ROGER LANE v COMMISSIONER OF POLICE [2024] SASC 30

Applicant: ROGER LANE Counsel: MR C CALDICOTT - Solicitor: CRAIG CALDICOTT LAWYERS Respondent: COMMISSIONER OF POLICE Counsel: MS E BROWN - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 18/01/2024 File No/s: SCCRM-23-044089 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. LANE v POLICE [2024] SASC 30 Judgment of the Honourable Justice McDonald 7 March 2024 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 1995 the applicant was convicted of one count of unlawful sexual intercourse with a person under 12 and two counts of unlawful sexual intercourse. He was released on parole in March 1999. Due to the nature of his offending, in October 2006 the applicant was registered on the Australian National Child Offenders Register (‘ANCOR’) and became the subject of the various restrictions and conditions imposed by the Child Sex Offenders Registration Act 2006 (SA) (‘the Act’). The applicant seeks an order pursuant to s 38(1) of the Act that his reporting obligations under the ANCOR be suspended. The Commissioner of Police is in opposition to the application. As required by s 38(2) of the Act, the applicant must not pose a risk to the safety and well-being of any child or children for the order to be granted. Held: Application granted. Child Sex Offenders Registration Act 2006 (SA) s 4A, s 15, s 16, s 17, s 37(2), s 38(2), s 38(3), s 65, s 66K(1), s 66L, s 66M, s 66N(1), referred to. L, R v Commissioner of Police [2018] SASC 181, discussed. -- 1 of 18 -- -- 2 of 18 -- LANE v POLICE [2024] SASC 30 Criminal: Application McDONALD J: 1 In 1995 the applicant pleaded guilty to one count of unlawful sexual intercourse with a person under 12 and two counts of unlawful sexual intercourse. He was released on parole in March 1999. As a consequence of the nature of his offending, in October 2006 he was registered on the Australian National Child Offenders Register (‘ANCOR’). At that time the applicant became the subject of the various restrictions and conditions imposed by the Child Sex Offenders Registration Act 2006 (SA) (‘the Act’). The applicant seeks an order pursuant to s 38(1) of the Act that his reporting obligations be suspended. The Commissioner of Police is in opposition to the application. The Sexual Offending 2 For current purposes it is not necessary to descend into any great detail about the applicant’s prior offending other than to observe that the offending took place between 1989 and 1993 and was committed against a boy who was between 9 and 15 years old. Over the period of offending, the applicant had been the victim’s teacher. 3 With the exception of a drink driving conviction in 2016, these are the only offences that the applicant has been convicted of. There have also been no breaches of the applicant’s ANCOR obligations. ANCOR Obligations 4 As the applicant is a “registerable offender who has been found guilty of two or more class 1 offences”,1 he is subject to the ANCOR obligations for the remainder of his life. The obligations imposed by the Act are multifaceted. They include reporting obligations and also restrictions on the conduct and movements of a registerable offender. By way of example a registerable offender cannot change their name without permission,2 can be obliged to wear a tracking device,3 and must notify parents of children who they are in contact with of their status as a registerable offender.4 5 The reporting obligations under the Act include a requirement that a registrable offender reports contact with children,5 any intended travel out of the 1 Child Sex Offenders Registration Act 2006 (SA) s 34 (the Act). Under sch 1 pt 2 (e) of the Act, a class 1 offence includes an offence against s 49(1), (3) and (5) of the Criminal Law Consolidation Act 1935 (SA) (unlawful sexual intercourse offences). 2 Ibid s 66K(1). 3 Ibid s 66N(1). 4 Ibid s 66L(1). 5 Ibid s 4A, s 20A. -- 3 of 18 -- [2024] SASC 30 McDonald J 2 State,6 any changes to their personal details,7 and there is a requirement for an annual report.8 6 Section 37 of the Act creates a power for a registerable offender to apply to the Supreme Court to exempt them from their reporting conditions. 7 An application can only be made if three jurisdictional conditions are satisfied. These are that 15 years has passed since the registerable offender was last sentenced or released from government custody in respect of a registrable offence, that they are not the subject of a life-long reporting period under a corresponding law in another jurisdiction before becoming the subject of such an order under the South Australian Act and that they are not on parole in respect of any registerable offence.9 8 There is no dispute that the applicant satisfies this criteria and is therefore permitted to make an application for the reporting obligations to be suspended pursuant to s 38. Before the Court can make such an order it must be satisfied that “the registerable offender does not pose a risk to the safety and well-being of any child or children.”10 In determining that question the Court must take into account:11 (a) the seriousness of the registrable offender’s registrable offences and foreign registerable offences; and (b) the period of time since those offences were committed; and (c) whether the registerable 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. 6 Ibid s 17. 7 Ibid s 16. 8 Ibid s 15. 9 Ibid s 37(2). 10 Ibid s 38(2). 11 Ibid s 38(3). -- 4 of 18 -- [2024] SASC 30 McDonald J 3 Previous Application 9 The applicant made a previous application to have his reporting obligations suspended in 2018. That application was heard by Nicholson J and was unsuccessful. In order to put the competing arguments made on this application into context, it is necessary to set out some of the events that preceded the decision of Nicholson J to dismiss the application. 