Attorney-General (SA) v Driver - [2021] SASC 66

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v DRIVER
[2021] SASC 66
Reasons of the Honourable Justice Livesey
4 June 2021
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
On 16 June 2011, the respondent was convicted of three counts of rape, two counts of indecent assault, one count of assault causing harm and two counts of aggravated criminal trespass in a place of residence. The respondent was resentenced to a term of 11 years imprisonment with a non-parole period of five years and six months, backdated to commence on 7 July 2009.
The Attorney-General applied for an order that the respondent be detained in custody until further order pursuant to s 57(7) of the Sentencing Act 2017 (SA) (the Sentencing Act). In the alternative, the Attorney-General applied for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act).
While the applications were opposed, the respondent submitted that an extended supervision order might be made with conditions permitting him to reside with members of his broader family in his traditional homeland in the Northern Territory.
The respondent’s head sentence expired on 6 July 2020. However, he remained in custody under an interim detention order made on 1 July 2020 pursuant to s 57(5) of the Sentencing Act.
Held (per Livesey J), ordering that the respondent be detained in custody until further order pursuant to s 57(7) of the Sentencing Act:
1.      The respondent is both at high risk of reoffending and, given the opportunity, unwilling to control his sexual instincts.
2.      While there is unquestionably a degree of unfairness associated with the respondent’s array         of difficulties and disadvantage, his offending is not easily addressed or explained. Despite      extensive intervention, the respondent has been unable to express any real empathy for his         victims and he lacks insight into the causes of his offending. His is a complex case which is     unlikely to be improved by further treatment or therapy.
3.      If released, there is a very serious risk that the respondent will again become isolated, angry         and sexually frustrated, with the result that he will engage in the kind of brazen sexual     offending for which he was incarcerated.
4.      Electronic monitoring does not represent an effective means of curbing that risk. At best, it will indicate to authorities that the respondent is breaching the terms of an order. It will not    prevent or inhibit further offending.
5.      The respondent is a high risk offender who poses an appreciable risk to the safety of the     community if not supervised.
6.      The making of an extended supervision order with conditions permitting or requiring that the       respondent reside in the Northern Territory is beyond this Court’s jurisdiction. In any event,     it is clear that there could be no effective supervision and enforcement of such an order.
7.      It is not appropriate to make an extended supervision order pursuant to the High Risk Offenders Act.
8. It is appropriate and necessary to order that the respondent be detained until further order pursuant to s 57(7) of the Sentencing Act.
Criminal Law Consolidation Act 1935 (SA) s 20, s 48, s 56, s 170; Criminal Law (High Risk Offenders) Act 2015 (SA) s 4, s 7, s 10, s 15; Criminal Law (Sentencing) Act 1988 (SA) s 23; Correctional Services Act 1982 (SA); Cross-border Justice Act 2009 (SA) r 30(5), r 32, r 33, r 109(2); Service and Execution of Process Act 1992 (Cth) s 3, s 81, s 91, s 93; Sentencing Act 2017 (SA) s 57, s 58, s 59; Sentencing (Release on Licence) Amendment Act 2018 (SA), referred to.
Al-Kateb v Godwin (2004) 219 CLR 562; Attorney-General (SA) v Duroux (2019) 278 A Crim R 375; Attorney-General (SA) v Pennington [2019] SASC 180; Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54; Nigro v Secretary to the Department of Justice (2013) 41 VR 359; R v Kiltie (1986) 41 SASR 52; R v Hoare [2017] SASC 7; R v Humphrys (2018) 131 SASR 344; R v Schuster (2016) 125 SASR 388; Thomas v Attorney-General (SA) (2019) 133 SASR 302, discussed.
Attorney-General (SA) v Duroux [2019] SASC 108; Attorney-General (SA) v Moyle [2018] SASC 106; Attorney-General (SA) v Tipping [2019] SASC 133; Chubb Insurance Co of Australia Ltd v Moore [2013] NSWCA 212; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; Grannall v C Geo Kellaway & Sons Pty Ltd (1955) 93 CLR 36; Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309; Lipohar v The Queen (1999) 200 CLR 485; Meyer Heine Pty Ltd v China Navigation Co Ltd (1966) 115 CLR 10; Morgan v White (1912) 15 CLR 1; R v A2 (2019) 93 ALJR 1106; R v Driver (2011) 111 SASR 245; Seaegg v The King (1933) 48 CLR 251; Solomons v District Court of New South Wales (2002) 211 CLR 119; Thompson v The Queen (1989) 169 CLR 1; Walker v New South Wales (1994) 182 CLR 45; Wichen v The Queen [2020] SASC 157; Williams v The Queen (1986) 161 CLR 278, considered.

ATTORNEY-GENERAL (SA) v DRIVER
[2021] SASC 66
Criminal: Application
LIVESEY J:
Introduction

By an originating application dated 25 February 2020, the Attorney-General applied for an order that the respondent (Mr Driver) be detained in custody until further order pursuant to s 57(7) of Sentencing Act 2017 (SA) (the Sentencing Act). In the alternative, the Attorney-General applied for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act).[1]
[1] This alternative application was brought on 29 October 2019.
Though these applications were opposed, Mr Driver ultimately submitted that an extended supervision order might be made with conditions that permitted or required that he reside with nominated members of his broader family in his traditional homeland in the Northern Territory.
Disposition of the application
Following directions made by this Court, two psychiatrists inquired into Mr Driver’s mental condition and reported to the Court on whether he is incapable of controlling, or unwilling to control, his sexual instincts. I heard evidence and submissions in this matter between 21 August 2020 and 3 March 2021. The later hearings were brief and enabled the parties to provide further evidence to the Court.
On 3 March 2021, I made an order that Mr Driver be detained in custody until further order pursuant to s 57(7) of the Sentencing Act. That detention commenced on the expiry of the term of imprisonment served. I explained that I had decided that this was not an appropriate case for the making of an extended supervision order pursuant to the High Risk Offenders Act which would enable Mr Driver to reside outside the State of South Australia and in the Northern Territory.
These are my reasons for making that order.
Relevant offending and sentence
Evidence received
The applicable legal principles
Human Rights issues
Proposal to allow the respondent to leave South Australia
Mr Driver’s personal circumstances
Criminal antecedents
Treatment received by Mr Driver
The medical evidence
Dr William Brereton
Dr Craig Raeside
Mr Richard J Balfour
Conclusions on the medical evidence
Consideration regarding the exercise of discretions
Conclusion
Relevant offending and sentence
Mr Driver is an Aboriginal man born on 30 October 1990. He is now 30 years of age. On 16 June 2011, following pleas of guilty made a week before trial, Mr Driver was convicted of:
1.Three counts of rape, contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA);
2.Two counts of indecent assault (basic), contrary to s 56(1) of the CLCA;
3.One count of assault causing harm, contrary to s 20(4) of the CLCA; and
4.Two counts of aggravated serious criminal trespass in a place of residence, contrary to s 170(1) of the CLCA.
Mr Driver was initially sentenced to a term of 16 years imprisonment, with a non-parole period of 10 years imprisonment. However, Mr Driver successfully appealed his sentence and, on 11 November 2011, he was resentenced to a term of 11 years imprisonment, with a non-parole period of five years and six months.[2]
[2] R v Driver (2011) 111 SASR 245.
The offending concerned a break-in, rapes following another break-in and two sexual assaults in the Linear Park, all during 2009. Mr Driver’s offending was described in the following terms by the Court of Criminal Appeal:[3]
On 27 April 2009, at about 5.15 am, the complainant, who was awake in bed, heard the sound of glass shattering. The sound was caused by the defendant breaking into the house through the rear door. The complainant and her husband confronted the defendant, causing him to run away. In respect of this offending, the defendant pleaded guilty to aggravated serious criminal trespass in a place of residence.
On 16 May 2009, a different complainant returned to her home in the early hours of the morning. She had just gone to bed when she heard a knock on the front door. When she opened the door, there was no one present. The complainant returned to her room and went to bed. She again heard knocking on the front door. She then heard someone at the back door of the house and heard the sound of glass breaking. She was frightened and telephoned a friend. As she was calling her friend and was about to open her bedroom door, the door was kicked in. The complainant saw the defendant coming towards her. He was wearing a mask. The defendant pushed the complainant onto the bed and subsequently grabbed and pushed her to the floor. She yelled. The defendant placed his hand over her mouth, pushed down on her throat and lifted her on to the bed. He forced the complainant to commit two acts of fellatio. The defendant then forced her onto the floor again and to have vaginal sexual intercourse with him. As this was occurring, she heard voices. The complainant managed to escape from the bedroom to where her friend was at the back door. The friend telephoned the police. The defendant fled. The police arrived shortly thereafter.
The complainant sustained physical injuries, including bruising to her shoulders and back. She feared for her life. She is now frightened at night and fearful that she may be attacked again. She suffers depression and panic attacks. She feels ashamed. She has not felt able to tell her family about the incident.
The events of 16 May 2009 gave rise to the offences of aggravated serious criminal trespass in a place of residence, assault causing harm and three counts of rape, being the two acts of fellatio and the act of vaginal sexual intercourse. The defendant pleaded guilty to each offence.
The defendant also pleaded guilty to two counts of indecent assault which arose from incidents occurring on 6 July 2009.
On that date, a third complainant was walking along the Linear Park track when she noticed a person behind her. That person was the defendant. The complainant began to jog to get some distance between her and the defendant. She saw the defendant again as she walked towards Lower Portrush Road. She stopped to allow the defendant to pass and, as he did, he grabbed her on the left buttock. The defendant fled. The complainant ran home. She now fears being out in public alone. She feels unsafe and isolated. She has trouble trusting people. She feels a loss of independence.
On the same day, a fourth complainant was walking along the Linear Park track when she saw the defendant walking towards her. They passed each other and, a few moments later, the complainant was grabbed from behind by the defendant. The defendant grabbed at her pants and dragged her to the ground. The complainant screamed. The defendant attempted to drag her towards the trees near the track. The complainant kicked the defendant, causing him to release her. He fled. The complainant continues to feel frightened when left alone in an empty house. She panics easily. The attack upon her was the day before her year 12 exams. Her results were less than she had anticipated.
[3] R v Driver (2011) 111 SASR 245, [3]-[9] (Gray, Sulan and Blue JJ).
By order of the Court of Criminal Appeal, the new head sentence and non‑parole period were backdated to commence on 7 July 2009. Mr Driver became eligible for parole on 6 January 2015. Parole was refused.
The first two categories of offences earlier outlined are “relevant offences” for the purposes of s 57 of the Sentencing Act. Accordingly, as Mr Driver remained in custody on 25 February 2020, the Attorney-General was empowered by s 57(3) to make an application to have Mr Driver dealt with under s 57 of the Sentencing Act.
Mr Driver’s head sentence expired on 6 July 2020. However, Mr Driver remained in custody pursuant to an interim detention order made by me on 1 July 2020 pursuant to s 57(5) of the Sentencing Act.
Evidence received
On the hearing of the applications I received the following evidence and materials:
1.An affidavit of Ms Holly Frances Nikoloff sworn 29 October 2019, together with exhibits.
2.An affidavit of Ms Alyona Andreevna Haines affirmed 25 February 2020, and exhibits.[4]
3.A further affidavit of Ms Alyona Andreevna Haines affirmed 20 April 2020.
4.A psychiatric report from Dr Craig Raeside dated 7 December 2019.
5.A further psychiatric report from Dr Craig Raeside dated 31 March 2020.
6.A psychiatric report from Dr William Brereton dated 29 April 2020.
