in the report is a subheading titled “Pre-treatment formulation and risk factors to be addressed during program”. In this section, Ms Graham conducted an analysis of the circumstances that led up to and -- 5 of 20 -- [2025] SASC 2 McDonald J 4 potentially explain how Mr Colangelo came to commit the relevant sexual offences. Against that background, Ms Graham identified a number of treatment needs and risk factors for Mr Colangelo. This section of the report is not objected to. 26 The remainder of the report deals with administrative matters. 27 The subsequent SBC post-treatment report is dated 5 June 2024. This is a more detailed and lengthy report. The first section sets out the purpose of the report which is “to provide a post-treatment re-assessment of risk on the basis of program performance, including management of risk in the community”. 28 The next section sets out the sources of information relied upon to formulate the report. 29 The third heading is “Participation and engagement”. This part of the report contains observations of Mr Colangelo’s level of engagement in the program and is based on direct observations during therapy sessions. 30 The fourth and fifth sections entitled “Background information” and “Cultural information” are based on Mr Colangelo’s own account of his personal history and his perception of the issues that he has confronted in life that have resulted in his offending. 31 The most lengthy section of the report appears under the sixth heading of “Treatment progress summary”. As the heading would suggest, that section provides a summary of the treatment and progress that Mr Colangelo has made as a result of participating in the program. Within the section there are the subheadings of “Insight and problem thinking”, “Self-regulation”, “Lifestyle factors” and “Release and safety planning”. The information contained under those subheadings are Ms Graham’s views and observations of Mr Colangelo over the duration of the program. Based on her expertise, it is open for Ms Graham to arrive at and express those views. 32 Similarly section 7, “Formulation”, contains Ms Graham’s assessment of Mr Colangelo’s background and how it came to lead to his offending. 33 The information in section 8, “Post-program assessment information”, is a combination of the results of the sexual offence version of the Violence Risk Scale and observations made of Mr Colangelo during the program. Mr Colangelo objects to the former component of the section but not the latter. 34 The final two sections, sections 9 and 10 “Recommendations” and “Legislative considerations”, discuss the further treatment and legislative options for Mr Colangelo both in a custodial and non-custodial environment. There is no objection taken to any of the information contained within those two sections. -- 6 of 20 -- [2025] SASC 2 McDonald J 5 Consideration of the admissibility of materials relied upon by the Attorney- General 35 As is apparent from this brief summary, the area of dispute in relation to the four SBC reports has now become very narrow and well defined. It relates purely to Ms Graham’s use of the actuarial risk assessment measure, the “Violence Risk Scale”. Other than making reference to having used this risk assessment tool, and the results of the assessment, there is very little information before me to establish what is involved in the process or the scientific validity of this means of measuring risk. 36 Ms Graham devotes very little time in the reports to the Violence Risk Scale results, with a much greater emphasis on her own observations of and conversations with Mr Colangelo. In those circumstances, I have determined that there is sufficient information contained elsewhere in the reports to assist me in coming to a decision on the applications currently before me. I therefore do not propose to rely on the impugned portions of the relevant reports. 37 I make plain, that this is not intended to in any way reflect a more general view about the reliability or appropriateness of the Violence Risk Scale in measuring risk. On the facts and circumstances of this case, I have insufficient information to make such a determination and it is not necessary for me to come to a concluded view on the issue. Should an ISO or an IDO be made? 38 As I have mentioned, Mr Colangelo does not oppose the imposition of an ISO. In fact, he relies upon the conditions of such an order as an argument in favour against making the IDO. That is, that the availability of an ISO provides the community with a level of protection that makes it unnecessary to go to the length of keeping Mr Colangelo in custody, pending the provision of expert reports and the determination of the substantive application. 