10 For the purposes of the 2018 application, reports were obtained from Mr Luke Broomhall,12 Mr Richard Balfour,13 Mr Allan Fugler,14 Dr Jack White,15 and Dr Karl Hanson.16 I will deal with the reports in the order in which they were prepared. 11 Mr Fugler provided a report dated 8 September 2015 in support of an application for the suspension of the ANCOR reporting conditions. In that report Mr Fugler set out his previous contact with the applicant which occurred over a period of four months, prior to the applicant being sentenced for his sexual offending. During that time the applicant was engaged in a program of treatment with Mr Fugler directed toward modifying his deviant sexual behaviour. After the applicant was sentenced and incarcerated he remained in contact with Mr Fugler by mail, telephone and on one occasion a face to face visit. 12 The September 2015 report was brief. In it Mr Fugler sets out his various dealings with the applicant as well as his understanding of the impact of the ANCOR requirements on him. He concluded his report with the following:17 [The applicant] has not committed any offences, including those of a sexual nature, for over 15 years since being released from prison in 1999. When I last corresponded with the Parole Board on 20 August 1998 I stated I believed your client was insignificant risk with respect to the prospect of his reoffending in a sexual manner against children. While there are obviously no absolutes when predicting the likelihood of further offending, [the applicant’s] presentation, the modifications in his previous deviant arousal pattern, application of relapse prevention skills, and behaviour over at least the last 15 years would indicate he continues to fall within a group with a very low probability of sexually re- offending against children. 13 Mr Broomhall provided a report dated 17 May 2016. In order to prepare his report Mr Broomhall conducted a three hour interview with the applicant. During that interview the applicant completed the Personality Assessment Inventory (PAI) as a psychological evaluation of personality and psychological functioning. In undertaking an evaluation of static (unchangeable) risk factors the Static-99R was applied. In assessing the dynamic (changeable) risk factors relating to sexual offending, the STABLE-2007 was applied. These are both tools used to measure 12 17 May 2016, 4 May 2018 and 28 October 2019. 13 17 January 2017. 14 8 September 2015 and 19 November 2017. 15 9 April 2018. 16 28 March 2019, 10 April 2019 and 19 November 2019. 17 Report of Mr Fugler dated 8 September 2015 at 5. -- 5 of 18 -- [2024] SASC 30 McDonald J 4 the risk posed by individuals who have been convicted of sexual offences. Mr Broomhall provided an overview of what these tools measure and how the applicant scored:18 Static-99R [The applicant’s] level of risk for sexual reoffending was assessed using the Static-99R. The Static-99R is designed to assist in the prediction of sexual and violent recidivism amongst men convicted of sexual offences by exploring static factors. These factors include prior sexual offences, current non-sexual violent offences, history of non-sexual violence number of previous sentencing dates, age, having male victims, never living with a partner for two years, history of non-contact sexual offences, unrelated and stranger victims. The Static-99R provided group estimates of recidivism based on groups of individuals with these characteristics who do not receive treatment. [The applicant’s] score of 3 placed him in the “low-moderate” range for risk category. This score of 3 was made up of the following relevant characteristics: The applicant had never lived with a lover for at least 2 years. Prior sex offences relate to his previous charges: there was an unrelated victim who was also a male victim. STABLE-2007 The STABLE-2007 is a guide for conducting a clinical interview with people convicted of sexual offences. The STABLE-2007 explores a number of dynamic risk factors including an individual’s significant social influences, intimacy deficits and emotional identification with children. Hostility towards women, social rejection or loneliness, as well as a lack of concern for others is explored. The STABLE-2007 also examines an individual’s sexual preoccupations or sex drive, use of sex as coping, deviant sexual interests, cooperation with supervision and general self - regulation (impulsive acts, poor cognitive problem solving, negative emotionality or hostility). (Footnotes Omitted) 14 Based on the scoring criteria of the STABLE-2017, the applicant’s score of 6 placed him in the “moderate range” for risk of inappropriate sexualised behaviour in the future. 15 In arriving at that view, Mr Broomhall also relied on his psychological assessment of the applicant during his interview. He explained the need for a degree of clinical override of the actuarial measures produced by Static-99R and STABLE-2007:19 In terms of assessment of future risk, it needs to be stated that it is not scientifically possible to accurately predict whether or not an individual offender will or will not actually reoffend. The best that can be offered is an estimate that is anchored to empirical literature specifying features associated with risk and sound clinical analysis and formulation of how those features might operate in the individual subject to the assessment. The risk assessment process is necessarily multi-faceted, combining in general terms the use of actuarial 18 Report of Mr Broomhall dated 17 May 2016 at 9-10. 