KINGSLEY KELLY v ATTORNEY-GENERAL (SA) [2024] SASC 103

Applicant: KINGSLEY KELLY Counsel: MR G TRUSCOTT - Solicitor: ABORIGINAL LEGAL RIGHTS MOVEMENT Respondent: ATTORNEY-GENERAL (SA) Counsel: MR M HINTON KC - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 19/02/2024 File No/s: SCCRM-23-002211 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. KELLY v ATTORNEY-GENERAL (SA) [2024] SASC 103 Judgment of the Honourable Justice McDonald 15 August 2024 CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE On 15 November 2017, a Judge of this Court ordered that the applicant be detained until further order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) on the basis that he was unwilling to control his sexual instincts. At the institution of those proceedings, the applicant had been serving a sentence of 13 years imprisonment with a non-parole period of eight years for the offences of indecent assault, unlawful sexual intercourse, and aggravated serious criminal trespass in a place of residence. The applicant’s offender history contains numerous instances of sexual offending against female children. The applicant now applies for release on license pursuant to s 59(1) of the Sentencing Act 2017 (SA) (‘the Act’). The applicant’s basis for so doing is that he is now capable of controlling, and willing to control his sexual instincts within the meaning of s 59(1a)(a) of the Act, and that he no longer presents an appreciable risk to the safety of the community under s 59(1a)(b) of the Act. The respondent opposes the applicant’s release on license. On 6 February 2023, the Court directed that two legally qualified medical practitioners examine the applicant and report to the Court with an assessment of the applicant’s mental condition and whether he was incapable of, or unwilling to control, his sexual instincts. Reports were provided by Dr Owen Haeney and Dr Narain Nambiar on 1 August 2023 and 10 August 2023 respectively. Both experts gave evidence concurrently during the hearing of the matter on 19 February 2024. Held, dismissing the application: -- 1 of 31 -- 1. The evidence before the Court does not establish that the applicant is willing to control his sexual instincts. Criminal Law (Sentencing) Act 1988 (SA) s 23; Sentencing Act 2017 (SA) s 59, referred to. Hore v the Queen; Wichen v the Queen (2022) 273 CLR 153, applied. Attorney-General (SA) v Kelly [2017] SASC 164, considered. -- 2 of 31 -- KELLY v ATTORNEY-GENERAL (SA) [2024] SASC 103 Criminal: Application McDONALD J: 1 On 15 November 2017, Nicholson J found Mr Kelly to be unwilling to control his sexual instincts as that term was defined for the purpose of s 23(1) of the Criminal Law (Sentencing) Act 1988 (SA).1 On that basis, his Honour ordered that at the expiration of the term of imprisonment that Mr Kelly was serving, he be detained in custody until further order of the Court. 2 On 17 January 2023, Mr Kelly filed an originating application for release on licence pursuant to s 59 of the Sentencing Act 2017 (SA) (‘the Act’), on the basis that he is now both capable of and willing to control his sexual instincts. It was submitted on behalf of Mr Kelly that he no longer presents an appreciable risk to the community and in those circumstances, he should be released from custody. 3 For the reasons that follow, I dismiss the application. Legislative regime 4 By operation of the transitional provisions of Schedule 1, Part 3 of the Act Mr Kelly’s application for release on licence is governed by s 59 of the Act. It relevantly reads: 59—Release on licence (1) The Supreme Court may, on application by the DPP or the person, authorise the release on licence of a person detained in custody under this Division. (1a) A person detained in custody under this Division cannot be released on licence unless the person satisfies the Supreme Court that— (a) the person is both capable of controlling and willing to control the person’s sexual instincts; or (b) the person no longer presents an appreciable risk to the safety of the community (whether as individuals or in general) due to the person’s advanced age or permanent infirmity. (2) The Supreme Court must, before determining an application under this section for the release on licence of a person detained in custody under this Division, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of the person and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person’s sexual instincts. 1 Section 23 has since been replaced by s 57 of the Sentencing Act 2017 (SA), which is in substantially the same terms. -- 3 of 31 -- [2024] SASC 103 McDonald J 2 (3) The paramount consideration of the Supreme Court when determining an application under this section for the release on licence of a person detained in custody under this Division must be to protect the safety of the community (whether as individuals or in general). (4) The Supreme Court must also take the following matters into consideration when determining an application under this section for the release on licence of a person detained in custody under this Division: (a) the reports of the medical practitioners (as directed and nominated under subsection (2)) provided to the Court; (b) any relevant evidence or representations that the person may desire to put to the Court; (c) a report provided to the Court by the appropriate board in accordance with the direction of the Court for the purposes of assisting the Court to determine the application, including— (i) any opinion of the appropriate board on the effect that the release on licence of the person would have on the safety of the community; and (ii) a report as to the probable circumstances of the person if the person is released on licence; and (iii) the recommendation of the appropriate board as to whether the person should be released on licence; (d) evidence tendered to the Court of the estimated costs directly related to the release of the person on licence; (e) the reports resulting from the periodic reviews under section 57(15) on the progress and circumstances of the person tendered to the Court; (f) any other report required by the Court under section 61; (g) any other matter that the Court thinks relevant. (4a) The Supreme Court, when determining an application under this section, must not have regard to the length of time that the person has spent in custody or may spend in custody if the person is not released on licence. (5) A copy of any report provided to the Supreme Court under subsection (4) must be given to each party to the proceedings or to counsel for those parties. (6) On the Supreme Court authorising the release of a person under subsection (1), the appropriate board must order the release of the person on licence on the day specified by the Court. (7) Subject to this Act, every release of a person on licence under this section is subject to the following conditions: (a) a condition prohibiting the person from possessing a firearm or ammunition or any part of a firearm; -- 4 of 31 -- [2024] SASC 103 McDonald J 3 (b) a condition requiring the person to submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by a person or class of persons or body specified by the appropriate board. (8) Without limiting subsection (7), the release of a person on licence under this section will be subject to such conditions as the appropriate board thinks fit and specifies in the licence (including a condition that the person be monitored by use of an electronic device approved under section 4 of the Correctional Services Act 1982). (9) If the Supreme Court has refused a person’s application for release on licence, the person may not further apply for release for a period of 6 months, or such lesser or greater period as the Court may have directed on refusing the application. … 5 It is for the applicant to establish that he should be released on licence. In order to do so, the onus is on the applicant to satisfy the Court that he is both capable of, and willing to, control his sexual instincts. 6 For the purpose of s 59(1a)(a), a person is “willing” to control his or her sexual instincts where there is not a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts.2 7 The question of “willingness” must be determined having regard to conditions that may be imposed that will assist a defendant in exercising appropriate control. Section 59(1a)(a) is concerned with a defendant’s capacity and willingness to exercise an appropriate level of self-control when an occasion for the exercise of self-control arises. As the High Court explained in Hore v The Queen; Wichen v The Queen:3 … the satisfaction required by s 59(1a) is not required to be established by an exercise separate from, and carried out without regard to, the likely behaviour of the person in the circumstances in which the extent of the risk of a failure to exercise appropriate self-control is to be assessed by the Court. The likely effect of the conditions of release on licence upon the strength of the person’s commitment to exercising appropriate self-control may have a bearing on the assessment required by the Court. The power conferred by s 59(1) is concerned with whether the Supreme Court should “authorise the release on licence of a person detained in custody under [Div 5].” Integral to the exercise of that power is consideration of the conditions referred to in s 59(7) and (8). 8 In making this assessment the “paramount consideration” is the protection of the safety of the community.4 2 Hore v The Queen; Wichen v The Queen (2022) 273 CLR 153 at [51]. 3 Ibid at [56]. 4 Sentencing Act 2017 (SA) s 59(3). -- 5 of 31 -- [2024] SASC 103 McDonald J 4 Mr Kelly’s background and criminal record 9 In order to put this application into context it is necessary to set out some of the more pertinent aspects of Mr Kelly’s background and criminal record. Personal circumstances 10 Mr Kelly was the only child of a short lived relationship between his mother and father. He was raised by his mother, and later his grandparents, and had limited contact with his father. He has a number of half-siblings on both sides of his family. 