7.Correspondence from the Attorney-General’s counsel regarding ongoing treatment dated 12 March 2021.
[4] The exhibits to this affidavit include a psychiatric report prepared by Dr Craig Raeside, dated 31 January 2011, the DCS Pre-Sentence Report of G Ramsay, dated 13 December 2010 and the DCS Sentence Management Unit Summary of N Billing and C Sim, dated 5 January 2017.
This material was tendered by counsel for the Attorney. Counsel for Mr Driver tendered the following:
8.A psychology report from Richard Balfour dated 16 June 2020.
9.An affidavit of Trevor Scroop (Mr Driver’s “traditional father”) affirmed 24 September 2020.
10.An affidavit of Lynette Driver (Mr Driver’s mother) sworn 3 September 2020.
11.An affidavit of Lewis Charles affirmed 23 November 2020.
12.Correspondence from the National Disability Insurance Agency (NDIS) dated 18 February 2021.
13.Correspondence regarding residence at the Lakalinjeri Tumbetin Waal (LTW) live-in rehabilitation centre dated 3 June 2021.
In addition, and at my request, material was produced regarding the capacity of Parole Board to ensure the supervision of Mr Driver were he allowed to reside in the Northern Territory (letter dated 17 December 2020 from Ms E F Nelson QC, Presiding Member of the Parole Board of South Australia) and concerning Mr Driver’s ongoing treatment or counselling whilst imprisoned.
I heard oral evidence from the psychiatrists and psychologist on 21 August 2020.
I found the expert evidence helpful. There was really no challenge made to any of it. I was particularly impressed by the evidence from Dr Raeside, although the evidence of all of the experts was of assistance to me. In so far as it becomes necessary to make a finding in the event of differences, I prefer the evidence of Dr Raeside and Dr Brereton to that of Mr Balfour. Nonetheless, I accept Mr Balfour’s evidence regarding the statements made to him by Mr Driver.
The applicable legal principles
On 30 April 2018, the Sentencing Act came into force. It abolished and replaced the Criminal Law (Sentencing) Act 1988 (the CL(S)A). Generally, Part 2, Division 3 of the former Act was re-enacted without amendment as ss 57 to 59 of Part 3, Division 3 of the Sentencing Act.
Section 57(3) provides:
(3)If a person has been convicted of a relevant offence, the Attorney-General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section.
That the person has previously been “convicted of a relevant offence”, and that he or she “remains in prison serving a sentence of imprisonment” at the time of the Attorney’s application, are preconditions to the engagement of the scheme.
Broadly, a “relevant offence” is defined in s 57(1) to include offences involving sexual activity (e.g., rape, unlawful sexual intercourse, persistent sexual abuse of a child and incest), offences related to sexual activity (e.g., procuring a child to commit an indecent act and abduction for sexual purposes), offences related to child pornography (e.g., procurement, dissemination or possession of child pornography) and offences of indecent or offensive behaviour or an act of gross indecency (s 23 of the Summary Offences Act 1953 (SA)).
Under s 57(6), the power conferred on the Court under s 57(7) is conditioned on the Court first directing that at least two medically qualified practitioners inquire into the mental condition of the person and report on whether he or she is “incapable of controlling, or unwilling to control, [his or her] sexual instincts”.
Under s 57(1), a person is considered “unwilling” to control his or her sexual instincts if there is “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”. The incapacity to which s 57(6) refers is not defined. However, in R v Kiltie, when considering s 77a of the CLCA, the precursor to s 23 of the CL(S)A, King CJ said:[5]
The incapacity referred to in the section is an incapacity to exercise control resulting from innate mental characteristics. It is not that temporary incapacity to exercise self-control which results from the paralysis of will power caused by the ingestion of alcoholic liquor or drugs. Nor is it a strong inclination towards sexual offending resulting from deprivation of the means of satisfying sexual desire unless there is, in addition, an innate incapacity to control that inclination.
[5] R v Kiltie (1986) 41 SASR 52, 62.
In R v Schuster, the Court of Criminal Appeal considered that, whilst s 23(4) of the CL(S)A (the progenitor to s 57(7)) did not explicitly require that the Court be satisfied that the person was either incapable of controlling, or unwilling to control, his or her sexual instincts for an indefinite detention order to be made, that condition was implicitly mandated.[6] That is to say, the power of the Court to make an order for indefinite detention could not be enlivened unless the Court was satisfied that the person lacked the requisite capacity or willingness. Nevertheless, having answered that threshold question, a residual discretion remained: in some circumstances, it may be inappropriate for an indefinite detention order to be made even if the person to whom the section applied was incapable or unwilling to control his or her sexual instincts.[7]
[6] R v Schuster (2016) 125 SASR 388, [97]-[98] (Kourakis CJ, Blue and Doyle JJ).
[7] See also R v Hoare [2017] SASC 7, [63] (Hinton J).
The making of an order that a person be detained indefinitely in custody with respect to what it is feared that person might do if released into the community is an exceptional step, fraught with grave consequences for the personal liberty of the individual. As the Victorian Court of Appeal said in Nigro v Secretary to the Department of Justice when considering a cognate legislative regime for serious sex offenders in Victoria:[8]
The right to personal liberty is the most elementary and important of all common law rights, identified by Blackstone “to be an absolute right vested in the individual by the immutable laws of nature” which had never been abridged by the laws of England “without sufficient cause”.[9] The common law has continued to attach “momentous significance” and “supreme importance” to personal freedom.[10]
[8] Nigro v Secretary to the Department of Justice (2013) 41 VR 359, [67] (Redlich, Osborn and Priest JJA).
[9] Williams v The Queen (1986) 161 CLR 278, 292 (Mason and Brennan JJ).
[10] Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54, [86]‑[88] (Black CJ, Sundberg and Weinberg JJ).

It is for this reason that an order should only be made where there is cogent evidence producing the required state of satisfaction. As this Court explained in R v Hoare with respect to s 23:[11]
An order for indeterminate detention should only be made where there is cogent and reliable evidence justifying the making of the order. In this regard Bleby J’s observations in R v England made in relation to a prior version of s 23 remain apposite. He said:
…satisfaction as to the inability of a person to control their sexual instincts is a matter of assessing the opinions to that effect, their strengths and their weaknesses, to a point where the court can be satisfied that the incapacity is present. In doing so, the court will need to take account of the seriousness of the declaration it is asked to make and the gravity of the consequences of giving the direction. To borrow the words of Dixon J in Briginshaw v Briginshaw, the necessary degree of satisfaction cannot be produced “by inexact proofs, indefinite testimony or indirect inferences”. It will require cogent and acceptable evidence in order to justify the making of the declaration and the giving of the direction. But even then, there is a residual discretion conferred by the use of the word “may” in the subsection. In that respect it may also be appropriate to consider, as in the case of R v Fahey and R v Riley whether, if a sentence is also imposed, the defendant is likely, at the end of the custodial period, to resume similar sexual activities. This will, in turn, require consideration, among other things, of the defendant’s access to and the likely effect of various regimes of treatment, and whether they can be effected in the prison setting or in some other institution contemplated by the section.
(Footnotes omitted)
[11] R v Hoare [2017] SASC 7, [65] (Hinton J).
In my view, the observations made in Schuster and Hoare are apposite to the exercise of the discretion reposed in this Court by s 57(7) of the Sentencing Act.
Section 57(9) provides that, in addition to considering the reports of the medical practitioners as directed under s 57(6), the Court in determining whether to make an order for indefinite detention is also required to take into account “any relevant evidence or representations that the person may desire to put to the Court”, any Court-ordered reports, such as reports of the Parole Board or a relevant training centre, and any other matter that the Court thinks relevant.
Nevertheless, and importantly, s 57(8) mandates that the paramount consideration in determining whether to make an order that a person be detained in custody until further order “must be to protect the safety of the community (whether as individuals or in general)”.
Upon an order for detention being made under s 57, the person detained cannot be released until the Court, on the application of the Director of Public Prosecutions or the person detained, discharges the order for detention under s 58, or authorises the release of the detained person on licence under s 59, of the Sentencing Act.
Sections 58 and 59 were subject to significant amendment by the Sentencing (Release on Licence) Amendment Act 2018 (SA), which came into effect in June 2018. Among other matters, sub-section (4a) was introduced into s 58 which now precludes this Court, when considering an application for discharge, from having regard “to the length of time that the person subject to the order may spend in custody if the order is not discharged”.
Section 59(19) was repealed. It previously had the effect of automatically discharging a person’s indefinite detention order if that person was subject to a release on licence for three years, unless the Supreme Court ordered otherwise.
Significantly, the Sentencing (Release on Licence) Amendment Act 2018 (SA) also inserted sub-section (1a) in both ss 58 and 59. It provides that a person subject to an order for indefinite detention cannot be discharged or released on licence unless that person can satisfy this 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.
Accordingly, it is now mandated that if the detained person cannot satisfy this Court that they are both capable of controlling, and willing to control, their sexual instincts, or that they no longer pose an appreciable risk to the safety of the community due to their advanced age or infirmity, they cannot be discharged or released on licence. The onus lies on the person subject to the indefinite detention order to satisfy this Court of the existence of either of these two jurisdictional facts.
Sections 58(3) and 59(3) provide that, in determining an application for the discharge of an order for indefinite detention or release on licence, the paramount consideration is to protect the safety of the community, whether as individuals or in general.
In Thomas v Attorney-General (SA), Kourakis CJ held, when considering s 58, that as there could be no rational reason for not discharging an indefinite detention order if either of the two jurisdictional facts prescribed by s 58(1a) are satisfied, “consistently with the presumption of legality, … the Court has no discretion not to discharge the order on the making of those findings”.[12] As a consequence, the requirement in s 58(3) that the paramount consideration to protect the safety of the community, “is largely surplusage, left over from a time when the Court exercised a real discretion”.[13]
[12] Thomas v Attorney-General (SA) (2019) 133 SASR 302, [28] (Kourakis CJ, with whom Nicholson and Parker JJ agreed).
[13] Thomas v Attorney-General (SA) (2019) 133 SASR 302, [28] (Kourakis CJ, with whom Nicholson and Parker JJ agreed).
As the same preconditions are necessary to support release on licence, I consider that the observations of the Chief Justice apply equally to ss 59(1a) and (3) of the Sentencing Act 2017 (SA). The Chief Justice continued:[14]
The amendments to s 58 of the Sentencing Act 2017 have radically changed the purpose of the indefinite detention order regime. Preventative detention is now its primary purpose. The long experience of this Court in making indefinite detention orders and releasing defendants on licence, and monitoring those licences, and the expert evidence taken in those cases clearly establishes two things. First, treatment in prison alone is unlikely to effectively reverse an incapacity or unwillingness to control sexual urges. Secondly, an opinion that a person is both capable and willing to control his or her sexual instincts can rarely, if ever, be given on the basis of a person’s behaviour in the artificial environment of a prison, especially when previous offending remains a static factor in evaluating future risk of reoffending. The most probable result of an indefinite detention order now is that a person so detained will only be released when, by reason of advanced age or infirmity, he or she is physically incapable of committing an offence.
[14] Thomas v Attorney-General (SA) (2019) 133 SASR 302, [48] (Kourakis CJ, with whom Nicholson and Parker JJ agreed).