19 Report of Mr Broomhall dated 17 May 2016 at 12-13. -- 6 of 18 -- [2024] SASC 30 McDonald J 5 approaches and an assessment of the relative presence of individual dynamic (changeable) factors that have contributed to a pattern of sexual offending behaviour. Actuarial tools provide explicit rules for combining static (historical) factors which are summed into a total score. These scores can be associated with specific group based probabilities of recidivism. Actuarial scales are used to assess long-term recidivism potential and have a moderate predictive accuracy (d = 0.61). Dynamic risk factors are those which have been reliably related to sexual recidivism but can change over time and therefore are amenable to change, including treatment or other intervention. Dynamic risk factors provide specific information about the risk of the particular individual being assessed. Individuals are subject to patterns of behaviour and therefore can be at risk in specific circumstances to particular victims over an estimated timeframe. It is also plausible that a greater number and/or severity of dynamic risk factors can indicate heightened active risk in an individual and would indicate the requirement for increased intensity in supervision and management in the community. (Footnotes Omitted) 16 In Mr Broomhall’s opinion the applicant presented with a number of dynamic risk factors which remained of concern. These included a lack of insight into his emotional state, difficulty in managing his frustration and a continued denial of his short comings and faults. Mr Broomhall also raised a concern that the applicant did not believe that he would benefit from further therapeutic interaction which illustrated a lack of self-awareness. These matters contributed to Mr Broomhall’s overall view that the risk posed by the applicant was moderate. 17 Mr Richard Balfour met with the applicant for 3 hours on 27 September 2016 and prepared a report dated 17 January 2017. Mr Balfour used a standardised risk assessment tool for sex offenders, the Structured Professional Guidelines for Assessing Risk of Sexual Violence (‘the RSVP’). This is a risk assessment tool that has been in wide use since 2003 which uses structured clinical judgment methodology to make predictions. 18 Based on a combination of Mr Balfour’s psychological assessment and the RSVP results, he formed the view that the applicant’s prognosis to continue to remain offence free was excellent.20 He provided the following reasons: • The failure to re-offend for 21 years. • The applicant had not exhibited an ongoing sexual interest in adolescent boys over that time. • The applicant had gone to great lengths to rehabilitate himself and had developed insight into his offending. • The applicant’s primary sexual interest was now adult males and he was exploring a relationship with an adult male. 20 Report of Mr Balfour dated 17 January 2017 at 21. -- 7 of 18 -- [2024] SASC 30 McDonald J 6 • The applicant’s libido had declined and he had not been sexually active since 2004. • The applicant did not suffer from any comorbid psychopathology that would predispose him to further offending behaviour (ie, Antisocial Personality Disorder, drug and alcohol abuse problems). • There were a number of protective factors in the applicant’s life that factored against further offending (ie, excellent employment and an extensive network of family and friends). • The applicant was appropriately remorseful for his offending. He had made admissions to police and pleaded guilty at the earliest opportunity. He had exhibited victim empathy and did not try to minimise his offending behaviour or externalise blame. 19 In conclusion Mr Balfour said that the applicant having not sexually offended for 21 years, had too much to lose by reoffending. 20 Mr Fugler provided a further report dated 19 November 2017. It appears that in this report he was asked to specifically address concerns that had been raised by the applicant about Mr Broomhall’s findings “in particular his marking and the formulation of his opinions relating to the Static-99R and Stable-2007 instruments.”21 21 In the November 2017 report Mr Fugler made a number of criticisms of the manner in which Mr Broomhall went about assessing the risk posed by the applicant. These fell into two categories; the manner in which Mr Broomhall had calculated risk using the Static-99R and STABLE-2007 and a purported failure on the part of Mr Broomhall to take into account the literature in relation to the risk of reoffending in circumstances in which the offender had not committed a sexual offence for 10-15 years. 22 It is not necessary to traverse the detail of the manner in which Mr Fugler asserted that Mr Broomhall misapplied the tests other than to say that in relation to Static-99R test, Mr Fugler raised the question of whether it was appropriate to apply it to individuals who have been in the community offence free for as long as the applicant. He noted that in the Static-99R frequently asked questions (FAQ) section contained in the Coding Rules for the 2003 version of the test (that was used by Mr Broomhall) it was stated:22 …the recidivism rates of sexual offenders decreases the longer they spend offence free in the community and that evaluators should note that Static-99 scores become increasingly difficult to interpret the longer the time since the last release from a sexual offence. 21 Report of Mr Fugler dated 19 November 2017 at 1. 22 Report of Mr Fugler dated 19 November 2017 at 4. -- 8 of 18 -- [2024] SASC 30 McDonald J 7 23 A further criticism was made that Mr Broomhall had used the 2003 version of the instrument, in circumstances in which there had been modifications based on further research. 