11 Mr Kelly was born in Ceduna, growing up in the Koonibba Aboriginal Community. He spent time in Koonibba, Ceduna and Port Lincoln as his mother and stepfather often moved around. Mr Kelly described them as “good people” and said that his family was supportive, however he experienced the familial adversity of two of his step-siblings committing suicide. 12 In terms of education, Mr Kelly participated in special classes at school and finished his schooling in year 7 or 8. Since then he has rarely worked other than for a short period, at the age of 18, when he worked at a winery. 13 At the age of about 14, Mr Kelly ran away from home and started associating with antisocial peers, which inevitably led to his introduction to substance abuse and criminal offending. Psychiatric history 14 As early as 1996, Mr Kelly was diagnosed with schizophrenia. At that time he reported experiencing auditory hallucinations. He was also diagnosed with an alcohol and substance abuse disorder and a personality disorder of a mixed borderline and antisocial type. 15 Between 1996 and 2002, Mr Kelly was admitted to James Nash House on eight occasions with a diagnosis consistent with chronic paranoid schizophrenia, an antisocial personality disorder and substance abuse issues. 16 In December 2002, Mr Kelly underwent a further psychological assessment. At that time, he reported his previous diagnosis of schizophrenia and described ongoing auditory hallucinations. He said that these had continued despite treatment with antipsychotic medication. 17 In June 2004, Mr Kelly was assessed by the Correctional Service Management Assessment Panel. He told the Panel that he had fabricated his diagnosis of schizophrenia as a way of being transferred to James Nash House. 18 Further psychiatric assessments were undertaken in 2016 as a consequence of the s 23 application. In an interview with a psychiatrist, Dr Jules Begg, Mr Kelly maintained that he had fabricated his diagnosis of schizophrenia. Dr Begg observed that Mr Kelly did not show any active signs of psychosis and -- 6 of 31 -- [2024] SASC 103 McDonald J 5 postulated that there was some credibility to his claim that he had fabricated the symptoms. However, Dr Begg noted that Mr Kelly had been repeatedly assessed by very senior psychiatrists, over a prolonged period of time, and that there was little doubt that when he was originally admitted to James Nash House, he was suffering from psychosis. Dr Begg was not therefore prepared to revise the diagnosis. 19 In November 2016, Dr Pei Lim also interviewed and prepared a report about Mr Kelly for the purpose of the s 23 application. In this interview Mr Kelly also maintained that he fabricated the symptoms of schizophrenia. Dr Lim noted Mr Kelly’s history of schizophrenia, substance use disorder, antisocial personality disorder and cognitive impairment attributed to pre-existing borderline intellect, further compromised by alcohol abuse. She suggested that there was also evidence that Mr Kelly satisfied the diagnostic criteria for paedophilic disorder with a sexual attraction to young females. 20 On 6 February 2023, I ordered that reports be prepared by two qualified psychiatrists to report back on whether Mr Kelly is now willing to and capable of controlling his sexual instincts. Those reports were prepared by Dr Owen Haeney and Dr Narain Nambiar, both of whom interviewed and conducted a psychiatric review of Mr Kelly. 21 Dr Haeney interviewed Mr Kelly on 24 May 2023. During the interview, Mr Kelly maintained that he fabricated the symptoms of schizophrenia because he had been told that the food and conditions were better at James Nash House. In his report Dr Haeney considered the plausibility of this claim. He observed that Mr Kelly had received this diagnosis over 25 years before (in keeping with the usual onset of schizophrenia in late teens and early twenties), and had a number of admissions to James Nash House, during which the diagnosis was confirmed. Dr Haeney, however, observed that for nearly 20 years Mr Kelly has insisted that he fabricated the symptoms to manufacture a transfer into hospital, although this had generally not been accepted by treating mental health professionals and consequently, he had continued to receive treatment for schizophrenia. 22 Dr Haeney noted that on his assessment there was no evidence of current symptoms of schizophrenia, however commented that it was not possible to say whether this is because his symptoms are well controlled by medication or because it is true that he initially fabricated them. Dr Haeney concluded:5 On balance, I believe the former is more likely, given that the diagnosis was made on the basis of repeated admissions to hospital, where it is far from easy to feign convincing symptoms of a complex illness such as schizophrenia, on a long-term basis. 23 Despite Dr Haeney’s hypothesis that Mr Kelly suffers from schizophrenia and hence a major mental illness, he did not believe it to have had a causal or facilitative role in his offending (despite a previous claim that voices told him to 5 Report of Dr Haeney dated 1 August 2023 at [6.4]. -- 7 of 31 -- [2024] SASC 103 McDonald J 6 offend). Consequently, in Dr Haeney’s view there has been no evidence that psychosis has played any role in Mr Kelly’s recidivism. 24 More relevant to the issues for the consideration by this Court, Dr Haeney observed that Mr Kelly’s underlying personality had previously been documented to show antisocial traits. He explained that this results in a pattern of deficits in empathy, disregard of social norms and rules, violation of the rights of others, impulsivity and reckless behaviour, often with limited capacity to tolerate frustration and a low threshold for violence. 25 Dr Nambiar interviewed Mr Kelly on 3 April 2023, for the purpose of preparing his report. He had also met with Mr Kelly during his admissions to James Nash House in the mid-1990’s. 26 In his report Dr Nambiar canvassed Mr Kelly’s diagnostic history of schizophrenia. He summarised the situation in the following terms:6 Essentially, Mr Kelly has been diagnosed with Schizophrenia which he opposes claiming that he made up symptoms in order to seek admission to James Nash House. Contrary to his view, information in reports provided confirm that Mr Kelly has been observed whilst in hospital to persistently hold delusional beliefs and had exhibited thought disorder that would be consistent with either a delusional disorder or Schizophrenia. Mr Kelly has in the past reported hearing voices and was observed to have somatic altered perceptions with regards to bodily sensations that is consistent with Schizophrenia. 27 Dr Nambiar concluded that Mr Kelly continues to have very limited insight with regards to his schizophrenia. However, he made the point that despite his belief that the diagnosis is correct, there has been no connection between his illness and his offending. It follows that antipsychotic medication is unlikely to play any role in protecting the community from any risk posed by Mr Kelly. 28 Dr Nambiar also observed that Mr Kelly’s history is such that he qualifies for a diagnosis of antisocial personality disorder, which adds an additional dimension to his criminogenic risk factors. Cognitive impairment 29 Mr Kelly’s situation is further complicated by the fact that he also suffers from a significant cognitive impairment. This was no doubt a large part of the explanation for Mr Kelly’s poor performance at school. 30 During a neuropsychological assessment authored in February 2004, Richard Balfour noted that Mr Kelly had difficulty in sustaining attention during cognitive testing. At that time, Mr Balfour estimated Mr Kelly’s premorbid level of intelligence to be in the borderline range of functioning. Taking into account his 6 Report of Dr Nambiar dated 10 August 2023 at 3-4. -- 8 of 31 -- [2024] SASC 103 McDonald J 7 history of mental illness and alcohol abuse, Mr Kelly’s cognitive impairment at the time of assessment was estimated to be in the moderate range of severity. 31 In October 2011, Mr Kelly undertook psychometric testing. His full-scale IQ was estimated to be in the low average range, with his verbal IQ in the borderline range and performance IQ in the average range. This testing was subsequently reviewed and, due to some apparent discrepancies, further psychometric testing was undertaken in September 2013. The results of this testing suggested that Mr Kelly’s general cognitive ability was in the extremely low range (the bottom 2 per cent of the population). 32 In October 2016, a more detailed neuropsychological report was prepared by Dr Emma Scamps. In that report Dr Scamps estimated Mr Kelly’s premorbid intellectual ability to be within the borderline range (2nd to 9th percentile). His immediate memory was impaired to the level of the 1st percentile, and his working memory was at the 5th percentile. 33 Mr Kelly’s cognitive impairment has, amongst other things, impacted his ability to undertake appropriate therapy, and to apply and recall the learnings of that therapy. I will come back to this when I come to deal with the treatment and programs that Mr Kelly has been involved in whilst in custody. Substance Abuse 34 Mr Kelly also has a lengthy history of substance abuse, that has played a significant role in exacerbating his anti-social behaviour, resulting in his criminal offending. Both Dr Haeney and Dr Nambiar regard this as one of Mr Kelly’s most significant criminogenic risk factors. In his report Dr Haeney summarised his concerns about Mr Kelly’s history of drug abuse:7 Mr Kelly has a significant and troubling history of substance misuse, including alcohol, cannabis, amphetamines and benzodiazepines. His substance use disorder is regarded as a significant risk factor, given its prominent role in his previous offending. 