39 It is, however, the Attorney-General’s submission, that Mr Colangelo’s history and his poor response to treatment, place him in a category of offender that poses such a grave risk to the safety of the community, that it is necessary to detain him in custody at least until the Court has received more current expert reports. Personal circumstances 40 To put the competing submissions into their proper context it is necessary to set out some of Mr Colangelo’s background, including his history of criminal offending and response to previous treatment. Background 41 Mr Colangelo grew up with his parents and four younger sisters. He had a stable upbringing, and his parents remain together. He described having a good childhood. -- 7 of 20 -- [2025] SASC 2 McDonald J 6 42 Mr Colangelo attended school until year 3, at which time his mother commenced home schooling him, along with his sisters. Mr Colangelo completed his school education by finishing year 10. Since then he has completed a Certificate III in Conservation Management and a Certificate II in Horticulture at TAFE. Over the years he has been engaged in short term employment including car washing and landscaping, before obtaining full-time work in demolition, which came to an end as a consequence of his incarceration. 43 Mr Colangelo first moved out of home in late 2016 and only had one significant relationship, when he was 18, which lasted about two to three years. Subsequently, when he was in his early 30s, he reunited with his former partner for the purposes of sexual intercourse, as she had purportedly wanted a child. This resulted in the conception of a daughter who was born in 2017. Mr Colangelo last had contact with his daughter about four years ago. Offending history 44 Mr Colangelo has a history of sexual offending which commenced in 2005. In 2007, he was convicted of two counts of indecent behaviour and placed on a two-year good behaviour bond. These offences involved acts of public masturbation, including, on one occasion in the vicinity of a scout hall. 45 In April 2012, Mr Colangelo was convicted of a further charge of indecent behaviour. On this occasion, the offending involved an act of masturbation whilst watching two children swimming in a public place. For this offence, Mr Colangelo received a sentence of six weeks imprisonment which was suspended upon him entering into a bond to be of good behaviour for two years. Of note, both this bond and the 2007 bond imposed supervision conditions. 46 In August 2012, Mr Colangelo breached the April 2012 bond when he was charged with the offence of disorderly behaviour which again involved an act of public masturbation. For this offence, he was convicted without penalty and the good behaviour bond was extended by 12 months. 47 In 2016, Mr Colangelo’s sexual offending escalated when he was charged with two counts of possessing child exploitation material. One of the counts was aggravated on the basis that Mr Colangelo knew that the children depicted in the material were under the age of 14 years. The videos and images that were the subject of the charges were located on Mr Colangelo’s mobile telephone and tablet. The material comprised of nine images that classify as category 1 according to the National Child Exploitation Material Category Standard (‘NCEMC Standard’), that is depicting no sexual activity; one image and 14 videos that classify as category 4, depicting penetrative sexual activity between children or adults and children; and 15 videos classified as category 5, that is material which includes sadism, bestiality or child abuse. On 31 January 2018, Mr Colangelo was sentenced to one year, nine months and two weeks imprisonment for this offending, a non-parole period of eight months was fixed. -- 8 of 20 -- [2025] SASC 2 McDonald J 7 48 As a consequence of this offending, Mr Colangelo became a serious registerable offender under the Child Sex Offenders Registration Act 2006 (SA). He was registered on 16 November 2018 for a period of eight years. 49 On 30 January 2022, police attended at Mr Colangelo’s parents’ home, where he was residing at the time, to determine whether he was complying with his obligations under the Child Sex Offenders Registration Act. During that attendance, police seized a tablet personal computer and a mobile telephone that were found to have contained child exploitation material. 50 Mr Colangelo was charged with two counts of possessing child exploitation material, two counts of aggravated possessing child exploitation material and two counts of disseminating child exploitation material as a result of the contents of the two devices. The relevant materials were not all however located during the first police search, but rather over the course of two attempts to interrogate the devices. 51 Initially 86 images and two videos of child exploitation material were located on the tablet. Of that number, 48 images and one video depicted children under the age of 14 years. The images and videos spanned across the first four categories of the NCEMC Standard. 17 fell within each of category 1 and 2; one within category 3; and three within category 4. The video was classified as falling within category 1. 52 As far as the other images and video are concerned, which were of children between 14 and 17 years, 35 fell within the first category with two images falling within category 2; one within category 4; and the video within category 5. 