ATTORNEY-GENERAL (SA) v PAUL ANTHONY DUELL [2025] SASC 65

Applicant: ATTORNEY-GENERAL (SA) Counsel: DR JA LAKE - Solicitor: CROWN SOLICITOR (SA) Respondent: PAUL ANTHONY DUELL Counsel: MS T PENN - Solicitor: R J COLE & PARTNERS Hearing Date/s: 08/04/2025, 24/04/2025 File No/s: SCCRM-25-006282 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 DUELL [2025] SASC 65 Judgment of the Honourable Justice McDonald (ex tempore) 8 May 2025 CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS This is an application for the imposition of a continuing detention order (‘CDO’) pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) for the remainder of the term of the respondent’s extended supervision order (‘ESO’) or some lesser period of time. The respondent is currently the subject of an ESO due to expire on 23 September 2029. The respondent opposes the imposition of a CDO. The applicant contends that a CDO is necessary on the grounds that the respondent has breached a condition of the ESO and poses an appreciable risk to the safety of the community if not detained in custody. The applicant submits that, following an interview with the respondent, the Parole Board determined that the respondent had breached condition 21 of his ESO (not to change internet user details or streaming details without prior approval from a Supervising Officer) by accessing paedophilic-themed materials on a smart TV, at his place of residence, through the YouTube application. The applicant submits however, upon consideration of the respondent’s ESO conditions, the respondent’s conduct does not offend against condition 21, rather that the conduct is in breach of condition 20 (written approval of a Supervising Officer before purchasing, borrowing or possessing electronic equipment capable of connecting with the internet, taking photographs or storing images and videos). The applicant contends that by his conduct, the respondent took possession of an electronic device capable of connecting with the internet. The respondent disputes that there has been a breach of condition 20 of the ESO on the basis that no direct reference is made to smart televisions within condition 20, that the television was the property of NDIS, which owns the residence where the respondent was residing, and that the respondent has -- 1 of 12 -- not possessed the television as it was already at the residence, and he believed that he had a right to access it. During the course of submissions, it was also considered that even if condition 20 was not breached, the respondent has breached condition 1 (that the respondent be of a good behaviour) by accessing materials of the type that he searched for, via YouTube, on the smart TV. Held: 1. The respondent has breached conditions 1 and 20 of his ESO. 2. The parties are to be heard as to whether the respondent poses an appreciable risk to the safety of the community if not detained in custody and whether a CDO should be imposed for the remainder of the term of the respondent’s ESO or some lesser period of time. Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 18; Sentencing Act 2017 (SA) ss 57, 57(2)(B), 57(6), referred to. Higgins v Goldfinch (1981) 26 SASR 364, applied. -- 2 of 12 -- ATTORNEY-GENERAL (SA) v DUELL [2025] SASC 65 Criminal: Application 1 McDONALD J (ex tempore): This is an application that Paul Anthony Duell be made the subject of a Continuing Detention Order (‘CDO’) pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’). Background 2 The background against which this application is made is lengthy and complex. For current purposes it is not necessary to traverse that history in detail, other than to note a few of the more relevant events. 3 In March 1998, Mr Duell was sentenced to 12 months imprisonment with a non-parole period of six months for two counts of indecent assault. That sentence was suspended upon Mr Duell entering into a good behaviour bond. The conduct that was the basis of these charges was that on two separate occasions Mr Duell had rubbed the penis of a 12-year-old boy. Mr Duell not only admitted this offending, but told the police that over the previous 10 years he had engaged in similar behaviour with other girls and boys. 4 On 10 February 2017, Mr Duell was convicted of further serious offences. Relevantly, these charges included possessing child exploitation material and threatening to cause harm. Mr Duell had pushed a handwritten letter of a threatening and sexual nature, under the door of a family of a one-and-a-half-year- old girl. For this offending Mr Duell received a sentence of 11 months imprisonment, 10 months of which he was required to serve before being placed on a good behaviour bond. 5 On 17 December 2017, Mr Duell received the benefit of a further good behaviour bond for an aggravated offence of possessing child exploitation material. On this occasion, Mr Duell was found to be in possession of six A4 pages that appeared to have been ripped out of a medical book. Those six pages contained numerous photos of fully naked children, who appeared to be under the age of five years of age. 6 On 26 October 2018, Mr Duell was convicted of three counts of depositing indecent material. Those offences were committed by Mr Duell leaving three notes at a child care centre, implying that the parents using the centre were sexually abusing the children. He made threats to report or harm them if they did not let him participate in the abuse. 