DO v COMMISSIONER OF POLICE [2025] SASC 159

Applicant: DO Counsel: MR STEPHEN EY - Solicitor: MANGAN EY & ASSOCIATES Respondent: COMMISSIONER OF POLICE Counsel: MS HAYLEY JORDAN - Solicitor: THE OFFICE OF THE GENERAL COUNSEL OF SOUTH AUSTRALIA POLICE Hearing Date/s: 14/08/2025, 16/09/2025 File No/s: SCCRM-25-029942 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. DO v COMMISSIONER OF POLICE [2025] SASC 159 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 - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES 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 The applicant was convicted of three counts of indecent assault and two counts of unlawful sexual intercourse in 2007. At the time of offending, the applicant was 32 years old. The victims were about 15 and 16 years old. The applicant is a registrable offender because of these convictions. He seeks an order to suspend his reporting requirements pursuant to s 38(1) of the Child Sex Offenders Registration Act 2006 (SA) (‘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 low risk of reoffending due to his age, lack of criminal history over the past decade and positive relationships within the community. He submits that his personal circumstances are such 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 does not oppose the application. Held: Application granted. Child Sex Offenders Registration Act 2006 (SA) ss 6, 15, 15A, 16, 34, 37, 38, referred to. C, M v Commissioner of Police [2014] SASC 163; LBJ v Commissioner of Police [2023] SASC 129, considered. -- 1 of 9 -- -- 2 of 9 -- DO v COMMISSIONER OF POLICE [2025] SASC 159 Criminal: Application 1 By originating application dated 28 July 2025, the applicant applied under s 38(1) of the Child Sex Offenders Registration Act 2006 (SA) (‘CSOR Act’) for a suspension of his reporting obligations. On 16 September 2025, I granted the application and made an order under s 38(1) of the CSOR Act. These are my reasons for that decision. Background 2 The applicant was sentenced in the District Court of South Australia on 13 June 2007 to a period of imprisonment of five years and two months with a non-parole period of three years commencing on 11 May 2006 for three counts of indecent assault and two counts of unlawful sexual intercourse. This was reduced on appeal to four years and six months with a non-parole period of two years and three months. As a result of his conviction, the applicant became subject to the mandatory reporting obligations imposed by s 34 of the CSOR Act. 3 The applicant was released on parole on 11 August 2008. Since his release, he has been subject to police attention on a number of occasions as outlined in the affidavit of Rebecca Hughes (‘Ms Hughes’) made on 2 September 2025.1 These are largely public order offences and driving offences. Of particular concern, however, are two convictions for failure to comply with ongoing reporting obligations under ss 15 and 16 of the CSOR Act in that he failed to make an annual report and failed to report to the Commissioner a change in the premises or household in which he generally resides. He was convicted of those counts on 19 December 2013 and released on a bond to be of good behaviour for a period of 18 months thereafter. He successfully completed the bond. There are no more recent convictions. The applicant says that the breaches of his reporting obligations occurred during a period of personal instability and since that time he has taken steps to ensure ongoing compliance with his reporting obligations. 4 The applicant says that, following this, he realised he needed to make significant changes to this life and ended relationships with people he knew from jail. He significantly reduced his consumption of alcohol and stopped smoking cannabis. In 2011, he commenced a relationship with his current partner. They have three children together. As a result of this he has more prosocial friends and has found work. He is a permanent staff member at his current place of employment and has been working there for some eight years. 5 The reporting obligations make it difficult for the applicant to more fully and meaningfully participate in family life. They also restrict his ability to travel interstate and overseas to visit his family. He is the father of four children, three 1 FDN 8. -- 3 of 9 -- [2025] SASC 159 McIntyre J 2 of whom are aged 10, seven and five. He has maintained a close relationship with them throughout their lives within the limits imposed by his reporting obligations. He sets out the manner in which the reporting obligations impact his ability to interact with his youngest children and his extended family in his affidavit sworn on 25 July 2025.2 Legislative framework 6 The applicant is a registerable offender within the meaning of s 6 of the CSOR Act. As a registered offender he is required to comply with ongoing reporting requirements set out 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 the applicant’s reporting obligations. 7 Section 37(2) of the CSOR Act permits a registerable offender to apply to the Supreme Court for an order suspending his or her reporting obligations if the threshold requirements set out in s 37(2) are met. These are as follows: 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. 8 There is no controversy that the applicant satisfies these preconditions. Upon being satisfied that the threshold requirements set out in s 37(2) are met, the Court must consider whether to make an order suspending the reporting obligations under s 38 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 FDN 2. -- 4 of 9 -- [2025] SASC 159 McIntyre J 3 (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 (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. 