35 Dr Nambiar noted that, in addition to this, Mr Kelly has a history of experimenting with other illicit substances and abusing prescribed medication. He observed:8 It is important to note that Mr Kelly has a very long history of polysubstance abuse which includes heavy alcohol and cannabis use. This is relevant given the fact that on every occasion that Mr Kelly has offended in a sexual manner he has been intoxicated. Criminal record 36 Mr Kelly first appeared in the Ceduna Childrens Court in October 1986. Over the next two years he frequently appeared in court charged with dishonesty and “break and enter” type offences. Over that time, the court extended him 7 Report of Dr Haeney dated 1 August 2023 at [6.6]. 8 Report of Dr Nambiar dated 10 August 2023 at 4. -- 9 of 31 -- [2024] SASC 103 McDonald J 8 considerable leniency. The only hiatus in Mr Kelly’s offending, other than when he has been incarcerated, was between January 1991 and March 1992. During that time, he successfully completed a six month good behaviour bond. However, in March 1992, Mr Kelly resumed offending, committing his first offence of violence which resulted in him being sentenced to a term of imprisonment. October 1995 offending 37 On 19 October 1995, Mr Kelly committed his first sexual offence. At the time, Mr Kelly was 23 years of age and the victim was an eight year old girl. Mr Kelly had only just been released from custody when he accompanied a man (whom he had met in gaol) and the man’s partner, back to their house. After consuming drugs and alcohol, Mr Kelly entered the bedroom of the couple’s two children and indecently assaulted the girl. Mr Kelly pleaded guilty and was sentenced to five months imprisonment. April 1997 offending 38 On 23 April 1997, Mr Kelly committed a further indecent assault. At the time he was on parole for the previous indecent assault, having only been released weeks earlier. The victim was three years old. Earlier, on the evening of the offending, Mr Kelly had been at the victim’s mother’s house. He was asked to leave and did so, only to return shortly thereafter, breaking into the victim’s bedroom. He proceeded to perform an act of cunnilingus on the victim and caused her to perform an act of fellatio upon him. Mr Kelly was extremely intoxicated at the time. 39 This was a particularly serious offence of indecent assault, for which Mr Kelly was sentenced to seven years and seven months imprisonment with a non-parole period of five years. Escape custody 40 During the term of that sentence, Mr Kelly escaped from custody. On 22 December 2000, Mr Kelly walked out of the Port Lincoln prison after he became aware that a relative had died. For that offence he was sentenced to an additional six months imprisonment. Whilst in a different category to the sexual offences, this conduct is still relevant to the application under consideration in that it demonstrates poor impulse control on the part of Mr Kelly, which is relevant to an assessment of the risk of him reoffending. July 2006 offending 41 On 1 July 2006, Mr Kelly committed the offences of aggravated serious criminal trespass in a place of residence, indecent assault and unlawful sexual intercourse. The offences were committed on 1 July 2006, a few months after his release from custody on 28 April 2006. 42 The victim of this offending was a nine year old girl. On this occasion Mr Kelly broke into the house of people who were unknown to him, and went to a -- 10 of 31 -- [2024] SASC 103 McDonald J 9 bedroom where the victim and her brother were sleeping. He indecently touched the girl and penetrated her vagina with his finger. The girl awoke and began screaming, waking her parents, who apprehended Mr Kelly. As with the previous offending Mr Kelly was heavily intoxicated at the time of the commission of these offences. He was under the influence of both drugs and alcohol. 43 This conduct was a clear escalation in Mr Kelly’s offending, as he had progressed from children known to him, to targeting a random sleeping child. For this offending Mr Kelly was sentenced to 13 years imprisonment with a non-parole period of eight years. In his sentencing remarks, Barrett DCJ made the observation that the facts and circumstances of this offending were “remarkably similar” to the previous sexual offences. His Honour also noted that the guilty pleas had only been entered on the day that the trial was due to commence. This reflected Mr Kelly’s limited remorse and contrition, and his failure to take ownership of his offending behaviour. 2014 aggravated assault 44 In 2014, whilst serving this term of imprisonment, Mr Kelly was convicted of an aggravated assault of a prison officer. This involved spitting on the prison officer during an altercation with another prisoner.9 Mr Kelly was sentenced to a further three months imprisonment, to be served cumulatively upon the 13 year term of imprisonment for the July 2006 offending. Mr Kelly’s non-parole period was extended by one month. 45 It was subsequent to this that the s 23 application was made by the Attorney- General. On 15 November 2017, when Nicholson J made the order for detention until further order, Mr Kelly was still serving this sentence. Mr Kelly has been in custody since that time. Treatment and therapy undertaken by Mr Kelly whilst in custody 46 In 2004, Mr Kelly was first considered for the Sexual Behaviour Clinic (‘SBC program’), however was unable to participate. There is no information before me as to the reason for this. In 2005, Mr Kelly was assessed as ineligible for the SBC program as he had insufficient time remaining on his sentence to complete the program. 47 Amongst the various materials before the Court is a letter from Frank McCann, Executive Officer, Prisoner Assessment Unit, dated 22 August 2007 (five days before Mr Kelly was sentenced for his most recent offending).10 In that letter Mr McCann explained that, between 1997 and 2006, Mr Kelly had been offered a number of opportunities to participate in rehabilitation 9 Affidavit of Fiona Yumi Williams-Mitchell dated 2 May 2016, Exhibit FWM20, Rehabilitation Programs Brach, Sexual Behaviour Clinic – me, Post Treatment Report dated 15 April 2015 at 7. 10 It appears that this letter was provided in an attempt to pre-emptively deal with complaints made by Mr Kelly’s counsel during sentencing submissions about Mr Kelly having not been provided with the opportunity to participate in rehabilitative programs whilst in custody. -- 11 of 31 -- [2024] SASC 103 McDonald J 10 programs. Mr McCann advised that there were numerous case notes in the system indicating Mr Kelly vacillated between accepting positions on the programs and then subsequently declining them. 48 Between November 2013 and February 2015 Mr Kelly undertook the low- functioning SBC program.11 His post treatment report was unfavourable. He was described as “ambivalent about his willingness to attend treatment”.12 He was poorly motivated and at times refused to engage in individual work to address his deviant attraction to young girls. The facilitators of the program expressed a concern that he was unlikely to control his sexual instincts in the community. During the program Mr Kelly admitted a sexual attraction to young girls. In particular, that he liked prepubertal physical attributes. Mr Kelly was offered further individual sessions at that time and, although at first he consented to attend, he withdrew that consent, expressing the view that the information that he provided in those sessions may be used against him. 49 Following completion of the SBC program, Mr Kelly applied for release on parole, but subsequently withdrew that application when his post treatment report was read to him. Prior to the s 23 order, Mr Kelly made applications for parole on two occasions. Both applications were refused because he was considered to pose too great a risk to the safety of the community. 50 Subsequently, between December 2017 and December 2018, Mr Kelly took up the offer of individual therapeutic intervention sessions. The aim of these sessions was to “increase Mr Kelly’s insight into offending and develop further management strategies regarding his risk of sexual reoffending, in addition to assisting him to remain abstinent from substance abuse”.13 A post-treatment report was prepared summarising Mr Kelly’s participation in those sessions. 51 The author of the post-treatment report, Leyna Bruggemann, noted that throughout the sessions, Mr Kelly tended to fluctuate between admission and denial of a sexually deviant attraction. This was seen as an area of significant concern. In the period reported on, Mr Kelly admitted “wrong” sexual thoughts regarding female children, but confined that to the immediate period around the offence, and not to a more general sexual attraction. He maintained that his primary sexual attraction was to adult females. That self-report was described as “somewhat incongruent” in the context of his offending history and given the enduring nature of sexual interests. Mr Kelly expressed the view that he did not believe that he would act on any sexual thoughts about children, should they arise. He was able to identify abstinence from illicit drugs, and being able to engage in healthy adult relationships, as critical in reducing the likelihood of deviant sexual thoughts. Ms Bruggemann observed that whilst Mr Kelly appeared more mindful 11 This was later called the SBC-me program. This is a modified version of the SBC program designed for sexual offenders with a cognitive impairment. 12 Affidavit of Fiona Yumi Williams-Mitchell dated 2 May 2016, Exhibit FWM20, Rehabilitation Programs Brach, Sexual Behaviour Clinic – me, Post Treatment Report dated 15 April 2015 at 15. 