53 For the images and videos located on the tablet, Mr Colangelo was charged with one count of basic possession of child exploitation material and one count of aggravated possession of child exploitation material. 54 During the initial search of the mobile telephone, police located 21 images of child exploitation material. 12 of the images were of children aged between 14 and 17 years and fell within category 1 of the NCEMC Standard; nine images depicted children under the age of 14 years with seven images falling within category 1 and two images within category 4. 55 Mr Colangelo was charged with one count of basic possession of child exploitation material and one count of aggravated possession of child exploitation material in relation to these images that were found on Mr Colangelo’s mobile telephone. 56 About three months later, on 25 May 2022, police conducted a further examination of the mobile telephone which resulted in Mr Colangelo being charged with additional offences. -- 9 of 20 -- [2025] SASC 2 McDonald J 8 57 On the mobile telephone police discovered an internet browser history where access to written material in the form of stories involving the exploitation of children had been created. That history disclosed that between 19 January 2022 and 30 January 2022, Mr Colangelo had accessed the website on 55 occasions. Although Mr Colangelo was not charged with any offence arising out of this conduct, the sentencing Judge correctly observed that it revealed “the extent of [his] sexual interest in the abuse of children”. 58 It was also discovered that between 3 July 2021 and 4 July 2021, Mr Colangelo had exchanged a number of relevant messages with another mobile telephone number. On 3 July 2021, Mr Colangelo sent seven items of child exploitation material involving a combination of children under the age of 14 years (three images) and between the ages of 14 and 17 years (four images). Six of the images fell within category 1 and one fell within category 4 of the NCEMC Standard. 59 On 4 July 2021, Mr Colangelo forwarded a further three items of child exploitation material to the same mobile telephone number. All of the images fell within category 1 of the NCEMC Standard and involved children aged between 14 and 17 years. 60 Mr Colangelo also received 15 items of child exploitation material from the user of the other mobile telephone. All of the 15 items involved children aged between 14 and 17 years and fell within category 1 of the NCEMC Standard. 61 These communications were the subject of the two counts of disseminating child exploitation material. 62 On 5 December 2022, Mr Colangelo was sentenced to two years, three months and 15 days imprisonment. That sentence had been reduced by three months to take into account time that he had already spent in custody and when his bail was revoked. A non-parole period of one year, nine months and 12 days was fixed. That sentence was taken to have commenced on 6 October 2022. 63 It is this offending that is the index offending triggering the application for the ESO. Mr Colangelo was not granted parole and, as previously mentioned, his sentence is due to expire on 20 January 2025. 64 Over time, Mr Colangelo’s offending has escalated both in terms of the frequency and the seriousness of the offending. That is despite a considerable amount of support and therapy that Mr Colangelo has received both in the community and in custody over that time. Neuropsychological assessment 65 In October 2017, Dr Emma Scamps prepared a neuropsychological report pursuant to s 269WA of the Criminal Law Consolidation Act 1935 (SA) to assist -- 10 of 20 -- [2025] SASC 2 McDonald J 9 in determining Mr Colangelo’s mental competence to commit the 2016 offences and his fitness to stand trial. 66 For the purposes of preparing that report, Dr Scamps conducted an interview with Mr Colangelo. During that interview, she observed that Mr Colangelo appeared to have a language disability, that he stuttered and had difficulty in expressing himself. She also noted:10 His responding to questions was delayed and he had difficulty in explaining himself at times. His responses were brief and lacked detail. He was hesitant to speak about the offending and it took effort on his part to be able to do this, although he was not guarded. 67 Dr Scamps undertook a neuropsychological assessment of Mr Colangelo. The results of the assessment showed “very significant and uncommon”11 differences between Mr Colangelo’s results in the verbal comprehension index and the perceptual reasoning index. In the verbal assessment, Mr Colangelo was assessed to be well below average and fell in the borderline range. In comparison, he had a strong ability to reason through visual problems, which placed him in the average range of ability. 