Prior to the Sentencing (Release on Licence) Amendment Act 2018 (SA), the paramount consideration for the Court when exercising its discretion under s 58 or s 59 was whether the protection of the community was adequately ensured. As Hinton J explained in Attorney-General (SA) v Duroux:[15]
… the extent to which the individual truly developed insight into their sexual interest and that it is wrong and harmful, embraced treatment and had the benefit of being surrounded by protective factors upon release, were critical to the assessment of future risk and the individual’s prospects of release on licence. Discharge then turned on the proven and repeated deployment of the skills learned in treatment. Release on licence and discharge accepted that risk existed, but, in all the circumstances, gains made in treatment and the existence of and maintenance of protective factors were apt to ensure adequate protection of the community having regard to the risk and the weight to be afforded to the liberty of the subject.
[15] Attorney-General (SA) v Duroux (2019) 278 A Crim R 375, [19].
The insertion of sub-section (1a) has radically narrowed the scope of ss 58 and 59. The mere declaration of a protective purpose does not alter the fundamentally preventative quality of the present indefinite detention order scheme. No longer can a person considered unwilling or incapable of controlling his or her sexual instincts, but in relation to whom it is unnecessary to detain indefinitely in order to protect the community or ensure treatment, be discharged or released on licence. Put differently, even if the Court was in a position to conclude that a less intrusive restraint (such as extended supervision), was available and adequate to protect the safety of the community, a person cannot be discharged or released on licence if they are unwilling to, or incapable of, controlling sexual instincts.
The touchstone for the operation of these provisions is not determined according to whether the liberty of the person can be constrained to no greater extent than is necessary to ensure adequate protection of the safety of the community. However, on occasion, this Court has rejected a s 57 application in the exercise of its discretion, and made an order under s 7 of the High Risk Offenders Act instead.
Human Rights issues
Mr Driver contended that the making of an indefinite detention order under s 57 of the Sentencing Act will strip him of his fundamental human rights and, in consequence, I should not make an indefinite detention order. I was referred to Thomas v Attorney-General (SA) where Kourakis CJ identified a tension between ss 57 and 58, and Article 9 of the International Covenant on Civil and Political Rights (ICCPR), which provides for the right to liberty and security, and the right against arbitrary arrest or detention:[16]
The draconian consequence of an indefinite detention order emphasises the importance of carefully weighing the competing public policy considerations to which I referred in R v Humphrys before deciding whether or not to make an indefinite detention order pursuant to s 57 of the Sentencing Act 2017.
[16] Thomas v Attorney-General (SA) (2019) 133 SASR 302, [43], [48]-[49] (Kourakis CJ with whom Nicholson and Parker JJ agreed).
In R v Humphrys, Kourakis CJ outlined relevant public policy considerations as follows:[17]
In enacting ss 23 and 24 of the Sentencing Act, Parliament … chose … to confer a judicial discretion on this Court. By so doing, Parliament must be taken to have intended that the courts would exercise the discretion consistently with the principle of legality, because that principle is fundamental to the exercise of judicial power. That principle requires this Court, subject to clear legislative direction to the contrary, to have regard to common law rights and liberties including the principle that restraints on liberty should not exceed that which is necessary and justifiable in a civilised society ordered by the rule of law. Ultimately, both the common law and s 24(1b) recognise that the safety of the community may provide that justification.
[17] R v Humphrys (2018) 131 SASR 344, [12] (Kourakis CJ, with whom Vanstone and Nicholson JJ agreed).
In my view, Kourakis CJ’s comments do not require the Court to consider human rights as articulated in the ICCPR when considering whether to make an order under s 57 of the Act. That would be contrary to the approach adopted by the High Court in Al-Kateb v Godwin.[18] There, a majority of the High Court found that, in the process of statutory interpretation, primacy must be given to the natural and ordinary meaning of the words used.[19] While statutes should be interpreted and applied in a manner consistent with established rules of international law,[20] they can only be interpreted consistently with international law “so far as the language permits”.
[18] Al-Kateb v Godwin (2004) 219 CLR 562.
[19] See also R v A2 (2019) 93 ALJR 1106, [52] (Kiefel CJ and Keane J).
[20] See Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54.
In Al-Kateb v Godwin, McHugh J explained why it is necessary to first determine whether the statutory language recognises the relevant international law obligation:[21]
Given the widespread nature of the sources of international law under modern conditions, it is impossible to believe that, when the parliament now legislates, it has in mind or is even aware of all the rules of international law. Legislators intend their enactments to be given effect according to their natural and ordinary meaning. Most of them would be surprised to find that an enactment had a meaning inconsistent with the meaning they thought it had because of a rule of international law which they did not know and could not find without the assistance of a lawyer specialising in international law or, in the case of a treaty, by reference to the proceedings of the Joint Standing Committee on Treaties.
[21] Al-Kateb v Godwin (2004) 219 CLR 562, [65].
Hayne J likewise emphasised the necessity for construction to be governed by the language used:[22]
“… [the section] should, so far as the language permits, be interpreted and applied in a manner consistent with established rules of international law and in a manner which accords with Australia’s treaty obligations” (emphasis added). ... There would appear to be circularity of reasoning in asserting that the detention is not lawfully authorised by [the section] because, if it were not lawfully authorised by that section, it would breach the obligations undertaken by Australia in Art 9 of the ICCPR that “[n]o one … be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”.
[22] Al-Kateb v Godwin (2004) 219 CLR 562, [238].
And, according to Callinan J:[23]
The appellant also submits that the intent of Parliament should be interpreted by this Court in a manner that is consistent with Australia’s “international obligations” ...
These submissions cannot be accepted. The statutory language is clear and unambiguous. It leaves no room for any implications … Nor is a presumption, assuming it should be made, against legislation that is contrary to an international obligation, sufficient to displace the clear and unambiguous words of Parliament.
[23] Al-Kateb v Godwin (2004) 219 CLR 562, [297]-[298].
Rather, as Kourakis CJ makes clear in R v Humphrys, a Court exercising the discretion to make an order under s 57 must do so in accordance with the principle of legality. That is, the Court must consider the respondent’s “common law rights and liberties including the principle that restraints on liberty should not exceed that which is necessary”, together with the general impact upon the respondent of making an indefinite detention order.[24]
[24] R v Humphrys (2018) 131 SASR 344, [12].
The principle of legality, and the way in which it affects the process of statutory interpretation concerning these provisions of the Sentencing Act, were recently considered by the Court of Appeal in Wichen v The Queen.[25] Notwithstanding the principle of legality, and the presumption that legislation will be interpreted and applied in a manner consistent with established rules of international law, the language here is clear and intractable.
[25] Wichen v The Queen [2021] SASCA 30, [24]-[38] (Kelly P, Lovell and Bleby JJA).
As other cases in this Court show, after having regard to the terms of these provisions, and in the exercise of the discretion conferred by s 57, that may well require that the question of indefinite detention be declined or deferred. On occasion, as I have indicated, consideration has been given to the utility of an extended supervision order made under s 7 of the High Risk Offenders Act.
Proposal to allow the respondent to leave South Australia
Mr Driver contended, as an alternative to an indefinite detention order, that I consider making an extended supervision order under s 7 of the High Risk Offenders Act which would permit him to leave South Australia to return to his traditional homeland in the Northern Territory.
It was contended that allowing Mr Driver to reconnect with his traditional land and family will reduce the likelihood that he will reoffend, especially because he fears the traditional punishment of spearing. Reference was made to Attorney‑General (SA) v Pennington. In that case, a similar proposal was put forward in respect of an indigenous man whose traditional lands were in Western Australia. Kelly J rejected that proposal as being beyond the jurisdiction of this Court, as well as rendering effective supervision impossible:[26]
The applicant submits that the terms of the ESO proposed by the respondent are outside the scope of the Court’s jurisdiction, would render effective supervision of the respondent impossible when he is absent from South Australia, and would not effectively protect the safety of the community.
While a person subject to an ESO is bound to comply with its terms and conditions regardless of where they are located, the relevant supervisory agencies, that is, the supervising Community Corrections Officer and the Parole Board, have no jurisdiction to enforce the ESO while that person is outside of South Australia.
Furthermore, there exists no reciprocal arrangement between the relevant South Australian agencies and other interstate agencies in Australia whereby the supervisory requirements of an ESO may be transferred to an equivalent agency within another state. Any supervision undertaken by authorities outside the jurisdiction would be reliant on the willingness of those agencies to informally assist the Department for Correctional Services and/or the Parole Board.
An ESO granted by this Court, therefore, is not binding on any interstate authorities so as to require them to act in any supervisory or enforcement capacity outside of the jurisdiction.
In summary, neither the Department for Correctional Services or the Parole Board, which are charged with the duty to supervise and enforce compliance with an ESO, are empowered to do that while the respondent is outside of South Australia. Therefore, I accept the applicant’s submission that to make an ESO in the terms requested by the respondent would be outside the scope of this Court’s jurisdiction and would render effective supervision of the respondent impossible when he is absent from South Australia.
[26] Attorney-General (SA) v Pennington [2019] SASC 180, [29]-[33].
In submissions before me, the Attorney emphasised this ruling and submitted that the High Risk Offenders Act was never intended to form part of a nationwide extended supervision order scheme. Importantly, it is not equipped to do so. The Attorney contended that the legislation evinces no intention to operate extraterritorially and does not purport to confer powers upon those who administer its provisions beyond South Australia.
I may commence with the presumption that legislation is not intended to apply extra-territorially,[27] though that can be displaced by a contrary intention clearly expressed by the statute.[28] In my view, no relevant intention can be found within the High Risk Offenders Act.
[27] Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309, 363; Morgan v White (1912) 15 CLR 1; Meyer Heine Pty Ltd v China Navigation Co Ltd (1966) 115 CLR 10, 23, 30-31, 38, 43; Walker v New South Wales (1994) 182 CLR 45, 49-50; Chubb Insurance Co of Australia Ltd v Moore (2013) 302 ALR 101, [144].
[28] See for example the Cross-border Justice Act 2009 (SA). That Act does not address orders made under the Criminal Law (High Risk Offenders) Act. It only concerns orders made or issued against a person who has a connection with the cross-border region defined by regulation: s 30(5). Similar restrictions relate to the arrest powers contained in s 32 and 33 and the powers of Community Corrections Officers under s 109(2). The respondent’s proposed Tennant Creek arrangements are far north or the cross-border region.

As a corollary to the presumption just mentioned, there are presumptions that an offence is not presumed to proscribe conduct occurring outside the territory of the legislature,[29] and references in State legislation to “proceedings”, “offences” and “officers” are ordinarily construed as references to those things or officers being of that State, rather than of any other State, Territory or the Commonwealth.[30] Accordingly, I accept that the reference to “police” in the High Risk Offenders Act must mean South Australia Police and the reference to the “Supreme Court” must mean the “Supreme Court of South Australia”. Likewise, the reference to a “community corrections officer” must be a reference to an employee of the South Australian Department of Correctional Services. Indeed, a relevant contrary intention is expressed in s 4(2) where the definition of “Attorney-General” is explicitly extended to include the Commonwealth Attorney-General in the case of certain terrorism-related cases.
[29] Grannall v C Geo Kellaway & Sons Pty Ltd (1955) 93 CLR 36, 52-54; Thompson v The Queen (1989) 169 CLR 1; Lipohar v The Queen (1999) 200 CLR 485, 15 [23].
[30] Seaegg v The King (1933) 48 CLR 251, 255; Solomons v District Court of New South Wales (2002) 211 CLR 119, [9].
In my opinion, the High Risk Offenders Act was not intended to operate outside South Australia.
Not only does the High Risk Offenders Act not purport to operate outside South Australia, but the key tenet of any extended supervision order made under it is that the person subject to the order remain under the supervision of a community corrections officer and obey that officer’s reasonable directions.[31] By s 4(1), a “community corrections officer” is defined to mean an officer or employee of the administrative unit of the public service. That is, an officer working under a Minister responsible for the administration of the Correctional Services Act 1982 (SA), where the officer’s duties include the supervision of offenders in the community.
