DB v COMMISSIONER OF POLICE [2025] SASC 158

Applicant: DB Counsel: MR T KERIN - Solicitor: GROPE HAMILTON LAWYERS Respondent: COMMISSIONER OF POLICE Counsel: MS S GRAHAM - Solicitor: OFFICE OF THE GENERAL COUNSEL OF SOUTH AUSTRALIA POLICE Hearing Date/s: 05/06/2025 File No/s: SCCRM-24-024376 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. B v COMMISSIONER OF POLICE [2025] SASC 158 Judgment of the Honourable Justice McIntyre 19 September 2025 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - UNLAWFUL SEXUAL INTERCOURSE OR CARNAL KNOWLEDGE CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - REGISTRATION, REPORTING AND LIKE MATTERS In 1996, the applicant was convicted of two counts of unlawful sexual intercourse. At the time of offending, the applicant was 26 years old. The victim was 14 years old. The applicant is a registrable offender because of these convictions and is required to comply with the ongoing reporting requirements set out in the Child Sex Offenders Registration Act 2006 (SA) (‘CSOR Act’). The applicant seeks an order that his reporting obligations be suspended pursuant to s 38(1) of the CSOR Act. The applicant satisfies the preconditions set out in s 37(2) of the CSOR Act and is eligible to make an application. The applicant contends that he poses a negligible risk of reoffending and that good reason exists for the Court to exercise its discretion to make an order pursuant to s 38(2) of the CSOR Act. The respondent opposes the application and contends that the applicant has failed to make full and frank disclosure. The respondent further submits that the applicant misunderstands his reporting requirements and that the obligations are not as onerous as the applicant contends. Held: Application granted. Child Sex Offenders Registration Act 2006 (SA) ss 6, 37, 38, referred to. C, M v Commissioner of Police [2014] SASC 163; LBJ v Commissioner of Police [2023] SASC 129; Lane v Police [2024] SASC 30, considered. -- 1 of 9 -- -- 2 of 9 -- B v COMMISSIONER OF POLICE [2025] SASC 158 Criminal: Application 1 This is an application for an order that the applicant’s reporting obligations be suspended pursuant to s 38(1) of the Child Sex Offenders Registration Act 2006 (SA) (‘CSOR Act’). For the reasons that follow, I grant the application. Background 2 On 22 April 1996 in the District Court of South Australia, the applicant entered pleas of guilty to, and was sentenced for, two counts of unlawful sexual intercourse (‘USI’). The applicant was sentenced to a term of 18 months imprisonment with a 12 month non-parole period. The sentence was suspended upon the applicant entering a 12 month good behaviour bond.1 3 The applicant was 26 years old at the time of offending. The victim, who was 14 years old, had been caring for the applicant’s children at his home while the applicant attended a wedding with his partner. The victim stayed overnight. The applicant returned home from the reception intoxicated. He took advantage of that overnight stay to offend against the victim. 4 The precise timing of the offences is ambiguous as is the nature of the offences. The sentencing remarks do not assist. It appears that it was agreed between the prosecution and defence that there was digital penetration of the victim’s vagina on two occasions and cunnilingus on another. This suggests three counts of USI rather than two; it is unclear if one of these acts was an uncharged act or whether it was regarded as part and parcel of one of the charged acts. In terms of the timing of these acts, it was agreed at hearing in this Court that the offences occurred on the same day but separated by time. I will proceed on the basis that there were two separate occasions of sexual activity separated by some hours resulting in the two charged offences. The respondent contended that the applicant was likely intoxicated during the first count but possibly not at the time of the second. It is impossible to tell at this stage. Whether or not he was drunk this was, as the sentencing judge said, “a nasty matter”. There was a considerable age difference between the victim and the applicant. He took advantage of her being in his house to offend against her for his own gratification. It appears from the sentencing remarks that the applicant was remorseful and apologised to the victim when he drove her home. Legislative summary 5 The applicant is a registrable offender within the meaning of s 6 of the CSOR Act following his conviction for these offences. As a registrable offender, the applicant is required to comply with the ongoing reporting requirements set out 1 Affidavit of Shannon Skye Graham dated 3 June 2025, Exhibit SSG-1. -- 3 of 9 -- [2025] SASC 158 McIntyre J 2 in Part 3, Division 2 of the CSOR Act for the remainder of his life unless the Court makes an order under s 38(1) of the CSOR Act suspending those obligations. 