9 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 wellbeing of any child or children. In considering whether to make an order, the Court must have regard to the matters set out in s 38(3), including any matter the Court considers appropriate. 10 In C, M v Commissioner of Police, Nicholson J said:3 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. 11 The threshold matters have been satisfied. The issue is whether I can be satisfied of the requirement in s 38(2) and, if so, is it appropriate to exercise the discretion to grant the application in the light of the matters in s 38(3). 3 [2014] SASC 163 at [12]. -- 5 of 9 -- [2025] SASC 159 McIntyre J 4 Factual considerations relevant to the application Circumstances of offending 12 The offending occurred when the applicant was 32 years of age. He is now 53 years of age. The decision of the Court of Appeal notes that his background is as follows: He was born in the Congo. He is the eldest of three boys and lived with his family in Kinsasha. For the first 12 years he lived in his father’s house and was educated there. He then went to live with his mother and brothers and attended high school. He went to the University of Kinsasha for some time but due to the troubles that occurred in the Congo, his mother took him and his brothers to live in Angola. The appellant worked trading clothes in Angola for about four years. When it became unsafe in Angola, his mother arranged for the family to escape to South Africa. The appellant met his wife in South Africa. She is South Australian and was visiting South Africa as a tourist. They eventually married and a daughter was born in 2001. After about two years, the appellant received a spousal visa and came to Australia to live. In Australia he worked as a labourer and machine operator and a security officer. 13 Following the applicant’s arrest, he and his wife separated. She took their child with her. He has had limited contact with his daughter since. I note the affidavit of Ms Hughes4 stating that the applicant’s ex-wife was named as the protected person in a Domestic Violence Restraining Order (‘DVRO’) in November 2008. 14 The applicant met both victims about four years prior to the commission of the offences when he had been their trainer in a martial arts class. The respective families became friends. On 8 July 2025, the victims visited the applicant’s house where he, his wife and child were present. The victims eventually stayed for dinner and accepted an invitation to stay overnight. The applicant’s wife prepared a blow- up mattress for the two victims in the spare room. The victims went to sleep with their clothes on some time after 9:00 pm. I have had regard to remarks of the sentencing judge describing the conduct that constituted the three counts of indecent assault and two counts of unlawful sexual intercourse. In allowing the appeal, the Court of Appeal noted the devastating effects that the applicant’s conduct had upon the victims. The Court accepted that the applicant’s conduct constituted serious offending against a background of a longstanding friendship with the victims and their families together with a marked disparity in age. The appeal was allowed on the basis that the sentencing judge gave insufficient weight to the fact that this was just one episode of sexual misconduct, that there was no relevant prior record of offending and that the applicant appeared to be genuinely contrite. It was noted in the judgment that “the personal circumstances of the appellant suggest that this was an isolated incident and that it is not likely to recur”. Parole Board Report 15 The Parole Board of South Australia (‘the Parole Board’) provided a report dated 2 September 2025 which indicates that the applicant was released on parole 4 FDN 8. -- 6 of 9 -- [2025] SASC 159 McIntyre J 5 on 11 August 2008. The Parole Board deemed it necessary that the applicant undergo treatment at Owenia House. Initially, he was unable to participate due to his denial of offending. He was summonsed to appear before the Parole Board on 15 January 2009 to discuss his continued denial of offending and his participation in the Owenia House program. Following this, he commenced the program on 28 August 2009 and completed it. The Parole Boad notes that he changed his denial of sexual offending to acceptance of that fact. 16 On 17 June 2010, the applicant reported to his Community Corrections Officer that he was devastated by his divorce and that he had lost everything as a result of his offending. The applicant successfully completed his parole on 11 October 2010. His Community Corrections Officer reported good compliance. The applicant always reported as directed. It is said that apart from an early hiccup related to cannabis use, his performance on parole was satisfactory. Psychological assessment 17 In support of his application, the applicant was assessed by Mr Luke Williams (‘Mr Williams’), a forensic psychologist. Mr Williams’ report dated 7 May 2025 detailed the applicant’s early childhood, noting that he had a positive relationship with both parents and that he did not experience any civil unrest or violence in his home country, although things are different now. The applicant was working in South Africa when he met his ex-wife who was Australian. They married and moved to Australia. He arrived in Adelaide in 2001 and, shortly after, his daughter was born. He worked in security and also began teaching judo at a local club. It was in these circumstances that he met his victims. The applicant gave his version of what occurred on the day in question. His