[31] Criminal Law (High Risk Offenders Act 2015) (SA), s 10(1)(d).
In my view, and bearing in mind the presumption against extra-territoriality, there is no scope for a person employed by some equivalent interstate or Northern Territory authority to be regarded as a community corrections officer for the purposes of supervising and directing persons subject to an extended supervision order made under the High Risk Offenders Act.
In consequence, it is difficult to see how Mr Driver could be effectively supervised in the Northern Territory.
Quite apart from an absence of effective supervision, in the event that it was determined that Mr Driver had breached the terms of his extended supervision order, there would arise an issue as to whether he could effectively be sanctioned. Depending on the breach, that may require arrest and return to South Australia. Unless these steps can be taken quickly and effectively, the scheme cannot be appropriately enforced.
Ordinarily, a warrant is issued pursuant to s 15(1) of the High Risk Offenders Act by the Presiding Member or Deputy Presiding Member of the Parole Board if they suspect on reasonable grounds that the respondent has breached a condition of the relevant order. The warrant then authorises the detention of the person in custody pending an appearance before the Parole Board.[32] Otherwise, a warrant may be issued on the application of the Parole Board or a police officer to a Magistrate.[33] Assuming for the moment that the Parole Board or a South Australian police officer became aware of a breach of the order in the Northern Territory, the warrant would ordinarily only authorise arrest by South Australia Police, or perhaps also the Sheriff of South Australia, in South Australia.
[32] Criminal Law (High Risk Offenders Act 2015) (SA), s 15(5).
[33] Criminal Law (High Risk Offenders Act 2015) (SA), ss 15(2)(b)(ii) and 15(3)(b).
Whilst Part 5 of the Service and Execution of Process Act 1992 (Cth) establishes a scheme for the arrest of persons the subject of warrants issued interstate, it is far from clear whether warrants issued by the Presiding Member or Deputy Presiding Member of the Parole Board are executable interstate, though warrants issued by a Magistrate may be executable interstate. Broadly, Division 1 of Part 5 of the Service and Execution of Process Act 1992 (Cth) applies to “all warrants other than warrants issued by tribunals”.[34] Neither the Presiding Member nor the Deputy Presiding Member of the Parole Board are defined as a relevant “authority” under s 81A, because neither is a body prescribed in the regulations to that Act. Although Division 2 of Part 5 applies to warrants issued by a “tribunal”, that is confined to a tribunal’s adjudicative or investigative functions.[35]
[34] Service and Execution of Process Act 1992 (Cth), s 81.
[35] Service and Execution of Process Act 1992 (Cth), ss 3 and 91.
I accept that the Supreme Court might make an order under s 93 of the Service and Execution of Process Act 1992 (Cth) if the Presiding Member or Deputy Presiding Member of the Parole Board may be considered a relevant “tribunal”. Even assuming a warrant for arrest could be issued, it would still be necessary for apprehension by a member of Northern Territory Police, a Northern Territory Sheriff’s Officer or a member of the Australian Federal Police, which must be followed by an appearance before a Northern Territory Magistrate as soon as practicable for the purposes of considering extradition. It is sufficiently clear from what I have said that the scheme would operate interstate, at best, in a cumbersome and unwieldy fashion.
Accordingly, and as the evidence from Ms Nelson QC demonstrates, if Mr Driver was allowed to reside in the Northern Territory, he would effectively not be subject to any supervision. And, consistently with what I have just described, one may doubt whether any warrant issued by or on the application of the Presiding Member or Deputy Presiding Member or the Parole Board would operate as an efficient or effective means of sanctioning any breach committed in the Northern Territory.
In my opinion, and quite apart from whether there is power to permit interstate residence, these considerations demonstrate that an extended supervision order permitting Mr Driver to reside in the Northern Territory would likely render the order futile because there would be no effective supervision and effectively no capacity to sanction or enforce in the event of a breach of that order.
Anticipating these difficulties, Mr Driver led evidence from Mr Lewis Charles, an uncle who is in his seventies and a traditional Warlpiri man. That evidence is to the effect that he believes he can supervise Mr Driver.
Mr Charles explains that Mr Driver is the full-blood grandson of his eldest sister and he has known Mr Driver since he was a baby. Under Aboriginal law, Mr Charles is senior to Mr Driver “and he has to do what I say”. Mr Charles would, if Mr Driver were released to the Northern Territory, look after Mr Driver with the rest of his family. He proposes that Mr Driver move to the Karlantijpa out‑station in the bush near Tennant Creek. That is, on Mr Charles’ traditional homeland. There, Mr Charles would take Mr Driver hunting and teach him “our law”. Mr Charles believes that he can teach Mr Driver what he knows and “that will help him”. He would only take Mr Driver into town for shopping and medical appointments. Mr Driver would not be left unaccompanied.
I have no reason to doubt the sincerity of Mr Driver’s relatives or the benefits of Mr Driver re-engaging with his traditional family and homeland. I accept unreservedly that these are important matters.
There is no evidence that electronic monitoring would be effective in a remote out-station near Tennant Creek. Even if Mr Charles performed an informal supervisory role, that would still require that he be in a position to make swift contact with the Parole Board in the event he became aware of a breach of any of the terms of an extended supervision order. Even assuming that Mr Charles presently has the capacity to supervise, he is now in his seventies and his continued capacity to do so cannot be assumed. Speaking generally, Mr Charles has no lawful right to arrest or restrain Mr Driver in the event of a breach of any of the terms of an extended supervision order.
More fundamentally, however, even if I thought that there was power to make an extended supervision order which operated in the Northern Territory (which I do not), and even if I thought that an order might be practically effective (which I do not), it is in my view inappropriate to simply move Mr Driver into another jurisdiction. In circumstances where, for the purposes of this analysis, I must assume that the Court finds that it is necessary that Mr Driver should be subjected to an extended supervision order of some duration, it would be inappropriate to release Mr Driver interstate where, in the absence of effective supervision, sanction or enforcement, I cannot be satisfied that the safety of the community could be protected.[36] The High Risk Offenders Act makes this consideration “paramount”.[37]
[36] Leaving to one side how one might define “the community” for these purposes.
[37] Criminal Law (High Risk Offenders Act) 2015 (SA), s 7(5).
In my opinion, an extended supervision order permitting Mr Driver to leave South Australia to return to his traditional homeland in the Northern Territory is beyond power and, in any event, inappropriate.
Mr Driver’s personal circumstances
Mr Driver has been in custody since 7 July 2009, when he was 18 years and eight months of age.
Throughout his life, Mr Driver’s parents were heavy drinkers. It has been suggested that he was subjected to a degree of neglect. However, Mr Driver enjoyed his childhood and home-life in the Northern Territory, which consisted of a traditional Aboriginal lifestyle, except for an 18-month period spent with family members in Adelaide.[38]
[38] Psychiatric report of Dr Raeside, dated 31 January 2011, p 5.
At school, Mr Driver suffered moderate hearing loss and underwent speech pathology to address poor articulation and reluctance to speak in the classroom. He had poor levels of literacy and numeracy and, overall, he presented as shy and anxious. It was believed that Mr Driver had a learning disability, rather than an intellectual disability, arising from “cultural, limited education, hearing difficulties, and some emotional adjustment problems interfering with his motivation and learning”.[39]
[39] Psychiatric report of Dr Raeside, dated 31 January 2011, p 6.
Mr Driver reported to Dr Raeside that, around age ten, on one occasion he was sexually molested by other children. In his interview with Dr Brereton in 2011, Mr Driver told Dr Brereton that when he was eight years old, and playing with other children aged eight and nine, he was raped by one of the girls. He said it was an unpleasant experience. Mr Driver then told Dr Brereton that at the age of ten he had been raped once by one of his older brothers, but that his grandfather stopped it from occurring again.
Mr Driver began getting into trouble at school for fighting and swearing at teachers, causing him to be suspended on multiple occasions. However, Mr Driver also reported being isolated and bullied at school.[40] At age 13, he left Tennant Creek and moved to Adelaide to attend a different school. However, Mr Driver continued to be involved in fights and was again suspended. At 14, he returned home to the Northern Territory for traditional initiation into manhood. At that age, he also began watching pornography.
[40] Psychiatric report of Dr Brereton, dated 29 April 2020, [2.38].
Mr Driver’s feelings of isolation continued into adulthood. He remained reticent and he experienced negative emotions and feelings of social rejection. Mr Driver experienced difficulty regarding relationships with others, including sexual relationships. He had poor judgment regarding those relationships. He also had poor boundaries in relation to his impersonal sexual outlets, namely pornography and sexual preoccupations.[41]
[41] Psychiatric report of Dr Brereton, dated 29 April 2020, [2.38].
After arrest, Mr Driver settled into prison, but struggled to communicate with prison officers.[42]
[42] DCS Pre-Sentence Report of G Ramsay, dated 13 December 2010.
Mr Driver appeared to have been ostracised by all cultural groups, and it was suggested that this was the result of his poor communication skills and, at times, his poor hygiene. Nevertheless, he received some support from Elders within the prison unit and he continued to communicate with family on the telephone.[43] Mr Driver consistently worked in the nursery and joinery, and regularly attended education sessions, including reading simple texts. Mr Driver showed some improvement.
[43] DCS Sentence Management Unit Summary of N Billing and C Sim, dated 5 January 2017.
Mr Driver has been described as a prisoner who follows the rules, keeps out of trouble and has not returned any positive drug tests. Overall, his behaviour in prison is reported as “good”.
Mr Driver has a past history of occasional cannabis use and significant alcohol consumption on a daily basis. He also suffers Type 2 Diabetes, which is controlled by oral medication and diet. Mr Driver has denied any other physical or mental problems.
Criminal antecedents
Prior to the offending earlier outlined, Mr Driver had no convictions. When giving his sentencing remarks, the sentencing Judge said that Mr Driver lacked empathy for his victims:
All of your victims, especially those who were sexually attacked, have suffered trauma which will remain with them for the rest of their lives. Their victim impact statements outline how their lives have been affected and it is noteworthy that, from the psychiatric and psychological reports that I have, one of the characteristics of your behaviour is that you have no understanding of the state of mind and the position and the fear of your victims. In other words, you have no empathy with them.
At the time of sentencing, the Director initially applied for, but withdrew, an application for indefinite detention pursuant to s 23 of the CL(S)A.[44] Although the evidence was capable of suggesting that, at that time, Mr Driver was unwilling to control his sexual instincts, it was ultimately thought “premature” to make the application. However, in preparation for that application, evidence was obtained from Dr Raeside and Dr Brereton.
[44] Although the Court of Criminal Appeal suggested that this application and another were dismissed, that is not the information supplied on this hearing. It is not necessary to resolve the conflict.
There has never been any diagnosis of a psychiatric or psychological condition relevant to Mr Driver’s offending. I shall return to the psychiatric evidence.
At the time of sentencing, there was also evidence from Mr Mark Reid, a neuropsychologist, disclosing that Mr Driver had a verbal intellectual level within the borderline range of intellectual ability, that is to say, an IQ in the range 70 to 80. This puts him within the bottom 9% of the population. However, his non-verbal intellectual skills were generally in the low-average range, being an IQ range of 80 to 89. Though he expressed the opinion that Mr Driver had a learning disability, there was no neuropsychological evidence to suggest an inability to control behaviour. Rather, Mr Driver’s below average intellectual level, lack of social skills and underlying anger were more likely to lead to reduced or poorly controlled behaviour rather than a total inability to control behaviour.
