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

1. 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.

2. Mr Duroux is 54 years of age. Since 1988 he has spent no more than approximately two and a half years in the community. He is, as is to be expected, institutionalised. The Attorney-General contends that he is unwilling to control his sexual instincts and that this Court should order that he be detained in custody indefinitely in order to protect the community from the risk he poses. I decline to make such order. My reasons follow.

   The applicable legal principles

3. As indicated, this application was commenced under s 23 CL(S)A. On 30 April 2018 the Sentencing Act 2017 (SA) (the Sentencing Act or the Act) came into operation. The Act abolished and replaced the CL(S)A. It contained the following transitional provision:

   Subject to this clause, this Act applies to the sentencing of a defendant after the commencement of this Act, regardless of whether the offence for which the defendant is being sentenced was committed before or after that commencement.

4. The question arises, is an order that a person be detained indefinitely a sentence for the purposes of the transitional provision?

5. Section 23 CL(S)A and the power to order that a person who is incapable or unwilling to control his or her sexual instincts be detained until further order is contained in Pt 2 Div 3 of the CL(S)A. With one exception, Pt 2 Div 3 CL(S)A was re-enacted without amendment as Pt 3 Div 5 of the Sentencing Act. The one exception was that Pt 3 Div 5 of the Sentencing Act includes a power to make an interim order whereas Pt 2 Div 3 CL(S)A did not. That difference aside, Pt 2 Div 3 CL(S)A mirrored Pt 3 Div 5 of the Sentencing Act. This application not being for an interim order, it is unnecessary to resolve the question of which of the CL(S)A or the Sentencing Act applies; the applicable law and related principles are the same. This remained the position with the enactment of the Sentencing (Release on Licence) Amendment Act 2018 (SA) (the Amendment Act).[1] Accordingly, I do not stay to decide which Act applies. I proceed, without deciding, that the Sentencing Act applies.

   [1]    The Sentencing (Release on Licence) Amendment Act 2018 (SA) amended ss 58 and 59 of the Sentencing Act 2017 (SA) which provide for discharge from an order of indefinite detention and release on licence. The transitional provisions to the Sentencing (Release on Licence) Amendment Act 2018 (SA) make plain that the amendments made apply to any and all applications for release or discharge irrespective of whether the order for indefinite detention was made under the Criminal Law (Sentencing) Act 1988 (SA) or the Sentencing Act 2017 (SA).

6. As mentioned, the only material difference between Pt 2 Div 3 CL(S)A and Pt 3 Div 5 of the Sentencing Act is that the latter makes provision for interim detention orders where the former does not. It is tempting then to conclude that, interim detention orders aside, the body of jurisprudence that has evolved regarding the application of s 23 CL(S)A applies equally in relation to s 57 of the Sentencing Act. However, as will be seen, the application of both s 23 and s 57 must now be considered in the light of the amendments made by the Amendment Act. I return to this below.

7. Section 57(3) of the Sentencing Act provides:[2]

   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.

   [2]    See Criminal Law (Sentencing) Act 1988 (SA), s 23(2a).

8. And s 57(7) provides:[3]

   The Supreme Court may order that a person to whom this section applies be detained in custody until further order if satisfied that the order is appropriate.

   [3]    See Criminal Law (Sentencing) Act 1988 (SA), s 23(4).

9. Section 57(3) expressly empowers the Attorney-General to make an application to this Court for an order under s 57(7) but only in relation to a person who has been convicted of a relevant offence and provided that the application is made while that person remains in prison serving a sentence of imprisonment.[4] In referring to a person to whom this section applies, s 57(7) refers to a person to whom the section applies as defined in s 57(1)[5] in addition to the person identified by s 57(3) as amenable to an application. Thus, the right vested in the Attorney-General by s 57(3) and the power vested in this Court by s 57(7) are conditioned on proof that the person subject of the application has been convicted of a relevant offence and that the application was instituted while that person was in prison serving a sentence of imprisonment. These preconditions or jurisdictional facts are satisfied in the present case. Mr Duroux is currently in prison serving a sentence for the offence of rape committed contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA).

   [4] Relevant offence is defined in s 57(1) of the Sentencing Act 2017 (SA).

   [5]    See Criminal Law (Sentencing) Act 1988 (SA), s 23(1).

10. The preconditions being satisfied, s 57(7) seemingly vests a broad discretion in this Court to make an order that a person be detained indefinitely. The exercise of the discretion is, however, itself conditioned. First, by s 57(6),[6] which commands the Court, before determining whether to make an order under s 57(7), to direct that at least two legally qualified medical practitioners inquire into the mental condition of a person to whom the section applies and report to this Court on whether that person is incapable of controlling, or unwilling to control, his or her sexual instincts. This has been done; reports have been provided by Drs Brereton and Lim, forensic psychiatrists. Second, s 57(9)(a)[7] commands that the Court take the reports provided under s 57(6) into account in determining whether to make an order under s 57(7). And third, in R v Schuster the Full Court determined that whilst the exercise of the equivalent power contained in s 23(4) CL(S)A was not expressly conditioned on the Court finding that the offender subject of an application was incapable of controlling, or unwilling to control, his or her sexual instincts, the question whether the person is incapable or unwilling to control his or her sexual instincts is a threshold question that must be answered yes or no, otherwise, bearing in mind the scheme created by Pt 2 Div 3 CL(S)A, no proper foundation exists for the Court to consider the risk that the offender poses to the safety of the community.[8] In my view the position is no different under s 57 of the Sentencing Act.

    [6]    See Criminal Law (Sentencing) Act 1988 (SA), s 23(3).

    [7]    See Criminal Law (Sentencing) Act 1988 (SA), s 23(5a)(a).

    [8] (2016) 125 SASR 388 at [97]-[99].

11. In R v Hoare (Hoare) I referred to authorities in this State that had dealt with the question of when a person is incapable of controlling their sexual instincts and with the definition of unwilling as contained in s 23(1) CL(S)A.[9] Bearing in mind that the Sentencing Act, like the CL(S)A, does not attempt to define what it means to be incapable to control one’s sexual instincts and that the definition in each statute of unwilling is the same,[10] I consider that the authorities to which I referred in Hoare on these questions and my discussion of them apply equally to s 57 of the Sentencing Act. In Hoare I said:[11]

    [9] [2017] SASC 7.

    [10]   Criminal Law (Sentencing) Act 1988 (SA), s 23(1); Sentencing Act 2017 (SA), s 57(1).

    [11] [2017] SASC 7 at [66]-[70].

    What amounts to an incapacity to control one’s sexual instincts is not defined. King CJ considered what amounted to incapacity in R v Kiltie in the context of discussing a progenitor of s 23. He said:

    ... 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.

    Unwilling is defined in s 23(1) as follows:

    unwilling – a person to whom this section applies will be regarded as unwilling to control 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.

    In R v Whyte White J recorded that the two forensic psychiatrists who provided reports in that matter “...recognised that the statutory definition of the word “unwilling” required consideration of matters going beyond an assessment of his present state of mind”. White J added:

    In my opinion, the definition is to be applied in the following way: the Court must assess the risk that the offender would, given the opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts. That assessment is to take account of all factors bearing on that risk. The Court’s assessment of the person’s state of mind will usually be very relevant to the assessment of the risk, but it is not the only matter to be considered. The opinions of the medical practitioners who have examined the offender and reported to the Court on the offender’s mental condition will be relevant to the assessment of the offender’s state of mind, but the opinions which those practitioners are able to express based on their field of expertise will not ordinarily encompass all the matters relevant to the Court’s assessment. That is to say, it will be necessary in some cases for the court to consider a range of factors which are not particularly within the field of expertise of, say, a forensic psychiatrist.

    In R v Schuster the Full Court observed:

    ...more importantly it was necessary for the medical practitioners and the judge to consider the circumstances in which and degree to which Mr Schuster is unable or unwilling to control his sexual instincts. A detailed consideration of these matters was necessary in order to assess the nature and extent of the risk to public safety presented by Mr Schuster. For example, the risk profile of a person with a desire or inclination to offend in an opportunistic or impulsive way would raise different considerations to those in the case of a person whose modus operandi has been, or is likely to be, one involving a longer term grooming of potential victims.

    Whilst these observations were made in the context of an appeal against an application for release on licence under s 24 of the Sentencing Act they are, in my view, equally applicable to an application made under s 23.

    [footnotes omitted]

12. Thus, assuming the preconditions contained in s 57(3) are satisfied, it is upon answering the threshold question in the affirmative that the discretion contained in s 57(7) is enlivened. In a case of unwillingness the threshold question requires a conclusion as to whether 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, but does not require an assessment of the likelihood of the opportunity arising upon release. That is undertaken in the course of the exercise of the discretion. However, it is important both to answering the threshold question and to the exercise of the discretion that the Court articulate the hypothetical circumstances in which the person subject of the application would be provided with the opportunity to commit a relevant offence and fail to control his or her sexual instincts.

13. Sections 57(8) and (9) deal with the exercise of the discretion. They provide:[12]

    (8)The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be to protect the safety of the community (whether as individuals or in general).

    (9)The Supreme Court must also take the following matters into consideration in determining whether to make an order that a person to whom this section applies be detained in custody until further order:

    (a)   the reports of the medical practitioners (as directed and nominated under subsection (6)) provided to the Court;

    (b)   any relevant evidence or representations that the person may desire to put to the Court;

    (c)   any report required by the Court under section 61;

    (d)   any other matter that the Court thinks relevant.

    [12]   See Criminal Law (Sentencing) Act 1988 (SA), ss 23(5) and (5a).

