ATTORNEY-GENERAL (SA) v PETER MCCULLY [2025] SASC 207

Applicant: ATTORNEY-GENERAL (SA) Counsel: MS E HARPER - Solicitor: CROWN SOLICITOR (SA) Respondent: PETER MCCULLY Counsel: MR A GRAHAM - Solicitor: DEEGAN LAW Hearing Date/s: 15/12/2025 File No/s: SCCRM-25-019981 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 MCCULLY [2025] SASC 207 Reasons for Decision of the Honourable Justice B Doyle (ex tempore) 15 December 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 The respondent is a high risk offender within the meaning of the Criminal Law (High Risk Offender) Act 2015 (SA) (‘HRO Act’) in respect of whom an interim supervision order (‘ISO’) was made on 4 June 2025. On that day the Court directed that a prescribed health professional examine the respondent and report to the Court as to the likelihood of him committing a further serious sexual offence. The matter was adjourned to 8 October 2025. No report has yet been received and, as at early December, the respondent’s matter had not been allocated. By interlocutory application filed on 8 December 2025, supported by an affidavit made by the respondent, he seeks an order pursuant to s 13 of the HRO Act revoking the ISO. Held: 1. the matters raised by the respondent in combination amount to a ‘material change in circumstances’, and the interests of justice favour a grant of permission to bring an application for the revocation of the ISO. The requirements of s 13(3) of the HRO Act are therefore satisfied and permission is granted under s 13(2) of that Act; 2. reconsidering the question whether an ISO should be imposed or maintained, the threshold criteria for the imposition of an ISO are established, and the discretion not to impose or maintain the ISO should not be exercised in the respondent’s favour. The application for revocation is therefore refused. Observations made on the meaning of ‘material change in circumstances’ within the meaning of s 13(3)(a) of the HRO Act. -- 1 of 12 -- Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 9, 10, 13, 22, referred to. Attorney-General (SA) v Williams [2025] SASC 164; Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44; Eunice Daphne Washington v Titan Fan Products Australia Ltd [2021] SASC 124; MDP v The King 99 ALJR 969; [2025] HCA 24; West Beach Trust v Profile Events Pty Ltd [2008] SASC 221, discussed. -- 2 of 12 -- ATTORNEY-GENERAL (SA) v MCCULLY [2025] SASC 207 Criminal – application 1 B DOYLE J (ex tempore): The respondent makes application pursuant to s 13(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’) for the revocation of an interim supervision order (‘ISO’) made by the Court on 4 June 2025. Background 2 The ISO was made shortly prior to the expiry of a term of imprisonment of three years, four months and 17 days the respondent was serving in respect of his convictions for aggravated possession of child exploitation material, aggravated production of child exploitation material and three failures to comply with reporting obligations (‘the index offending’). The respondent pleaded guilty to those offences. 3 Since August 2021, the respondent had been a registered sex offender and subject to strict reporting obligations. In late December 2021, he moved from Renmark West but failed to notify the Australian National Child Offender Register (‘ANCOR’). He was located by police in Coober Pedy in February 2022 and arrested. Police analysed his phone and found that it contained six aggravated under 14 category 1 images and five basic under 17 category 1 images. It was also found that he had engaged in an on-line chat with a female living outside Australia who he had persistently requested send explicit photos of her young daughter for payment. 4 The respondent is nearly 57 years old. He was born and grew up in Sydney before moving to Newcastle in around 1995 to be with his then wife. He lived there until 2005, when he moved to Western Australia. He resided in Western Australia for a year or so before returning to New South Wales and living between Newcastle and Sydney. In 2014 he returned to Western Australia for about six months before moving to South Australia for a further six months. After a return to New South Wales, he then resided in South Australia from 2018. 5 The respondent has a number of convictions antecedent to the index offending. Most relevantly, he was convicted of number of assault and apprehended violence order contraventions in New South Wales in 2010 and early 2011. He was then convicted of two counts of possessing child pornography in Western Australia in June 2011. In 2016, he was sentenced in New South Wales to two years imprisonment for indecent assault of a 13 year old girl, having touched her vagina over her clothes. 6 In sentencing the respondent for the index offending, the sentencing judge accepted the opinion of a psychologist, Ms Heinrich, that the respondent’s most significant risk factor was alcohol. His counsel had acknowledged that, whilst -- 3 of 12 -- [2025] SASC 207 B Doyle J 2 intoxicated, he was unable to control his behaviour, experiencing an increase in libido and sexual activity, and being more likely to act impulsively and less likely to regulate his mood. The judge did not accept, however, that the respondent had demonstrated insight into this and his previous offending, meaning that his expressions through counsel of contrition and remorse were to be afforded little weight. 