24 In relation to the use of STABLE-2007 Mr Fugler recalculated the scores attributable to the applicant. On his calculations, the applicant received a score that placed him in the low range in regards to the likelihood of him reoffending in a sexual manner. 25 Towards the end of his report Mr Fugler set out the details of a number of studies conducted internationally that focussed on the reoffending rates of sex offenders after being released from prison. Those studies indicated that:23 …after 10 to 15 years with no further sexual offending, most individuals with a history of sexual offences are no more likely to commit a new sexual offence than individuals with a criminal history that did not include sexual offences, that first time sexual offenders are significantly less likely to offend than those with previous sexual offences, and that offenders over the age of 50 are less likely to reoffend than younger offenders. 26 In response to Mr Fugler’s and Mr Balfour’s 2017 reports, Mr Broomhall provided a further report dated 4 May 2018. In that report Mr Broomhall addressed the issues raised by Mr Fugler. He recalculated the scoring using STABLE-2007. Having done so Mr Broomhall still placed the applicant in the “moderate risk” range for future sexual offending based on the result that was generated. 27 In relation to Mr Fugler’s reliance on the studies, Mr Broomhall said the following:24 I also took into consideration Mr Fugler’s commentary regarding the literature around the decreasing risk for individuals committing further sexual offences as they age. This is of course the guiding viewpoint in reviewing general rates of re-offending in a population. It is incorrect in my opinion to solely compare the individual to the average and simply conclude that this is the course they will take. While comparison of the individual to a group mean is part of risk evaluation, the individual risk factors must also be weighed. Where there are risk factors (as identified above) these in my view vary the risk prediction away from the group mean. 28 Mr Broomhall concluded:25 Having reviewed the psychological reports of Mr Balfour and Mr Fugler in relation to [the applicant], my opinion is unchanged. In my view, [the applicant’s] risk rating for future sexualised behaviour remains in the “moderate” range. 23 Report of Mr Fugler dated 19 November 2017 at 6-7. 24 Report of Mr Broomhall dated 4 May 2018 at 4. 25 Report of Mr Broomhall dated 4 May 2018 at 4. -- 9 of 18 -- [2024] SASC 30 McDonald J 8 Decision of Justice Nicholson26 29 That was the state of the evidence at the time that Nicholson J came to determine the 2018 application to suspend the ANCOR reporting conditions. 30 At the time of the 2018 application the applicant was very much motivated to have the conditions suspended by a desire to travel to Bali. He had provided an affidavit in which he deposed that in October 2003 he had travelled to Bali with a friend. Between October 2003 and May 2015, the applicant travelled to Bali a further 27 times. There was no suggestion in the evidence or arising out of enquiries that had been made by the respondent, of any untoward behaviour on the part of the applicant whilst in Bali. However, upon arrival in Bali in May 2015, the applicant was prevented from entering. He was told by immigration officials that this was due to the Australian Federal Police having informed Indonesian authorities that he was registered on ANCOR. Since that time the applicant had been unable to return to Bali. This was of particular concern to him as he was pursuing a relationship with an adult male who lived there. 31 In his judgment, Nicholson J summarised in some detail the reports of the various experts. His Honour found that the three threshold requirements under subsection 37(2) of the Act were satisfied, however he remained concerned about whether he was precluded from making the order on the basis that he could not be satisfied that the applicant did not pose a risk to the safety and well being of any child or children. In that context Nicholson J identified the nature of the conflict in the opinions of the experts:27 In this respect, I have before me the expert opinions of both Mr Fugler and Mr Balfour, each of whom categorised the applicant as being in the low range of risk for future sexual offending against children and bearing in mind that, as a matter of practice, this is the most positive opinion that might be expressed in favour of any applicant. Indeed, Mr Fugler expressed the opinion in 1998, from which he does not appear to have departed, that the applicant’s risk of re-offending in this way could be described as insignificant. As against these opinions, held by two very experienced forensic psychologists, I have before me the opinion of Mr Broomhall, also a very experienced forensic psychologist. His opinion is informed largely, but not entirely, by his psychometric testing of the applicant and is to the effect that the applicant presents a moderate risk of re-offending and that in order to reduce this risk, further rehabilitation efforts need to be undertaken. I recognise that Mr Broomhall’s opinion is largely based on a classification of the applicant as falling within a cohort of persons that statistically pose a moderate risk and that, at least to the extent that his opinion is based on this analysis, it is not specifically directed at the risk posed by this particular individual. However, Mr Broomhall has also based his opinion on his clinical assessment of the applicant. This has not caused him to moderate his view based on the psychometric testing. 