14. In Hoare I said:[13]

    Something more should be said here as to the significance of s 23(5) [the equivalent of s 57(8)]. In R v Schuster the Full Court tackled the question of the significance of making the public safety the paramount consideration in the context of an application for release on licence. It said:

    What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility.

    I think these observations apply equally to s 23(5). So too the observation that the “exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety”. The Court quoted from the judgment of the Queensland Court of Appeal in Attorney-General (Qld) v Francis as reflecting the approach to be adopted. In that case Keane and Holmes JJA and Dutney J said:

    The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.

    Again such approach may be seen to apply equally to an application made under s 23. If the Court is satisfied that the offender is incapable or unwilling to control his or her sexual instincts, the question is whether an order for indeterminate detention is apt to ensure adequate protection of the community, having regard to the risk to the community posed by the offender.

    [footnotes omitted]

    [13] [2017] SASC 7 at [71]-[73].

15. In Thomas v Attorney-General (SA) (Thomas) the Chief Justice, with whom Nicholson and Parker JJ agreed, referred to paragraph 79 from R v Schuster (set out in the quotation from Hoare immediately above) and to paragraphs 72 and 73 from Hoare, quoted above, with approval.[14]

    [14] [2019] SASCFC 21 at [38]-[39].

16. In the course of undertaking the task required in determining an application under s 57 it must be remembered at all times that to order that a person be detained indefinitely for what they might do is an exceptional step having grave consequences for the individual, one that should only be taken where cogent evidence produces the required state of satisfaction.

17. Hoare was a case that dealt with the application of s 23 CL(S)A. I emphasised in Hoare that the regime created by Pt 2 Div 3 CL(S)A was not punitive in its purpose, but rather treatment focused.[15] With the passing of the Amendment Act this is no longer the position. In Thomas Kourakis CJ explained:[16]

    In Fardon v Australia the HRC found that the Queensland Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), (DPSOA), the constitutional validity of which was upheld in Fardon v Attorney-General (Qld), violated Mr Fardon’s Article 9 rights. The HRC made the following critical observations on preventable detention regimes:

    (4)The “detention” of [Mr Fardon] as a “prisoner” under the DPSOA was ordered because it was feared that he might be a danger to the community in the future and for purposes of his rehabilitation. The concept of feared or predicted dangerousness to the community applicable in the case of past offenders is inherently problematic. It is essentially based on opinion as distinct from factual evidence, even if that evidence consists in the opinion of psychiatric experts. But psychiatry is not an exact science. The DPSOA, on the one hand, requires the Court to have regard to the opinion of psychiatric experts on future dangerousness but, on the other hand, requires the Court to make a finding of fact of dangerousness. While Courts are free to accept or reject expert opinion and are required to consider all other available relevant evidence, the reality is that the Courts must make a finding of fact on the suspected future behaviour of a past offender which may or may not materialise. To avoid arbitrariness, in these circumstances, the State Party should have demonstrated that [Mr Fardon]’s rehabilitation could not have been achieved by means less intrusive than continued imprisonment or even detention, particularly as the State Party had a continuing obligation under Article 10 paragraph 3 of the Covenant to adopt meaningful measures for the reformation, if indeed it was needed, of [Mr Fardon] throughout the 14 years during which he was in prison.

    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.

    Plainly, then, there is considerable tension between s 58 of the Sentencing Act 2017 and Article 9 of the ICCPR. The detention authorised by s 58 of the Sentencing Act 2017 may be characterised as arbitrary for the purposes of Article 9, both because a shorter period of detention, or less intensive restraints, might in many cases sufficiently protect the community, and because meaningful information cannot be provided in prison.

    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.

    [footnotes omitted]

    [15]   R v Hoare [2017] SASC 7 at [177]-[178]; see also Attorney-General (SA) v Smallbone [2018] SASC 2 at [116].

    [16] [2019] SASCFC 21 at [47]-[50].

1. Putting to one side the case of a person proven to be incapable of controlling his or her sexual instincts, in relation to those who are unwilling in the relevant sense to do so, generally speaking, treatment focuses upon the obtaining of insight by the individual into the nature of his or her distorted sexual interest and that it is wrong and harmful to pursue and act upon that interest, the obtaining of insight into factors and circumstances that increase the individual’s risk of pursuing and acting upon their sexual interest, and the development of protective factors and techniques to avoid temptation. Only so much can be achieved in the prison environment. Eventually, ideally, treatment is continued in the community where skills learned are tested and, with the assistance of specialists, honed. In the community treatment accepts exposure to risk but relies upon implementation of skills learned, review of the same and reinforcement and modification or improvement.

2. Prior to the Amendment Act, 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.

3. The Chief Justice’s reference to his own judgment in R v Humphrys is a reference to paragraphs 2, 9 and 10 where he remarked:[17]

   Section 24 of the Sentencing Act confers on this Court a discretion (the s 24 discretion) to release a person detained pursuant to s 23 of the Sentencing Act on licence, even if that person remains unwilling to control, or is incapable of controlling, his or her sexual instincts. The reasons for Parliament in conferring that discretion are obvious enough. First, the indefinite detention of an offender, even after he or she has served the condign punishment fitting his or her crime, is an exceptional deprivation of liberty which should not continue any longer than is strictly necessary. This accords with fundamental human rights of liberty and security of the person, stemming from the Conventions to which Australia is a party. Secondly, counselling and therapy, necessary to address the root causes of an offender’s incapacity or unwillingness, cannot always be fully delivered in custody. Nonetheless, the paramount, but not the only, consideration in exercising the s 24 discretion is the safety of the community.

   …

   I emphasise, and repeat my earlier observation, that the question of the detention of a person pursuant to s 23 of the Sentencing Act, and any release on licence, only arises, in a practical sense, after the sentence imposed for his or her offending has been served. The discretion entrusted to this Court by s 24(1) of the Sentencing Act may usefully be contrasted with alternative ways in which the Parliament may have chosen to protect the community from persons incapable of controlling, or unwilling to control, their sexual instincts beyond the term of a sentence of imprisonment proportionate to their offending.

   Parliament might have legislated that persons incapable or unwilling to control their sexual instincts should be detained and never released for so long as that condition persists. Alternatively, Parliament might have provided that such persons should not be released if there were any risk that they might offend again. The difficulty presented by those positions is that prison is necessarily a tightly controlled, and a closely regulated, environment. It is so completely unlike community life that there is a limit to the programs which can be delivered, as well as a limit on the capacity to test their effectiveness. The reality, therefore, of either of those positions is that, once detained for being either incapable or unwilling to control his or her sexual instincts, such persons will rarely, if ever, be released because their very detention will, for all practical purposes, preclude them from the treatment and rehabilitation processes necessary to show that they no longer present an appreciable risk to the community.

   [footnotes omitted]

   [17] (2018) 131 SASR 344 at [2], [9]-[10].

4. In Thomas the Chief Justice’s concern was to emphasise the significance of the consequence of the making of an order under s 57(7) for the individual subject of the application. In characterising detention under s 57 as arbitrary the Chief Justice referred to the understanding of that term in international jurisprudence as referring to detention authorised by law and yet lacking in reasonableness, necessity and proportionality.[18] In van Alphen v The Netherlands the United Nations Human Rights Committee said:[19]

   The drafting history of article 9, paragraph 1, confirms that “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances. …

   [18]   Thomas v Attorney-General (SA) [2019] SASCFC 21 at [45]. See also, Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 126 FCR 54 at [143]-[146] (The Court).

   [19]   Human Rights Committee, Views: Communication No 305/1988, 39^th sess, UN Doc, CCPR/C/39/D/305/1988, (15 August 1990) at [5.8] (‘van Alphen v The Netherlands’).

5. This reasoning was adopted by the Committee in A v Australia, an immigration detention case:[20]

   On the first question, the Committee recalls that the notion of “arbitrariness” must not be equated with “against the law” but be interpreted more broadly to include such elements as inappropriateness and injustice. Furthermore, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context. The State party however, seeks to justify the author’s detention by the fact that he entered Australia unlawfully and by the perceived incentive for the applicant to abscond if left in liberty. The question for the Committee is whether these grounds are sufficient to justify indefinite and prolonged detention.

   …

   The Committee observes however, that every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed. In any event, detention should not continue beyond the period for which the State can provide appropriate justification. For example, the fact of illegal entry may indicate a need for investigation and there may be other factors particular to the individuals, such as the likelihood of absconding and lack of cooperation, which may justify detention for a period. Without such factors detention may be considered arbitrary, even if entry was illegal. …

   [20]   Human Rights Committee, Views: Communication No 560/1993, 59^th sess, UN Doc, CCPR/C/59/D/560/1993 (30 April 1997) at [9.2], [9.4] (‘A v Australia’).

6. And in C v Australia, after recalling its earlier conclusion in A v Australia that appropriate justification must be shown to avoid characterisation of a detention as being arbitrary, the Committee went on to apply a “less invasive means” test to find that C’s continued detention under Australia’s immigration policies was arbitrary:[21]

   … the State party has not demonstrated that, in the light of the author’s particular circumstances, there were not less invasive means of achieving the same ends, that is to say, compliance with the State party’s immigration policies, by, for example, the imposition of reporting obligations, sureties or other conditions …

   [21]   Human Rights Committee, Views: Communication No 900/1999, 76th sess, UN Doc, CCPR/C/76/D/900/1999 (28 October 2002) at [8.2] (‘C v Australia’). The “less invasive means” test was subsequently applied by the Committee in Baban v Australia, see Human Rights Committee, Views: Communication No 1014/2001, 78th sess, UN Doc, CCPR/C/78/D/1014/2001 (18 September 2003) at [7.2] (‘Baban v Australia’). See also Human Rights Committee, Views: Communication No 1069/2002, 79th sess, UN Doc, CCPR/C/79/D/1069/2002 (6 November 2003) (‘Bakhityari v Australia’); Matthew T Stubbs, ‘Arbitrary Detention in Australia: Detention of Unlawful Non-Citizens under the Migration Act 1958 (Cth)’ (2006) 25 Australian Year Book of International Law 273 at 288-299.