68 Based on these results, in combination with Mr Colangelo’s presentation, Dr Scamps formed the view that it was likely that he has a language disorder. Dr Scamps explained:12 The diagnostic criteria for Language Disorder include persistent difficulties with the acquisition and use of language across modalities due to deficits in comprehension or production that include reduced vocabulary, limited sentence structure and impairments in discourse. In terms of how the language disorder has manifested in Mr Colangelo, Dr Scamps said the following:13 This disorder specifically has an impact on his capacity to produce language. On presentation he was slow to respond and had a stutter. His language was simplistic, not spontaneous and lacked detail. On assessment he demonstrated a limited vocabulary, concrete thinking and poor verbal learning. He understood the questions asked of him and was able to answer appropriately, given his limitations. I would rate this disorder to be of moderate severity and impacting his expression more than his comprehension. Response to therapy 69 Mr Colangelo first commenced receiving sexual offender treatment in the community at Owenia House in 2006. That treatment continued until 2009. There was then a further period of treatment at Owenia House between 2012 and 2014. The outcome of both periods of treatment was far from positive, with Mr Colangelo failing to become fully engaged and missing many program sessions 10 Report of Dr Emma Scamps dated 24 October 2017, p 3. 11 Report of Dr Emma Scamps dated 24 October 2017, p 6. 12 Report of Dr Emma Scamps dated 24 October 2017, p 7-8. 13 Report of Dr Emma Scamps dated 24 October 2017, p 8. -- 11 of 20 -- [2025] SASC 2 McDonald J 10 across both periods. In a report that was written after Mr Colangelo finished the program in 2014, it was noted that “there appeared to have been limited evidence of change achieved through program involvement and that [his] ability and willingness to participate in therapy was limited”.14 70 As mentioned previously, whilst in custody Mr Colangelo has participated in the SBC program twice. He first commenced the program in January 2019. In advance of his participation in the program, Mr Colangelo was interviewed a number of times to assess his suitability for inclusion. During those interviews, Mr Colangelo demonstrated limited insight and downplayed the nature of his offending. He denied having a sexual attraction to prepubescent girls, despite his history of offending. Mr Colangelo also suggested that the pornographic material that he was in possession of was sent to him without his permission or request, and that he did not alert the police because he was concerned that he would get into trouble. 71 In the pre-treatment assessment report that was prepared in advance of the program, it was recommended that Mr Colangelo should be included in the SBC program on the basis that he could potentially make significant gains in regard to treatment targets relating to social isolation and social influence. It was noted by the author of the report, Ms Bartolo, that Mr Colangelo did not appear to recognise the potential connection between his language difficulties and his increased sense of isolation. Mr Colangelo also appeared unaware of how his lack of socialisation may have contributed to the development of beliefs and cognitive distortion which enabled him to rationalise and justify his offending. 72 It was believed that these were matters that could be addressed in the SBC program. 73 Between 8 January 2019 and 2 October 2019, Mr Colangelo participated in all components of the SBC program, attending 100 per cent of group sessions, equating to 218 group treatment hours. In addition, he received approximately 20 individual treatment hours. Despite this, Mr Colangelo appeared to remain disengaged throughout the sessions. In the SBC post-treatment report, it was said that he “was content doing the bare minimum and committed to flying under the radar”.15 The facilitators expressed the belief that Mr Colangelo’s barriers to progress were predominantly maintained by his unwillingness to fully address his sexual offending. This created a block to his program engagement and ultimately meant that facilitators remained highly concerned about his risk of future offending. Overall, Mr Colangelo’s participation and engagement were described as minimal and his attitudinal and behavioural changes were negligible. 74 Subsequent to this Mr Colangelo was released from custody and committed his index offences. On his return to custody, it was determined that it would be 14 Sentencing Remarks, his Honour Judge Rice, 31 January 2018. 15 Report of Dr Emma Scamps dated 24 October 2017, p 3. -- 12 of 20 -- [2025] SASC 2 McDonald J 11 appropriate for Mr Colangelo to repeat the SBC program. As was the case with the previous program, as part of the process of making that decision, Mr Colangelo was interviewed on a number of occasions. Unlike in 2019, during these interviews Mr Colangelo did not contest his history of offending. Whilst Mr Colangelo primarily attributed his sexual offending to his low mood and boredom, he also considered that having a lack of support, not asking for help because of fear of the consequences and his deviant sexual interest in children, were contributing factors. He expressed shame for his offending and claimed that he wanted to stop viewing child exploitation material. 