26 L, R v Commissioner of Police [2018] SASC 181. 27 Ibid at [49]-[52]. -- 10 of 18 -- [2024] SASC 30 McDonald J 9 I am also conscious of the fact that Mr Fugler has had an ongoing therapeutic relationship with the applicant in the past and as such is well placed to form a view concerning this person independently of whatever the statistical analysis might show. 32 Nicholson J determined that in those circumstances when the central question is whether the Court is satisfied that the applicant does not pose a risk to the safety and well-being of any children or children, he could not simply put to one side the view of Mr Broomhall. He concluded:28 There remains an appreciable risk that the applicant might re-offend in the future. In my view, the necessary pre-condition as required by subsection 38(2) has not been satisfied and the application must be refused. 2019 Reports 33 Subsequent to this, in 2019 a further four reports were obtained in relation to the risk of the applicant committing a further sexual offence. Three were from Dr Karl Hanson and there was an additional report from Mr Broomhall. Again, I propose to deal with them in the order in which they were written. 34 Dr Hanson’s first report was dated 28 March 2019. Dr Hanson is a psychologist based in Ontario, Canada. Of particular relevance to this application is that he was the lead author of the Static-99R and STABLE-2007 sexual recidivism risk tools. His first report provides information about how to interpret the Static-99R and STABLE-2007 risk tools for individuals who have been convicted of a sexual offence, and who have subsequently spent substantial periods of time in the community without any new sexual charge or conviction. In this report Dr Hanson also discussed key findings and conclusions of research scientists regarding the recidivism risk of individuals with a history of sexual offending. 35 At the outset of his report Dr Hanson summarised the outcomes of his research on recidivism that he later discussed in the body of the report. The level of detail in that summary is sufficient for current purposes. The relevant passages are as follows:29 a. The risk for sexual recidivism at time of release from the index (most recent) sexual offence can be reliably estimated by widely-used risk assessment tools, such as the Static-99R. b. Static-99R places individuals into standardized risk levels. The standardized risk levels can be applied to all risk tools and are intended to facilitate communication between evaluators and decision-makers in the criminal justice system. The Static- 99R’s lowest risk level, Level I – very low risk, identifies individuals who are less likely to reoffend than an individual with a history of nonsexual crime is to commit an “out of the blue” sexual offense (less than 2% after 5 years). 28 Ibid at [54]. 29 Report of Dr Hanson dated 28 March 2019 at 2-3. -- 11 of 18 -- [2024] SASC 30 McDonald J 10 c. Even though individuals can be reliably assigned risk levels based on static, historical factors, these risk levels are not static. In particular, the longer individuals remain offense-free in the community, the less likely they are to re- offend sexually. Eventually, almost all individuals with a history of sexual crime transition to Level I (very low risk; i.e., they are less likely to reoffend than an individual with a history of nonsexual crime is to commit an “out of the blue” sexual offense). i. After 10 years in the community without committing a sex offense, the majority of individuals with a history of sexual offending pose no more risk of recidivism than do individuals who have never been arrested for a sex-related offense but have been arrested for some other crime. ii. After 20 years without a new arrest for a sex-related offense, all individuals with a history of sexual crime no longer pose any more risk of committing a new sex offense than do individuals who have never been arrested for a sex-related offense but have been arrested for some other crime. d. Static-99R risk levels at time of release overestimate sexual recidivism risk for individuals who have spent years in the community without committing a new offence. The extent of overestimation is predictable, and should be considered for all individuals who have spent more than 2 years in the community, and should be the major consideration in risk assessments for individuals who have spent 10 years or more sexual offence free in the community. … f. STABLE-2007 is a measure of the risk-relevant life-problems that are worthy of attention during psychological treatment or community supervision for individuals with a history of sexual crime. It is not a stand-alone risk tool. Although it includes risk-relevant information, it should only be used as part of a risk assessment that estimates initial risk based on an empirical, actuarial risk tool, such as Static-99R, Static-2002R, or Risk Matrix - 2000. g. STABLE-2007 has not been validated for individuals with a sexual offence history who have spent 5 or more years in the community without committing a new sexual offence. For such individuals, STABLE-2007 scores have no agreed- upon meaning in the scientific and professional communities. Evaluators interested in evidence- based practice can only use STABLE-2007 scores for such individuals to estimate initiate risk during the first few years following release from the index sexual offence. h. In summary, Static-99R and STABLE-2007 scores should only be used to assess individuals’ initial risk for sexual recidivism (i.e., their risk during the first few years following release from the index sexual offence). For individuals who have spent more than a few years sexual offence free in the community, risk assessments should start with an estimate of initial risk, then use reduce that risk based on the number of years in the community with no new sexual offending. 