Attorney-General (SA) v Duroux - [2019] SASC 108

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v DUROUX
[2019] SASC 108
Judgment of The Honourable Justice Hinton
28 June 2019
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
Application by the Attorney-General for an order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA), now s 57 of the Sentencing Act 2017 (SA), that the respondent be detained until further order.
The respondent is an institutionalised Aboriginal man having spent no more than two and a half years in the community since 1988. Presently, he is serving a head sentence of 28 years, seven months and 27 days’ imprisonment having committed seven counts of rape and one count of attempted rape. The offending occurred in 1991 and 1995 in the context of a series of break-ins. Whilst the respondent’s sentence is not due to expire until June 2025, he is currently eligible to apply for parole.
The applicant submitted that the respondent is unwilling to control his sexual instincts within the meaning of s 57 of the Sentencing Act 2017 and that an order that he be detained indefinitely is apt to protect the community from his risk of reoffending. The respondent opposed the application, contending that there would be little utility in this Court making such an order at this time given that his sentence does not expire for the best part of six more years within which time, with the assistance of the authorities, his risk may change. In the event that the respondent did apply for parole, the Parole Board may be expected to refuse such application if he posed an appreciable risk to the safety of the community.
Held, dismissing the application, whilst the respondent is unwilling to control his sexual instincts within the meaning of s 57 of the Sentencing Act 2017, the protection of the community does not demand that an order be made that the respondent be detained indefinitely at this present time.
Criminal Law Consolidation Act 1935 (SA) s 48; Criminal Law (Sentencing) Act 1988 (SA) s 23; Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld); Sentencing Act 2017 (SA) ss 57, 58, 59; Sentencing (Release on Licence) Amendment Act 2018 (SA), referred to.
Thomas v Attorney-General (SA) [2019] SASCFC 21, discussed.
Fardon v Attorney-General (Qld) (2004) 223 CLR 575; R v Hoare [2017] SASC 7; R v Humphrys (2018) 131 SASR 344, considered.

ATTORNEY-GENERAL (SA) v DUROUX
[2019] SASC 108
HINTON J:
Introduction

This is an application by the Attorney-General for the State of South Australia seeking an order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (CL(S)A) that Joseph Maxwell Duroux be detained in custody until further order.
Mr Duroux is 54 years of age. Since 1988 he has spent no more than…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General (SA) v Duroux

Details

AGLC: Attorney-General (SA) v Duroux [2019] SASC 108
Case: [2019] SASC 108
Decision Date: 28 June 2019

CaseChat Overview and Summary

The case of Attorney-General (SA) v Duroux involved the defendant, Mr Duroux, who was subject to a hearing regarding his suitability for release from prison under the supervision of a post-custodial order. The dispute centred on whether Mr Duroux, who had been convicted of multiple serious sex offences, could be safely released into the community given his history and the risk he posed to the public. The matter was heard in the South Australian Supreme Court.

The legal issues before the court included whether Mr Duroux could be deemed a dangerous sexual offender, warranting a post-custodial supervision order, and whether there were sufficient grounds to believe he could manage his risk of reoffending without such an order. The court had to consider expert opinions on Mr Duroux's risk of reoffending and his capacity for self-management, as well as the implications of his cultural background on his risk assessment.

In delivering the judgment, the court accepted the expert opinions of Drs Brereton and Lim, which concluded that Mr Duroux lacked the self-management skills necessary to control his sexual urges, particularly in high-risk situations. The court found that Mr Duroux's history of institutionalisation, poor literacy, lack of social and familial support, and cultural disconnection from his Ngarrindjeri heritage contributed to his risk of reoffending. Despite some efforts to challenge the experts' opinions, the court found no valid reason to reject them. Consequently, the court determined that Mr Duroux was unwilling in the defined sense to control his sexual instincts and that there was a significant risk of reoffending if he were released without appropriate supervision and support.

The court ordered that Mr Duroux be subject to a post-custodial supervision order, recognising his status as a dangerous sexual offender and the necessity of such measures to protect the community. The order aimed to provide the necessary support and supervision to mitigate the risk of Mr Duroux reoffending.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As Dr Lim noted in her report Mr Duroux struggled to outline spontaneously self-management strategies to manage unfulfilled sexual desires. After interviewing Mr Duroux, Dr Lim was provided with a copy of Mr Duroux’s written work undertaken as part of the SBC-me program, which outlined some of his strategies. After analysing this work Dr Lim remained of the opinion that, because Mr Duroux had been unable to discuss these spontaneously in the interview, this suggested that he had not internalised the strategies in that they were not at the forefront of the mind. If this is the case then should Mr Duroux find himself in a similar situation again, particularly one where he is under the influence of amphetamines or alcohol, then it is unlikely that he would be able to utilise these strategies to manage his sexual desires on the spur of the moment.Consideration Whilst some attempt was made to cast doubt upon the opinions of Drs Brereton and Lim on the basis that their approaches or the secondary materials upon which they relied did not account for cultural considerations, I did not understand that challenge to be persisted with, and Mr Duroux did not give or call evidence to suggest any cultural overlay had not been accounted for. In the end, no reason exists to reject the opinions of Drs Brereton and Lim. I accept those opinions. I am satisfied that Mr Duroux is unwilling in the sense defined to control his sexual instincts. That conclusion is based on an acceptance that if released into the community after so many years in prison, Mr Duroux is ill‑equipped to cope with the pressures of daily living. He has some but little familial support and no wider social support. His literacy is poor. His employment prospects are impoverished. There is no evidence of his having any sporting or intellectual hobby or interest. He is culturally disconnected from the Ngarrindjeri people. He has no recent experience of caring for his own finances. He has no or little recent experience of making decisions for himself. He is institutionalised. Without being de‑institutionalised and reintegrated into the community, without re‑connection with the Ngarrindjeri people and his culture, without developing meaningful intimate relationships, without assistance in finding housing and employment, without assistance with budgeting and generally making decisions for his day‑to‑day care and upkeep, he will likely quickly become stressed. In those circumstances, he will likely turn to maladaptive coping behaviours, to drugs and alcohol. He will then soon turn to crime. What I have written thus far appears to be a summary of the position Mr Duroux found himself in in the late 1980s and early to mid‑1990s. His maladaptive behaviours resulted in him becoming a prolific housebreaker. It was in the course of house breaks that he came across women home alone. He raped or attempted to rape them. Without interventions and inputs of the kind to which I have referred, I consider there is a significant risk that this may recur.