13 Minute of Rachael Bartolo dated 4 May 2023 at 1. -- 12 of 31 -- [2024] SASC 103 McDonald J 11 of the harmful impact on victims of sexual offending, it was noted that he had expressed such remorse previously, yet this had not been a barrier to his recidivism. 52 It was observed that “at the conclusion of treatment Mr Kelly had made some therapeutic gains and had demonstrated some behavioural changes as reflected by his increased compliance within the prison setting and engagement in treatment.”14 However, it was also noted that “those changes were not consistent over time and had not yet been demonstrated across all relevant high-risk situations in the community”.15 53 Ms Bruggemann expressed the view that the risk posed by Mr Kelly remained high. While acknowledging improvement in his motivation and engagement, she confirmed this “high risk” status, and observed that while able to control his behaviour within a custodial environment, there remained several areas of concern in relation to self-management. 54 Prior to treatment, Mr Kelly had been assessed as being at a very high risk of sexual reoffending. Following completion of the program, his risk was estimated as remaining very high. 55 In terms of future plans for Mr Kelly whilst he remains in custody, I was provided with a DCS Offender Plan dated 13 April 2023. It indicated that the last review, on 7 December 2022, recommended Mr Kelly be considered for a placement at Port Lincoln Prison, to be closer to country and to enable him to receive visits from family from Ceduna. It was also noted that he remained at Mount Gambier Prison and appeared to be settled in a cottage, was demonstrating good compliance and managing his personal standards at a high level. Mr Kelly’s only recent transgression had been that he received a warning for being on the cottage oval, which was out of bounds for residents in his part of the prison. There had been no behavioural incidents since his last review, and all drug tests had been negative. Mr Kelly was said to be on the waiting list to again undertake the SBC-me Program and was engaging in full time education. He had completed a number of programs including “Eat to Live”; “Occupational Health and Safety”; “Our Way, My Choice”; “Man Standing Tall”; “Smart Recovery”; and numeracy and literacy programs. Other supports available to Mr Kelly Prisoner Care Program 56 Mr Truscott provided me a letter from Pippa Edge,16 the Prisoner Care Program (‘PCP’) Coordinator at the Aboriginal Legal Rights Movement, in support of Mr Kelly’s release from custody. At the time of writing that letter, Mr Kelly had engaged with the PCP on four occasions via video link. During those 14 Ibid. 15 Ibid. 16 Dated 14 February 2021. -- 13 of 31 -- [2024] SASC 103 McDonald J 12 conversations Mr Kelly discussed his goals, plans, and strategies if released from custody. 57 Mr Kelly conveyed to Ms Edge that if released he is keen to pursue study, training or volunteer roles in the community, with the goal of working in paid employment in the future. Mr Kelly identified numerous activities that he wished to engage in to occupy his time. 58 Ms Edge described Mr Kelly as having a strong connection with his Aboriginal identity, and said that he is eager to yarn with Elders from the Ceduna region, and learn more about other tribes and cultures. He has a long-term plan to return to country for connection and healing and would also like to participate in men’s groups and cultural community events to maintain his cultural connection and increase his cultural knowledge. 59 Mr Kelly told Ms Edge that he accepts responsibility for his offending. He said that he feels great guilt, remorse and pain over his poor decisions and harmful actions and behaviours in his past. He struggles every day with the thought that he has caused hurt and harm his victims and their families, but uses prayer, meditation, Bible reading and church attendance to ask for forgiveness and to learn how to increase his self-worth and find purpose in life. 60 In her letter, Ms Edge advised that PCP were prepared to support Mr Kelly in the event that he was released. She explained that support in the following terms: PCP have agreed to collaborate with other stakeholders to be a part of the support network facilitating Mr Kelly’s pre-release plan. PCP can continue support post-release for a duration of 2 years. Support includes 1:1 case management with a culturally sensitive Case Worker who can assist with implementation, review and monitoring of case plan goals, transport to appointments, referrals to agencies, advocacy and liaison with other stakeholders and supports. Road to Redemption – Pre-Employment Program 61 I was also provided with a brochure for “Road to Redemption Pre - Employment Program”. It contained a course description: Workskil Australia, Department for Correctional Services and Carey Training have teamed up again to deliver a voluntary training program for ex-offenders based on the overwhelming success of the previous Road to Redemption programs in 2021, 2022 and 2023. The Road to Redemption program is designed to provide ex-offenders with the skills and knowledge to find employment in the construction and civil construction industry. The program is offering hands on practical experience while working on a real live works program. 62 Mr Kelly has indicated that he is very keen to participate in a program of this nature as many previous participants have secured employment on the completion of the program. -- 14 of 31 -- [2024] SASC 103 McDonald J 13 Mr Kelly’s responses at interviews in 2023 63 As previously mentioned, Dr Haeney interviewed Mr Kelly on 24 May 2023. That interview lasted for one hour and 50 minutes and was conducted by audio-visual link. 64 Early in the interview, when asked about sexual attraction towards young girls, Mr Kelly replied, “Not anymore, them days are over for me now. At that time I did. They stopped after I opened up to the facilitator in the SBC-me”.17 Later in the interview, he said he had never had a sexual attraction to young females outside of the occasions of the offences. He denied masturbating to thoughts of young girls or utilising child exploitation material. He said that he had only ever had sexual thoughts towards children on three occasions and had acted on them each time. Dr Haeney recounted the following:18 Mr Kelly described significant shame and guilt about the nature of his offences, noting that these were unpleasant feelings, particularly within Indigenous culture. He said these feelings gave him the strength to work on his offences. He said that he now experienced no sexual thoughts at all, even of adult women, saying it was hard even to obtain an erection. He postulated that this might relate to his diabetes or age. He said that he would not become aroused even if watching a film with a sexual scene and denied experiencing morning erections. He denied any attraction to young females now. He believed that his maturity was a significant factor in growing out of his previous bad choices. 65 In the interview Mr Kelly acknowledged that he had “made poor choices” and had to take responsibility for his actions. He accepted that it had taken him a long time to admit his guilt. Nonetheless, he said he felt he was in a better place now than he had been in the past, and that while he could not change what had happened, he intended to move forward and live a good life. 66 Mr Kelly expressed similar sentiments to Dr Nambiar. That interview took place on 3 April 2023. It lasted for one and a half hours and also took place over audio visual link. In the interview, Mr Kelly reported that upon completion of the SBC-me course, he continued with one-to-one sessions with the visiting psychologist at the Mount Gambier prison, Leyna Bruggemann, for approximately 12 months. He told Dr Nambiar that he was able to “get the demons off my back”, and that he had now cleared his mind and was in a better place. 67 It would appear that Dr Nambiar was more challenging of some of Mr Kelly’s responses than Dr Haeney, and attempted to explore them more deeply, resulting in Mr Kelly making some contradictory statements. 68 Dr Nambiar questioned Mr Kelly about his choice of victim. Mr Kelly responded by explaining that he had found it difficult to have a sexual relationship with a woman. He initially thought that he could have sex with an adult female but because of their refusal to become intimate with him, he began to have “evil 17 Report of Dr Haeney at [5.28] 18 Report of Dr Haeney at [5.29]. -- 15 of 31 -- [2024] SASC 103 McDonald J 14 or negative” thoughts. On clarification, Dr Nambiar established that these were not delusions, but rather thoughts about finding an easy victim. Mr Kelly explained that his thinking was “If I can’t get sex with a woman then I’ll get sex with a child”. Mr Kelly reported that each time that he offended, he had been rejected by a woman. 69 Dr Nambiar discussed with Mr Kelly his longstanding fantasies that appeared to coincide with the offending. Mr Kelly said that he had been fantasising about young girls but was unable to provide any further explanation, other than he was “in a negative place”. He explained that each time that he had been released from prison, he felt trapped in the past and provided this as an explanation for why he offended. 70 Mr Kelly told Dr Nambiar that, in doing the SBC-me course, he wanted to “man up”, so he opened up to the facilitators of the course and “took ownership”. He said that he had learnt from the course that if he gets sexually frustrated, he experiences changing feelings and emotions which he finds difficult to control. He made reference to the use of alcohol and drugs and claimed that those days “are over now too”. Mr Kelly explained that he had seen too many families and friends destroyed by substance abuse. 