36 Dr Hanson provided a second report dated 10 April 2019. Whilst the first report was general in nature, the second report was directed towards an evaluation of the applicant’s risk of sexual recidivism. Dr Hanson explained that “[t]he purpose of this assessment is to provide an additional opinion as to whether [the applicant’s] risk is now sufficiently low that he does not pose a risk for further sexual offences and will not pose such a risk in the future.”30 30 Report of Dr Hanson dated 10 April 2019 at 1. -- 12 of 18 -- [2024] SASC 30 McDonald J 11 37 In assessing the applicant’s risk, Dr Hanson used the Static-99R and STABLE-2007 sexual recidivism risk tools. That risk level was then adjusted based on the number of years for which the applicant had been “sexual offence free.” Dr Hanson determined that at the time that the applicant was released from custody, his overall risk level of reoffending was average. He explained the impact on that level of risk of the period of time that the applicant had spent in the community without reoffending:31 For individuals who have spent substantial amounts of time sexual offence free in the community, their initial risk should be revised based the number of years sexual offence free, and whether the individuals has [sic] been convicted of a nonsexual offence. Empirical tables for combining initial risk levels and years sexual offence free are provided in Hanson et al. (2018) and reproduced at the end of this report as Appendix III. [the applicant] was released from custody on March 13, 1999, and the current assessment was conducted in April, 2019. Consequently, he has spent 20 complete calendar years sexual offence free since release from his index sexual offence. During the last 20 years, there have been no extended periods of time during which [the applicant] was not at liberty in the community due to hospitalization or incarceration. Consequently, the full 20 years should be used in the time free adjustment. According to the empirically-derived tables, individuals who begin at a risk level equivalent to a Static-99R score of 2 and who remain sexual offence free for 20 years are now in Risk Level I (Very Low Risk). (Footnotes Omitted) 38 Dr Hanson went on to explain what this result meant in terms of any need for the applicant to be supervised in the community:32 Individuals placed in Level I, like [the applicant], are considered Very Low Risk using the standardized risk level framework. They have few, if any, identifiable criminogenic needs and have clearly identifiable prosocial resources and strengths within the psychological, interpersonal, and lifestyle domains. Their risk of new sexually criminal behaviour is no different from the rate of spontaneous, first-time sexual offending amongst individuals with a non-sexual, criminal history (i.e., about 0.4% per year). The prognosis, given the already low expected rate of reoffending, is good. Individuals placed in Level I are expected to desist from criminal behaviour, even without a correctional response. (Footnotes Omitted) 39 Dr Hanson concluded:33 Requiring [the applicant] to register as a sexual offender serves no public protection function. 40 Although Dr Hanson’s first two reports were produced in 2019, it was not open for the applicant to make a further application for an exemption from the ANCOR reporting condition and put the reports before the Court as section 41 of 31 Report of Dr Hanson dated 10 April 2019 at 11. 32 Report of Dr Hanson dated 10 April 2019 at 12. 33 Report of Dr Hanson dated 10 April 2019 at 13. -- 13 of 18 -- [2024] SASC 30 McDonald J 12 the Act prohibits the making of a further application until five years have elapsed since the previous refusal. 41 For reasons that are not clear to me, given the necessary delay of five years, in October 2019 a further report was prepared by Mr Broomhall addressing Dr Hanson’s reports. 42 At the outset of that report, Mr Broomhall acknowledged that the risk assessment of the potential for sexual recidivism in the case of the applicant had proven relatively complex. Mr Broomhall noted that Dr Hanson’s scoring of the Static-99R and STABLE-2007 were the same as his previous scoring in relation to the applicant. He observed that the research conducted by Dr Hanson which looked at reductions in sexual recidivism for years of living offence free in the community were published in 2018 after his initial assessment of the applicant. Mr Broomhall concurred with Dr Hanson’s opinion that based purely on actuarial measures, the applicant’s risk of sexual recidivism was indeed in the very low range. Mr Broomhall went on however to express the view that there are a number of caveats to be understood in reviewing the actuarial risk assessment. Mr Broomhall identified that the difference of opinion between Dr Hanson and his own assessment [of the applicant] was in regard to the applicability of clinical override to the actuarial measures. 34 43 Mr Broomhall noted that in his report, Dr Hanson provided the opinion that “[the applicant’s] current psychological and community adjustment did not justify an override of the actuarial estimates.” Mr Broomhall indicated that he did not agree with that view. It was his opinion that there were a number of areas of clinical override which needed to be considered in expressing an opinion about the applicant’s future recidivism risk. He said:35 These were particularly in the areas related to negative emotionality/hostility, stable entrenched long-term personality traits involving both obsessive and historic elements, evidence of impulsivity and ongoing lack of relationship stability. 