7 Regarding rehabilitation, the judge said: … your lack of insight is a factor in that assessment. But of greater practical importance is whether you can address your chronic alcohol abuse. Ms Heinrich opines that without significant support it is unlikely you will be able to achieve long-term abstinence from alcohol. It is also the case that your chronic alcohol abuse is a longstanding problem and it remains unaddressed. The sentencing remarks from the District Court of Western Australia in 2011 record your offending as the direct result of alcohol consumption. 8 The applicant made application for an extended supervision order (‘ESO’) by originating application filed 19 May 2025, approximately a month prior to the expiry of the respondent’s term of imprisonment in relation to the index offending. 9 There was no issue that the respondent qualified as a ‘high risk offender’, nor that the relevant expiry date would likely pass before the application for an ESO could be determined.1 The critical issue for the purposes of deciding whether an ISO should be imposed was whether the matters alleged in the material supporting the application would, if proved, justify the making of an ESO.2 10 That invited attention to whether that material suggested that the respondent posed an appreciable risk to the safety of the community if unsupervised and, if so, whether, as a matter of discretion, an ESO should be made.3 The originating application asserted that the respondent posed an appreciable risk on the basis that: • the respondent has a history of sexual offending, including prior convictions for possessing child exploitation material, and for contact sexual offending against a child aged 13 years; • the respondent’s poor mental health and subsequent reliance upon alcohol are precursory to his offending behaviour; • the respondent has been assessed as being at moderate to high risk of sexual recidivism whilst in custody; and • the respondent has been unable to undertake treatment or engagement with services designed to reduce the risk of sexual recidivism. 1 HRO Act, s 9(1)(a). 2 HRO Act, s 9(1)(b). 3 HRO Act, sub-ss 7(4) and 7(6). -- 4 of 12 -- [2025] SASC 207 B Doyle J 3 11 The affidavit supporting the originating application annexed Ms Heinrich’s report (to which the judge had regard in sentencing), an ‘Individual Development Plan’ dated 18 January 2023, a ‘DCS High Risk Offender Review’ dated 10 April 2023, a Rehabilitation Programs Branch minute to the Sentence Management Unit and Parole Board dated 17 April 2025, and a letter from the Parole Board’s Presiding Member dated 15 May 2025.4 12 Relevantly: • Ms Heinrich recommended that the applicant engage in specialist alcohol counselling, that he engage with a psychologist to treat his symptoms of post- traumatic stress disorder and to assist him to develop skills to manage unpleasant mood states without reverting to alcohol use, consult a psychiatrist concerning his manic or psychotic symptoms and undertake a treatment program at Owenia House to address his risk factors; • whilst he was in custody for the index offending, he was on 28 January 2023 screened for eligibility to participate in the Sexual Behaviours Clinic (‘SBC’) program, having been assessed as at average risk of sexual reoffending. That resulted in him being referred for a full assessment for the SBC program; • on 16 October 2024, he was assessed for the modified SBC program. His risk of sexual re-offending was estimated to be within the well above average range. He was considered suitable to undertake the SBC program, but there was insufficient time remaining on his sentence to complete the program prior to his release; • following this assessment, he was considered to have the following treatment needs and risk factors: sexually deviant lifestyle, offence planning, use of cognitive distortions, interpersonal aggression, lack of emotional control and lack of insight, substance use linked to sexual offending, lack of community support, being released to high-risk situations, impulsivity surrounding alcohol use and sexual offending and intimacy deficits. 13 The respondent did not oppose the making of the ISO. Without being exhaustive, its terms required the respondent to reside at an address nominated by his supervising officer, wear an electronic monitoring device, abstain from alcohol and non-prescribed drugs, keep a distance from schools, kindergartens and other places children are regularly present, not undertake child-related work, and submit to close monitoring of electronic devices used by him. The respondent was precluded from leaving the State without prior approval.5 14 When the ISO was imposed on 4 June 2025, the Court directed that a prescribed health professional examine the respondent and report to the Court as to the likelihood of the respondent committing a further serious sexual offence, as 4 Affidavit of Rory Lewis Clark made on 19 May 2025 (FDN 2). 5 HRO Act, s 10(1)(da). -- 5 of 12 -- [2025] SASC 207 B Doyle J 4 contemplated by s 7(3)(a) of the HRO Act. The matter was adjourned to 8 October 2025, reflecting an expectation that, all things being equal, the report would be available before then, that is, within about four or so months from the date of the direction. 15 When the matter came before me on 8 October 2025, the respondent’s counsel informed the Court that no report had been received and that the respondent had been informed that the Owenia House program would not be available to him until next year. Having regard to the respondent’s desire to return to New South Wales, an application to revoke the ISO was foreshadowed. 