7. In Attorney-General (SA) v Moyle (Moyle), after returning to Hoare, I observed:[22]

   I add one observation. The Amending Act has the consequence that a person subject to an indeterminate detention order can only be discharged or released on licence if they satisfy the Court that they are capable and willing to control their sexual instincts or that because of advanced age or infirmity they no longer present an appreciable risk to the safety of the community. No longer can the person considered unwilling, but in relation to whom it is unnecessary to detain in order to protect the community, be released. There is then a degree of disconnect between the test applicable in determining whether to detain and the test to be applied in determining whether to discharge a person indeterminately detained or release them on licence. If a person is unwilling to control their sexual instincts and it is unnecessary that they be indeterminately detained in order to protect the community, ongoing detention is no longer protective or necessary for treatment. It is punitive. In my view that is a factor relevant to the exercise of the discretion under s 57. In many cases it may attract little or no weight. But in a case such as the present where it is particularly difficult to tease out what motivates Mr Moyle because of his undoubted severe antisocial personality disorder and where we are concerned with indecent behavior and not sexual offending involving contact with the victim, the risk is real.

   [22] [2018] SASC 106 at [146].

8. My aim was the same as that of the Chief Justice in Thomas (i.e. to emphasise the significance of an order made under s 57 for the person subject of the application).

9. It might be said that my characterisation of the scheme created by Pt 3 Div 5 of the Sentencing Act in Moyle as punitive was wrong and that, whilst it is not treatment focused, it is, as the Chief Justice said in Thomas, preventive or protective. Protective, after all, was how four members of the High Court characterised the Queensland scheme for the indefinite detention of sex offenders whom it was considered posed an unacceptable risk of committing a serious sexual offence in the future in Fardon v Attorney-General (Qld) (Fardon).[23] In particular Callinan and Heydon JJ said:[24]

   [23] (2004) 223 CLR 575 at [2] (Gleeson CJ), [34] (McHugh J), [214]-[217], [219] (Callinan and Heydon JJ).

   [24]   Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at [214]-[217].

   It is accepted that in some circumstances, it is valid to confer powers on both non-judicial and judicial bodies to authorise detention, for example, in cases of infectious disease or mental illness. These categories are not closed. In this respect, the second object of the Act is relevant (s 3(b)):

   “[T]o provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.”

   To the extent that the Act in fact furthers this object, a court applying it would be undertaking, without compromise to its judicial integrity, a conventional adjudicative process.

   To determine whether detention is punitive, the question, whether the impugned law provides for detention as punishment or for some legitimate non-punitive purpose, has to be answered. As Gummow J said in Kruger v The Commonwealth:

   “The question whether a power to detain persons or to take them into custody is to be characterised as punitive in nature, so as to attract the operation of Ch III, depends upon whether those activities are reasonably capable of being seen as necessary for a legitimate non-punitive objective. The categories of non-punitive, involuntary detention are not closed.”

   (Footnotes omitted.)

   Several features of the Act indicate that the purpose of the detention in question is to protect the community and not to punish. Its objects are stated to be to ensure protection of the community and to facilitate rehabilitation (s 3(a)). The focus of the inquiry in determining whether to make an order under s 8 or s 13 is on whether the prisoner is a serious danger, or an unacceptable risk to the community. Annual reviews of continuing detention orders are obligatory (s 27).

   In our opinion, the Act, as the respondent submits, is intended to protect the community from predatory sexual offenders. It is a protective law authorising involuntary detention in the interests of public safety. Its proper characterisation is as a protective rather than a punitive enactment. It is not unique in this respect. Other categories of non-punitive, involuntary detention include: by reason of mental infirmity; public safety concerning chemical, biological and radiological emergencies; migration; indefinite sentencing; contagious diseases and drug treatment. This is not to say however that this Court should not be vigilant in ensuring that the occasions for non-punitive detention are not abused or extended for illegitimate purposes.

   [footnotes omitted]

10. Unlike under Pt 3 Div 5 of the Sentencing Act, however, a continuing detention order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) was to be reviewed by the court, initially, within two years of its making, and, thereafter, annually.[25] On a review hearing the court was required to determine whether the original decision resulting in the making of a continuing detention order should be affirmed.[26] That is to say, the court was required to consider if it was satisfied by acceptable cogent evidence, and to a high degree of probability, that if the prisoner was released from custody there was an unacceptable risk that he or she would commit a serious sexual offence. Such approach goes further toward satisfying the less invasive means test than Pt 3 Div 5 of the Sentencing Act. Under Pt 3 Div 5 detention is not limited in time to the duration of a risk that cannot be managed in a way apt to protect the community other than by detention in custody.

    [25]   Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 27.

    [26]   Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 30.

11. Whether or not an order made under s 57(7) is punitive invites close consideration of the justification for the order in the first place, its duration and the practical consequences of the order for the person to whom it applies. Much academic ink has been spent on these issues.[27] It is unnecessary to pursue them further here. An order made under s 57(7) is preventive; whether it is also punitive in legal character or practical effect can await another day. For present purposes, it is enough to conclude that the exceptional nature of an order for indefinite detention and the consequence of the order for the individual are factors to be taken into account in determining whether an order should be made.

    [27]   See, for example, Peter Ramsay, Imprisonment under the Precautionary Principle in G Robert Sullivan and Ian Dennis (eds), Seeking Security: Pre-empting the Commission of Criminal Harms (Hart Publishing, 2012) at 193-219; Douglas Husak, Preventive Detention on Punishment? Some Possible Obstacles in Andrew Ashworth, Lucia Zedner and Patrick Tomlin (eds), Prevention and the Limits of the Criminal Law (Oxford University Press, 2012); Jean Floud and Warren Young, Dangerousness and Criminal Justice (Heinemann, 1981). Here too international jurisprudence may be informative; see, for example, M v Germany  (European Court of Human Rights) Application No 19359/04, 14 December 2009.

12. Lastly, it is necessary to return to Thomas briefly. In an addendum to the judgment it is noted that s 59 of the Sentencing Act was overlooked.[28] Section 59 deals with the release on licence of a person detained indefinitely under s 57(7).[29] Such person may only be released on licence if this Court is satisfied that he or she is both capable of controlling and willing to control his or her sexual instincts, or, no longer presents an appreciable risk to the safety of the community generally or to individuals due to advanced age or infirmity.[30] The preconditions that must exist before the power to release on licence is enlivened are identical to the pre-conditions which must exist before an order may be discharged under s 58. As in Thomas it is unnecessary to analyse the nature of the relationship between ss 58 and 59 in this case save to observe that the preconditions enlivening the respective powers being the same, s 59 does not ameliorate the arbitrary character of detention under an order made pursuant to s 57(7).

    [28]   Thomas v Attorney-General (SA) [2019] SASCFC 21 at [94].

    [29]   See Criminal Law (Sentencing) Act 1988 (SA), s 24.

    [30]   Sentencing Act 2017 (SA), s 59(1a).

    Material received

13. On the hearing of the application I received the following material:

    i.Affidavit of Fiona Yumi Williams-Mitchell, affirmed 7 November 2016 (exhibit P1)

    ii.     Affidavit of Amanda Pienaar, sworn 15 March 2017 (exhibit P2)

    iii.Second affidavit of Amanda Pienaar, sworn 13 April 2017 (exhibit P3)

    iv.     Third affidavit of Amanda Pienaar, sworn 8 June 2017 (exhibit P4)

    v.     Fourth affidavit of Amanda Pienaar, sworn 3 July 2017 (exhibit P5)

    vi.Fifth affidavit of Amanda Pienaar, sworn 7 September 2017 (exhibit P6)

    vii.Sixth affidavit of Amanda Pienaar, sworn 15 December 2017 (exhibit P7)

    viii.Seventh affidavit of Amanda Pienaar, sworn 15 February 2018 (exhibit P8)

    ix.     Report of Dr William Brereton, dated 23 August 2017 (exhibit P9)

    x.     Report of Dr Pei Lim, dated 12 July 2017 (exhibit P10)

    xi.Report of Ms Bronwyn Tregenza, dated 24 November 2017 (exhibit P11)

    xii.    Curriculum vitae of Mr Clark Sim (exhibit P12)

    xiii.   Curriculum vitae of Dr Henry Pharo (exhibit P13)

    xiv.Affidavit of Christopher Joffre Charles, sworn 3 October 2017 (exhibit D14)

    xv.Second affidavit of Christopher Joffre Charles, sworn 4 October 2017 (exhibit D15)

    xvi.Excerpt of the Final Report of the Royal Commission into Aboriginal Deaths in Custody (exhibit D16)

    xvii.Affidavit of Henry Howard Pharo, affirmed 14 March 2018 (exhibit P17)

    xviii.         Affidavit of Jane Farrin, affirmed 14 March 2018 (exhibit P18)

    xix.Excerpt of the Royal Commission into Aboriginal Deaths in Custody (exhibit D19)

    xx.    Letter from Mr Clark Sim dated 15 March 2018 (exhibit P20)

    xxi.Letters to Dr Pei Lim and Dr William Brereton from Christopher J Charles dated 3 April 2017 (exhibit D21)

14. In addition, Dr Brereton, Dr Lim, Dr Pharo, Mr Sim and Ms Farrin were called to give oral evidence supplementing their reports and affidavits.  They were all cross-examined by counsel for Mr Duroux.