Treatment received by Mr Driver
Mr Driver’s only rehabilitation has occurred in prison between 2009 and 2020, consisting of just over 70 hours of a modified “Sexual Behaviour Clinic – me” (SBC-me) and as a result, his risk was lowered from very high to high.[45]
[45] DCS Sexual Behaviour Clinic Post-Treatment Assessment Summary of Dr Y Woldgabreal and C Sim, dated 15 May 2017.
By 29 May 2017, Mr Driver had completed nine, individual one-hour SBC-me sessions that aimed to build “a therapeutic alliance”. Mr Driver engaged well in these sessions, but progressed slowly due to his communication difficulties.[46]
[46] DCS Sexual Behaviour Clinic Progress Minute of Dr Y Woldgabreal and C Sim, dated 29 May 2017.
The Post-Treatment Assessment dated 15 May 2018 outlines that Mr Driver completed 47 individual sessions between February 2017 and May 2018, with each session occupying approximately one and a half hours. Since his SBC treatment ended more than three years ago, Mr Driver has not received any counselling, psychological or behavioural therapy services.
On 26 February 2021, I was informed that in the period between 5 May 2018 and February 2021, Mr Driver had only met with a mental health practitioner once. This meeting was very brief, and was for the purpose of a general welfare check in light of recent media coverage surrounding Mr Driver’s legal matters. It did not address Mr Driver’s treatment needs. The purpose of the meeting was simply to remind Mr Driver of the support networks in place and the benefits of utilising these systems.
On 12 March 2021, I was advised that the Department for Correctional Services Rehabilitations Programs Branch management team met to review Mr Driver’s position on 3 March 2021. It was noted that between 24 February 2018 and 3 May 2018, Mr Driver undertook 71 hours of individual treatment with a rehabilitation programs branch clinician for sexual offending. However, Mr Driver did not retain whatever information he was able to take in on a long-term basis. He could not later reproduce it. The branch concluded that, from a psychological perspective, there were major barriers to Mr Driver’s capacity to engage in, or benefit from, further psychological intervention. These include impaired cognitive processing and language skills, cognitive impairment and difficulties staff encountered when engaging in culturally appropriate sexual offending work with a traditional Aboriginal man.
On that basis, no imminent psychological intervention is planned for Mr Driver. The focus is upon exploring audiology and speech pathology and delivering educational programs attempting to advance Mr Driver’s low-level literacy and numeracy skills. There will also be attempts at vocational education in areas like horticulture.
Whilst it is accepted that none of this directly addresses Mr Driver’s sexual recidivism, it may improve his prospects of absorbing, retaining and reproducing what he has learned. This might possibly facilitate more useful psychological intervention in the future.
The Department for Correctional Services is conscious that the next logical step is anti-libidinal medication. That is a serious step. It is not performed by the Department and it would be necessary to refer Mr Driver to a forensic mental health services psychiatrist within the Department of Health. That treatment would be dependent upon the result of a physical assessment and would be ongoing, supervised treatment for the rest of Mr Driver’s life. It would operate to prevent physical arousal but would not operate to suppress mental sexual drive. It would have side effects for Mr Driver’s weight and physical appearance. He may become more feminine and experience facial hair loss. Most importantly, it would require Mr Driver’s informed consent, which in the circumstances of this matter, would be problematic. It may require the appointment of a guardian or applications for compulsory treatment orders.
On the evidence before me, I can find only that there is unlikely to be any effective treatment or therapy for Mr Driver on a medium to long-term basis, and the prospect of anti-libidinal medication being used is, at best, uncertain.
The medical evidence
I have already indicated my general acceptance of the evidence given by the psychiatrists and the psychologist in this matter. I have also indicated my preference for the evidence of Dr Raeside and Dr Brereton, particularly where it differs from Mr Balfour. However, in the main, none of the experts regarded Mr Driver as being other than at high risk of further sexual offending.

As will be seen, that risk is regarded by all experts as heightened if one accepts the statement apparently made by Mr Driver to Dr Raeside for the purposes of his 2011 report that Mr Driver has raped other women, but that he has never been apprehended for those offences.[47]
[47] Psychiatric Report of Dr Craig Raeside dated 31 January 2011, p 12.
Whilst I have been greatly assisted by this evidence, it is important to remember that whether Mr Driver comes within the terms of the statutory scheme is a matter for me to address. Whether I should exercise my discretion in favour of making an order under s 57 is, likewise, a matter for me to address. Whilst I might be assisted by the expert evidence, the evidence cannot determine the requirements of the Sentencing Act or the exercise of discretion required under it.
Dr William Brereton
Dr Brereton is a consultant forensic psychiatrist with forensic mental health services in South Australia, as well as a clinical lecturer at the University of Adelaide. He is a member or fellow of the Colleges of Psychiatry in both the United Kingdom and Australia. He commenced training in psychiatry more than 20 years ago and has worked in the field of forensic psychiatry since 2003.
Dr Brereton first examined Mr Driver more than 10 years ago and produced a report on 10 February 2011. Mr Driver told Dr Brereton that he had spent much of his childhood in the Northern Territory and that his parents were heavy drinkers of alcohol. He got into trouble for stealing, fighting and swearing. He was suspended from school. He left Tennant Creek at the age of 13 and moved to Adelaide to live with family. At his new school in Adelaide he continued to get into trouble for fighting and was again suspended.
Mr Driver commenced using cannabis occasionally at the age of 15, but he denied regular use. He started drinking alcohol at 17. Whilst not drinking every day, he “regularly drinks 20 bottles of [beer] in a night”.
Mr Driver admitted to Dr Brereton that he had fantasies about hurting women during sex and he also admitted intending to rape both of the women he attacked in the Linear Park. Mr Driver attributed his behaviour to watching pornography. He explained to Dr Brereton that he thought that rape was a “bad thing”. When asked directly, he replied that: “[y]ou shouldn’t rape people … because you’ll get arrested”. Nonetheless, Mr Driver could not explain how he might avoid reoffending. He said that he would “smoke Ganja and watch TV a lot”.
Dr Brereton found that Mr Driver had little understanding of the effect of his offending or, indeed, its causes.
Dr Brereton was particularly concerned that during the rape inside the house, Mr Driver continued to assault his victim despite knowing that her friends had arrived and that they had commenced knocking on the bedroom window. Likewise, he was concerned about the indecent assaults because they indicated a willingness to persist in offending in a public place in a brazen manner despite the consequences.
Dr Brereton concluded that Mr Driver was unwilling to control his sexual instincts and he was reserved about Mr Driver’s capacity to benefit from any rehabilitation.
For the purposes of his 29 April 2020 report, after considering the large body of material compiled concerning Mr Driver, and noting that Mr Driver might have a presentation complicated by cultural issues making it difficult for him to discuss sexual behaviour, Dr Brereton considered the psychiatric report prepared by Dr Burgess and Dr Nambiar dated 12 April 2019, based on an interview during February 2019. This was a report requested in connection with a parole application. Mr Driver told Dr Burgess that he intended to remain abstinent from alcohol but he would resume using marijuana which he had last used some years before in the Port Augusta prison. Mr Driver explained that he found marijuana helpful to watch TV and to fall asleep.
When asked directly about his sexual history, Mr Driver could only identify anger as a precipitating factor but said it was no longer “a problem”. He was reluctant and uncomfortable to discuss his sexual history. Nonetheless, he said that he had masturbated once a day over television content and denied fantasies involving rape. When asked about what he had learnt at the Sexual Behaviour Clinic, he said he did not know.
Although there was a discussion about anti-libidinal medication, Dr Burgess was not satisfied that Mr Driver understood what was discussed. Generally, Mr Driver’s presentation was of a person who was uncomfortable, difficult to understand and who gave minimal responses. He appeared to misunderstand some questions and Dr Burgess was concerned that some of Mr Driver’s answers may be unreliable.
Although Dr Brereton reviewed Dr Raeside’s reports in some detail, I shall defer consideration of those to my discussion of Dr Raeside’s evidence generally.
Dr Brereton interviewed Mr Driver on 1 April 2020 over an audio-visual link whilst he was in the Yatala Labour prison. Mr Driver could not remember seeing Dr Brereton for the purposes of the 2011 report.
When asked whether Mr Driver consented to proceed with the interview for the purposes of determining a detention order, Mr Driver grunted. When asked to repeat back what had just been explained, Mr Driver refused. When discussing detention, Mr Driver said that prison was “alright” but that he would rather be released.
Mr Driver’s presentation was as before. He gave minimal responses and only responded to direct questions. He tended to speak in a rapid, mumbling manner and he was keen to end the interview. There was no objective evidence of any psychiatric illness.
It took a handful of questions for Mr Driver to explain why he had been imprisoned. Initially he said only that he had been “charged with offending”, before saying to Dr Brereton that there was “a rape charge” and, eventually, he agreed that there had been additional charges for sexual offending.
Mr Driver has been detained in the Remand Centre, the Port Augusta prison and Yatala Labour prison. Whilst at Port Augusta he worked in the nursery and gardens. Mr Driver described some telephone contact with an aunty and he told Dr Brereton that he wanted to return to the Northern Territory to be with his family, mentioning two sisters and two brothers.
When Mr Driver was asked what he had learnt from working with a psychologist, he answered that it was important for him to work in the nursery and get paid. Mr Driver explained to Dr Brereton that he offended because he was bored.
When asked why rape is wrong, Mr Driver said: “because you end up in prison”. When asked whether there was any other reason that rape might be thought wrong, Mr Driver said: “I don’t know”. When asked about the effect of his offending on victims, Mr Driver said: “I don’t know”. When pressed for another response, he became irritated. Mr Driver said that he did not want to talk about it because “I’ve done it before over and over”. He said that he should not have to talk about it because “I’ve been in prison a long time”. He refused to continue the discussion.
When asked about how he might prevent reoffending, Mr Driver said: “Get a job”. When asked about other means of reducing his risk in the community, Mr Driver said: “Moving on, get a new life”.
When asked directly about sexual thoughts and arousal, Mr Driver said that he never masturbates, and that while he watches movies he never has sexual thoughts. When Dr Brereton told Mr Driver that he believed that this was unlikely, Mr Driver said “sometimes, then”. He then said he masturbates every week.
Dr Brereton found it difficult to discuss the nature of Mr Driver’s sexual thoughts. When Mr Driver was initially questioned, he gave no response. When Mr Driver was asked whether he ever thinks about his offence when thinking of sexual thoughts, he said “yes”, but that he did not masturbate when thinking about the offence. He avoids these thoughts by watching television or playing video games. When he was asked directly whether he ever had thoughts of rape or hurting others while masturbating, he initially agreed, but then said “no”. Mr Driver then repeated that that he does not think about sex at all. He said that he thinks about his family because “I’ve been in prison a long time”.
Whilst Mr Driver thought that the pornography that he had watched prior to his offending involved violence, he was not clear. He had not been drinking alcohol before his offending. After considerable prompting and support from Dr Brereton, Mr Driver eventually acknowledged that, in order to control his sexual urges, he would need to “stay away from trouble … no more drinking [and] no watching porno”.
Mr Driver could not identify what had gone wrong in his life previously and thought that he would be fine as long as he stayed with his family. When asked about his victims, Mr Driver said that his victim may have felt “upset” and may not “have any fun”. There were no further comments.
Dr Brereton expressed the view that, despite 71 hours of Sexual Behaviour Clinic treatment, Mr Driver’s risk remained “high”, albeit not “very high”. Extensive and well-coordinated external measures would be required to manage Mr Driver’s risk in the community. Dr Brereton acknowledged that Mr Driver had a great deal of difficulty discussing sexual thoughts and urges and had given inconsistent and minimal accounts. He could not express victim empathy.