16 I adjourned the matter to 3 December 2025, on the basis that if the report was received in the meantime, a revocation application might not be necessary because the Court would then simply determine the ESO application. 17 On 3 December 2025, the applicant’s counsel informed the Court that as of earlier that week, the respondent’s matter had still not been allocated to a report writer and, as a result, an update on when the report would be prepared could not then be given. Ordinarily, the applicant would have proposed an adjournment to the middle of February, however it was acknowledged that the respondent was entitled to have an application for revocation considered. 18 I directed that the application be made returnable to the hearing today. The application was duly filed on 8 December 2025 and it is supported by an affidavit affirmed by the respondent himself.6 The revocation application 19 The respondent affirms that since 19 June 2025 he has been directed to reside at an address which is tenanted by a number of people who are coming and going due to people being released from and taken into custody, including ‘antisocial figures’. About six people have come and go since he has been living there. He lives in a makeshift bedroom which is a converted garage at the back of the property. He has seen and smelt drug use at the premises including methylamphetamine and cannabis. Previous tenants have caused property damage and behaved in an intoxicated and aggressive manner. He is ‘struggling’ in his current accommodation. 20 The respondent wants to return to New South Wales, which he considers home. He has an offer of accommodation and employment in Newcastle. His 32 year old son lives there. So do some friends who are able to support him. Annexed to his affidavit are letters from his general practitioner, attesting to his depression, anxiety and PTSD and suggesting the respondent would benefit from independent accommodation. Also annexed is a letter from a psychologist which records that the respondent has attended three sessions and has engaged openly, forthrightly and transparently with respect to his past history and related offending. 6 Affidavit of Peter McCully made on 8 December 2025 (FDN 14). -- 6 of 12 -- [2025] SASC 207 B Doyle J 5 The psychologist reports a developing understanding of the personal and systemic factors that have contributed to the respondent’s circumstances. The psychologist reports clearly articulated feelings of genuine remorse and guilt. 21 Finally, the affidavit attaches a letter from ‘Life Without Barriers’, which provides alcohol and other drug outpatient counselling services via individual counselling. The writer reports that: • following a referral on 31 January 2025 from DCS, the respondent has completed the treatment program; • the respondent was an active participant; • the sessions focussed on relapse prevention strategies and included a cost/benefit analysis of alcohol use during which the respondent demonstrated insight into several benefits to abstinence and presented with a ‘strong desire to maintain abstinence, complete his correctional requirements and return to his home [S]tate’; • the respondent reports abstinence for three and a half years and has no further need for ongoing counselling support in that regard. Permission to apply to vary or set aside the order 22 Section 13(1) of the HRO Act provides that the Supreme Court may, on application made by the Attorney-General or a person subject to a supervision order, vary a condition of the order (including a condition imposed by the Parole Board), impose further conditions or revoke the order. 23 A person subject to a supervision order requires permission of the Court to make such an application: s 13(2). Section 13(3) provides that the Court may only grant that permission if satisfied that: (a) there has been a material change in circumstances relating to the person or supervision order; and (b) it is in the interests of justice to grant permission. 24 In written submissions, the applicant contends that ‘material change in circumstances’ should be read as meaning that the circumstances of the applicant, or of the order, have changed ‘sufficiently to render the supervision order unnecessary’. 25 I would not accept that contention. The ‘material change’ requirement conditions permission to make an application for revocation. The applicant’s formulation would require the person seeking permission to demonstrate that the application will be successful before the Court will entertain it. 26 The applicant also invited a comparison with the approach taken to the expression ‘material change in circumstances’ in the context of applications to vary or revisit custody and access orders under family law legislation. Whilst there -- 7 of 12 -- [2025] SASC 207 B Doyle J 6 may be some parallels, there are likely to be policy reasons militating in favour of continuity and stability in that context which do not apply with the same force where a person’s liberty is at stake. 27 The paramount consideration when considering whether to make an extended supervision order is the safety of the community and whilst that consideration indirectly infuses the discretion whether to impose an interim supervision order, this does not in my view speak strongly against granting permission to a person to have orders that restrict their liberty reconsidered. Rather, it means that, on any reconsideration of the appropriateness of the extant order and its terms, the Court will continue to be strongly influenced by community safety. 