75 In the SBC pre-treatment assessment summary, it was noted that during the interviews, Mr Colangelo presented with concrete thinking and had difficulty expressing himself verbally. Additionally, his responses to questions were often brief and he required significant prompting to elicit further detail. The author of the report, Ms Graham, observed that this was consistent with the diagnosis of Dr Scamps of a likely language disorder. 76 It was determined that, despite Mr Colangelo’s previous poor responses, he retained treatment needs that may be met by repeating the SBC program. In that context, Ms Graham expressed a view about the constellation of circumstances that had resulted in Mr Colangelo’s most recent offending. She said:16 Mr Colangelo’s index sexual offending seemingly occurred within the context of social disconnection and isolation, loneliness, boredom, and low mood. It was proposed that his viewing and sharing of CEM provided him with a sense of belonging, acceptance, and connection with other like-minded individuals, in turn allowing him to safely explore his deviant sexual fantasies and interests with minimal concern of being judged and rejected by others. Moreover, it was considered that his viewing of CEM provided him with a temporary high and a reprieve from his uncomfortable emotions. Given that Mr Colangelo was subject to obligations under the Child Sex Offenders Registration Act at the time of his offending, it was further postulated that he may have had a disregard for living by societal rules when his own needs and emotions were overwhelming. 77 Mr Colangelo undertook a second SBC program between 26 April 2023 and 14 March 2024. Mr Colangelo participated in all components of the program, attending 100 per cent of the group treatment hours available to him; additionally, he received approximately 23 hours of individual treatment. 78 Whilst the SBC post-treatment report was more positive than that provided in 2019, there were still a number of significant concerns about Mr Colangelo’s level of insight into his risk factors and consequentially the risk of him reoffending. 79 Whilst Mr Colangelo displayed difficulty in meaningfully engaging in group tasks and processes, it was the belief of the facilitators that this was linked to his limited capacity and did not appear to be reflective of resistance on his part. Throughout the program, Mr Colangelo consistently reported having difficulty 16 Minute to Sentence Management Unit, Parole Board from Nicola Graham, Senior Clinician, Rehabilitation Programs Branch dated 1 September 2023, p 4-5. -- 13 of 20 -- [2025] SASC 2 McDonald J 12 with expressive language, both written and verbal, and it was observed that he struggled to articulate and explain himself. Mr Colangelo also struggled to complete his course work and much of his written work was sparse and incomplete. The facilitators expressed the view that whilst this may have represented some lack of motivation, his motivation was likely influenced by his limited capacity. 80 Mr Colangelo also reported a fear of being judged negatively for his speech difficulties and the nature of his sexual offending. The facilitators questioned whether this had been a further barrier to active and meaningful group participation as when anxious, Mr Colangelo’s speech appeared to be adversely affected. Notwithstanding this, the group remained supportive of Mr Colangelo, as a consequence of which his confidence appeared to grow as well as his willingness to participate in group activities. 81 In addition to this, Mr Colangelo displayed a preparedness to participate in extra individual sessions to assist with his meaningful engagement and program progression. Whilst he acknowledged that he had participated in the SBC program because “it looks better”, he was also seemingly cognisant that it would assist him in mitigating his risk of reoffending. 82 There was also some improvement in Mr Colangelo’s insight in that “he demonstrated a willingness to disclose, consider, and acknowledge various factors, for example, his emotional states, deviant sexual interests, and lifestyle factors, that precipitated and maintained his offending”.17 However, it appeared to the facilitators that his insight into his offending was simplistic, and it was unclear as to how genuine and comprehensive his understanding was. By way of example, whilst Mr Colangelo was able to acknowledge and identify some unhelpful thinking related to his offending such as “I won’t get caught”, “No one will know” and “They enjoy it”, he continued to endorse attitudes that support and justify sexual activity with children, and he struggled to recognise that his offending was not victimless. He continued to view his offending as being primarily unintentional and it was apparent that he had little to no awareness of his role in supporting a global industry that sexually exploits children and had little insight into the consequences of not behaving responsibly, identifying impact for himself but not others. 