Dr Brereton found taking a history from Mr Driver and assessing his risk to be difficult because of his “personality, education levels and communication skills … exacerbated by cultural issues”. Nonetheless, Dr Brereton expressed the view that there are “strong indications [Mr Driver] has not maintained the gains reported in his individual treatment”. He expressed concrete thinking, namely, that it was wrong to commit rape because you end up in prison. Importantly:
If Mr Driver cannot articulate plans to minimise his risk without intensive 1:1 support, his ability to autonomously implement appropriate measures is doubtful. Mr Driver may be disadvantaged by his limited capacity and willingness to engage with relatively brief assessments but, in practical terms, the level of support he requires to engage may not be available in the community and its efficacy would be uncertain.
In the opinion of Dr Brereton, Mr Driver has no meaningful understanding of the effects of his offending on others and he reverts to a concrete manner of thinking that rape is wrong simply because he will be imprisoned. According to Dr Brereton:
Mr Driver’s resistance to discussing his sexual thoughts is a significant ongoing issue. Mr Driver’s emotional regulation does not appear to be a source of problems. His difficulty with relationships with others, including intimate relationships, means risks related to isolation and low self-esteem remain significant. Mr Driver’s problem-solving and life management skills also remain a significant risk. He would need significant external supports to establish stability in the community … and, as Dr Raeside noted, his years of incarceration will cause his problems reintegrating back into the community …
… in my opinion, Mr Driver is [at] high risk of sexual reoffending. Despite his impaired communication and poor coping skills, I do not believe he is incapable of controlling his sexual instincts. I do believe there is a significant risk that Mr Driver would, given an opportunity … fail to exercise appropriate control of his sexual instincts. Therefore, within the meaning of Section 57 of the Sentencing Act 2017, in my opinion, Mr Driver is unwilling to control his sexual instincts.
In the course of his evidence on 21 August 2020, Dr Brereton explained why, in his opinion, Mr Driver is capable, but not willing to, control his sexual instincts:
The primary motivation that’s come through both my assessments and looking at the assessments of others is he has a primary arousal pattern of sexual interest in hurting other people during sex and rape and that is then compounded by his poor ability to benefit from therapy and intervention to manage that urge.
Dr Brereton went on to explain that he had been told by Mr Driver that he had been thinking about breaking into someone’s house with the intention of raping them for weeks beforehand, although he subsequently retreated from that position.
That Mr Driver was prepared to break into a house to rape someone showed that there was “quite a drive” and he was willing to persist even when discovered, showing that “once he formed the idea of offending he was strongly driven to then carry it out”. Similarly, Mr Driver was motivated to rape the two women he attacked in the Linear Park. In the opinion of Dr Brereton, Mr Driver’s “drive is sexual pleasure through violence or rape” and, unlike others, Mr Driver will act on these proclivities and is not inhibited from doing so by internal controls such as judging the wrongfulness of the behaviour or thinking through the consequences. In Mr Driver, these controls “don’t seem to be very well developed” because he has a tendency to think, in a concrete manner, only “well if I do this I might end up in prison”.
Whilst Dr Brereton did not believe that Mr Driver was unable to develop insight, this was difficult for him because of his verbal deficits. Whereas others might develop insight through group sexual behaviour treatment programs involving peers and guidance by therapists, that is not something that Mr Driver can undertake because his verbal deficits are so profound that he cannot participate in a group setting.
Accordingly, though there had been some better understanding developed of the wrongfulness of rape during Sexual Behaviour Clinic treatment as a result of “one-on-one” sessions, this was not reproduced during later assessments, for example, by Dr Burgess, Dr Raeside or Mr Balfour.
My impression during Dr Brereton’s evidence was that Dr Brereton was very concerned about the statements made by Mr Driver to Mr Balfour that he liked the idea of rape “a little bit” and that after committing rape, he felt “good”. In addition, as Dr Brereton explained it:
Mr Driver’s experienced quite a lot of social economic deprivation. He has had a lot of disability as a result of his poor hearing and his communication problems. And so, during his life, his ability to occupy himself with work, his ability to establish a healthy sexual relationship or relationship of any kind have all been impeded. So that’s another area of concern … So the chances of him being able to manage his life in such a way that would be more fulfilling, more productive, less boring, he’s got a number of deficits in that area as well.
Dr Brereton was concerned that there had been little change in Mr Driver’s presentation between the examination for the purposes of the 2011 report and the most recent examination and, though some had claimed that Mr Driver’s dynamic risk factors had improved and his problem-solving skills had improved, as had his concern or empathy towards others, Dr Brereton found little evidence of these improvements. Mr Driver could not reproduce in a significant or meaningful way the benefits of his therapy, treatment and education.
To an extent, Dr Brereton thought Mr Driver’s pattern of thinking reflected regression to a previous pattern of thinking about sexual offending. This demonstrated, he explained, that even if Mr Driver had the requisite degree of “one-to-one” support, that would need to be maintained in order to maintain any change in attitude. In other words, Mr Driver would be reliant upon external controls and external supervision rather than maintaining improvement in his own attitude and behaviour.
All of this, Dr Brereton explained, was complicated by the differing histories Mr Driver tends to give. This occurred not only between examiners, but during the same examination. Nonetheless, Dr Brereton was satisfied that he could rely on what Mr Driver told him about issues concerning his empathy, or rather lack of empathy, with his victims. According to Dr Brereton, Mr Driver did not seem to be emotionally engaged with the topic.
When asked about the kind of supports that it would be necessary to establish for Mr Driver to return to the community, Dr Brereton reiterated Mr Driver’s need for a supervisory framework, as well as close monitoring. Whilst some of this might be accessed through the NDIS, it would not be a straightforward process. Even then, there would need to be meaningful interaction with a therapist or psychologist, absent which Mr Driver would still represent a moderate risk. That is to say, Mr Driver would still represent a moderate risk even with supervision over several hours each day.
Dr Brereton explained that these arrangements might take years to put into place, with special disability accommodation involving a package from the NDIS of funding for 24-hour support. However, 24-hour support on a long-term basis was, in the experience of Dr Brereton, “very uncommon”.
Dr Brereton was asked about the findings made by Mr Balfour following his assessment of Mr Driver’s neuro-cognitive functioning for the purposes of determining Mr Driver’s capacity to comply with, and understand, an extended supervision order. Whilst the findings were generally consistent with those made by Mr Reid a decade ago, Mr Driver’s ability for learning verbally mediated information was severely impaired. That equated to a verbal IQ of 60. Dr Brereton explained that whilst it was unfortunate, this made it hard for Mr Driver to engage with the work that he needed to do to lessen his degree of risk, because he could not learn the social skills necessary to be able to have meaningful interaction, quite apart from the social skills necessary to develop a relationship for the purposes of having consensual sexual relations. Mr Driver’s communication was always going to be a very difficult issue for him. That was a factor in the likelihood of him resorting to rape for the purposes of meeting his sexual needs.
When Dr Brereton was asked about the comment made to Mr Balfour about Mr Driver saying that he liked rape “a little”, he explained that this showed that there was a persisting deviant arousal pattern in Mr Driver. It was, as he described it, a primary arousal pattern. Accordingly, if released into the community without supervision and left to his own devices, Dr Brereton thought that Mr Driver would probably have difficulty setting himself up and he might become distracted by the day-to-day problems of resuming life. Over time, he was likely to resume smoking cannabis and drinking alcohol and have few social outlets. Dr Brereton thought that Mr Driver would likely become isolated, bored and sexually frustrated, again watching pornography with violent content. Over time, the risk would build and there would be a risk of Mr Driver acting on his drives in a similar way to his earlier offending. The only way to guarantee managing that risk, according to Dr Brereton, was to maintain incarceration.
So far as an extended supervision order is concerned, Dr Brereton expressed concern about the lack of Mr Driver’s internal inhibitions. Accordingly, even with external factors significantly reducing Mr Driver’s risk, it is not possible to address the psychological aspects of his risk. In fact, the use of electronic monitoring may not be adequate because Mr Driver’s offending had not been deterred by the risk of detection. Dr Brereton instanced the examples of Mr Driver being prepared to continue a sexual assault notwithstanding the presence of others, as well as his brazen assaults in the Linear Park. Dr Brereton was both worried and doubtful as to whether electronic monitoring would operate as a strong deterrent in the face of sexual frustration building up over time.
Dr Brereton was cross-examined by counsel for Mr Driver. The thrust of the cross-examination was that the desire to remain abstinent from drugs and alcohol, and to focus on other activities including work, accorded with an effective plan to minimise risk. Whilst Dr Brereton agreed that this had been expressed during some of Mr Driver’s treatment, he was doubtful about the extent to which Mr Driver had retained what he had learned, notwithstanding “one-to-one” therapy over an extremely long period. As he explained it, only 12 months after that therapy, the benefits seemed to have diminished, albeit not completely evaporated.

According to Dr Raeside, electronic monitoring would not make any difference to whether Mr Driver is at risk of reoffending. It would simply allow the authorities to know that he had breached the conditions of his electronic monitoring. In the case of Mr Driver, if he was sufficiently sexually motivated he would act, regardless of electronic monitoring:
… because I think the reasons why he would reoffend …. Having electronic monitoring would not deter him from that. So I offer the opinion that I think he’s unwilling to control, so I think that having an electronic bracelet on he’s not going to say ‘Oh well I better not go act on my feelings at the moment’ because of this bracelet. I think intellectually he would know that it was part of the conditions but probably would struggle to understand why that was there and how that related. He may not act because he doesn’t want to go to gaol and he might understand that that would get him [into] trouble, so it may serve a deterrent in that sense but I wouldn’t think it would add much to the protection of the community by having electronic monitoring or home detention even, but I’m not arguing that he shouldn’t have those.
In the opinion of Dr Raeside, Mr Driver has an unchanged sexual desire which is still probably a deviant sexual desire based on his previous experiences.
The most likely outcome, if Mr Driver is released into the community, is that Mr Driver will find himself in a position where he allows his sexual desires to rule his judgment and he would offend again. According to Dr Raeside, Mr Driver’s “deviant sexual desire” means:
His fantasies that he’s maintained and utilised over the years but he hasn’t had the opportunity to act on them within a male prison environment. …So I believe he does have deviant sexual interests in the sense of a way in which it’s – the early imprinting has affected him. So he would find himself with other women around but the other thing as I said at the beginning was he lacks the social skills to be able to negotiate a typical adult heterosexual interaction short of just going and having sex with them. To put it colloquially I think he would struggle to chat someone up and to develop a friendship that leads on to something in that sense.
In the opinion of Dr Raeside, were Mr Driver to be released into the community on an extended supervision order, he is likely to be quite restricted in what he can do and he would need help with employment, community activity, pro-social activities and meeting people in normal settings. Mr Driver would present a high risk to the community whilst trying to reintegrate.
Dr Raeside was not aware of any case where it had actually been implemented, but he knew of a discussion about setting up a heavily supervised setting in the community which would be heavily dependent upon funding from bodies such as the NDIS. In the view of Dr Raeside, the practicality of getting that type of arrangement in place and funding it is “a long process”.
Dr Raeside was taxed in cross-examination with whether Mr Driver had improved in his social interaction whilst in prison, but Dr Raeside preferred to describe it as a positive that Mr Driver “hadn’t continued to get worse”. Whilst Dr Raeside accepted that some of Mr Driver’s statements suggested that there had been a positive development in his risk recognition, he remained concerned at the risk posed by Mr Driver in the meantime, and the involvement of other people was essential to assist Mr Driver in getting back into a traditional lifestyle.