44 Mr Broomhall went on to explain the relevance of these matters:36 In my opinion, these risk factors do not simply disappear on the basis that an individual has lived offence free in the community over a long period of time. In [the applicant’s] presentation these factors and life circumstances which would be worthy of periodic monitoring to ensure dynamic protective factors against future recidivism are still in place and working effectively. 45 Mr Broomhall concluded his report by making the observation that he had seen the applicant in 2016 and that he was mindful that his dynamic risk variables may have changed in the intervening period. He accepted Dr Hanson had the most recent opportunity to assess these matters having met with the applicant in 2019. 34 Report of Mr Broomhall dated 28 October 2019 at 2. 35 Report of Mr Broomhall dated 28 October 2019 at 2. 36 Report of Mr Broomhall dated 28 October 2023 at 2-3. -- 14 of 18 -- [2024] SASC 30 McDonald J 13 46 In response to Mr Broomhall’s second report, a further report was obtained from Dr Hanson in November 2019. In this report Dr Hanson maintained his opinion about the applicant’s level of risk. He said:37 On the crucial issue of [the applicant’s] overall risk, however, he continues to view [the applicant] as a continuing risk for sexual recidivism. I do not. After reading Mr Broomhall’s report, I continue to believe that, given the 20+ years that [the applicant] has remained sexual offence free in the community, the likelihood that he would now commit another sexual offence is very low, and indistinguishable for [sic] the risk presented by individuals with a criminal history but no history of sexual crime (less than 2% after 5 years). 47 Dr Hanson agreed with Mr Broomhall that the only major point of disagreement between them concerned the circumstances that justify an override from the actuarial estimate, with Mr Broomhall setting a much lower threshold for professional override. 48 Dr Hanson explained that his position on the use of professional override had changed over the years. Previously, he considered professional overrides as a credible approach to interpreting clinical information with actuarial risk tools. Dr Hanson elucidated that based on research that has been undertaken since 2007 he no longer holds that view. He said:38 Based on these research findings, my position is that professional overrides should only be used when there are clear, uncontroversial signs of imminent risk. An uncontroversial sign would be one that no reasonable person could ignore, and typically involve the individual making active efforts to facilitate sexual offending (e.g., roaming at night with a rape kit, repeatedly engaging in sexually explicit talk with minors). The continued presence of mild to moderate psychological problems would not justify overriding an actuarial estimate. No such factors were present for [the applicant]. 49 Dr Hanson concluded his report by confirming that he maintained his view that the applicant’s risk of sexual recidivism remained very low. 50 In advance of the application that has become before me, Dr Hanson met with the applicant in December 2023 and produced a further reported dated 28 December 2023. In the report Dr Hanson observed that the applicant’s emotional and community adjustment were similar as to what he had observed in 2019. There was however a change in the applicant’s primary motivation for being relieved of the ANCOR reporting requirements. In 2019 the applicant had told Dr Hanson that the reason for the application was a desire to travel to Bali, however when asked in 2023, he no longer expressed a desire to travel and said that the activities and lifestyle opportunities that he had previously sought in Bali were no longer of interest. In particular, he was no longer in contact with the man with whom he had been pursuing a relationship. The applicant told Dr Hanson that he was motivated to have the ANCOR reporting obligations removed because of the stigma that it entails, including the intrusion of police visits. The applicant told 37 Report of Dr Hanson dated 19 November 2019 at 1. 38 Report of Dr Hanson dated 19 November 2019 at 3-4. -- 15 of 18 -- [2024] SASC 30 McDonald J 14 Dr Hanson that he felt that he had changed a lot since his sexual offending in the early 1990s, and he believes that he does not now warrant the label of “serious sexual offender.” Dr Hanson observed that overall the applicant seemed more reflective and organised than in 2019. 51 Dr Hanson undertook the same risk assessment that he had undertaken in 2019. The result of that assessment was that the applicant continued to pose a very low risk. Dr Hanson explained what that meant in the applicant’s circumstances:39 This updated report confirms the conclusion of my 2019 evaluation: [the applicant] is at very low risk for sexual offending now and in the future. I considered him very low risk in 2019, and he has been sexual offence free for additional 4 years, and is now 68 years old. Sexual recidivism risk declines with age, and the proportion of individuals in this age range who sexual [sic] reoffend is very low. [the applicant’s] risk is particularly low given that his last known sexual offending behaviours were 30 years ago, and he has been living in the community sexual offence free for more than 20 years. The proportion of individuals with a sexual offence history who commit a new sexual offence after 20 years sexual offence free in the community is very low, and no different from the rate of first-time sexual offending the general male population. Consistent with my conclusions in my 2019 report, [the applicant’s] risk is already so low that sex crime specific interventions or monitoring will serve no public protection function. He does not need sex crime specific counseling, nor any other programming designed to reduce his likelihood of reoffending. Exempting [the applicant] from the obligation to register as a sexual offender will reduce administrative burdens for [the applicant] (and the state) without compromising public safety. Should the applicant’s reporting obligations be suspended? 