83 Of most concern, Mr Colangelo disclosed that he continued to be attracted to females between the ages of 11 and 13 and acknowledged that he had fantasised about having sex with them. He was initially adamant, that he would not act on these fantasies due to the punitive consequences for himself and had a seeming awareness that it was wrong and illegal. However, following the completion of the program, Mr Colangelo expressed concerns that his offending would progress and escalate to a contact offence involving a child, including potentially his own daughter. Mr Colangelo suggested that whilst he was able to manage his deviant 17 Sexual Behaviour Clinic post-treatment report dated 5 June 2024, p 5. -- 14 of 20 -- [2025] SASC 2 McDonald J 13 sexual fantasies in prison, he expressed concern about his ability to manage such fantasies in the community. 84 Mr Colangelo also demonstrated a lack of strategies for dealing with his risk factors once released back into the community. Mr Colangelo accepted that there was a cyclical nature to his offending however his understanding of his offending cycle appeared to be limited. He displayed difficulty independently considering and identifying a broader range of high-risk situations and appeared to minimise the risk associated with his release. While Mr Colangelo demonstrated an awareness of the importance of community support, he had not yet taken active steps to enhance the community support available to him. 85 In summary, Ms Graham said the following:18 Following treatment, Mr Colangelo appeared to have moved on a few of his dynamic risk factors to either the contemplation or preparation stages; however, he tended to remain in the pre-contemplation and contemplation stages for multiple dynamic risk factors. In other words, he demonstrated some increased insight, awareness that his behaviours were problematic, and he had made some limited behavioural changes that were relatively recent and not yet consistent over time or demonstrated across relevant high-risk situations. Additional material relied upon by Mr Colangelo 86 During the course of submissions, Mr Blake tendered and relied upon three additional documents. These were: SA Pathology genetic testing results; a letter from Dr N Poplawski, Associate Professor, Adults Genetics Unit, Royal Adelaide Hospital; and a support letter from Bruno Colangelo, Mr Colangelo’s father. Chromosome 16p11.2 deletion syndrome 87 The SA Pathology genetic testing results were generated and verified on 4 October 2024. They establish that Mr Colangelo has “a 604kb interstitial deletion at chromosome 16p11.2” which is known to cause chromosome 16p11.2 deletion syndrome. Studies have shown that this deletion is approximately 11 times more common in patients with neurodevelopmental delay when compared to controls. The common neurological features of this syndrome include articulation abnormality, symmetric hypotonia (muscle weakness), hyporeflexia, poor agility, skin anomalies, seizures and macrocephaly (an abnormally large head). Letter from Dr N Poplawski 88 The letter from Associate Professor Poplawski appears to be a copy of a letter sent to Mr Colangelo accompanying his SA Pathology genetic testing results. The letter advises that the results establish that Mr Colangelo has inherited a chromosome 16 deletion. The letter explains that the genetic test detected a missing piece of DNA from one chromosome 16, hence the reference to a deletion. The consequence of that is variable. Some people with this deletion have no 18 Sexual Behaviour Clinic post-treatment report dated 5 June 2024, p 11. -- 15 of 20 -- [2025] SASC 2 McDonald J 14 problems, some are severely affected, and others are more mildly impacted. The most common problem is language and developmental difficulties, such that people with the chromosomal abnormality often need support with their speech and learning. 89 It was Mr Blake’s submission that the detection of this genetic abnormality is an important development in that it now provides an explanation for some of the communication difficulties that Mr Colangelo has experienced throughout his life and, of particular relevance, has experienced whilst undertaking the SBC program. Letter from Bruno Colangelo 90 The letter from Bruno Colangelo is dated 1 December 2024. In that letter, Mr Colangelo Snr explains that he has been diagnosed with terminal cancer and would like for his son to return home to live with him and his wife at the end of his sentence. 91 Mr Colangelo Snr is prepared to undertake any measures necessary and provide supports to ensure that his son does not reoffend. In particular, he makes reference to undertaking measures to ensure that his son does not have access to the internet. Support is also available from the extended family, Mr Colangelo’s pastor and his general practitioner, who will make arrangements for him to see a psychologist. 