6 A registerable offender is permitted to apply for an order suspending their reporting obligations if the threshold requirements set out in s 37(2) of the CSOR Act are met: 37—Supreme Court may exempt certain registrable offenders (1) … (2) If— (a) a period of 15 years has passed since he or she was last sentenced or released from government custody in respect of a registrable offence or a foreign registrable offence, whichever is later; and (b) he or she did not become the subject of a life-long reporting period under a corresponding law whilst in a foreign jurisdiction before becoming the subject of such a period in South Australia; and (c) he or she is not on parole in respect of a registrable offence, the registrable offender may apply to the Supreme Court for an order suspending his or her reporting obligations. the registrable offender may apply to the Supreme Court for an order suspending his or her reporting obligations. 7 It is not disputed that the applicant satisfies these preconditions. Upon satisfaction of those conditions, the Court must consider whether to make an order suspending the reporting obligations under s 38(1) of the CSOR Act: 38—Order for suspension (1) On an application under section 37(2), the Supreme Court may make an order suspending the registrable offender's reporting obligations. (2) The Court must not make the order unless it is satisfied that the registrable offender does not pose a risk to the safety and well-being of any child or children. (3) In deciding whether to make the order, the Court must take into account— (a) the seriousness of the registrable offender's registrable offences and foreign registrable offences; and (b) the period of time since those offences were committed; and (c) whether the registrable offender has ever been subject to a restraining order under section 99AA of the Summary Procedure Act 1921; and (ca) whether the registrable offender has ever been subject to a declaration under Part 2A or an order under section 15A; and -- 4 of 9 -- [2025] SASC 158 McIntyre J 3 (d) the age of the registrable offender, the age of the victims of those offences and the difference in age between the registrable offender and the victims of those offences, as at the time those offences were committed; and (e) the registrable offender's present age; and (f) the registrable offender's total criminal record; and (g) any other matter the Court considers appropriate. 8 The Court must not make an order under s 38(1) unless it is satisfied that the applicant does not pose a risk to the safety and well-being of any child or children. Satisfaction will be informed by the matters set out in s 38(3) of the CSOR Act. As described by Nicholson J in C, M v Commissioner of Police:2 A court will not be obliged to make the order in the event that it is satisfied of the requirement in s38(2); the making of the order will remain discretionary. Nevertheless, whilst lack of satisfaction under s38(2) is described as a matter of preclusion, a finding of satisfaction ordinarily will be highly favourable to the exercise of the discretion. Findings with respect to the matters to be taken into account under s38(3) will be relevant not just to the making of any finding pursuant to s38(2) but to the exercise of the discretion generally. The making of an order involves a three stage process: have the threshold matters (s37(2)) been satisfied; if so, is the court satisfied of the requirement in s38(2); if so, should the discretion be exercised to make the order sought. 9 Whether a registrable offender poses a risk to the safety and well-being of any child or children requires consideration of present and future risk. The focus is on whether there is an appreciable risk, as considered by Stein J in LBJ v Commissioner of Police3 who said that:4 The phrase “does not pose a risk” in s 38(2) requires consideration of present and future risk and should be read in this sense: does not pose a risk and will not pose a risk in the future. It will rarely be the case that a court could make an unqualified finding into the indefinite future that a person poses no risk. Accordingly, the requirement that a registrable offender “does not pose a risk” is not construed literally and the focus is on whether there is appreciable risk. An appreciable risk is a risk that is not purely speculative but is founded in evidence, is perceptible and capable of being estimated. The fundamental question for the Court is whether or not the Court is or is not satisfied of the requirements contained in s 38(2). Speaking in terms of onus of proof may not be apposite. [citations omitted] 10 Accordingly, it is necessary to consider whether the applicant poses an appreciable risk to the safety and wellbeing of any child or children. Does the applicant pose an appreciable risk? 11 In support of the application are the two reports of Dr Jules Begg (‘Dr Begg’), a forensic psychiatrist, dated 17 August 2022 and 3 June 2025. The applicant’s 2 [2014] SASC 163 at [12]. 