52 The power to make an order to suspend a registrable offender’s reporting obligations as conferred by s 38(1) is discretionary. The inclusion of this section in the Act reflects that even though a registerable offender will commonly be the subject of ANCOR reporting conditions for life, in some circumstances that will be unnecessary. Before the Court can make such an order it must be satisfied that the subject of the order “does not pose a risk to the safety and well-being of any child or children.”40 In L, R v Commissioner of Police (the decision of Nicholson J to refuse the applicant’s first application), his Honour considered the meaning of that phrase in the context of the Act. He said: 41 Subsection 38(2) provides that the court must be satisfied that the registrable offender “does not pose a risk to the safety and well-being of a child or children”. Construed literally, it would rarely, perhaps never, be the case that a court could make an unqualified finding that any person, let alone a person with a history of underage sexual offending, posed no such risk, particularly as to the indefinite future. This is particularly acute in the present context because the courts are routinely assisted by and required to take account of psychological or psychiatric evidence which relies on both clinical assessment and psychometric testing bearing on this question. As I understand the position, it is, I think universally, the case that a forensic psychologist or psychiatrist will not express the level of such a risk other 39 Report of Dr Hanson dated 28 December 2023 at 7. 40 The Act s 38(2). 41 [2018] SASC 181 at [13]. -- 16 of 18 -- [2024] SASC 30 McDonald J 15 than by reference to some type of scale or spectrum of risk with low risk, usually, being the entry point for the scale. In other words, it is the experience of the courts in this and related areas that the experts will never (and rightly so) commit themselves to an absolute position of no risk. 53 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. 54 Since his release, the applicant has been a productive member of society and complied with all of his ANCOR obligations. He works 20 to 30 hours a week in his own technology business and has a network of strong social supports. It was submitted by counsel for the applicant that in all of the circumstances I can be satisfied that the applicant does not pose a risk to the safety and well-being of any children. 55 As I have said, the Commissioner of Police opposes the application. That is somewhat surprising given that when the previous application was before Nicholson J the Commissioner took a neutral stance. The basis of the opposition seems to be the nature of the index offending. It was submitted that it was serious offending that occurred over a significant period of time and involved a gross breach of trust. The Commissioner raised concerns that if the reporting conditions were suspended it would enable the applicant to travel overseas as he wishes. Whilst subject to the reporting conditions, the applicant is not prohibited from traveling overseas but needs to seek approval through the Registrar of ANCOR. In the event that I determine to suspend the reporting obligations, the applicant will no longer be required to seek approval to travel overseas. The ANCOR unit will however continue to notify the Australian Federal Police/Interpol about the applicant’s relevant child sex convictions. Some countries accept registered offenders and others, like Bali, reject them. 56 I am satisfied that the applicant does not pose a risk to the safety and well- being of any child or children. Whilst I accept the validity of Mr Broomhall’s reservations in 2016 and 2019, a further five years have passed with no suggestion of any further offending or inappropriate behaviour towards children. The applicant also has the very clear and unequivocal support of Dr Hanson who saw him as recently as December 2023. 57 In my view it is appropriate to suspend the applicant’s reporting obligations. I am fortified in that decision in that it does not mean the end of all controls around the applicant’s behaviour under the Act. The applicant will remain on the ANCOR register for the rest of his life. He will still be subject to police attendance at his house and searches of his electronic devices.42 He will also be prohibited from 42 The Act s 66M. -- 17 of 18 -- [2024] SASC 30 McDonald J 16 applying for or engaging in child-related work,43 and will remain obliged to tell the parents of a child of his status as a registerable offender and of the offences he has committed, if residing at or staying overnight in a house where a child is present.44 Finally, he will also have to obtain permission from the Commissioner before he applies for any name change.45 58 I grant the application that pursuant to s 38(1) of the Act the applicant’s reporting obligations be suspended. 43 The Act s 65. 44 The Act s 66L. 45 The Act s 66K. -- 18 of 18 --