92 The difficulty with placing any significant weight on this letter is that Mr Colangelo Snr has given similar assurances in the past. In his sentencing remarks of 31 January 2018, Judge Rice also made reference to letters of support provided at that time by Mr Colangelo Snr and the family pastor. The situation is compounded by the fact that subsequent to the provision of the 2018 letters, Mr Colangelo went on to commit his most serious offences whilst living with his parents at their home address. Consideration of whether to make an IDO or ISO 93 In order for the Attorney-General to be successful in the application for an EDO, it must be established that Mr Colangelo is incapable of controlling, or unwilling to control his sexual instincts. 94 Section 57(5) of the Sentencing Act 2017 (SA) permits the Court to make an interim order detaining a person in custody pending determination of an application for a CDO. The Act does not provide a threshold test or criteria for the making of such an interim order. It follows that the discretion is broad and should be exercised having regard to the purpose of s 57, which is that the paramount consideration is to protect the safety of the community. It is a further relevant consideration that the order is only an interim order which must necessarily be made when the Court has not yet received all of the information needed to make a final determination. -- 16 of 20 -- [2025] SASC 2 McDonald J 15 95 It was the Attorney-General’s submission that whilst Mr Colangelo’s history of sexual offending does not fall in the category of the most serious to come before the Courts, there are a combination of matters that suggest that he poses a serious risk to the safety of the community even under the conditions of an ISO. Those matters are Mr Colangelo’s history of offending; his previous poor response to supervision and treatment, both whilst in the community at Owenia House and in custody; and his lack of insight, in particular the comments that he made to the facilitators of the SBC program, indicating that he is concerned that he is at risk of escalating his offending to a contact offence, potentially against his own daughter. 96 Mr Blake did not challenge any of the matters relied upon by the Attorney- General, however it was his submission that the risk posed by Mr Colangelo can be managed in the community under a strict regime of ISO conditions. 97 It was submitted that it is a highly relevant consideration that Mr Colangelo has not previously committed a contact offence. Whilst Mr Blake did not attempt to diminish the seriousness of the offences that Mr Colangelo has committed, and acknowledged that the comments that he had made to the facilitators were of concern, it was contended that the risk that Mr Colangelo will commit a contact offence is different and less than for someone who has already committed an offence of that nature. That is all the more so in circumstances in which Mr Colangelo will have the support of family, his pastor and will be the subject of a curfew and electronic monitoring. 98 In response to a suggestion that family support has failed to stop Mr Colangelo offending in the past, Mr Blake submitted that his family and in particular his father are now more aware of the seriousness of Mr Colangelo’s conduct and the consequences that he is facing, than they were previously. Mr Colangelo’s father has attended court on each occasion and instructed Mr Blake that he will do all that he can to ensure that Mr Colangelo abides by the ISO conditions. 99 Reliance was also placed on Mr Colangelo’s genetic disorder. It was not suggested that the diagnosis impacts the risk that Mr Colangelo poses to the community, but rather, provides a prism through which an assessment can be made of his previous responsiveness to treatment. In particular, given this diagnosis, care should be taken in relying on the statements recently made by Mr Colangelo about his concerns that his offending will escalate. It was submitted that this is particularly so in circumstances in which there is limited information about how these comments were elicited or the context in which they were made. Mr Blake made the point that the SBC program would not function as a rehabilitative program if people were not encouraged and prompted to speak up. It may well be that the facilitators encourage participants to speak about their most deviant thoughts in order to target the therapy. Whilst Mr Blake did not resile from the fact that the comments were made by Mr Colangelo, he suggested that they should be treated with a degree of circumspection. -- 17 of 20 -- [2025] SASC 2 McDonald J 16 100 The final matter relied upon by the respondent is the delay by the Attorney- General in making the application. It was submitted that the application could have been made at an earlier point in time, which would have had the potential effect of not requiring Mr Colangelo to remain in custody after his sentence had expired. In such circumstances, there would have been no requirement for an interim order because the application could have been determined whilst Mr Colangelo was serving his sentence. It was submitted that the unfairness arising from the delay in the Attorney-General instituting these proceedings is a matter that can be considered when determining whether to make the order. 