71 Mr Kelly told Dr Nambiar that he had been in custody too long and just wanted to get out of gaol and live a normal life. The opinions of Dr Haeney and Dr Nambiar as to whether Mr Kelly is capable of and willing to control his sexual instincts 72 Neither Dr Haeney nor Dr Nambiar supported Mr Kelly’s release into the community. Dr Haeney 73 In order to consider whether Mr Kelly is incapable of controlling or unwilling to control his sexual instincts, Dr Haeney conducted a risk assessment, utilising the framework of the Risk for Sexual Violence Protocol (“the RSVP”). The RSVP identifies 22 factors that the literature shows to be associated with the risk of sexual reoffending. 74 Based on the results of the RSVP, in combination with his clinical assessment, Dr Haeney “remain[ed] concerned” that Mr Kelly “may be unwilling to control his sexual instincts, if in the community”.19 75 Dr Haeney observed that, whilst some changes had been seen in Mr Kelly’s level of insight and purported intention to not reoffend, these changes had not been demonstrated in relevant high-risk situations in the community. This was 19 Report of Dr Haeney dated 1 August 2023 at [6.18]. -- 16 of 31 -- [2024] SASC 103 McDonald J 15 particularly problematic for Mr Kelly given the nature of his previous offending. Dr Haeney explained the position in the following terms:20 One specific concern is that the nature of Mr Kelly’s previous offending limits the effectiveness of potential monitoring and supervision arrangements. All offences have occurred with little warning and without opportunity for services to intervene. He has become intoxicated, become aroused and then offended almost immediately. He has manufactured the opportunity to offend, most notably in his last offence, rather than just seizing an opportunity that presented itself. It is therefore difficult to speculate what supervision arrangements could be put in place that would prevent such serious, rapid offending. He has not engaged in warning behaviours such as grooming activities or use of child exploitation material that might allow an opportunity to identify escalating risk and intercede. 76 Dr Haeney expressed the view that, overall, Mr Kelly demonstrates a number of concerning risk factors, many of which are historical, but some of which are maintained. He said:21 … It is likely that a deviant sexual drive persists (generally regarded as the strongest risk factor for sexual offending). Risk of further substance misuse remains significant, if in the community. While he has demonstrated some improvements in engagement, self-awareness and coping, these are yet to be tested in the community. It is important to also recognise the gains made by Mr Kelly. He has not offended since 2006, albeit potentially in large part due to his incarceration. He has engaged in substantial group and individual therapy, his institutional behaviour has improved and he denies ongoing attraction to female children. He also reports reduced libido and sexual function, possibly as a result of increased age and diabetes. He reports strength from his faith and his desire to reconnect with his culture may protect against loneliness or isolation in the future. 77 Despite this, Dr Haeney maintained his concerns about the risk that Mr Kelly poses to the community if released. Whilst Dr Haeney accepted the likelihood of Mr Kelly reoffending is likely to have reduced given the work that he has undertaken, “the seriousness of the prior offending and impact on the community and victims remains highly concerning”.22 He said that the speed with which Mr Kelly’s offending occurred, with no opportunity to intervene, “is troubling”. Dr Haeney accepted that whilst Mr Kelly’s expressed intention to avoid reoffending may be genuine, “the impact of substance misuse and sexual arousal may undermine his intentions and lead to further offences”.23 In those circumstances, Dr Haeney expressed the opinion that “there is a substantial risk that if given the opportunity, he would reoffend”.24 Dr Nambiar 78 The concerns raised by Dr Haeney were shared by Dr Nambiar. If anything, Dr Nambiar was more guarded than Dr Haeney about the positive impact of the efforts made by Mr Kelly in custody on his risk of reoffending. Dr Nambiar also 20 Ibid at [6.16]. 21 Ibid at [6.17]. 22 Ibid at [6.18]. 23 Ibid at [6.18]. 24 Ibid at [6.18]. -- 17 of 31 -- [2024] SASC 103 McDonald J 16 expressed concerns that despite numerous interventions whilst in custody, “Mr Kelly’s honesty with regards to his sexual preferences remains limited and unreliable”.25 79 Dr Nambiar explained that whilst Mr Kelly’s time in custody has been an incentive for an improved motivation to change, there were a number of factors that remained barriers to his future progress. He identified those factors to include:26 • Early onset of sexual offending, repeated offending, an escalation in sexual offending. • Physical coercion with the threat of causing harm to the victim and penetrative sex. • Deliberately choosing younger victims due to “an easier target” coupled with a sexual orientation that includes fantasies about having sex with children. • Extreme minimisation or denial of sexual fantasies that include children; • A projection of responsibility, blaming rejection from women, end of a relationship, relying on external controls such as religion, to deter him; • Limited self awareness; • Problems with coping with stress; • The presence of a major illness although not directly related to the nature of Mr Kelly’s offending, is associated with a variety of other factors that have disadvantaged Mr Kelly’s lifestyle and contributed to his problems with connection to society in general. He has demonstrated lack of compliance with treatment unless it is made mandatory through treatment orders. … • Substance abuse appears to be a major factor that contributes to the context of his offending; • Problems with intimate relationships will continue to be a major risk factor for further offending; • Lack of supports, given the fact that he feels alienated by his family due to the shame he has brought on them; • … little structure to look forward to in the community and he has not been employed for a considerable period of time; • … a substantial history of generalised criminality that conveys an increased risk due to his antisocial tendencies; • … problems with planning and implementing pro-social like plans albeit difficult while he is currently in custody; 25 Report of Dr Nambiar dated 10 August 2023 at 15. 26 Ibid at 16. -- 18 of 31 -- [2024] SASC 103 McDonald J 17 • … problems and ambivalence with treatment in the past, although he appeared to improve with regards to that during his one-to-one therapy; • … a history of escaping custody which will need to be taken into account in terms of how his supervision is planned. 80 It is the view of Dr Nambiar these risk factors suggest that Mr Kelly continues to pose a significant risk of reoffending, if released into the community unsupervised. Dr Nambiar contextualised the circumstances in which that risk was the greatest:27 The major context in which Mr Kelly is likely to offend is if he is in a social situation where he perceives rejection from a female and is significantly pre-occupied with wanting to have sexual relations. This is increased when he is intoxicated and he himself has admitted in the past that when his sexual urges are high he would do anything in order to satisfy those urges including pursuing a stranger which could include a child, given that they are an easier target. 81 Dr Nambiar summarised his views in the following terms:28 Simply put, despite all the therapy that Mr Kelly has received, it is my opinion that should the urge for sex be present whilst he is in the community, that he could impulsively and in an opportunistic way, pursue a victim and reoffend. A likelihood of this occurring is further increased if he is intoxicated and perceives rejection from an adult woman. NDIS plan 82 During the course of submissions, counsel for Mr Kelly tendered a NDIS plan that set out a package of funding available to Mr Kelly if he is released from custody. It was a central part of this application that Mr Kelly now has an NDIS package that will provide him with supports upon his release into the community. 83 During the course of submissions, Mr Truscott provided me with an NDIS plan and an “Activities of Daily Living, Intervention and Leisure Schedule”. These documents were also provided to Dr Haeney and Dr Nambiar. 84 The NDIS plan provides a package of funding in the amount of $222,425.89. This is broken down to $178,974.67 for Core Supports,29 and $43,451.22 for 27 Ibid at 17. 28 Ibid at 17. 29 Core Supports are provided to assist with everyday activities, disability related needs and working towards goals. The Core Supports budget is the most flexible, and in most cases can be used across the support categories. -- 19 of 31 -- [2024] SASC 103 McDonald J 18 Capacity Building Supports.30 I am told that this level of funding equates to four to five hours of daily support.31 85 The activities schedule sets out a plan to occupy Mr Kelly’s time, seven days a week. There is however very little detail. Other than generic references like “leisure activity” and “spiritual practice”, the only detail in the plan is that it is proposed that between 10 am and 2 pm on Thursdays Mr Kelly will attend at the “Aboriginal Community Men’s Group” and between 9 am and 12 pm on Wednesday he will attend at the “Tiraapendi Wodli Men’s breakfast and yarning group”. Unfortunately, this schedule does little to allay concerns about how much free time Mr Kelly will have on his hands if released from custody. Further, it highlights and brings into sharp focus the limited time that he will spend with an NDIS worker. The evidence of Dr Haeney and Dr Nambiar 86 Dr Haeney and Dr Nambiar gave concurrent evidence confirming and elaborating on the opinions that they expressed in their reports. 