It was put to Dr Raeside that Mr Driver only had an uncle and aunt in Adelaide and if he was in South Australia, he would be separated from his traditional lands and traditional culture. Dr Raeside accepted that Mr Driver was dislocated and outside of his traditional setting.
Mr Richard J Balfour
Mr Balfour has degrees in Psychology and Biology, a Master’s degree in Clinical Psychology and is a former chair of the Australian Psychological Society’s College of Forensic Psychologists. He is a member of the Australian Psychological Society, the Australian Psychological Society’s College of Forensic Psychologists and the Australian Psychological Society’s College of Clinical Psychologists. He is an adjunct senior lecturer in clinical psychology at Flinders University.
Mr Balfour has been registered as a psychologist in South Australia since 1988. He works mainly in forensic psychology and clinical psychology, with a particular interest in working with Aboriginal people within a forensic context. He has expertise in the Pitjantjatjara language and has been involved in research to develop culturally-sensitive screening psychological tests for Aboriginal people with acquired brain damage. He has routinely assessed and treated Aboriginal people from traditional, rural and urban backgrounds for the courts.
For the purposes of his report dated 16 June 2020, Mr Balfour interviewed Mr Driver for three and a half hours at Yatala Labour prison on 18 February 2020. He also reviewed a large volume of material.
Mr Balfour found Mr Driver to present as an Aboriginal man of average height, moderately overweight. He had a beard and a significant hearing impairment. He was quiet, culturally shy and looked down. He made slight nods of his head. He exhibited little spontaneity. The content of Mr Driver’s conversation was “impoverished, and lacked details”. Mr Driver described having experienced culturally appropriate phenomena such as seeing the shadow of spirits and hearing whistling in the Port August prison.
Mr Balfour formed the clinical impression that Mr Driver was of low intellectual functioning and may have an intellectual disability. He was generally cognitively slow and there were many pauses. He was behaviourally inert and passively cooperative. His level of insight was limited and his level of intellectual functioning low.
Mr Balfour described having “easily established” good rapport with Mr Driver.
Mr Driver told Mr Balfour that he was an initiated man who had become dislocated from his cultural practices by reason of imprisonment. He was distressed that he cannot visit his father’s grave site and leave him flowers. Though Mr Driver knew his father was Walpiri (which Mr Driver can speak a little of), he did not know his mother’s clan. He said his father mainly spoke English. Mr Driver said that his mother still resides in Tennant Creek and suffers from alcoholism. Both parents suffered from alcoholism and there was domestic violence. Mr Driver’s siblings live in Darwin, Adelaide, Tennant Creek and Lajamanu. He has contact with them once a year.
Mr Driver described being 14 years old when introduced to watching “dirty movies” by other Aboriginal people. These were pornographic DVDs. Mr Driver described these as “bad”.
Mr Driver described his early childhood, schooling and offending. Mr Driver does not have a reliable social support network and does not have regular visitors in gaol. The last visit was in 2016 from an uncle and aunt residing in Port Augusta. He still speaks with them on the telephone. Mr Driver said that he does not feel lonely in prison because he has friendships with other Aboriginal inmates.
Mr Driver was educated until the age of 12, during year seven. He had difficulty undertaking very basic arithmetic during the examination by Mr Balfour and, though he knows the days of the week, he does not know the months of the year. He had trouble describing the number of hours in a day. He does not know how many minutes in an hour. Mr Driver has, it seems, never worked apart from some community hunting and assisting in the local community store.
Mr Driver described wanting to return to Tennant Creek.
Mr Driver told Mr Balfour that when he was last in the community he had problems with boredom. He mainly drank alcohol and hunted for kangaroos.
So far as his interpersonal history is concerned, Mr Driver said that he did not experience difficulty socialising with women but he had never had a “steady” girlfriend. He had only ever dated his promised wife but they had never been sexually intimate. They had never kissed. They did not come together because Mr Driver said that he was too scared to have children. Mr Driver had never had casual sexual liaisons, nor has he ever married.
Mr Driver later said that he “dated” three women in his life. They were Aboriginal women. He met them at sports carnivals. They were from different Aboriginal communities. Although Mr Driver said that he wants to be in a relationship with the promised woman he had dated, he could not recall her name and knew that she was now married and had children. Mr Driver described himself during childhood as “quiet. Too shy”.
Mr Driver described his physical health as bad and he had diabetes. He takes medication. Mr Driver’s eyesight has deteriorated, possibly because of diabetes. He has glasses.
Mr Driver told Mr Balfour that he first formed the idea to commit sexual offences at the age of 14 when he saw “a dirty movie”. Mr Driver said that his first sexual offence was the sexual assault of a white woman in a park at night. He said the woman was the same age as him, 18 years. Mr Driver sexually assaulted another white woman in the same park. Mr Driver was again still 18 when he committed his third sexual offence: the rape of an Asian woman in her forties in her own home. He was arrested by the police within a day. Mr Driver was not under the influence of drugs or alcohol at the time of these offences.
When Mr Balfour asked Mr Driver about the suggestion made in the documents that he had attempted suicide by hanging when 15 years old, Mr Driver said that he could not remember the incident.
In response to testing undertaken by Mr Balfour, Mr Driver exhibited a reading ability equivalent to a child of 10 years.
On intellectual functioning testing, Mr Driver’s displayed a level of intelligence which was assessed as being equivalent to a full-scale IQ of 78. However, his ability for learning verbally-mediated information was severely impaired, equivalent to a verbal IQ of 60. The magnitude of the difference between these results suggests a language-mediated disorder.
Mr Balfour considered a number of possible causes of Mr Driver’s language impairment. He thought that the causes included multifactorial including cultural factors, limited formal education, neurodevelopmental trauma, institutionalisation and neurodevelopmental impoverishment. There may also be some risk of Mr Driver having developed foetal alcohol syndrome disorder as a result of his mother’s alcoholism.
Mr Balfour attempted to assess Mr Driver’s understanding of an extended supervision order. Mr Driver exhibited a rudimentary understanding of the requirements of an extended supervision order: “stay away from trouble. Bad stuff”.
When discussing Mr Driver’s psychosexual developmental history, he explained that he had never had any formal sexual education, whether at school or from family. Mr Driver tended to respond with a nod or a shake of the head rather than verbally. Mr Driver told Mr Balfour that he was 13 when he commenced masturbating using pornographic magazines. He was 14 when he learned about sexual intercourse and reproduction from a documentary on television. At the same age, a male relative showed him a pornographic DVD and the impact was described as “good”. His uncle showed him numerous pornographic DVD movies. Others watched these as well.
Mr Driver described being most sexually attracted to women aged 25. He fantasises about touching women on the buttocks and breasts and, when masturbating, he sometimes thinks about hurting women. According to Mr Balfour:
Mr Driver said that he does like the idea of raping women. I asked him whether he likes that idea a lot or a little. He said he only likes the idea a little. He does not appear to have sadomasochistic fantasies. He does not want to tie women up and have sex with them. I asked him what type of sex makes him “horny”. He then went quiet and just looked around the room and outside.
Mr Driver told Mr Balfour that he was “a virgin” prior to committing the sexual offences. He was sexually frustrated and sexually inadequate. The rape was the first time Mr Driver had ever had sexual intercourse. Mr Driver said that he thought he had seen the woman on a poster and she was wearing doctor clothes. He had been looking for her in the community. The woman was not in fact the same woman that he had seen in the poster. However, Mr Driver had chosen her because she resembled the woman in the poster. He had walked around the neighbourhood looking for a female who resembled the one depicted in the poster wearing doctor’s clothing.
After raping the woman, Mr Driver said that he felt “good; but a little bit shaky. Scared. You end up in here Yatala Labour prison”. Mr Driver said that he could not have gone and chatted with a woman in a bar to obtain consensual sex because he was “shy”.
Mr Driver said that he did not hate women and that they were “OK”. If he had a girlfriend, he would like to have sex daily and he currently masturbates daily. Mr Driver describes sexual fantasies involving lesbian sex. That is, he wants to have sex with two women who are lesbians. He does not fantasize about hurting them, but they have to be white women. Whilst Mr Driver did not describe a preference for sex with either white women or Aboriginal woman, he did say that the problem with Aboriginal woman is that they can get him into trouble and he will be “speared”.
According to Mr Balfour, Mr Driver possesses most of the traditional static (historical) and dynamic (acute) criminogenic risk factors which predispose an individual towards offending behaviour.
According to Mr Balfour, Mr Driver has a history of pervasive anger management problems whilst intoxicated with alcohol and that has led to numerous fights. Mr Balfour assessed Mr Driver’s general criminogenic profile as being in the high range for coming into further legal conflict within the next 12 months.
Mr Driver’s psychosexual development was described as having been “corrupted at the age of 14 years when … exposed to dominant white culture pornography”.
In the view of Mr Balfour, Mr Driver has wanted to “live out what he viewed in the pornography”. It is this that caused Mr Driver to wander around the community looking for women who resembled the women he had seen in the pornography he had watched. This is what led to his serious sexual offending.
Whilst Mr Driver has the intellectual capacity to comply with the conditions of an extended supervision order, “great care would need to be taken to explain them to him in simple terms”, and Mr Driver would require regular reminders to assist him to internalise the information and remain compliant. Intense rehabilitation would be required in the community to assist Mr Driver leading a lawful lifestyle and to prevent sexual reoffending. An NDIS funding application would be required.
When Mr Driver was asked to describe the impact of his offending upon his victims he described the following:
Feel horrible. Scared. Hurt their feelings. That’s all.
Mr Driver explained that he had offended because he thought that “maybe it could be fun. I don’t know. Horny”.
In the course of his evidence before me, Mr Balfour was at pains to emphasise the need to establish rapport and to be sensitive to Mr Driver’s Aboriginal cultural mores. He referred to the “cultural bias” in psychological tests developed by comparison with people from dominant white culture.
Consistently with the contention that Mr Driver should return to the Northern Territory rather than remain in South Australia, Mr Balfour was asked about the likely effect on Mr Driver if he remained in South Australia on an extended supervision order.
Mr Balfour explained that Mr Driver had become alienated from his community and his family. Accordingly, it would be necessary to make an assessment of Mr Driver’s family to determine their attitude and whether they want him back, because there was no ongoing relationship. Mr Driver expressed a preference for returning to Tennant Creek, which he referred to as “grandfather’s country”. Nonetheless, under cross-examination, Mr Balfour conceded that Mr Driver did not necessarily have a happy family back in Tennant Creek, either. Mr Driver, wherever he might live, would require support with everyday living because his concrete manner of thinking means that his strategies will be superficial and naïve, requiring attentive support.
Mr Balfour accepted that there was a risk that Mr Driver’s reoffending would include sexual reoffending, and that this could not be excluded. This is particularly so if he is released into the community without any support. He might gravitate towards other Aboriginal people and become involved in their sub‑culture, which may involve social-legal problems and “setting him up for failure if you were to release him with no support”.
As I understood Mr Balfour’s evidence, release on an extended supervision order depended upon eligibility for significant NDIS funding, particularly a “sizable funding package” involving “tailored supported accommodation”, with Mr Driver receiving support across the day. The opportunities to rekindle his relationship with his family would need to be explored carefully and slowly, “first maybe through telephone or Skype”. When asked whether he was aware of any NDIS package that provided for “24/7 live-in support” Mr Balfour referred to one client. As I understood the evidence, most others did not get “24/7 supervision” but had support workers. The impression I gained was that Mr Balfour was describing a very small number of his clients.