101 Whilst I appreciate that Mr Colangelo feels a sense of grievance in the timing of the application, and the additional time that it may require him to spend in custody, the legislative regime is such that there is limited weight that I can place on this consideration. There is nothing in the Act that precludes the Attorney- General from making the application at the end of a prisoner’s sentence and in some circumstances practical considerations may mean that it is necessary to do so. 102 Mr Colangelo’s circumstances are complex. There is no doubt that his language disorder has impacted on his ability to fully participate in the SBC programs that he has undertaken. It is also now understood that this disorder is underpinned by a genetic abnormality. Whilst that information is of relevance in treatment plans moving forward, it does not alleviate the risk that Mr Colangelo otherwise poses. Mr Colangelo’s speech and language difficulties were issues that the facilitators of both SBC programs, and in particular the one conducted in 2023/2024, were aware of. Although the facilitators may not have understood the precise causes of those difficulties, allowances were made, and Mr Colangelo received additional individual support. 103 Of particular concern is the manner in which Mr Colangelo’s offending has escalated over time, despite having received ongoing support and treatment. Those concerns are not alleviated by the offers of support from Mr Colangelo’s family and pastor. That support has been present in the past, and that appears to have had little to no impact on Mr Colangelo’s offending behaviour. 104 It is plain that Mr Colangelo has not been deterred from further offending by previously serving imprisonment for child exploitation material offences, from suspended sentences, from bail agreements and from being the subject of the Child Sex Offenders Registration Act 2006 (SA). 105 The risk that Mr Colangelo poses to the community is multi-faceted. None of his prior offences were victimless crimes. There were victims of the indecent behaviour offences, and as the Courts have reinforced on numerous occasions, the possession of child exploitation material is not a victimless crime. -- 18 of 20 -- [2025] SASC 2 McDonald J 17 106 As the Court observed in R v Bolbot:19 Child pornography is not a victimless crime. It causes enormous damage to child victims, and that damage has long-term effects. Those who promote this offending do so for profit and those who view these images and access the various sites which display these images provide the demand for this offensive material. 107 Similarly in R v Padberg,20 Kourakis J discussed the impact of offences of this nature: The abuse of children in that way, wherever in the world it occurs, cannot be tolerated. The global distribution network provided by the internet is likely to have increased the abuse of children worldwide. … Everyone who accesses child pornography gives a reason for, and in that sense encourages, the continued abuse of young children. 108 I also note that Mr Colangelo admitted to using online chat sites to communicate with underage individuals to the 2023/2024 SBC facilitator. Whilst there is no suggestion that there was anything overtly sexual or that may amount to a crime that took place during these chats, Mr Colangelo’s interest in participating in such conversations cannot be considered separately from his sexual interest in children. It demonstrates a preparedness on the part of Mr Colangelo to reach out to children online and, given his sexual propensity, brings him one step closer to committing a contact offence. 109 In addition, given the manner in which Mr Colangelo’s offending has evolved over time, there is the risk, that he himself recognises, of further escalation in his offending. 110 In balancing the various matters I must take into account, I come back to the paramount consideration of the need for the protection of the community. On the information currently before me, the only way in which that protection can be ensured is for Mr Colangelo to continue to be detained until the determination of the application for a CDO. 111 I am also conscious that the order is, at this stage, only an interim order and when the time comes to determine the substantive application, the Court will have up to date, comprehensive reports from two experts who will have had the benefit of information about Mr Colangelo’s recent genetic testing and their opinion about the impact of those results on the matters to be considered by the Court. 19 [2013] SASCFC 110 at [28]. 20 [2010] SASC 189 at [41]-[42]. -- 19 of 20 -- [2025] SASC 2 McDonald J 18 112 I grant the application for an interim order for Mr Colangelo to remain in custody pursuant to s 57(5) of the Sentencing Act pending the determination of the Attorney-General’s application for a CDO. -- 20 of 20 --