    Mr Duroux’s personal circumstances

15. Mr Duroux was born on 19 February 1965. He is currently 54 years old. He was born in Adelaide. Both of his parents have Aboriginal heritage. His mother is a Ngarrindjeri woman whilst his father was from a Queensland mob but also had French heritage.

16. I understand Mr Duroux’s mother is still alive and throughout his time in custody has remained in contact with him and supportive of him.

17. When Mr Duroux was four years old his father died in active service during the Vietnam War. He has little memory of his father although he considered that he knew him not to be a violent man.

1. As a young child Mr Duroux spent some time in Melbourne but moved back to Adelaide before the age of 10. When he was 13 years old his mother married an Australian of British heritage who was also a Vietnam War veteran. As a result of this marriage, Mr Duroux has two half-siblings, a brother and a sister.

2. Mr Duroux has described his mother as being a “good mum” but within the household there was much domestic violence perpetrated by his stepfather. Mr Duroux recalls his stepfather beating him whenever he tried to protect his mother and hitting him with an army belt. Mr Duroux has denied being sexually abused as a child.

3. At the age of seven Mr Duroux went to live with his maternal grandparents. He spent most of his adolescence living with them, being raised primarily by his grandmother. Mr Duroux has reported that his grandparents were “very good” to him and that he was spoilt and looked after by everyone who lived in that house. He said that they had raised him to “respect others but I didn’t listen” and reported being challenging for his grandparents, refusing to follow their direction.

4. Mr Duroux lived with his grandparents until the 1990s, whereupon he commenced living a peripatetic lifestyle, sleeping in the houses of various friends.

5. His grandparents passed away when he was in his early twenties.

6. Mr Duroux commenced schooling in Melbourne. Upon his return to Adelaide he attended Thebarton High School. His education was marred by his significant behavioural problems, including disruptive behaviour, antisocial behaviour and defiance towards authority figures, particularly his teachers. He was both suspended and expelled for swearing and being truant. When he was truant Mr Duroux and his friends would often travel to Hindley Street to play pinball and snooker and engage in criminal activities including shoplifting and stealing cars. He was also accused of being a bully at school even though he believes that all he did was stand up for vulnerable peers. He left school having advanced no further than year 8. Consequently, he has limited literacy and numeracy skills.

7. Upon leaving school Mr Duroux took occasional, casual jobs, including a three-month job in a timber yard. However, he was never interested in work because for him it was “all about the drugs”. He has not worked since his late teens.

8. To date Mr Duroux has made no specific plans for employment after his release.

9. Whilst in prison Mr Duroux has completed the following programs: Literacy and Numeracy, Anger Management, Alcohol/Drug Brief Intervention, Alcohol/Drug Part A, Aboriginal Anger Management, Certificate I in Foundation Education, Certificate I in Preliminary Education, Certificate II in Aboriginal Preparatory Education, Certificate I in Engineering Production, Employment Skills and Training 2003/4 and Aboriginal Ending Offending 2004. He has also participated in the Aboriginal Elders Visiting Program and was observed to be attentive. I understand Mr Duroux has become proficient as a welder.

10. Mr Duroux commenced abusing drugs when he was in school, around the time that he was first taken into detention. His drug abuse revolved, in the main, around the use of cannabis and amphetamines. He began smoking cannabis in his teens. He has reported that for approximately five years he would smoke up to three bags of cannabis per day. He ceased use when he stopped experiencing the pleasurable effects of the drug.

11. At around the age 16 Mr Duroux began using amphetamines, primarily speed. The drug made him “happy, full of energy”. He began to inject amphetamines at the age of 17 and continued to do so into his thirties. He would use approximately $100 worth of amphetamines per day and recalled having to commit crime to fund his addiction. He admitted that he occasionally experienced paranoia if he had taken amphetamines for a prolonged time and had no sleep. He was aware that amphetamines increased his libido and disinhibited him.

12. Mr Duroux has said that he gave up using illicit drugs in around 1994 with some minor lapses since then. In this latter regard, he has tested positive to buprenorphine on four occasions (in 2007, 2009, 2010 and 2012) and amphetamine once (in 2014) whilst in prison.

13. Turning to Mr Duroux’s previous relationships, he estimates that he has had seven to 10 different sexual partners. He admitted that he tended to have one-night stands. When he engaged in sexual intercourse with consenting partners Mr Duroux said that he had not been “rough or violent” and denied any fetishistic sexual practices. He admitted to visiting prostitutes on two or three occasions in his late twenties.

14. Mr Duroux has a limited history of stable intimate relationships. His first significant relationship commenced when he was in his late teens/early twenties and lasted for two to three years. Mr Duroux claims their sexual relations were poor because he “was out thieving and not worried about sex”, and that their relationship was also marred by his jealously, which would intensify at those times when he became paranoid from his use of speed and cannabis. Mr Duroux reported coming close to hurting his partner with a knife during an argument before someone prompted him to stop. She eventually ended the relationship.

15. Mr Duroux’s second significant relationship began soon after the first ended. This relationship also lasted two to three years. He described their sexual relations as being “okay, no problems” and the relationship overall as being “good”. However, they would argue and although Mr Duroux denied there being violence between them, he has admitted to having “slapped” her on occasion. Eventually his partner ended the relationship due to his drug abuse. Mr Duroux has a daughter from this relationship.

16. Mr Duroux’s third significant relationship lasted only two months but produced a son.

17. Mr Duroux has been diagnosed as having paranoid schizophrenia. He has never accepted the diagnosis but nonetheless has continued to take antipsychotic medication as prescribed.

18. Late in 2016 Mr Duroux was seen by Mr Balfour, a registered psychologist. Mr Balfour prepared a report for the Parole Board that was provided to this Court. Mr Balfour considered Mr Duroux of low-average intelligence, functionally illiterate, and possessing poor numeracy skills, poor money management skills, and poor living skills. Mr Balfour also considered Mr Duroux to have a personality disorder and to be institutionalised. He noted that Mr Duroux had been diagnosed as having schizophrenia and that Mr Duroux had poor insight into his illness, but was nonetheless medication compliant (he is prescribed 10 mg of Olanzapine at night). Mr Balfour detected no sign of psychosis. Mr Balfour said:

    The main destabilising factor upon Mr Duroux’s mental state whilst he has been imprisoned has been his sporadic use of illicit drugs. However, at the time of testing, he appeared to have been abstinent from all illicit drug use, and this had been confirmed by consistently clean drug test results.

    Mr Duroux possesses a number of risk factors for an acquired brain injury. He has a history of drug use and alcohol abuse, and head trauma. He also has a psychotic illness that would place him at-risk for developing a pseudo-dementia.

    Overall, I believe that Mr Duroux possesses a level of neurocognitive impairment in the moderate range of severity. I believe that his neurocognitive impairment is multifactorial in aetiology.

19. Mr Balfour considered Mr Duroux’s mental state stable.

20. The Court was provided with a number of Departmental case reviews prepared in relation to Mr Duroux. These reports do not suggest that Mr Duroux has been a difficult prisoner to manage. They do not contain any evidence of him sexually offending in custody or of his having engaged in sexually inappropriate behaviour.

    Offending history

21. Mr Duroux first came into contact with the criminal justice system in 1980 as a 15 year old. In that same year he was imprisoned for the first time. Sentences of imprisonment quickly became common for him. With the exception of 1988 and 1989 when he was in prison, between 1980 and 1996 Mr Duroux appeared in the State’s criminal courts every year, generally on multiple occasions. He has numerous convictions for assault, property damage and public order offences. His criminal history also indicates that he is a chronic criminal trespasser having been convicted of building break and felony on over 25 occasions.

22. In 1990 Mr Duroux was sentenced in the Magistrates Court for two counts of assault, three counts of property damage, thrice breaching a restraint order, building break and felony, attempted building break and felony, and possessing a controlled substance. For present purposes the sentence imposed is of little relevance. What is relevant is the content of a pre-sentence report and a psychological report provided to the sentencing court. In his reasons the Magistrate quoted those reports. The pre-sentence report stated:

    The offender is a twenty four year old Aboriginal male with a family background marred by violent arguments, the lack of a loving, stable father figure and for many years, the absence of his mother.

    A recent neuropshychological [sic] report states that “his problematic behaviours have resulted from adverse developmental influence rather than any cognitive deficits due to organic factors.”

    Psychiatric evaluation also states that “formal psychiatric intervention has really little to offer this man.”

    His main problems appears to be (a) a lack of control (b) impulsive behaviour (c) undesirable peer groups (d) violent temper (e) aggression and blaming society and all those people he feels have treated him badly. He has proved his dangerousness by documented assaults on ex-girlfriends and although he says he regrets these attacks he has done little to improve his coping skills when upset or angry. His performance on parole has been poor and he resents the limitations parole places on him.

    All attempts at counselling and rehabilitation seem to have failed mainly because of Mr. Duroux’s poor attendance record and refusal to change his attitudes. It would seem likely that his life will not improve until he makes a real commitment to following through any courses which are offered to him to help him cope with his multi-faceted problems.