87 The cross-examination of the psychiatrists fell into two central themes; those matters favourable to Mr Kelly, that may indicate that his risk to the community has reduced; and secondly, conditions that could be imposed as part of the terms of a licence that would potentially further reduce the risk posed by Mr Kelly if released. 88 Although Mr Truscott relied upon the combined effect of both matters, it is instructive to consider each separately. 89 Dealing firstly with those circumstances said to point favourably away from the risk of Mr Kelly reoffending if released. These include the incentive for Mr Kelly to abide by the conditions of a licence given the extended period of time that he has experienced in custody; his reported decrease in libido and masturbation; the positive changes and increased awareness identified in the Bruggemann report and the offender management plan; the reduction in poor and maladaptive behaviour in custody; and the suggestion that whilst Mr Kelly has reoffended, he has not done so immediately upon his release. In addition to this, whilst Mr Truscott accepted that Mr Kelly had escaped from custody, he suggested that the nature of the escape made it a relatively minor offence of its type, and that was relevant to an assessment of the risk that he poses. 30 Capacity Building Supports are intended to build the recipient’s independence and reduce the need for the same level of support in the future. Unlike the Core Supports budget, the Capacity Building Supports budget cannot be moved from one category to another. This funding is designed to meet needs that are likely to be a one off, such as support in engaging with appropriate service providers and assistance with accommodation and tenancy obligations to support the recipient in obtaining and renting accommodation. 31 T18. -- 20 of 31 -- [2024] SASC 103 McDonald J 19 90 In respect of many of these matters, the psychiatrists emphasised that whilst they potentially signified an improvement in Mr Kelly’s risk profile, they were entirely dependent on Mr Kelly’s self-reporting, the reliability of which has at times been at least questionable. Further, even if his intentions were genuine, there remained a real question mark over his ability to resist his sexual urges, if the opportunity presented itself. 91 On the topic of Mr Kelly’s report of a reduced sex drive and a desire to masturbate, Dr Nambiar did not necessarily accept that it was “an encouraging development”.32 He made the point that Mr Kelly has, in fact, been inconsistent on this topic. On one occasion, talking about masturbating about once a fortnight and then on another occasion once or twice a year. Dr Nambiar made the point that this is a good illustration of the risk of relying on Mr Kelly’s self-reporting. 92 Both Dr Haeney and Dr Nambiar accepted that Mr Kelly’s reduction in problematic behaviour in prison, as well as the effective control of his schizophrenia through medication, are positive signs that are independently supported. In contrast, whilst they accepted that Mr Kelly appears to understand that alcohol and drugs remain a trigger for his offending behaviour, that falls a long way short from demonstrating an ability to withstand temptation if released into the community. 93 In response to cross-examination suggesting that Mr Kelly’s escape from custody was a relatively minor example of this offence, Dr Haeney rejected the suggestion that it was not a relevant factor in assessing the risk posed by Mr Kelly. He said:33 I fully accept that there are more serious ways to escape from custody but the – what’s marked by that is the fact that he was willing to walk out; that he was impulsive in doing so; or at least not considering the consequences; and not caring about the consequences; that you had the disregard for the legislation that he was breaching by doing so. And that is an indicator of risk even if it’s not the most cunning or serious escape from custody. 94 The final matter that was put to the psychiatrists in support of this submission, was the somewhat surprising suggestion, that in the past Mr Kelly has not immediately reoffended upon his release. It is to be recalled that Mr Kelly committed his first sexual offence 20 days after being released from custody. He committed his second sexual offence whilst on parole for his first. There were, in fact, 87 days between his release from custody and the commission of the second offence. The third episode of sexual offending occurred one year and four months after Mr Kelly had been released from custody. It was on that basis that Mr Truscott put to the psychiatrists “it’s not the case that he immediately gets 32 T13. 33 T29. -- 21 of 31 -- [2024] SASC 103 McDonald J 20 released or put on parole and then goes out and offends straightaway”.34 The following exchange with Dr Haeney then occurred:35 Q. What I’m suggesting is other than the first one – well still we’re talking about 20 days, which is what a few weeks; we’re talking longer and longer periods when he’s out of custody when he’s not sexually offending. It’s not the case that he is unattended for a moment and immediately goes out and re-offends is it. A. No, but I would look at those figures as being concerning rather than evidence that he can be unsupervised. 95 It was the evidence of Dr Haeney that the nature of Mr Kelly’s offending, which had occurred impulsively without any of the common warning signs of grooming or preparatory predatory behaviour, that is of particular concern and makes his offending more difficult to predict and intervene.36 He went on to say:37 Because I think just because he managed a few months, even a year out without offending does not mean that it couldn’t occur again rapidly or that you could automatically prevent it escalating to that point just by you know mandated weekly or fortnightly or monthly testing. 96 Through his cross-examination of the experts, and subsequently during the course of submissions, Mr Truscott sought to make the point that the circumstances in which Mr Kelly currently finds himself are very different to the circumstances that were presented to Nicholson J in 2017. At the time that the s 23 application was made, Nicholson J did not have the option of imposing an order for intensive supervision in the community as no application for such an order had been made by the Attorney-General.38 The choice for Nicholson J was a binary one. It was to either order that Mr Kelly continue to be indefinitely detained in custody or that he be released without any form of supervision in the community. 97 It was Mr Truscott’s submission that any risk posed to the community by the release of Mr Kelly can be ameliorated by licence conditions. Pursuant to s 59(8), the release of any person on licence will be subject to such conditions as the “appropriate board”39 thinks fit, and as specified in the licence. The conditions that Mr Truscott suggested would be appropriate were electronic monitoring, home detention, a curfew, mandatory counselling and treatment, a condition prohibiting the consumption of drugs and alcohol, a ban on communications with anyone 34 T30. 35 T30. 36 T28. 37 T31. 38 At that time, Mr Kelly’s relevant expiry date was more than 12 months away. It followed that as a consequence of s 7(2) of the Criminal Law (High Risk Offenders) Act 2015 (SA), it was not open for the Attorney-General to make an application for an extended supervision order. 39 Pursuant to s 59(20) of the Act, the “appropriate board” for the purposes of s 59 is (a) for a person detained in a training centre or released on licence from a training centre, the Training Centre Review Board; or, in any other case, (b) the Parole Board. -- 22 of 31 -- [2024] SASC 103 McDonald J 21 under the age of 18, and a requirement that Mr Kelly reside at approved accommodation. 98 Dr Haeney and Dr Nambiar were cross-examined about the efficacy of each of those proposed conditions in reducing Mr Kelly’s risk. Underpinning this cross-examination were the NDIS supports on offer to Mr Kelly as a result of the NDIS package of funding available to him. Drug and alcohol testing 99 Mr Truscott cross-examined the psychiatrists to suggest that not only would conditions prohibiting the consumption of drugs and alcohol with a complementary regime of drug testing reduce Mr Kelly’s risk, but that the NDIS supports could be utilised to ensure compliance with those conditions. 100 In their responses on this topic, both Dr Haeney and Dr Nambiar expressed reservations about how effective a prohibition upon the consumption of alcohol and drugs would be in reducing Mr Kelly’s risk to the community. These concerns related not only to the effectiveness of the conditions themselves, but also as to the limitations on the ability of the NDIS workers to ensure that these conditions were complied with. 101 It was put to Dr Haeney that Mr Kelly’s substance abuse issues could be mitigated by a number of licence conditions, including regular drug tests. Dr Haeney provided the following response:40 I don’t think that automatically follows, no. I think the supervisory arrangements that can be put in place would potentially detect substance misuse after it’s happened. The difficulty is each of Mr Kelly’s offences have occurred in the midst of acute intoxication. Testing him the following day or a few days later would not have stopped the offence occurring. So, it would be sensible to test him regularly, to supervise him, to try and limit his opportunities for use, to try and pick up if he was using, but it doesn’t necessarily follow that that would prevent reoffending. 