memories of the offending were limited due to his level of intoxication at this time. Mr Williams then reports as follows: Mr DO reported that he had been placed on remand and that he had remained incarcerated for a period of two years. He stated that he had “ended up pleading guilty” on the advice of his lawyer, despite the fact that “they did not have any evidence of [him] doing anything like that”. He acknowledged that “it was possible that [he] may have touched [the victims]”, however, expressed the belief that “it had not happened the way that they said”. He queried “if [he] had done something like that, why [the victims] would not have told [his] wife”. I asked Mr DO why he thought the offences had occurred. He stated that whilst he had understood his behaviour was wrong, he had “only just arrived in Australia” and had not appreciated the serious consequences of “breaking the law”. He reported that he had grown up understanding in his own country that “you could break the law and your uncle could come and pay your way out if it”. He stated that he had “lost control” and “forgotten who [he was] due to alcohol and drugs” and likened his behaviour to “having an accident on the same street that you drive to work on every day”. 18 Mr Williams assessed the applicant’s risk of reoffending using the Violence Risk Scale – Sex Offence Version (‘VRS-SO’), a widely used actuarial risk assessment tool. On the basis of his assessment, he considered Mr DO to be “below average or low risk of sexual re-offending”. Mr Williams further opined: -- 7 of 9 -- [2025] SASC 159 McIntyre J 6 Whilst the results of the assessment may appear incongruous with Mr DO’s somewhat distorted view of the offending, it should be noted that research has consistently failed to demonstrate that denial is a risk factor in relation to sexual re-offending, particularly amongst extra-familial as opposed to intra-familial perpetrators. It is argued that denial be view instead as a responsivity factor and as a cognitive distortion that is common among sexual offenders. 19 More generally, Mr Williams noted that the applicant has remained offence free in the community since 2012. He has engaged positively with community supervision and did not commit any breaches of parole. He has engaged in appropriate rehabilitation and has significantly reduced his usage of alcohol. He has maintained consistent and positive employment and has prosocial goals for the future. Mr Williams says that given his increasing age, he will likely be subject to the effects of age related desistance in sexual offending risk. Overall, Mr Williams considered Mr DO’s prognosis “for desistance from offending” to be positive. Does the applicant pose the risk contemplated in s 38(2)? 20 It cannot be said that the applicant poses no risk now or in the future but that is not the test. Whether a registerable offender poses a risk to the safety and wellbeing of any child or children was considered in LBJ v Commissioner of Police5 where Stein J said:6 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] 21 Accordingly, it is necessary to consider whether the applicant poses an appreciable risk to the safety and wellbeing of any child or children. It is of concern that, despite the completion of the Owenia House program and his apparent acceptance of his offending at that time, the applicant gave a distorted and exculpatory version of the offences when providing his history to Mr Williams. Notwithstanding this, the fact remains that the 2006 offences are the only offences of a sexual nature of which the applicant has been convicted. He has not been convicted of like offending before or since. It appears that the Court of Appeal assessment that this was isolated offending was correct. There are also a number of protective features in the applicant’s life. He is working, he has a stable relationship and family life. He has seen firsthand the consequences of 5 [2023] SASC 129. 6 Ibid at [7]. -- 8 of 9 -- [2025] SASC 159 McIntyre J 7 offending of this nature. The opinion of Mr Williams is that his risk of similar offending in the future is low. Consideration of the discretion 22 I note the factors set out in s 38(3) of the CSOR Act. The offending was undoubtedly serious as outlined above. It is, however, approximately 19 years since the applicant committed those offences. He was 32 at the time and his victims were 15 and 16. The applicant is now 53 years old. Whilst the applicant does not have a clean criminal record, the other offences of which he has been convicted are relatively minor and not of a sexual nature. He has not been convicted of any offence for over 12 years. On 14 November 2008, the applicant was subject to the DVRO referred to above. There have been no alleged breaches of the DVRO. The applicant has not been subject to a declaration under Part 2A or an order under s 15A of the CSOR Act. The breaches of the applicant’s reporting requirements for which he was convicted in 2013 were relatively minor and have not been repeated. 23 The applicant successfully completed his period of parole and the good behaviour bond imposed in 2013. He has reduced his intake of alcohol which was at least a factor in his offending. He is in a stable family environment and has been working for the same employer for over 8 years. He has a strong motivation to avoid jeopardising the progress that he has made in turning his life around. Conclusion 24 In all of the circumstances, I find that the applicant does not pose the risk contemplated in s 38(2) of the CSOR Act and that it is appropriate to exercise the discretion to suspend the applicant’s reporting obligations. -- 9 of 9 --