23. The psychological report stated:

    … Mr. Duroux has a history of poor academic achievements, poor occupational achievements, learning difficulties and problematic behaviours. Relative to individuals from his age group, his intellectual and memory functioning was assessed as being in the low average to borderline range and this is consistent with his history of poor achievements. Although his level of cognitive functioning is poor there was no evidence on formal testing to indicate that this could be attributed to an underlying organic process, e.g. alcohol related brain damage, head injury, etc. This finding is consistent with the results of an EEG done on the 6/10/88 at Hillcrest Hospital where Dr Hicks concluded ‘The (EEG) record is comfortably within normal limits’. Based on the above findings, I feel that further neurological testing (e.g. CT-scan) will fail to reveal any new information of diagnostic significance to explain his behavioural problems. Overall, it is my opinion that his problematic behaviours can be attributed to personality and behavioural factors, which have resulted from adverse developmental influences, rather than any cognitive defects due to organic factors.

24. The sentencing Magistrate described Mr Duroux as a persistent offender who had been a persistent offender for a decade.

25. Mr Duroux’s sexual offending did not commence until 1991 when between March and July he raped three women, two of the women multiple times. He was not detected as the person responsible for these offences for some time and then only due to advances in DNA technology. Ultimately, he was sentenced for this offending in 2001. The sentencing Judge said:

    Joseph Maxwell Duroux, you have pleaded guilty to a series of rapes committed upon three women. There were seven rapes in all. There were two rapes on the victim [B], four rapes in relation to the victim [T] and one rape in relation to the victim [D]. The offences against [B] were part of a series of incidents which took place at the same time, as did the offences against [T]. The offences were committed between March and July 1991. They all took place in the inner western suburbs.

26. The Judge described the circumstances of the offending as follows:

    … [T] was at home with her three and a half month old daughter on Friday, 15 March 1991. You entered her house wearing a disguise over your head. You told her that you had a gun and you held a jumper over your hand in such a way as to make her think that you did have a gun. You then proceeded to subject her to three separate acts of vaginal sexual intercourse and one act of anal sexual intercourse. All of those acts were without her consent.

    On Friday, 3 May 1991 [D] drove out in the evening to a shop near her home. It would appear that while she was away you entered her house and cut the telephone cord. When she returned you confronted her and threatened her with a knife. You threatened to kill her. You wore a disguise over your face. You then had vaginal sexual intercourse with your victim without her consent.

    The third incident took place on the evening of 6 July 1991. [B] was alone in her home. You entered the house and threatened her with an iron bar. Again you were wearing a disguise over your face. You tied her wrists behind her back. You then placed your finger into your victim’s vagina and subsequently you placed your penis inside her vagina. Obviously, this all took place without her consent.

27. At the time of his being sentenced for these rapes Mr Duroux was in prison serving a sentence of six years, 11 months and three days with a non-parole period of four years, 11 months and 12 days for attempted rape and robbery imposed on 14 October 1996. The attempted rape and robbery occurred on 24 September 1995, after the rapes for which Mr Duroux was sentenced in 2001. The Judge who sentenced Mr Duroux for the attempted rape and robbery summarised the circumstances of that offending as follows:

    Joseph Maxwell Duroux, you have pleaded guilty to the offences of attempted rape and robbery. Particulars of the first offence are that on 24 September 1995, at Richmond, you attempted to have vaginal sexual intercourse with [E] without her consent.  Particulars of the second offence are that on 24 September 1995, at Richmond, you robbed [E] of money in the amount of $175 and a gold bracelet and two rings together of the value of about $100.

    You entered the victim’s house uninvited after she responded to your knock on the front door.  Certain conversation took place.  You then manoeuvred her into the bedroom, pulled her jeans part way down her legs, directed her to bend over her bed and unsuccessfully attempted penile penetration of the vagina from behind.  Finally, you took cash and jewellery and left the house.

    Your victim was 19 years of age at the time.  She must have been terrified by her experience.  The victim impact statement shows that she was emotionally traumatised to a significant degree and has received counselling on a number of occasions.

28. Both sentencing Judges had the benefit of a number of reports written in 1995 and 1996 by Dr Craig Raeside, a forensic psychiatrist, about Mr Duroux. It appears that Mr Duroux’s solicitors first sought Dr Raeside’s opinion about the mental health of their client after he appeared irrational and delusional during an interview with the Parole Board in November 1995. That interview appears to have occurred after his arrest for the attempted rape and robbery but before he had pleaded. In his first report, dated 5 December 1995, Dr Raeside considered Mr Duroux probably had a delusional disorder and suggested that he be reviewed by prison medical staff. By the time of Dr Raeside’s second report, dated 20 February 1996, Mr Duroux had been admitted to James Nash House, his mental state had settled somewhat but he continued to report symptoms of auditory hallucinations, disturbances in his thinking, and clear and extensive paranoid delusions. Dr Raeside considered that at that time Mr Duroux was not fit to plead and suggested that he be prescribed antipsychotic medication. By 2 May 1996 when Dr Raeside prepared his third report, Mr Duroux had been discharged from James Nash House (on 7 March 1996) and was fit to plead. Between February and May 1996 he had been prescribed antipsychotic medication to which he had responded favourably. Dr Raeside considered that Mr Duroux probably had an underlying psychotic illness, possibly schizophrenia, and suggested that he continue on the medication prescribed. In his September 1996 report Dr Raeside expressed the opinion that Mr Duroux probably had a paranoid schizophrenic illness that was reasonably well treated with antipsychotic medication. He could not discount that Mr Duroux had a delusional disorder. In either case, Mr Duroux’s condition was likely triggered by his extensive amphetamine use. Dr Raeside concluded his September 1996 report saying:

    I would have little opinion to make with regards to sentencing, but would suggest that Mr Duroux needs ongoing psychiatric follow up, medication, and review of his mental state on a regular basis. This can be done whilst he remains in the prison system through regular psychiatric clinics to the gaols, or alternatively at James Nash House if he has a relapse. Upon release in the community it would also be important for him to receive regular psychiatric review. I would suggest that Mr Duroux address his long standing drug abuse as this is likely to contribute to further offending in the future if it continues.

29. Mr Duroux had told Dr Raeside that he had no memory of his 1995 offending due to drug use. Mr Duroux had similarly claimed to have no memory of his 1991 offending. Nonetheless, the Judge who sentenced Mr Duroux in 2001 considered that his 1991 offending showed a degree of planning and an awareness of what he was doing. The Judge did not consider that any psychiatric condition had had an impact on Mr Duroux’s thought processes at the time of his offending nor on his capacity to appreciate the fact that his offending was serious.

30. For the 1991 offending Mr Duroux was sentenced to imprisonment for 21 years to be served cumulative upon the completion of the balance of the sentence imposed in 1996 and in addition to the balance of a sentence in relation to which Mr Duroux was on parole at the time he committed the first of the 1991 rapes. The overall result was that as of 14 October 1996, the date upon which Mr Duroux was sentenced for the 1995 offending, he had a head sentence of imprisonment for 28 years, seven months and 27 days. The Judge who sentenced him in 2001 fixed a non-parole period of 18 years and six months to run from 14 October 1996.

31. Mr Duroux remains in prison serving the sentence imposed in 2001. His non-parole period expired on 13 April 2015. Initially he did apply for parole, but subsequently withdrew his application. If he does not apply for and is not granted parole, Mr Duroux will complete his sentence on 6 June 2025.

    Parole Report

32. As mentioned, Mr Duroux’s non-parole period expired on 13 April 2015. In anticipation of an application for parole the Department for Correctional Services prepared a “Parole Report”. This report was prepared as Mr Duroux was in the process of completing the SBC-me program to which reference is made below.

33. Mr Duroux was reported to have told the report writer:

    … that a lack of money and a drug habit were significant factors which have contributed to his offending behaviour. He further stated that he had broken up with his girlfriend before the offending. Mr. Duroux said he considers that a lack of sex was [a] factor as to why he committed the rape offences. Offender Risk Needs Inventory – Revised (ORNI-R) on 06/01/11 states that Mr. Duroux identified racism and jealousy with women to be common sources of anger for him.

1. The report writer noted that Mr Duroux appeared to accept some responsibility for his offending but also appeared to blame external factors. Mr Duroux stated that he did not think that he was at risk of reoffending. The report writer noted that if Mr Duroux does not perceive that he is at risk of reoffending then he is not likely to be mindful of his pro-offending thought processes and the behaviours that lead him closer to reoffending, thereby increasing his risk of doing so. It was hoped that the SBC-me program would assist him to recognise his risk and the circumstances that increased it.

2. Mr Duroux showed some remorse for the victims of his past offending. He considered that they would have been traumatised, upset and angry at what he had done. He acknowledged that he had no right to do as he did. When asked what would prevent him reoffending he pointed to his remaining abstinent from drugs and securing employment. He indicated that if he were released he would focus upon obtaining appropriate employment and gain financial independence. He believed that he had the skills necessary to manage his own affairs. Despite his confidence the report writer expressed the following opinion:

   If Mr. Duroux is released into the community he will be exposed to a variety of problems and situations. Mr. Duroux has not been exposed to such life situations for a number of years due to his incarceration in a controlled environment. Mr. Duroux is an individual who appears to have a significant level of institutionalisation which may have contributed him to be dependent on external constraints. Mr. Duroux may have lost the capacity to rely on internal organization and self-imposed personal limits to guide his actions and restrain his conduct. It is the writers’ opinion that at this moment in time Mr. Duroux may not have the appropriate skills to function in society.

   There are a number of risks in relation to his current application for Parole including: history of failed attempts at community supervision, institutionalisation, positive urine test results, and lack of protective factors. On the basis of the information presented, it is the opinion of the writer that the risk presented by Mr Duroux outweighs the positive aspects of this application and he is considered a poor candidate for immediate release into the community.

3. The report writer goes on to suggest that if the Parole Board considered it appropriate to release Mr Duroux, transitional arrangements should be implemented in order that staged reintegration occur.