102 In cross-examination, Mr Truscott put to Dr Nambiar that the daily support offered by the NDIS could assist in ensuring that Mr Kelly abstained from the consumption of alcohol and drugs. He suggested that the NDIS workers would detect if Mr Kelly was intoxicated, and they would be required to report that back to Corrections. Dr Nambiar did not agree with those propositions. Whilst he accepted that “theoretically”41 such a condition may reduce Mr Kelly’s risk, it was his experience that the role of the NDIS provider is not to enforce supervision, but is more about providing company and assistance. 40 T23-24. 41 T8. -- 23 of 31 -- [2024] SASC 103 McDonald J 22 103 Dr Haeney was asked a similar question. He was asked:42 … do you accept that if he has daily contact with people who will be able to make an ordinary assessment of whether he is under the influence of drugs or alcohol and that if there are any concerns, that they can be reported and breaches can potentially be issued, would that eliminate the risk. Dr Haeney responded that it would not eliminate the risk. He elaborated:43 Because we’ve talked about Mr Kelly being supervised potentially for, you know, a small number of hours per day, six hours per day, for example, leaving 18 hours per day of not being supervised. So, even somebody saying, ‘I think he was intoxicated today’ and even if they decided to report that up the chain and it came to the attention of correctional services, that wouldn’t eliminate the risk of Mr Kelly becoming intoxicated outside of those hours, acting before any breach proceedings occurred. There’s a very causal relationship in terms of disinhibition between his substance misuse and his risk of offending. 104 Whilst Dr Haeney accepted that such conditions had the potential to reduce the risk of Mr Kelly reoffending, it did not eliminate that risk.44 Electronic monitoring, home detention, and a curfew 105 It was the evidence of Dr Haeney and Dr Nambiar that the only means by which Mr Kelly’s risk could be reduced would be with 24-hour supervision. Dr Nambiar was asked whether he agreed that a licence regime, that governs Mr Kelly’s interactions with women, and prohibits the consumption of alcohol and drugs would mitigate “the most serious and obvious risks”. Dr Nambiar responded, “Provided he is supervised at all times”.45 106 It was Dr Nambiar’s evidence that the only means by which Mr Kelly could safely be released would be to replicate prison conditions in the community.46 That is, with 24-hour supervision. There is not, however, adequate funding from NDIS or elsewhere to enable that to occur. 107 Dr Haeney expressed the same view. When asked about the combined effect of the various licence conditions proposed by Mr Truscott, Dr Haeney responded that it would depend on how Mr Kelly was being supervised. The following exchange then occurred:47 Q. And you come back then to the need for 24 hour supervision. A. Yes. XN 42 T24. 43 Ibid. 44 T26. 45 T12. 46 T13. 47 T18. -- 24 of 31 -- [2024] SASC 103 McDonald J 23 Q. The NDIS assessment is for 4 to 5 hours support daily. If he were to be released on licence if the conditions include electronic monitoring, curfew, regular testing, psychiatric appointments and so on would that address your concerns about his level of risk. A. It improves the situation but it’s still not 24 hours monitoring. Q. So your position isn’t he needs to be 24 hours. A. Yes. 108 Mr Truscott explored with Dr Haeney and Dr Nambiar whether a combination of electronic monitoring and home detention conditions would be sufficient to satisfy the need for 24-hour supervision. Dr Nambiar repeated his earlier evidence stating that the only means by which licence conditions could significantly reduce Mr Kelly’s risk of reoffending was 24 hour supervision.48 109 Dr Haeney was asked whether electronic monitoring combined with a curfew would significantly reduce Mr Kelly’s risk. He responded:49 Again I think those would be helpful. I don’t think they can eliminate the risk. If he failed to return from curfew, that is the time of the most risk, rather than waiting for him to turn up the next day. And electronic monitoring just tells you where he is, not what he’s doing. 110 It was Dr Haeney’s evidence that such conditions would only be effective if Mr Kelly chose to abide by them.50 111 Dr Haeney agreed with the evidence of Dr Nambiar that 24-hour supervision would be the only way of effectively limiting the risk posed by Mr Kelly.51 In response to this answer Mr Truscott asked Dr Haeney whether a high degree of supervision that fell short of 24-hour supervision may significantly reduce Mr Kelly’s risk of reoffending. Dr Haeney responded:52 I think the danger is once somebody is not supervised 24-hours in this sort of situation, then that creates a window, a lacuna where risk will start to manifest. People will resent the fact that they’re under such strict supervision, and that’s the potential time where they decide ‘Right, well, now I might as well go and do what I want to do’. The availability of suitable accommodation 112 Mr Truscott asked both Dr Haeney and Dr Nambiar about whether the availability of “suitable accommodation”, coupled with Mr Kelly knowing that he was at risk of losing that accommodation if he did not comply with his licence 48 T34. 49 T35. 50 Ibid. 51 T36. 52 Ibid. -- 25 of 31 -- [2024] SASC 103 McDonald J 24 conditions ,would address the concerns that they held regarding Mr Kelly’s risk of reoffending. Dr Haeney responded:53 I don’t honestly think that can adequately address the concerns, because even if Mr – if Mr Kelly failed to return to his accommodation, went off drinking, the earliest, realistically, he could be returned to custody would be the next day, and given his pattern of offending, that could be too late. 113 Dr Nambiar remained firm in his view that Mr Kelly required 24-hour supervision. He said:54 I think I’ve said earlier that what Mr Kelly requires is direct supervision at all times. The funding doesn’t adequately address that. … It would have to be a facility where there are staff 24 hours a day who could monitor his movements. 114 Whilst both Dr Haeney and Dr Nambiar accepted that “appropriate accommodation” may be sufficient to significantly reduce Mr Kelly’s risk, “appropriate accommodation” involved staff who could monitor Mr Kelly’s movements being present with him 24 hours a day. There was no evidence that such accommodation, or funding for such accommodation, is available to Mr Kelly. Additional assistance offered by the NDIS 115 Mr Truscott cross-examined Dr Haeney and Dr Nambiar about supports that could be offered by the NDIS that had the potential to reduce Mr Kelly’s risk of reoffending, above and beyond any proposed licence conditions. These included the activity schedule created by the NDIS, to provide Mr Kelly with social structure and assist him in forming prosocial friendships, as well as access to training programs like “Road to Redemption”,55 and assistance in reconnecting with his family and community. The general response of Dr Haeney and Dr Nambiar was, that whilst these were all positive developments, the measures will not of themselves reduce Mr Kelly’s risk. Dr Haeney explained:56 I think all those things would be positive. It doesn’t necessarily follow that they reduce his risk. 116 Dr Nambiar’s evidence mirrored that of Dr Haeney. He said:57 … as I said, it improves his lifestyle in general, which is a good thing as far as rehabilitating him and reintegrating him in the community, but it doesn’t necessarily reduce the risk. 53 T33. 54 Ibid. 55 The Road to Redemption program is designed to provide Indigenous prisoners with the skills and knowledge to find employment in the construction and civil construction industry. 56 T34. 57 Ibid. -- 26 of 31 -- [2024] SASC 103 McDonald J 25 Dr Nambiar further elaborated on that answer:58 Again I think it’s important that there are two aspects to consider here. One is how he conducts his life in a prosocial manner with some structure and some activities that are planned for him which he hasn’t had before. On the other side is the actual therapy itself that he needs to address the offending, the reason for the offending, some of the cognitive distortions, some of the fantasies, so that’s a separate issue. So yes, this is good in terms of lifestyle. 117 Dr Nambiar was then asked whether Mr Kelly’s level of risk was significantly reduced on a licence, with appropriate stringent conditions, in combination with counselling and supervised social activities with NDIS workers. The following exchange occurred:59 A. I can’t agree that it’s significantly reduced from what is [already] a significant – unless he actually does the therapy. Q. So it would have to be a condition that you had a robust program of therapy and counselling. A. And it would also depend on how he’s being supervised. HER HONOUR Q. And you come back then to the need for 24 hour supervision. A. Yes. XN Q. The NDIS assessment is for 4 to 5 hours support daily. If he were to be released on licence if the conditions include electronic monitoring, curfew, regular testing, psychiatric appointments and so on would that address your concerns about his level of risk. A. It improves the situation but it’s still not 24 hours monitoring. 118 During the course of their evidence, both Dr Haeney and Dr Nambiar emphasised the need to draw the distinction between the function and purpose of the NDIS and DCS. The role of the NDIS is not focused on the prevention of reoffending. Their remit would be to support Mr Kelly overcoming disability and improving function; not on detecting and avoiding risk. Summary of the evidence of Dr Haeney and Dr Nambiar 119 It was the clear and unequivocal evidence of Dr Haeney and Dr Nambiar that regardless of any licence conditions or supports offered by the NDIS, absent 24-hour supervision, Mr Kelly continues to pose a significant risk to the community. The nature of Mr Kelly’s prior offending makes the risk all the more acute. The concerns of the psychiatrists were encapsulated in re-examination, 58 T16. 