28 In the context of interlocutory orders more generally, and, in particular, interlocutory injunctions, it has been observed that:7 The overriding principle governing the approach of the court to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case. In giving effect to that general principle, and in recognition of the public and private interests earlier referred to, rules of practice have been developed in accordance with which the discretionary power of the court to set aside, vary or discharge interlocutory orders will ordinarily be exercised. Not all kinds of interlocutory orders attract the same considerations. For present purposes one may put to one side orders of a merely procedural nature (as to which see for example Wilkshire & Coffey v Commonwealth (1976) 9 ALR 325) and injunctions (or undertakings) made or given by agreement and without contest “until further order” (as to which see for example Warringah Shire Council v Industrial Acceptance Corp (unreported, SC(NSW), McLelland J, 22 November 1979). In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate until the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material change of circumstances since the original application was heard, or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application … 29 The permission requirement addressed by sub-ss 13(2) and 13(3) of the HRO Act applies both to interim and extended supervision orders. In its application to interim supervision orders, which operate to manage a perceived risk on an interim basis pending a hearing of an extended supervision order, there is an obvious parallel with the principles that inform the Court’s approach to varying or setting aside interlocutory injunctions. 30 In my view, and informed by that parallel, the primary purpose served by requiring a change in circumstances is to emphasise that persons who are subject to such orders are not permitted to utilise s 13 simply for the purpose of re-arguing the basis for the imposition of their order.8 Because it is inevitable that some 7 Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 (McLelland J). The approach has been adopted in this Court in West Beach Trust v Profile Events Pty Ltd [2008] SASC 221 and Eunice Daphne Washington v Titan Fan Products Australia Ltd [2021] SASC 124. 8 In the case of an extended supervision order, a challenge of that kind should be made by way of appeal and (usually) within 10 days: HRO Act, s 22. -- 8 of 12 -- [2025] SASC 207 B Doyle J 7 circumstances will have changed whenever time has passed between the imposition of the order and the bringing of an application to revisit the order, the Parliament evidently wished to exclude changes in circumstances which are immaterial either because they are insubstantial in their inherent significance or because they were the very kind of changes that might have been expected to occur during the term of the order even when it was made. Not all change is unexpected. 31 In the context of s 13 of the HRO Act, I would understand the materiality threshold to invite consideration of whether the change of circumstances relied upon is one which has the capacity to have warranted a different outcome either as to the imposition or terms of the order. By that I simply mean something that could realistically have warranted a different outcome.9 That could be because the additional circumstances bear upon the jurisdictional requirements for the making of an ISO, or because they bear upon the discretion that the Court retains as to the ultimate exercise of the power to impose such an order. Remembering that what is under consideration is a restriction on the liberty of a person who, ex hypothesi, has served the sentence imposed on them for their offending, I do not think that this should be understood as a particularly demanding threshold. 32 In my view, the following matters in combination amount to a material change in circumstances in the sense I have just described: • the duration of the ISO, unless terminated, is now expected to be longer by a number of months, possibly as many as four or five months; • the respondent has undertaken counselling of a kind which represents clear progress in relation to his alcohol use; • the respondent can now point to a period of compliant behaviour after his release from custody; • there is at least some reason to think that the residence at which he is presently directed to reside may represent a risk factor. 33 Whilst it is necessary to bear in mind the impact upon the resources of the Court and, indirectly, other litigants, there are no compelling considerations that weigh against a grant of permission to make the application. In my view, the interests of justice warrant a grant of that permission. Should the ISO be revoked? 34 It remains to consider, however, whether the ISO should be revoked. That question should be approached by considering afresh whether an ISO should be imposed, but, at the discretionary stage, bearing in mind not only its prospective effect but the fact that an ISO has already been in place for some months. 