3 [2023] SASC 129. 4 Ibid at [7]. -- 5 of 9 -- [2025] SASC 158 McIntyre J 4 personal circumstances are recounted in the August 2022 report. The applicant was 53 years old at the time of instituting these proceedings. He has five children. The three youngest are in the applicant’s fulltime care and currently reside with him. The children are visited by their mother once or twice a week for one hour. The applicant has a 23 year old child with disabilities that require the applicant’s fulltime care. 12 The applicant lives in rural South Australia. He moved there with the mother of his children. He has been unemployed for the past 16 years which the applicant attributes to his reporting obligations. The applicant has one conviction of driving at a dangerous speed from 2001 but has no further convictions. He has been compliant with his reporting obligations. Dr Begg says that these reporting obligations have impeded the applicant’s relationship with his children and reduced the available work opportunities. 13 In relation to the applicant’s offending, Dr Begg states in his August 2022 report that:5 Mr H appears to carry significant guilt about his sexual offending. He described it as being a singular incident, which he regretted the next morning when he had sobered up. He appreciated that alcohol was a factor in his offending, but did not seek to blame the alcohol. He did not receive any counselling after the offending as was recommended. 14 The applicant acknowledges in his affidavit dated 14 August 2023 that he consumed a “considerable amount of alcohol prior to the offending”.6 He has since ceased drinking alcohol, except on rare occasions.7 15 In his August 2022 report, Dr Begg opined that the applicant poses a negligible risk of reoffending, stating that:8 Other than his singular episode of offending, I did not see any other evidence of risk to children. Assuming an accurate history, I assessed his risk of reoffending as negligible. From a psychiatric perspective, I do not believe that there is an appreciable risk of him reoffending against children, and as such, I would support his application to be removed from the sex offender register. 16 However, a supplementary report was subsequently sought on the basis that the applicant had failed to provide an accurate history of his offending to Dr Begg. Specifically, he did not disclose that he had been charged and convicted of two counts of USI rather than one and, of lesser significance, he mischaracterised his speeding offence as a “speeding fine”.9 Dr Begg said that the failure to disclose 5 Affidavit of Anthony James Kerin dated 14 August 2024, Exhibit AJK-2 at 3 – 4. 6 Affidavit of Dean Martin Harrison dated 14 August 2023 at [4]. 7 Affidavit of Anthony James Kerin dated 14 August 2024, Exhibit AJK-2 at 2. 8 Affidavit of Anthony James Kerin dated 14 August 2024, Exhibit AJK-2 at 4 – 5. 9 Ibid. -- 6 of 9 -- [2025] SASC 158 McIntyre J 5 both incidents of USI may have occurred for a number of reasons – namely a lack of self-awareness, a knowing failure to make full and frank admissions to receive a more favourable report or a lack of prompting in relation to the second offence by Dr Begg. 17 Dr Begg opined that the failure to disclose suggests a “lower level of insight” by the applicant into his offences.10 However, Dr Begg emphasised that there are numerous factors relevant to determining the applicant’s risk and considered that the passage of time since the offending was deserving of “significant weight”. 18 It is said by counsel for the applicant that that the passage of time since the offending and that the applicant has not committed any further offences are evidence of “sustained and continuing rehabilitation”.11 Dr Begg concluded that, while the risk of offending has increased in light of the omissions, the risk posed by the applicant is still negligible.12 19 The respondent contends that the failure of the applicant to disclose the circumstances of the second offence is of “particular significance” given that the applicant states that following the first offence he had sobered up, regretted his offending and apologised to the victim.13 It is said that the effect of his omissions to Dr Begg are such that there is no evidence before the Court as to the second offence which prevents the Court from considering the seriousness of the registrable offences committed by the applicant. The respondent suggests that such omissions indicate a lack of self-awareness or a failure to make full and frank admissions on the part of the applicant. It is also said that the omissions render the expert reports of Dr Begg less persuasive as they were underpinned by assumptions in relation to the applicant’s history that were incorrect. 