   Treatment received

4. In a January 2011 Department for Correctional Services, Sentence Management Unit report, Mr Duroux was estimated to be at “very high” risk of sexually reoffending should he not receive treatment. This estimation was subsequently revised to “high” in a September 2013 report prepared by the same unit. On both occasions Mr Duroux was considered suitable for participation in the Department’s Sexual Behaviour Clinic program (SBC), though due to his limited intellectual capacity he would need to attend the “low functioning” SBC program (SBC-me).

5. In the same 2011 report Mr Duroux’s dynamic risk factors that posed concern in relation to his risk of reoffending were considered to include a lack of intimacy, relationships and social functioning, a lack of empathy and victim awareness, sexual fantasy and arousal and poor self-management. The report writer, a senior psychologist with the Department, said:

   In particular, Mr Duroux has demonstrated an inability to appropriately maintain appropriate intimate relationships with his female partners and resorted to drug use and domestic violence to solve problems within his relationships. He appeared to also lack the ability to maintain constructive friendships with appropriate peers. It is likely that his low level of intellectual functioning has meant that he has been unduly influenced by negative peers and is more vulnerable to peer pressure and exploitation than a person of average intelligence.

   Mr Duroux appeared to be excessively self-focussed and has demonstrated little regard for the welfare of others (including his female partners and his children). His violent history, persistent drug use and presentation during interview (uncooperative, disrespectful and passively aggressive) suggested that he has considerable difficulty with emotional regulation and may experience pervasive anger and a level of disinhibition of his emotions. The rape offences and domestic violence may represent the inappropriate displacement of the anger, powerlessness and frustration that he experienced in his interpersonal relationships. Although Mr Duroux did not admit to any prior planning of his rape offences, the official accounts indicate a degree of premeditation (e.g. ensuring his victims were alone, pre-cutting a telephone cord). Accordingly, it is likely that Mr Duroux experienced deviant sexual arousal to fantasies of non-consensual sex prior to his offences. Mr Duroux’s evasive body language (when discussing his sexual offences during interview) suggested that he felt a degree of shame and embarrassment regarding his sexual offending). The experience of shame may be linked to his previous denial of memory surrounding the events and may continue to inhibit full disclosure during intervention.

6. It was also noted that Mr Duroux had been diagnosed as suffering from schizophrenia for which he was monitored and was said to have had a history of poor compliance with medication requirements. Further, substance abuse remained an issue bearing in mind that Mr Duroux had returned positive results for the presence of synthetic opioids (buprenorphine; often used in the prison system to treat opioid addiction) in his system after undergoing urinalysis in 2009 and 2010. It was recommended that he undertake the Making Changes program as a step in assisting him with drug abuse issues.

7. Significantly:

   … Mr Duroux claimed no memory of his offences during his trial and cited the effects of Amphetamines and the drug Rohypnol. At interview, he also claimed no memory of the events. Therefore it was not possible to explore the circumstances of his offending. However, during a subsequent interview (for an intellectual assessment) he admitted to memories of his offending. He explained that he had initially planned to commit theft offences, but had developed deviant thoughts that had stimulated him to sexually offend. Mr Duroux also expressed a desire to be open about his offending within the context of group intervention.

8. In the 2013 report it was noted that much of Mr Duroux’s offending was related to his substance abuse. His risk factors were again itemised, this time as follows:

   … his lack of social support, capacity for relationship stability, hostility towards women, feelings of social rejection, lack of concern for others, impulsivity, poor problem solving skills, deviant sexual preferences, sexual preoccupation, use of sex as a coping strategy, and negative emotionality.

9. As for drug abuse, the report writers, two clinicians with the Department, noted a further positive result in 2012 for the presence of buprenorphine, but since then two negative results.

10. Mr Duroux participated in the SBC-me program at Mount Gambier prison between 26 November 2013 and 25 February 2015. He completed all components of the program, including attending all of the 129 sessions available to him. In total he received approximately 322.5 group treatment hours and 14 individual treatment hours and on nine occasions met with the Aboriginal Programs Officer to receive additional cultural support. What follows is taken from a report prepared in April 2015 by the Rehabilitation Programs Branch after Mr Duroux’s completion of the SBC-me program.

11. Mr Duroux’s participation and engagement in the program were often limited. However, he appeared to have increased insight into the areas of general self-regulation and sexual self-regulation, and his responses to all exercises evinced that he had an understanding of what is right and wrong in terms of sexual touching and behaviour, and consent.

12. During the program module that focused on identifying “wrong thinking”, being thinking that offenders use to legitimise previous unacceptable behaviour, facilitators observed that in relation to his previous sexual offending, Mr Duroux fluctuated between two views. He would generally state that he was thinking about drugs and stealing when breaking into the victims’ houses and only thought about sex when he saw the victims, however at other times Mr Duroux acknowledged that he “probably” did have thoughts of sex prior to breaking in. By the end of the program it was still not clear to facilitators the extent to which Mr Duroux acknowledged an intention to rape prior to breaking into the victims’ properties.

13. The clinicians involved in the delivery of the program considered Mr Duroux’s problem behaviours to include the sexual offences he had committed forming part of ongoing antisocial and unlawful behaviour more generally, impulsivity, poor problem-solving skills and a history of drug abuse. It was added:

    The vulnerability factors for Mr Duroux’s offending behaviour were likely to have been developed in his childhood, when his basic need to be loved was compromised by the death of his father at a young age, and his being brought up by his maternal grandparents whilst his mother formed a new relationship and had two children with a new partner, all of whom lived together as a family unit. …

14. It was considered that Mr Duroux’s problem behaviours were maintained primarily by his use of amphetamines which would have acted as a disinhibitor allowing him to perpetuate and elevate his antisocial behaviour, “especially with regard to how he chose to fund his drug use and perhaps in how he chose to meet his sexual needs”. Mr Duroux himself acknowledged that speed increased his sex drive and lowered his inhibitions.

15. Under the heading “Formulation”, the report writer recorded:

    It was hypothesised that the setting events that created the environment for his sexual offending included the termination of Mr Duroux’s previous relationship in 1989, which may have led Mr Duroux to experience another rejection, and therefore bring back to his mind the rejection he experienced from his mother as a young child. Furthermore, in 1990, 1991 and 1992 Mr Duroux was convicted of Fail To Comply With Restraining Order; whilst JIS records did not go back that far to ascertain the applicant of the Restraining Order, the convictions demonstrated Mr Duroux’s unwillingness to abide by the court order and perhaps his anger towards the applicant. It was posited that those events may have increased Mr Duroux’s feelings of anger towards the women, and that displaced anger may have been a factor in his sexual offending. Again, it was noted that Mr Duroux denied any feelings of anger towards women and denied that anger had been a relevant emotion in his sexual offending. He did, however, admit that he had feelings of anger as he perceived that his family were not helping him enough at the time.

    The trigger to his sexual offending was seen in the context of the multiple burglaries that Mr Duroux committed during the period surrounding his sexual offending in order to fund his illegal drug use. It was unclear by the end of the program whether a sexual motive or a financial motive was the trigger to his breaking into houses and committing sexual offences.

    The information gathered about Mr Duroux’s sexual offending during the SBC-me left questions unanswered. Most important among those related to the nature and presence of deviant sexual fantasy and arousal prior to and during his sexual offending. Mr Duroux denied that he had deviant sexual fantasy or arousal to non-consentual [sic] sex, or that he would engage in deviant sexual behaviour after release, but despite that he would benefit from further intervention in this area. He also stated that he did not feel anger towards female relatives, ex-partners or women in general. It was noted that in 2008, the JIS recorded an incident where Mr Duroux had a compassionate leave with his mother terminated early due to his agitated and aggressive behaviour towards her. That incident had not been discussed with Mr Duroux during the SBC-me, and would benefit from further investigation. Additionally, in 1996 Mr Duroux was diagnosed as “he probably has a Paranoid Schizophrenic illness, which is now reasonably well treated with antipsychotic mediation. Alternatively he may have solely a Delusional Disorder, but this usually does not respond as well to antipsychotic medication. Either way, it is likely that his extensive amphetamine use may well have triggered this paranoid illness. There is also clear evidence of an Antisocial Personality Disorder”. Mr Duroux had never agreed with that diagnosis. Given that the diagnosis was made after Mr Duroux was placed in custody, it could not be stated as to whether there was any relationship between the diagnosis and his sexual offending. That could benefit from further exploration in order to determine an appropriate treatment plan for Mr Duroux in the community.

    With regard to protective factors which may assist Mr Duroux to reduce his risk of further general or sexual offending, it was thought that his decision to engage in the SBC-me program was a protective factor, particularly given the length of his sentence. He named his family as a source of support and his stated desire to become a more engaged son, parent and grandparent served as a motivation for him to continue to monitor his risk of re-offending. In addition, Mr Duroux had expressed an intention to abstain from illegal drug use, although it was unknown as to his ability to adhere to that goal, given his occasional lapses during his sentence. It was noted that limited therapeutic alliance had been gained with Mr Duroux during the SBC-me program, but should he display a willingness to engage in further psychological intervention to build upon the start he had made in exploring his problem behaviours in more depth, that would be representative of an important protective factor.

    [citation omitted]

16. It appears that in participating in the SBC-me program Mr Duroux has gained insight into the need upon release to surround himself with protective factors and resist temptation to succumb to his former aberrant behaviours. In the SBC-me report it is recorded:

    Throughout the program, SBC-me participants were required to personalise and expand on domains of ‘The Good Life’. By the end of the program, Mr Duroux’s good life map described goals in each domain, including: learn to cook and learn about healthy foods; join a gym; play table tennis at a club; get a driver’s licence; learn to play a musical instrument; travel to NSW to see family; meet new people to learn more about different experiences and myself; save money and learn to budget; say ‘no’ to drugs; be honest with family and friends; look for a job welding; spend time with family to “keep me centred”; focus on meditation and mindfulness exercises; work on communication skills; and be hardworking and honest. Mr Duroux believed that he had personal strengths in some of the good life domains, but he also believed he could benefit from continuing to work on all the domains; facilitators considered that a realistic viewpoint to take.