Mr Balfour was taxed with the reference in his report to Mr Driver thinking about hurting women whilst masturbating. As Mr Balfour explained it, Mr Driver’s first sexual experience was when he broke into the house to rape a woman, and this was “a significant event” in his sexual history.
Indeed, Mr Balfour accepted that, if the history was that there had been other times when Mr Driver had raped women but had not been apprehended, “it would be of concern …”. As Mr Balfour described it, this would be “another important index of the strength of his desire to rape women and to live … the fantasies he had seen in the dirty movies”. In Mr Balfour’s view, this would indicate a very strong deviant sexuality. That is, Mr Driver wants to recreate the early experience of the rape.
Although Mr Balfour suggested that there might be some difficulty with Mr Driver’s capacity as a historian concerning his statement about “liking” rape, the impression I gained from the entirety of Mr Balfour’s evidence is that, when he asked Mr Driver about this topic, Mr Driver was describing how he felt at the time of the examination. That is to say, Mr Driver was not merely describing how he felt at the time of the initial rape.
Ultimately, Mr Balfour accepted the proposition put by counsel for the Attorney-General that Mr Driver wanted to have sex, he had in mind a woman that he had seen in a pornographic movie, he went looking to find a woman who resembled the woman in that movie, then had sex with that woman and felt good about the experience.
Conclusions on the medical evidence
Whilst the use of alcohol and cannabis was a feature of Mr Driver’s life before his offending, it does not appear to have played any significant part in the offending for which he has been imprisoned. Nonetheless, the potential for the abuse of alcohol and marijuana represented some risk.
By far and away the most important risk relates to Mr Driver’s early psycho‑sexual development and the effects of watching pornography whilst he was a teenager. As Dr Raeside pointed out, many people in our community are exposed to pornography without any thought of sexual offending. For Mr Driver, however, the combination of his mediated language disorder, limited intellectual functioning and difficulties interacting with others, when combined with the impact of watching pornography, create in him a firm set of sexual fantasies related to having sex with women and hurting them.

It was with these fantasies in mind that, when Mr Driver became sexually frustrated, he went about looking for women who matched the images in his mind.
Whilst his desire was essentially to have sexual relations, it would seem that part of the fantasy involved hurting women. Mr Driver’s desire was sufficiently strong to propel him into sexual offending and he was not deterred by the presence of others or by offending brazenly in a public place.
The statements made to Mr Balfour are significant because they were made to a clinician who is sensitive to Mr Driver’s cultural issues and after Mr Balfour developed a good rapport with Mr Driver. In my view, it is unlikely that Mr Balfour recorded other than what Mr Driver told him. Despite Dr Raeside’s reservations, I find that Mr Driver’s statement to Mr Balfour about liking rape “a little” is accurate. Whether what Mr Driver was describing to Mr Balfour was simply enjoying the fact of sexual activity when raping his victim, or whether he was also describing enjoying the fact that it involved an act of violence, is a little difficult to say. However I have already found that Mr Driver was describing how he felt at the time of the examination. Given the statements that he has made that he fantasises about hurting women when masturbating, I find that Mr Driver likes both the idea of sexual activity, and sexual activity that involves hurting women.
I accept, and find, that the statement Mr Driver made to Dr Raeside about raping other women for which he has not been apprehended, represents what Mr Driver thought and what has occurred. Each of Dr Raeside, Dr Brereton and Mr Balfour agreed, and I find, that this significantly increases the risk posed by Mr Driver. I accept Dr Raeside’s evidence that this statement tends to indicate a marked lack of inhibition. Many offenders would be most reluctant to make statements such as these to examiners.
I contrast statements such as these with the rather inconsistent statements made about whether Mr Driver is continuing to fantasise whilst masturbating, as well as the extent of his masturbation. It would seem that Mr Driver has, at times, become reluctant to disclose what he is actually thinking and doing. Whilst at times it is possible that this is for cultural reasons, there seems to me to be a degree of insight. That is, Mr Driver has recognised that it may sometimes be better for him to not be frank about his ongoing sexual activity and fantasising.
Ultimately, I am left in the position where the psychiatrists agree that Mr Driver presents a high risk to the community and that he is, when presented with the opportunity, unwilling to control his sexual impulses. In my view those opinions are, on the evidence, clearly correct.
The nature of Mr Driver’s offending, his degree of insight (or rather lack of insight) into the causes of his offending and its effect on his victims, and the rather rudimentary way in which he expresses himself about how he might avoid reoffending, all combine to demonstrate that Mr Driver is both at high risk of reoffending and, given the opportunity, unwilling to control his sexual instincts. Within the terms of s 57(1), there is a significant risk that Mr Driver will, given the opportunity to commit a sexual offence, fail to exercise appropriate control of his sexual instincts.
Finally, on the question of the medical evidence, it is largely common ground that simply releasing Mr Driver into the community on an extended supervision order would be inappropriate.
Mr Driver has no effective support for reintegrating into the community. Whilst he has an aunt and uncle in Adelaide (or perhaps Port Augusta), the probabilities are that he would be unable to effectively cope in South Australia.
Mr Driver would require, at the least, close supervision and support around the clock everyday of each week. Whilst I have evidence to suggest that there is an approved NDIS plan (letter dated 18 February 2021), which starts on 18 February 2021 and is to be reviewed by 18 February 2022, it is not necessarily a long-term arrangement. The plan describes such short-term goals as accessing stable accommodation and activities of daily living so as to ensure that Mr Driver can stay safe, comfortable and “as independent as possible”. The medium or long-term goals include maintenance of emotional and physical health and wellbeing and building independent living skills and budgeting skills.
Medium or long-term goals of the plan also include support to communicate with a range of different people and agencies within the community. This includes returning to “my community”, which I understand to be the community in Tennant Creek, Northern Territory, so as to participate in ceremonies “catch up on my sorry business and support my nephews with their cultural upbringing”.
The total funded support package is in an amount of $147,004.54. This is made up of various different elements including “Core Supports” and “Transport Funding”. There are other elements. The largest of them is “Core Supports” to assist with daily activities. The way in which this funding may be spent appears to be flexible, but an example is given of the retention of a support worker or mentor to assist with implementing strategies provided by therapists to increase independent skills.
Whilst I do not doubt the significance of this funding, and the undoubted benefits associated with these various funding models, they are nowhere near the level anticipated by Mr Balfour. The funding does not ensure 24-hour supervision, 7 days a week. For example, funding includes only 15 hours of nursing delegation of care to assist with a Diabetes Management Plan, and 84 hours of specialist support coordination. Whilst this level of funding support might be appropriate for a person with some degree of intellectual disability, it is wholly inadequate for assisting a man such as Mr Driver to reintegrate into the community and stay sufficiently occupied and closely supervised so as to avoid the high risk that he poses to the community.
Likewise, whilst the scope for Mr Driver to utilise this funding and reside at LTW is of some assistance, the period of residence is only a maximum of 24 weeks and does not provide anything like the long-term arrangement that Mr Balfour envisaged.
I shall return to make further findings about the option of an extended supervision order when addressing the exercise of my discretions.
Consideration regarding the exercise of discretions
In my opinion, it has been demonstrated that Mr Driver is unwilling to control his sexual instincts. Whilst the power exercised under s 57 is not explicitly conditioned on the making of a finding such as this, no order should be made in the absence of such a finding.[48] The real question is whether I should exercise the discretion to make an order indefinitely detaining Mr Driver.[49]
[48] Wichen v The Queen [2020] SASC 157, [107] (Kourakis CJ).
[49] Attorney-General (SA) v Duroux (2019) 278 A Crim R 375, [187]-[189]: Does “protection of the community … demand that the order be made at this stage?”.
Whilst I accept that an order made under s 57 is properly viewed as preventative or protective,[50] I am very conscious that the practical effect of an order is that a person will “rarely, if ever, be released”,[51] and there is a “grave risk” that an order may “weaken the basic principle of individual liberty”.[52]
[50] Thomas v Attorney-General (SA) (2019) 133 SASR 302, [47]-[50] (Kourakis CJ, with whom Nicholson and Parker JJ agreed). See also Fardon v Attorney-General (Qld) (2004) 223 CLR 575, [2] (Gleeson CJ), [34] (McHugh J), [214]-[217] (Callinan and Heydon JJ), [219] (Callinan and Heydon JJ).
[51] R v Humphrys (2018) 131 SASR 344, [10] (Kourakis CJ, with whom Vanstone and Nicholson JJ agreed).
[52] Sir Leon Radzinowicz, The Persistent Offender, Radzinowicz and JWC Turner (eds), Proper Case The Modern Approach to Criminal Law (MacMillan and Co, 1945) p 167, cited in Attorney-General (SA) v Duroux (2019) 278 A Crim R 375, [188] (Hinton J).
I am also conscious that, in other cases, indeterminate detention has been rejected pending further time to address criminogenic factors and begin de‑institutionalisation,[53] or an extended supervision order has been made because it is regarded as adequate to meet the need for protection of the community.[54]
[53] Attorney-General (SA) v Duroux (2019) A Crim R 375, [189] (Hinton J).
[54] Attorney-General (SA) v Moyle [2018] SASC 106, [169]-[172] (Hinton J), Attorney-General (SA) v Tipping [2019] SASC 133, [58]-[60] (Kelly J).
Indeed, and there is no dispute about it, Mr Driver is a high risk offender who poses an appreciable risk to the safety of the community if not supervised, with the result that, prima facie, the discretion under s 7 of the High Risk Offenders Act is also enlivened. These are however separate discretions.
There is unquestionably a degree of unfairness associated with Mr Driver’s array of difficulties and disadvantage, however I remain troubled that his offending is not easily addressed or explained. His offending was not directly the result of alcohol or illicit drugs. He was sober when he committed his offences.
Whilst it is tempting to think that Mr Driver might improve with further time and therapy, the evidence and the opinions of the psychiatrists suggest otherwise. His is a complex case which is unlikely to be improved by further treatment or therapy.
Despite extensive intervention over many hours outside a group setting, with a therapist “one-on-one”, Mr Driver has not been able to maintain the improvements made in the course of his therapy. He remains unable to express any real empathy for his victims and he tends to communicate concrete thought processes. Apart from recognising a connection with pornography, Mr Driver lacks insight into the causes of his offending. He has, at times, been prepared to tell examiners that he fantasises about hurting women and that he likes raping women, “a little”.
In addition, none of the psychiatrists or the psychologist who gave evidence before me thought that it was appropriate to release Mr Driver into the community, even on an extended supervision order based on residence in South Australia, without very close supervision, if not a form of close home detention. As I have indicated, the NDIS funding is insufficient to ensure that this can be established.
However, even if I was wrong about that, and the NDIS funding did allow for 24-hour supervision, I remain very concerned about the risk posed by Mr Driver’s isolation, limited capacity for social interaction and likely difficulty establishing meaningful relationships with women so as ensure that he can to meet his sexual needs. As I see it, there is the very serious risk that Mr Driver will again become isolated, angry and sexually frustrated, with the result that he will engage in the kind of brazen sexual offending for which he has been incarcerated. In these circumstances, I do not see electronic monitoring as representing any effective means of curbing the dangerous risk that Mr Driver poses to women in the community. At best, electronic monitoring will only indicate to authorities that Mr Driver is breaching the terms of an order. It will not inhibit or prevent further offending.
Conclusion
In all of these circumstances, it is in my view appropriate and necessary that an order for detention be made pursuant to s 57 of the Sentencing Act for the protection of the community. It is not appropriate to make an extended supervision order under s 7 of the High Risk Offenders Act.