59 T18. -- 27 of 31 -- [2024] SASC 103 McDonald J 26 which picked up on the final questions asked of Dr Haeney in cross-examination. I set out the relevant passage of the transcript in full:60 HER HONOUR Q. Dr Haeney, just a question for you. Can I direct your attention to para.6.16 of your report. A. Yes. Thank you. Q. Is that really the crux of the matter from your perspective, that the sort of measures we’re talking about here come up in all sorts of cases, that is curfews, home detention, electronic monitoring, and the effectiveness will vary from case to case; but here the issue is the nature of Mr Kelly’s offending. A. Yes. Q. In terms of how effective those things could be. A. Yes, for me that’s the crux of it. I’m very aware of how long Mr Kelly’s been in prison for, been detained beyond his original sentence, but the nature of his offending is what really gives me cause for concern. Q. Thank you. +RE-EXAMINATION BY MR HINTON Q. And the speed in relation to which he chose to offend. A. Yes. When I say ‘the nature’ I mean the type of offences, the difficulty anticipating it, the speed with which it has happened following release from previous prison, all of those things. Q. Not just the speed following the release from prison, but the speed on the day in question. A. Absolutely, from – Q. Within minutes he decides ‘I’ll go into that door where the child is’. A. Yes, from being in that situation, intoxicated, rejected, to thinking ‘I need to express my frustration, my sexual drive’, and doing so in those ways. And then also just very impulsively walking past a house, seeing children’s equipment, and saying ‘This is my opportunity’. Q. Yes. A. Nothing that we’ve talked about really prevents that happening. Q. Except 24-hour supervision. A. Yes. 60 T37-38. -- 28 of 31 -- [2024] SASC 103 McDonald J 27 Q. And that’s the reason, is it not, Dr Nambiar, why you say 24 hours is required. DR NAMBIAR A. Exactly right. It’s the nature of his personality to be impulsive in many ways, including his offending. Q. Am I right then, doctors, and I’ll put it to you each, that there’s nothing in the NDIS plan that causes you to change your opinion. Dr Haeney. DR HAENEY A. Correct. Q. Dr Nambiar. DR NAMBIAR A. No, there isn’t anything. 120 It is the Director’s position that there is no basis upon which to exercise the discretion vested in this Court to release Mr Kelly on licence pursuant to s 59 of the Act. Both Dr Haeney and Dr Nambiar were clear in their reports that if Mr Kelly was placed in a position in which he was called upon to exercise self-control, there is a significant risk that he will not do so. They were unmoved from that position in their cross-examination. 121 It was contended by the Director that there was nothing in the NDIS plan that materially advances Mr Kelly’s application. 122 On that basis, it was submitted that Mr Kelly does not get past first base. 123 The Director raised an additional concern about Mr Kelly’s diagnosis of schizophrenia. The evidence is that at the moment that condition is adequately controlled by medication. It was submitted by the Director, that if released from custody, there is a real risk that Mr Kelly would cease to take his medication. Although it has not been suggested that Mr Kelly’s schizophrenia has been causatively linked to his prior offending, it was the Director’s submission that the failure to take the medication could lead to “the beginning of a spiral”.61 The Director described the potential escalation of that spiral in the these terms:62 … It’s the beginning of the spiral. You add to it the fact that, with the greatest of respect to this man, his employability one must doubt, so he’s going to have time on his hands. Yes, he will attend some of the things, potentially, that the NDIS arranges for him, but he will have time on his hands. He will gravitate towards a social network with which he is comfortable, as he has done in the past. One which, in all likelihood, will include associates that he has met over the years. Sadly, that means people he’s been in prison with, as he has done in the past. 61 T41. 62 T41-42. -- 29 of 31 -- [2024] SASC 103 McDonald J 28 He will then be exposed to the risk of drink and drugs. Being largely marginalised from the mainstream community, having an antisocial personality disorder, borderline intellectual functioning, the pressure or the implicit pressure to take drugs and alcohol will become great. The inability to communicate and forge relationships, and perhaps being out of practice in forging relationships with females, will become particularly difficult. The spiral continues and the risk becomes greater and greater that in the blink of eye, as he walks down a street again and he sees a swing and a doll and a bike in the front yard, he decides ‘This is the house’, and again he reoffends. Materials provided after the completion of counsel’s submission 124 Subsequent to the completion of submissions, Mr Truscott forwarded two further documents that he requested be taken into consideration on the application. These were a “personal statement” that had been prepared by Mr Kelly and a letter from an alcohol and drug counsellor from Life Without Barriers, advising that Mr Kelly had completed the Relapse Prevention Program at the Mount Gambier Prison. 125 In the personal statement Mr Kelly expresses remorse for his prior offending. He said: I just want to say how deeply sorry I am for the people I have hurt, my victims and my victims’ family. I’m deeply sorry for what I’ve done and I know my actions have caused my victims and their family’s (sic) grief, trauma, pain and suffering. If I could change the past and stop what I’ve done, I would, and I wouldn’t be in this situation now. 126 In the statement Mr Kelly expresses a wish for a second chance and an opportunity to reconnect with his family and culture. He acknowledges that he has made poor choices that have impacted not only upon him, but on his family and community. Mr Kelly concludes by setting out his goals and the support network that would be available to him, were he to be released from custody. 127 Whilst I do not doubt the genuineness of Mr Kelly’s regret of his past conduct, and his belief that he will not reoffend once released, this does not allay the concerns raised by the evidence and reports of Dr Haeney and Dr Nambiar. In light of Mr Kelly’s history, there is a limit to the weight that I can now place on his claims that he will simply be able to reintegrate back into the community and “live a good, healthy, moral and respectful life”. 128 Equally, whilst the completion of the Relapse Prevention Program is a positive sign, there are limitations to the weight that can be placed on it in the context of a long and entrenched history of sexual violence against children. 129 The program was structured to allow participants to explore and identify potential situations that may arise and affect their recovery once they are released. It took place over 12 weeks and covered topics ranging from “Temptations you will face when released” to “How do you want to be remembered”. Mr Kelly attended all 12 sessions and was reported to be engaging, supportive and encouraging of other participants. Unfortunately, however, the fact that Mr Kelly is positive about exploring ways that he can implement the topics and strategies -- 30 of 31 -- [2024] SASC 103 McDonald J 29 covered in the program, does not necessarily suggest that he will meet with success if released into the community. Should Mr Kelly be released on licence? 130 Before determining whether to exercise my discretion as to whether to release Mr Kelly on licence, I must first be satisfied that Mr Kelly is both capable of and willing to control his sexual instincts. Unless I am so satisfied, that is the end of the matter and the application proceeds no further. There has never been any suggestion that Mr Kelly is incapable of controlling his sexual instincts, the question in issue is whether he is unwilling to control his sexual instincts as defined in the Act. That means that, if Mr Kelly is placed in the position where he is called upon to exercise self-control, there is a significant risk that he will not do so. In determining the answer to this question, it is necessary that I consider the likely effect of the conditions of release on licence on Mr Kelly’s willingness to control his sexual instincts. The consideration of the effect of the conditions on Mr Kelly’s willingness is integral to the determination of whether there is not a “significant risk that he will fail to exercise appropriate control upon his release on licence”.63 131 It is for Mr Kelly to establish that he is willing to control his sexual instincts. 132 The focus in this application has been on the availability of licence conditions and support by the NDIS to ameliorate the risk posed by Mr Kelly. Despite cross- examination designed to suggest that these measures reduced Mr Kelly’s risk, Dr Haeney and Dr Nambiar remained firm in their views that they did not mitigate the risk to any substantial extent. Further, that at this point in time the only way in which Mr Kelly could safely be released into the community would be to effectively imprison him in the community under 24-hour guard. 133 There is no evidence that there is funding or accommodation available that would satisfy this need. This application has also brought into sharp focus the issue of attempting to use NDIS funding for a purpose for which it was never intended. That is, to position the NDIS workers in the role of Mr Kelly’s gaolers. 134 It has not been established that Mr Kelly is willing to control his sexual instincts. 135 The application is dismissed. 63 Hore v The Queen; Wichen v The Queen (2022) 273 CLR 153 at [58]. -- 31 of 31 --