    Following the presentation of his offence progression, Mr Duroux named various ‘escape plans’ to avoid ‘danger zones’ and further offending, including: use New Me self-talk to remind himself of his goals and of the consequences of any illegal drug use; plan to spend time with his family or go to the gym to distract himself from thinking about drugs; be determined and seek support from family and counsellors; consider attending Narcotics Anonymous meetings; be honest if he had a lapse and immediately seek help from his family or a doctor; distract himself by listening to music, meditating and going to the gym; get a driver’s licence; notice people around him and leave the situation if he noticed other people using drugs; look for a job in welding; and use ‘Hang In There’ thinking to help him to manage the queues in Centrelink.

    During the final module ‘My New Me Future’, Mr Duroux refined and developed further his ‘set-ups’ to offending and the strategies/’what-to-dos’ he would use to maintain an offence-free-future. The set-ups Mr Duroux identified included: relapsing into drug use and not taking prescribed medication; not sticking to his appointments; losing sight of his goals around reading and writing; not asking for help or not asking questions; Old Me thinking around ‘me me me’ and avoiding responsibility; spending time with Old Me friends or associates; feeling bored and liking excitement; and, Mr Duroux identified his sexual offending set-up as feeling entitled/‘me me me’, feeling lonely and not being in a relationship. Mr Duroux developed a safety plan/‘what-to-dos’ to address those set-ups, which covered various skills taught throughout the program. These included cognitive and behavioural responses, emotion management skills, thinking about consequences, considering the views of others, using assertive communication, seeking help, problem-identification and problem-solving skills, and mindfulness skills.

17. At the conclusion of the program Mr Duroux was assessed as being at a very high risk of sexual offending. The increase in Mr Duroux’s estimated risk was due to the presence of additional static risk factors that were not initially accounted for in the pre-assessment. Whilst Mr Duroux’s dynamic risk level was noted to have decreased, some of the changes, such as his impulsivity, were context specific and were not yet demonstrated to have changed over time or across relevant high-risk situations.

18. The report writer considered that the course had succeeded in increasing Mr Duroux’s insight into areas of self and sexual regulation, but the development of skills learned was not always evident in group sessions. Amongst other things on his release it was recommended that Mr Duroux:

    Engage with a suitably-trained psychologist experienced in working with an intellectual disability client group for individual intervention to work on developing further insight into the reasons for Mr Duroux’s sexual offending, including the presence of deviant sexual fantasy and arousal and displayed anger towards women; and to address outstanding risks and needs around substance use.

    Acknowledging the length of time that Mr Duroux had been in custody, the report also recommended that Mr Duroux be referred to the Exceptional Needs Unit and the Adelaide Pre-Release Centre:

    … Mr Duroux had been in prison for the majority of his adult life and had many complex needs that might be assisted by the ENU [Exceptional Needs Unit].  The possibility of a referral was discussed with Mr Duroux in individual sessions, and he was amenable to such a referral.

    Given the length of time that Mr Duroux had experienced in custody, the benefits of spending time at the Adelaide Pre-Release Centre (APC) to gain experience and skills in re-socialisation were discussed in individual sessions.  Mr Duroux was supportive of that idea, and realistic and accepting of the likelihood that the Parole Board would want to see him reside successfully in a lower-security environment prior to any decision about release on parole.  It was noted throughout the program that whilst Mr Duroux had ideas and plans for his release, those sometimes lacked detail or understanding of the difficulties he might face after his release from a long sentence.  As such, a placement at the APC could assist him to strengthen and expand his plans for release in a supportive lower-security environment.

19. The SBC-me report writer closed as follows:

    In summary, Mr Duroux presented as a willing participant throughout treatment, with 100% attendance. At a superficial level he appeared motivated to address his criminogenic risk factors, but it was considered that Mr Duroux may have limited the information that he was willing to share, sometimes appeared suspicious of the motives of the facilitators, and at times wanted to present himself in a favourable light; that unwillingness limited his ability to further understand and address his individual criminogenic risk factors. Whilst that was understandable in the context of a person who had served 20 years in prison and was hopeful of release on parole, it did not assist facilitators to engage with Mr Duroux so that he could explain fully the reasons behind his sexual offending and, therefore, how he would prevent re-offending after his release.

    Clearly Mr Duroux had controlled his sexual instincts within the custodial setting, but there remained uncertainty regarding his capacity to control those instincts in the community. That was due to the hypothesised causal features associated with his sexual offending having not been situationally present for him within custody. It was recommended that his case be closely monitored by the Serious Offender Committee throughout the remainder of his sentence, and in light of his repeated previous offending of a similar nature, the Serious Offender Committee may decide to investigate further the application of the current legislation.

    [emphasis in original]

    Future treatment

1. From a risk management perspective it was quite a coincidence that three of the houses had lone adult victims, but it remained unclear to Dr Lim how Mr Duroux chose his targets. As stated above, Mr Duroux had informed Dr Lim that he chose his victims randomly. But when Dr Lim asked why he broke into three of the houses knowing that someone was present Mr Duroux was not able to provide a satisfactory response. Notwithstanding, Dr Lim did find some evidence of premeditation which she considered significant in terms of the risk of Mr Duroux reoffending. Premeditation suggests that the level of risk is high in that it is linked to sexually deviant fantasies which, in turn, increase the risk of reoffending. In Mr Duroux’s case Dr Lim reiterated that a number of factors indicated that he had engaged in some level of pre-planning as outlined in her report. She noted that those factors were somewhat inconsistent with Mr Duroux’s account that the offending had occurred as an impulsive act and on the spur of the moment due to drugs, and that he had not first checked to ensure the victims were alone before knocking on the door. But as Dr Lim said in her report, Mr Duroux vacillated during his interview in relation to his reason for breaking-in which she considered to be significant:

   It is significant if the person is unable to give a consistent meaningful account of the circumstances leading up to the offence. In addition, he was unable to clearly tell me his thoughts and feelings that were happening for him before and during the offence and that’s important because thoughts and feelings impact on his behaviour. If he can’t understand or is unwilling to discuss, it means that we are unable to help him address these thoughts and feelings and that his risks are unlikely to be mitigated.

2. Dr Lim elaborated:

   AAs I have indicated earlier, if someone is able to meaningfully address his thoughts and feelings leading up to the offences then he is more likely to be able to implement strategies to manage those thoughts and feelings that impact on his behaviour and future.

   QAnd if not.

   AIf not and if there is a repeated pattern of the same offences occurring, then it’s highly likely that a similar event will occur in the future.

   QIs that your assessment of Mr Duroux.

   AYes.

3. Mr Duroux was consistently reluctant to disclose whether he had deviant sexual fantasies. While Dr Lim took into account the fact that Mr Duroux was an Aboriginal man speaking to a female psychiatrist and that this could have inhibited some of his responses, she also noted that this was not a problem unique to Aboriginal offenders. As to Mr Duroux’s claim that he rarely masturbated in prison preferring to focus on exercise instead, Dr Lim considered this difficult to believe and inconsistent with his desire to commence a sexual relationship with a partner as soon as he is released.

4. 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

5. 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.

6. 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.

7. This characterisation of the risk Mr Duroux poses might be considered understated in that it assumes his primary motivation in breaking into the houses where he raped and attempted to rape was to steal. It accepts that his sexual offending was opportunistic and not premeditated.

8. I do not overlook the fact that at present Mr Duroux has not provided a firm explanation for his offending. Was his sexual offending truly opportunistic in the sense I have described, or did he have a sexual motive that triggered his breaking into the houses and committing the sexual offences? I do not overlook that his claim to having a lack of memory of his 1991 and 1995 sexual offending is inconsistent with the partial explanations he has provided to various clinicians in subsequent years. A lack of complete candour is concerning. The clinicians do not as yet know why Mr Duroux chose to rape the women he did. This explains why much of the expert evidence concentrated on assisting Mr Duroux to develop and surround himself with protective factors as part of reintegration and de-institutionalisation plans.

9. Over 20 years have passed since Mr Duroux last committed a sexual offence. He is now a much older and more mature man.  I suspect he is tired of the prison regime. I note that despite his antisocial personality disorder he is largely compliant with that regime. I do not consider his positive test results for the presence of illicit drugs in his system, the last result now being dated, indicative of a persisting drug problem, but it provides little comfort that he will not resort to drugs if the opportunity arises in the community. I accept that in the prison environment he has displayed no deviant sexual behaviours or distorted sexual thinking. But the risk he poses is situational and the relevant situation is not one that can arise within the prison system.

10. I accept that Mr Duroux has made some positive gains on the SBC-me program. He has a greater understanding of what is right and wrong and the need to self-regulate and he appreciates the importance of surrounding himself with protective factors. However, he has not accepted responsibility for his offending unconditionally, his victim empathy is deficient, he does not consider that he poses any risk and has an unrealistic perception of his ability to cope in the community if released. He is unlikely then to appreciate and appropriately monitor his own risk. Further, he has an antisocial personality disorder and has never accepted his diagnosis as suffering from schizophrenia. These factors allow for a disorganised lifestyle to develop in which the temptation to engage in maladaptive behaviours strengthens. Further again, he has exercised circumspection in discussing his motivation to offend.