7 For this offending, Mr Duell was sentenced to 10 months imprisonment with two months suspended, upon him entering into a good behaviour bond for two years, with a requirement that he be electronically monitored for the first 18 months. -- 3 of 12 -- [2025] SASC 65 McDonald J 2 8 Mr Duell breached that bond twice by consuming alcohol and cannabis, before committing further offences between 14 July and 19 July 2019. At the time of these offences, Mr Duell was living at a lodge in Medindie. Another resident was being visited by a woman and a four-year-old child. Mr Duell became fixated with the child. He was intoxicated at the time. 9 Four days later, he left a three-page letter under the other resident’s door making allegations of sexual abuse referable to the four-year-old child. The content of the letter gave rise to the overwhelming inference that Mr Duell wanted to engage in sexual activity with that child. 10 Upon his arrest for this conduct, police found that Mr Duell had recently used his phone to search the internet using the term ‘little girls naked’. When they searched his room, police also found two novels about under-aged sexual relationships. 11 On 11 May 2020, Mr Duell appeared before the District Court and admitted this offending. Given that Mr Duell was convicted of sexual offences which fell within s 57 of the Sentencing Act 2017 (SA) (‘Sentencing Act’), the Director of Public Prosecutions made an application pursuant to s 57(2)(b) to have him indefinitely detained in custody. Accordingly, instead of sentencing Mr Duell, a Judge of the District Court remanded him to appear before this Court to be dealt with under that section. 12 The matter came before Bampton J, who then had carriage of the matter until she sentenced Mr Duell on 22 December 2021.1 The determination that Bampton J was required to make was whether to make the s 57 order for indefinite detention, or to sentence Mr Duell in the conventional way, or a combination of both. Section 57 relevantly provides: 57—Offenders incapable of controlling, or unwilling to control, sexual instincts … (2) If, in proceedings before the District Court or Magistrates Court, a person is convicted of a relevant offence and— (a) the court is of the opinion that the defendant should be dealt with under this section; or (b) the prosecutor applies to have the defendant dealt with under this section, the court will, instead of sentencing the defendant itself, remand the convicted person, in custody or on bail, to appear before the Supreme Court to be dealt with under this section. … 1 SCCRM-20-190, 20-191, 20-192, 20-193. -- 4 of 12 -- [2025] SASC 65 McDonald J 3 (3) If a person has been convicted of a relevant offence, the Attorney General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section. … (5) The Supreme Court may, if the Attorney General has made an application under subsection (3) in respect of a person who is in prison serving a sentence of imprisonment, make an interim order that the person is to remain in custody pending determination by the Supreme Court as to whether to make an order under this section that the person be detained in custody until further order. (6) The Supreme Court must, before determining whether to make an order that a person to whom this section applies be detained in custody until further order, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of a person to whom this section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person’s sexual instincts. (7) The Supreme Court may order that a person to whom this section applies be detained in custody until further order if satisfied that the order is appropriate. … 13 Under this section, a person will be regarded as “unwilling” to control their sexual instincts if there is a significant risk that they would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of their sexual instincts. 14 Bampton J found that Mr Duell was unwilling to control his sexual instincts within the meaning of s 57. Having done so, her Honour exercised her discretion to dismiss the s 57 application. Her Honour instead sentenced Mr Duell to four years, one month and 29 days imprisonment with a non-parole period of two years, nine months and 10 days to be served cumulatively upon the revoked two month suspended sentence. 15 On 24 December 2021, Mr Duell appealed that sentence. The sentence appeal was listed for 9 June 2022. Prior to that date, the Director conceded the appeal. The Court of Appeal resentenced Mr Duell to three years, nine months imprisonment with a non-parole period of one year, 10 months and nine days. 16 On 8 June 2022, the Attorney-General made a fresh application for the imposition of an indefinite detention order pursuant to s 57 of the Sentencing Act. On 6 July 2022, the Attorney-General filed an application for an extended supervision order (‘ESO’) pursuant to s 7 of the HRO Act. At the time that these applications were made Mr Duell was still serving a term of imprisonment, however, he was due to be released before the application made by the Attorney- General could be determined. 17 On that basis on 26 July 2022, I made an order under s 57(5) of the Sentencing Act for Mr Duell to be detained in custody, pending the determination -- 5 of 12 -- [2025] SASC 65 McDonald J 4 of the application for an indefinite detention order. The process of making that determination became protracted and convoluted, and eventually, on 13 June 2024, I declined to make an indefinite detention order and instead indicated that I would release Mr Duell on a five-year ESO once appropriate arrangements were put in place for his supervision and accommodation in the community. 