9 cf. MDP v The King (2025) 99 ALJR 969; [2025] HCA 24 at [61]-[62] (Edelman J), in the context of materiality of error. -- 9 of 12 -- [2025] SASC 207 B Doyle J 8 35 The question whether an ISO is justified requires, in the first instance, consideration of whether the material supporting the application would, if proved, justify the making of an extended supervision order, in the sense that it would justify the jurisdictional requirements for the exercise of such an order.10 36 When considered against the background of the respondent’s sexual offending in 2011, 2016 as well as the index offending in 2022, the material supporting the application and in particular the most recent risk assessment made in October 2024 would, if proved, establish that the respondent poses an appreciable risk to the safety if the community if not supervised. An appreciable risk is not necessarily a pronounced or acute risk. 37 Whilst the same material also discloses a potential criminogenic link between the respondent’s alcohol consumption and sexual offending, and the respondent’s affidavit suggests that he has made strides towards sustained sobriety, the unfortunate fact remains that due to circumstances largely beyond his control, he has not undertaken sexual behaviour treatment. In those circumstances, in my assessment, an appreciable risk remains. 38 It may be that on the hearing of the ESO application, the report that is to be prepared will support a conclusion that, in view of the steps taken by the respondent, perhaps coupled with a progression in the respondent’s insight (suggested by the letter from his psychologist) and the period of apparently compliant behaviour in the community since his release from custody, there is no longer an appreciable risk. But on the material presently available, and without a supportive objective assessment by a forensically trained specialist, a conclusion of appreciable risk remains appropriate, in my view. 39 Turning to the question of discretion, the question is really whether, having regard to the conclusion just expressed, this is in the category of cases in which imposing restrictions on the liberty of the respondent, for a further period of time, notwithstanding that a more formal assessment has not yet been possible, can be justified. 40 A number of factors point against the maintenance of an ISO. These include the not unreasonable desire of the respondent to return to New South Wales and the prospect that he may be able to lead a more supported and productive life there than is possible in his current accommodation. However, the weight that can be given to that consideration is reduced, if not eliminated, by s 7(6a) of the HRO Act. And, to the extent that the respondent’s desire to move to New South Wales can be considered on the hearing of an interim order, a countervailing consideration is that allowing him to return to New South Wales might frustrate or complicate the Court’s consideration of the ESO application and, allied to that, any treatment that might be imposed as a condition of ongoing supervision. 10 See, eg, Attorney-General (SA) v Williams [2025] SASC 164 at [59]-[63]. -- 10 of 12 -- [2025] SASC 207 B Doyle J 9 41 The fact of his apparently compliant conduct since his release is another matter in his favour. It can also be observed, however, that this compliant behaviour has been achieved whilst the respondent has been the subject of supervision and monitoring. The extent to which these measures have assisted the respondent is difficult to assess at this stage. 42 Where a person does not appear to pose an acute risk to the safety of the community, there is likely to come a point where, if they have done all that can be expected of them whilst subject to an ISO, an extensive delay in the preparation of the report necessarily to facilitate the hearing of an ESO application may impose an unjustified and intolerable burden upon the person, such that a discretion should be exercised in their favour. 43 I accept as well that the period of delay is to be seen in the context of the extent to which the State has made appropriate rehabilitation programs available to the person whilst they have been in custody. 44 There is no period of delay which is acceptable or unacceptable in the abstract. Each case has to be assessed on its own merits and having regard to the level of risk posed by the person the subject of the relevant order. 45 The delay in this case is regrettable. I make that observation without any implied criticism of the individuals involved. Undoubtedly, the issue is one of resourcing, not performance or conscientiousness. 46 However, with some hesitation I have come to the view that, weighing the risks against the relevant burdens, and in light of the Act’s focus upon the safety of the community, the delay in this case is not presently such as to persuade me as a matter of discretion to revoke the ISO. 47 I was informed this morning that it is now anticipated that a report will be provided by the end of January, or early February 2026. It is to be hoped and expected that the respondent’s matter will receive priority so that that timeline is achieved. 48 It is also to be hoped consideration will be given by the respondent’s supervising officer to permitting the respondent to reside at a different residence, if a suitable alternative can be found. 49 Finally, I observe that many of the matters which have caused me to hesitate in deciding to decline to revoke the ISO will merit careful consideration at any contested hearing about the imposition of an ESO, or the terms or duration of such an order. -- 11 of 12 -- [2025] SASC 207 B Doyle J 10 Disposition 50 For those reasons, whilst I grant permission to pursue the revocation application, I decline to revoke the order made on 4 June 2025. The matter will be adjourned to a hearing on 18 February 2026. -- 12 of 12 --