11. In short, many of his criminogenic factors remain unknown and unaddressed or, if known, inadequately addressed. That is not to be critical of the Rehabilitation Services Branch. It is a product of Mr Duroux being a complex person.

12. I have given anxious consideration to whether there is in play some sort of cultural obstacle. I respect the opinions of Drs Brereton and Lim that sexual offending of the type committed by Mr Duroux is not at all condoned by the Aboriginal culture. Mr Duroux said as much. And I accept that some risk factors identified in the literature and observable in Mr Duroux’s behaviour are not necessarily susceptible to any cultural bias. I also note that both doctors said that to some extent they relied upon clinical judgment to overcome the non-validation of certain measures for cultural biases. I have also taken into account Dr Brereton’s view that Mr Duroux is not acculturated in the Aboriginal culture. I admit to being somewhat sceptical of this. Like many Aboriginal people who appear in the State’s courts, disconnection for whatever reason does not mean abandonment of culture. It is well documented that Aboriginal experience with the authorities too often has been of differential treatment indicative of institutional racism or ethnocentrism, often unwittingly perpetrated. That is not to suggest that either Drs Brereton or Lim have mistreated Mr Duroux in anyway. Far from it. My point is that Mr Duroux’s life experience as an Aboriginal man, including in custody, is likely very different to a non-Aboriginal prisoner and, in my view, could not possibly be separated from his Aboriginality. The significance of this might translate into an unwillingness to share information about himself critical to the formation of an opinion in the exercise of clinical judgment. However that may be, at the end of the day, despite many questions asked on the topic of cultural appropriateness, no evidence was called that allows me to conclude that cultural obstacles have prevented or impeded Mr Duroux in the provision of information or compromised the doctors’ opinions. In this connection I also note the steps taken as part of the SBC-me program to overcome cultural obstacles.

13. In my view, if released into the community, and if left to his own devices, there is a significant risk that Mr Duroux will regress and resort to the maladaptive behaviours he has previously exhibited. Those behaviours will progress to the point where, given the opportunity to offend sexually, and here I have in mind that Mr Duroux will return to committing break-ins and may break into a home where there is present a vulnerable woman all alone at a time when he is not in a relationship, he will sexually offend.

14. The risk Mr Duroux poses, if released, is not immediate. The evidence does not support a conclusion that he is likely immediately to set about planning to rape vulnerable women. The evidence suggests his risk of sexually offending is secondary to his risk of developing maladaptive behaviours as a means of coping with stresses in his life. It is the likelihood of his developing those maladaptive behaviours that renders it significantly likely that he will sexually offend in the future.

15. If I am wrong in my assessment that Mr Duroux’s risk is secondary to his risk of developing maladaptive behaviours and, in fact, his sexual offending was premeditated and committed after first ascertaining that the victims would be alone and vulnerable, then his risk, likely borne of deviant sexual fantasies, is only greater.

16. For these reasons I find that Mr Duroux is unwilling to control his sexual instincts. Accordingly, the discretion to make an order indefinitely detaining Mr Duroux is enlivened.

17. My conclusion to date is predicated on Mr Duroux being left to his own devices in the community. That is, in a situation where there is an absence of protective factors operating to offset his gravitation toward the maladaptive behaviours that will likely lead him to offend sexually, particularly when coupled with his non-acceptance of responsibility for his past offending, his lack of insight and inability to monitor his risk, his antisocial personality disorder and his non-acceptance of his being diagnosed as suffering from schizophrenia. This is the position that would prevail if Mr Duroux were to be released today. But Mr Duroux is not due to be released today. There is no indication that he is to be released in the near future and his sentence does not expire for the best part of six more years.

18. Much of the evidence received in this case concerned not only the question of whether Mr Duroux was unwilling to control his sexual instincts but, accepting he was unwilling, what more could be done between now and when his sentence expired to reduce his risk. The major premise underpinning counsel for Mr Duroux’s approach was that no order for indefinite detention need be contemplated at this time. Rehabilitative efforts in the custodial environment could continue and the community could rely upon the Parole Board not to release Mr Duroux before his sentence expired if he posed an unacceptable risk to the safety of the community. At a time more proximate to the expiration of Mr Duroux’s sentence, and assuming he did not receive parole and remained unwilling in the relevant sense to control his sexual instincts, a fresh application for an order under s 57 could be made.[33]

    [33] See s 57(4) of the Sentencing Act 2017 (SA) which provides that the Attorney-General can make an application under s 57(3) in respect of a person serving a sentence of imprisonment whether or not an application to this Court has previously been made.

19. In a sense this application is intended to pre-empt a possible grant of parole. Bearing in mind Mr Sim’s evidence about the level of communication between the Parole Board and the Department in relation to an application for parole, the Parole Board’s expertise and the command that in deciding whether to admit a prisoner to parole the protection of the public must be afforded paramountcy,[34] there is much to be said for the submission that no order should be made at this time. However, the applicant contends that, in effect, Mr Duroux’s risk to the community is static and as such waiting would achieve little. Accompanying that submission is the contention that Mr Duroux is unlikely to respond positively to any further treatment in the custodial environment and his risk is too great to contemplate any form of staged reintegration that allows for treatment in the community. The position taken is relatively absolute and admits of little hope.

    [34]   Correctional Services Act 1982 (SA), s 67(3a).

20. There is an unfortunate paradox here. Our system of criminal justice and punishment is intended in the vast majority of cases ultimately to result in reclaiming the offender. Here the 2001 sentencing Judge set a non-parole period in expectation that in Mr Duroux’s case that would occur. And yet the sentence has resulted in Mr Duroux’s institutionalisation which in no small part contributes to the position in which he now finds himself. The Department recognises this and attempts through the many programs and courses it offers to assist in resocialisation and reintegration. However, sometimes the risk posed by an offender is too great. Such cases are rare and exceptional. Is this one? Or, perhaps, can it be said today that it is one?

21. Mr Sim and Dr Pharo expressed the opinion that ideally future work undertaken with Mr Duroux would be part of, or feed into, a broader reintegration and resocialisation plan. In terms of individual psychotherapy there was little more that could be effectively achieved within the prison environment. The time had come for skills learned to be tested, their deployment analysed and improvements or adjustments in the light thereof worked on. Ideally, this would take place in the community as part of a reintegration plan. Mr Sim and Dr Pharo both thought that further psychotherapy work with Mr Duroux in custody was unlikely to lead to significant gains in addressing Mr Duroux’s risk factors. I did not understand Dr Brereton to be of the same opinion, or at least so firmly of the same opinion. I understood Dr Brereton to be of a similar view but less insistent that gains could not be made with further psychotherapy. Dr Brereton considered there to be work for psychologists to do with Mr Duroux to gain a proper understanding of his sexual drives and to assist him in developing greater victim empathy. Alongside such cognitive work, there is considerable work to do be done in resocialising Mr Duroux that can take place within the prison environment including strengthening his cultural ties with the Ngarrindjeri people.

22. I was particularly concerned by the ramifications of Dr Pharo’s evidence as to the intensity of program delivery. I should not be taken to be critical of Dr Pharo in this regard. I readily understand the finite resources available to the Rehabilitation Programs Branch. I also understand the good sense in delivering programs to offenders at a time proximate to their release in order that gains made are more likely maintained and deployed upon release. Further, I understand that group-based rehabilitative programs have been demonstrated to be more effective than individual work. What concerns me is that if I make the orders now sought, the reference point used by the Department for the purposes of program delivery — the likely release date — evaporates in Mr Duroux’s case. Dr Pharo kept referring to such date in Mr Duroux’s case as being his sentence expiry date. But that date would no longer govern the duration of Mr Duroux’s detention if I made the order now sought. There would be no firm release date. Release on licence and discharge will only occur if Mr Duroux proves on the balance that he is willing to control his sexual instincts or that he no longer presents an appreciable risk to the safety of the community due to his age or because he has become infirm. That point in time cannot be known. Putting to one side age and infirmity, for Mr Duroux to be able to establish that he is willing to control his sexual instincts he will require the sort of input to which Dr Brereton, Dr Pharo and Mr Sim referred. If I make the order will the intensity of input that has commenced in Mr Duroux’s case and which will only increase if he were to apply for parole dissipate? If I do not make the order, the inputs to which Mr Sim and Dr Brereton refer will likely proceed and possibly gain even greater momentum if Mr Duroux applies for parole. All can be supervised, in effect, by the Parole Board.

23. The protection of the community does not demand that the order be made at this stage.

24. I note the courses Mr Duroux has undertaken in custody to date. He appears intent on bettering himself. I note his attendance on the SBC-me program, a further indicator of his commitment. I bear in mind the exceptional nature of an order for indefinite detention, the observations made in Thomas and Moyle, and the time still available to Mr Duroux with the assistance of the Department spurred on by the prospects of a sentence expiry date or parole application. In all the circumstances which necessarily include that at present there is no prospect of Mr Duroux being released on parole, I am not persuaded that an order that Mr Duroux be detained in custody indefinitely is necessary to protect the public. I bear in mind Sir Leon Radzinowicz’s counsel:[35]

    Unless indeterminate sentences are awarded with great care, there is a grave risk that this measure, designed to ensure the better protection of society, may become an instrument of social aggression and weaken the basic principle of individual liberty.

    [35]   Sir Leon Radzinowicz, The Persistent Offender in L Radzinowicz and J W C Turner (eds), The Modern Approach to Criminal Law (MacMillan & Co, 1945) at 167.

1. There remains a significant period of time in which to work with Mr Duroux to address his criminogenic factors and begin the de-institutionalisation process. The prospects of success may not be great, but the stakes for Mr Duroux are high. I refuse the application.