18 It is necessary to set out some of the events that occurred in that intervening period, to put Mr Duell’s current circumstances in their proper context. 19 When the application for an indefinite detention order initially came before me, I made an order pursuant to s 57(6) of the Sentencing Act that two legally qualified medical practitioners inquire into the mental condition of Mr Duell, and report to the Court on whether he was incapable of controlling or unwilling to control his sexual instincts. In response to that order, between August and October 2022 I received reports from Dr Paul Furst and Dr Craig Raeside, both of whom expressed the opinion that Mr Duell was unwilling to control his sexual instincts. 20 The matter next came before the Court on 9 November 2022.2 On that occasion Mr Duell’s counsel advised that she had been instructed to make an application to have the proceedings adjourned until mid-2023, in order to allow sufficient time for Mr Duell to undertake the modified version of a Sexual Behaviour Clinic, (‘the SBC-me program’). 21 Mr Duell undertook and completed that program between 12 April 2022 and 26 July 2023. At the end of the program, it was considered by the facilitators that Mr Duell had been diligent in his participation and that he had demonstrated developing insight regarding the risk that his behaviour posed. As a result of Mr Duell completing the program I ordered addendum reports from Dr Raeside and Dr Furst addressing whether Mr Duell’s participation in the SBC-me program had any impact on the views that they had previously expressed. I received those reports between October and December 2023. 22 It is not necessary for current purposes to descend into any of the details contained within those reports, other than to observe that whilst both experts acknowledged that Mr Duell appeared to be motivated to reduce his risk factors, and there had been some improvements on that front, they both maintained the view that Mr Duell was unwilling to control his sexual instincts. 23 Dr Furst and Dr Raeside also gave evidence.3 They did so concurrently. In their evidence Dr Furst and Dr Raeside did not resile from their opinion that Mr Duell was at high risk of committing a further serious sexual offence, on the basis that he was unwilling to control his sexual instincts, as that term is defined under the Act. They did, however, accept that with substantial supports and restrictions in the community, that risk could be reduced. 2 SCCRM-22-224. 3 8 May 2024 (SCCRM-22-224; SCCRM-22-226). -- 6 of 12 -- [2025] SASC 65 McDonald J 5 24 As I have said, I ultimately declined to make an indefinite detention order and instead made an order that Mr Duell be the subject of an ESO for five years. Whilst there were competing considerations, and the decision was finely balanced, I expressed my reasoning process in the following terms:4 Mr Duell is at a crossroads. The circumstances are about as good as they are going to get for Mr Duell’s safe release into the community. There is a real risk that if the indefinite detention order is made, the progress of the last years will be lost and Mr Duell may no longer be motivated to change. That potentially puts the community at greater risk in the future. 25 On 24 September 2024, Mr Duell was released from custody, subject to the conditions of the ESO. Those conditions were clearly designed to reduce the risk of Mr Duell coming into contact with children or accessing any material, electronically or otherwise, that might trigger him to engage in deviant sexual thoughts about children. 26 The conditions were read out to Mr Duell in court. He acknowledged that he understood them. Given the history leading up to Mr Duell’s release on the ESO, he could have been under no misapprehension about the purpose of these conditions. Breaches of the ESO 27 On 28 October 2024, just over one month after Mr Duell’s release, police attended at his residence.5 At the time of their attendance Mr Duell was in his room which had a smart TV, with internet capabilities connected. The smart TV had the YouTube application installed. Upon viewing the search history, police could see that Mr Duell had been accessing paedophilic-themed materials, in particular videos with titles such as ‘This little girl is pregnant at nine years old? What the doctor said ...’, ‘This little girl was left in the care of her grandfather, no- one ever imagined what happened ...’, ‘The paedophile next door’ - which depicts a young female aged approximately five or six, ‘Hannah’s story; the tragic story of abuse’ which depicts a photograph of a young girl of approximately two years of age. 28 When police asked him about the material that they had located, Mr Duell said that within a couple of weeks of having moved into the accommodation he had worked out that the TV was connected to the internet and he could access the YouTube application. 29 The following day, 29 October 2024, a Parole Board warrant was issued and executed in response to Mr Duell’s alleged breached of his ESO. Mr Duell has remained in custody since that time. 4 13 June 2024 (Reasons for Ruling) (SCCRM-22-224; SCCRM-22-226). 