20 The matters raised by the respondent are of concern. It is, however, of note that the subject offending, bad as it was, is constituted of two offences separated by only a matter of hours. The applicant had no prior convictions for similar offending, nor has he been charged or convicted of any like offending in the 30 years since. The applicant has apparently lived a prosocial life with his family since these convictions. Intoxication was at least a factor in the offending and the applicant has considerably reduced his intake of alcohol. Dr Begg assesses the applicant’s risk of reoffending as negligible and there is no contradictory evidence before the Court. In those circumstances, it is my view that the applicant does not pose an appreciable risk to the safety and well-being of any child or children. Is there a proper basis to exercise the discretion to make the order? 21 The applicant submits that good reasons exist for this Court to exercise its discretion to make an order suspending his reporting obligations given his remorse for the offending and the lengthy period passed since the offences. The applicant 10 Affidavit of Anthony James Kerin dated 3 June 2025, Exhibit AJK-2 at 2. 11 Applicant’s Written Submissions at [19]. 12 Affidavit of Anthony James Kerin dated 3 June 2025, Exhibit AJK-2 at 2. 13 Respondent’s Written Submissions at [21]. -- 7 of 9 -- [2025] SASC 158 McIntyre J 6 has complied with his reporting obligations and has no further convictions of a similar nature. It was contended that the reporting obligations constituted a significant burden on the applicant, particularly in relation to his ability to interact with and care for his children. 22 The respondent submitted that the obligations are not as onerous as contended by the applicant. It then became apparent that the applicant misunderstood the nature of his reporting obligations and considered these to be more restrictive than they actually are. Contrary to his prior understanding, the applicant is able to attend his children’s sporting events, school activities and is permitted to change travel plans so long as they are reported to the Commissioner as soon as practicable.14 It seems that the applicant has been subject to a very strict regime for many years. Whilst this was largely self-imposed, it is to his credit that he complied. The applicant filed a further affidavit on the date of the hearing which confirmed that he now understands the effect of his reporting obligations but nonetheless wishes to proceed with the application. 23 The applicant relied upon the decision in Lane v Police15 (‘Lane’) which, the applicant submits, concerned offending of an objectively more serious nature. The applicant submits that a similar amount of time has passed since the offending in both matters and that the age difference between the applicant and victim in Lane was more than double the difference in age in this matter.16 24 The respondent does not dispute that the objective seriousness of the offending in Lane was more serious than in the applicant’s matter but notes McDonald J’s comments in relation to rehabilitation of the applicant in Lane:17 The applicant is now 68 years old. His index offending occurred almost 30 years ago. Whilst nothing I say should be seen to detract from the seriousness of that offending, there have been positive signs for the applicant’s rehabilitation right from the time that he was charged. The applicant made full and frank admissions, accepted responsibility for his offending, and pleaded guilty. He proactively sought treatment prior to being incarcerated. 25 The respondent contends that, unlike in Lane, the applicant has not attended the counselling recommended to him and failed to make full and frank admissions to Dr Begg. 26 Whilst the applicant may not have completed the recommended counselling, there is clear evidence of sustained rehabilitation. It is some 30 years since the offending which caused the applicant to become subject to the reporting obligations, and the applicant has not been charged, nor convicted, of any similar offending. He did not breach his suspended sentence bond. He has not breached his reporting obligations. The offending was undoubtedly serious, but the applicant is now 55 years old and has lived an apparently blameless life since. In 14 Respondent’s Written Submissions at [31]. 15 [2024] SASC 30 (‘Lane’). 16 Applicant’s Written Submissions at [31]. 17 Lane at [53]. -- 8 of 9 -- [2025] SASC 158 McIntyre J 7 all of the circumstances, I consider it appropriate to grant the application and make an order under s 38(1) of the CSOR Act suspending the applicant’s reporting obligations. -- 9 of 9 --