5 An NDIS share house in which Mr Duell had his own bedroom. -- 7 of 12 -- [2025] SASC 65 McDonald J 6 30 On 11 February 2025, Mr Duell was interviewed by the Parole Board. Prior to that interview, the Parole Board had received a report from Mr Duell’s Community Corrections Officer (dated 12 December 2024), who I observe is a very experienced case manager. In that report the Community Corrections Officer noted that:6 Mr Duell has articulated remorse for his actions; however, his remorse appears more indicative of impression management than genuine accountability or insight into the root causes of his deviant behaviour. 31 This form of impression management appears to have been consistently present during Mr Duell’s period of supervision in the community. The Community Corrections Officer went on to say that:7 Despite verbal assurances of progress, Mr Duell’s actions demonstrate a concerning lack of integrity and self-regulation. For instance, he has surreptitiously accessed the internet in breach of restrictions, which underscores his inability to adhere to conditions of trust and raises doubts about the sincerity of his commitment to change. 32 He went on to elaborate:8 Mr Duell’s actions consistently diverge from his stated understanding of ethical principles, suggesting either a lack of internalised moral values or cognitive dissonance. While he may intellectually grasp the importance of integrity, his inability to consistently align his behaviours with these principles undermines his credibility and raises concerns about his genuine commitment to rehabilitation. Mr Duell appears to demonstrate some level of self-awareness and articulates the need for support, his actions and patterns of behaviour suggest that he is in the early stages of addressing his issues. His reliance on impression management and inconsistent alignment between words and actions indicate a lack of genuine progress in addressing the root causes of his deviant behaviour. 33 As I have said, on 11 February 2025 Mr Duell was interviewed by the Parole Board. During the interview it was put to Mr Duell that the only reason that he had viewed the relevant material was because it gave him some form of sexual thrill. Mr Duell agreed with that proposition. 34 Mr Duell said that he was very ashamed, that he knew that what he was doing was wrong and that he accepted that he was being deliberately secretive about his behaviour.9 35 Mr Duell told the Parole Board that if he was given another chance he would immediately have the internet taken off, however, he admitted that he had been accessing this material for quite a few weeks.10 6 FDN 6, Affidavit of Julie-Anne Lake dated 7 March 2025, JAL-5. 7 Ibid. 8 Ibid. 9 FDN 6, Affidavit of Julie-Anne Lake dated 7 March 2025, JAL-8 at 2-3. 10 Ibid at 6, 9. -- 8 of 12 -- [2025] SASC 65 McDonald J 7 Has Mr Duell breached conditions 20 or 21 of the ESO? 36 Subsequent to the interview, the Parole Board determined that it had been proved that Mr Duell had breached condition 21 of the conditions of his ESO and referred him to this Court for consideration of the imposition of a CDO. 37 The Attorney-General supports the making of such an order. The application is made under s 18 of the HRO Act. The Court can only make such an order if satisfied that the person, (a) has breached a condition of the supervision order, and (b), poses an appreciable risk to the safety of the community if not detained in custody. 38 It is only if this jurisdictional test is satisfied, that the discretion is enlivened to make a CDO under the HRO Act. 39 Despite the Parole Board findings that Mr Duell breached condition 21 of the ESO, there is an issue about whether he has in fact breached that condition or any of the other conditions of the ESO. 40 I pause to observe that this argument has highlighted the need for great care to be taken in drafting the conditions of such orders, because whilst there could be no doubt that Mr Duell has acted contrary to the spirit of what was intended to be achieved by the ESO, the contest has turned on whether he has in fact breached its precise terms. 41 Condition 21 of Mr Duell’s ESO is: The respondent will obtain prior written approval from his Supervising Officer before creating or changing any email addresses, internet usernames, social network usernames, streaming account details or online identities in use or intended for use by him on the internet or any other electronic communication service or application, and he will declare any relevant password or changes to passwords to his Supervising Officer as soon as practical and no more than 48 hours of creating or changing the same. 42 The Attorney-General accepts that Mr Duell’s conduct does not offend against that condition. I agree with that assessment. The focus of condition 21 is on the use and change of passwords, social network names and other online identities. That was not the gravamen of Mr Duell’s conduct. 43 The Attorney-General submits that Mr Duell’s conduct was in fact in breach of condition 20 of the ESO which reads: The respondent will obtain the written approval of his Supervising Officer before he purchases, borrows or otherwise possesses any tablet, computer, mobile telephone, photographic equipment, or other electronic device capable of connecting with the internet, taking photographs or storing images and videos. 44 It is the Attorney-General’s contention that by his conduct Mr Duell took possession of an electronic device capable of connecting with the internet. -- 9 of 12 -- [2025] SASC 65 McDonald J 8 45 Mr Duell’s counsel disputed that he breached condition 20 of the ESO. There were three limbs to that submission. 46 The first was that although condition 20 refers generally to electronic devices it refers specifically to tablets, computers and mobile phones and photographic equipment. There is no specific reference to smart televisions. 47 There is no merit to this submission, a television is clearly an electronic device. 48 The second issue raised, related to the concept of possession. It was submitted that because the residence is owned by the NDIS, the television was not Mr Duell’s property, in that he did not have any proprietary rights over the television, as he did not have any right to dispose of, or alter the television. 49 This submission overlooks the breadth of the legal concept of possession. At common law, possession refers to the power and the intention to exercise control over something to the exclusion of others (unless in joint possession). 50 Mr Duell clearly had possession of the contents in his room. In using this smart TV he was in possession of it and it was under his control. There is no dispute that Mr Duell had knowledge of and was using the capacity of the television to access the internet. 51 The third argument made on behalf of Mr Duell was that the focus of condition 20 was on devices coming into his possession following entering into the ESO. On that basis it was submitted “it would raise a question as to, would someone reasonably believe that if the television was already there [when they move into the room] do they need to then subsequently ensure, or have a positive duty almost, to obtain the written approval, given that someone may have been under the belief that anything in the house they had a right to, essentially, access or use that TV”.11 In essence, it would seem that the submission was that because the television was already there, Mr Duell may have believed that he had a right to access it. 52 I have a number of difficulties with that submission. 53 Mr Duell took possession of his room and the contents after he was placed on the ESO. 54 Further, Mr Duell has never claimed to have believed that he had some form of implicit permission to access the internet by virtue of having been provided with the television. To the contrary, both his conduct in acting surreptitiously, and the explanation he has provided, suggest that he was fully aware that he did not have that permission. 11 24 April 2025 T11. -- 10 of 12 -- [2025] SASC 65 McDonald J 9 55 In my view, Mr Duell has breached condition 20 of the ESO. Has Mr Duell breached condition 1 of the ESO (that he be of good behaviour)? 56 Even if I am wrong about a breach of condition 20 of the ESO, Mr Duell has also breached condition 1, which is that he be of good behaviour and obey the conditions of the order. In my view, Mr Duell has not been of good behaviour. 57 Condition 2 is that Mr Duell not commit any offence, therefore for the phrase ‘good behaviour’ to have any work to do as it appears in condition 1, must mean something more than committing a further criminal offence. 58 What amounts to good behaviour is a question of fact. The words carry their ordinary English meaning in the ordinary acceptance of those words. However, their meaning will vary dependent upon the context and purpose. As King CJ observed in Higgins v Goldfinch:12 When a child is told that his behaviour must be good, what is envisaged is quite different from that which is envisaged when a husband is told that he ought to behave well towards his wife. Good behaviour may refer, according to context and purpose, to personal habits, domestic or social obligations or commercial dealings, and the content of the concept differs in each case. 59 Given the nature and the purpose of an ESO, a requirement that a person be of good behaviour must necessarily encompass a requirement that the individual not engage in conduct that increases their risk factors, that is conduct that does not increase their risk to the community. In Mr Duell’s case that risk includes accessing materials of the type that he searched for on YouTube. 60 Whilst Mr Duell’s counsel accepted that condition 20 of Mr Duell’s ESO was capable of capturing conduct that did not amount to criminal offending, she submitted that the uncertainty about whether which condition, if any, was breached, suggested the potential for a misunderstanding on the part of Mr Duell, rather than wilful noncompliance. 61 For the reasons that I have already set out, I do not accept this submission. Given the history of this matter, I find that Mr Duell well and truly understood that it was contrary to the conditions of his ESO for him to have been accessing material of this nature on YouTube. Conclusion 62 I find, as I have said, that Mr Duell has breached conditions 1 and 20 of his ESO. 63 Having found that Mr Duell has breached the conditions of the ESO, I will now hear submissions and evidence as to whether Mr Duell poses an appreciable risk to the community if not detained in custody, and whether I should exercise my 12 (1981) 26 SASR 364 at 366. -- 11 of 12 -- [2025] SASC 65 McDonald J 10 discretion to make an order for a CDO for the remainder of the term of the ESO or for some lesser period of time. -- 12 of 12 --