Attorney-General (SA) v Kelly

Case [2017] SASC 164

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

ATTORNEY-GENERAL (SA) v KELLY

[2017] SASC 164

Reasons for Decision of The Honourable Justice Nicholson

15 November 2017

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 section 23 of the Criminal Law (Sentencing) Act 1988 (SA) that the respondent be detained in custody until further order on the basis that the respondent is unwilling to control his sexual instincts.

The respondent is presently serving a term of imprisonment of 13 years for indecent assault, unlawful sexual intercourse and aggravated serious criminal trespass in a place of residence. The respondent has a history of sexual offending against female children.

During the hearing, the respondent applied for an adjournment of the section 23 application until such time as the Attorney-General would be able to make an application for an extended supervision order pursuant to section 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA). The applicant opposed the application for an adjournment.

Held:

1.      The application for an adjournment is refused.

2. The respondent is a person who is unwilling to control his sexual instincts as that term is defined for the purposes of section 23(1) of the Criminal Law (Sentencing) Act 1988 (SA).

3. At the expiration of the term of imprisonment presently being served, the respondent is to be detained in custody until further order pursuant to section 23 of the Criminal Law (Sentencing) Act 1988 (SA).

Criminal Law (Sentencing) Act 1988 (SA) s 23; Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, referred to.
R v Whyte [2006] SASC 56; R v Sumner [2015] SASC 177; R v F, JM [2015] SASC 99, considered.

ATTORNEY-GENERAL (SA) v KELLY
[2017] SASC 164

Criminal: Application

NICHOLSON J.      

Introduction

  1. The respondent, Kingsley Kelly, is serving a term of imprisonment of 13 years with a non-parole period of eight years which commenced on 1 July 2006.  He pleaded guilty in the District Court to the offences of indecent assault,[1] unlawful sexual intercourse[2] and aggravated serious criminal trespass in a place of residence committed on 1 July 2006.[3]  This sentence will expire on 30 June 2019.   However, Mr Kelly is not due for release until 30 September 2019.  An additional period of three months imprisonment, to be served cumulatively, was imposed for an offence of aggravated assault committed in 2014 while he was in custody.

    [1] Contrary to section 56 of the Criminal Law Consolidation Act 1935.

    [2] Contrary to section 49 of the Criminal Law Consolidation Act 1935

    [3] Contrary to section 170 of the Criminal Law Consolidation Act 1935.

  2. The Attorney-General for the State of South Australia has applied, pursuant to subsection 23(2a) of the Criminal Law (Sentencing) Act 1988, for an order that, at the expiration of Mr Kelly’s term of imprisonment, he be detained in…

Continue reading Attorney-General (SA) v Kelly

Sign in free to access the full text

Details
AGLC
Attorney-General (SA) v Kelly [2017] SASC 164
Case
[2017] SASC 164
Decision Date

CaseChat Overview and Summary

In Attorney-General (SA) v Kelly, the South Australian Supreme Court dealt with an application by the Attorney-General under the Sentencing Act 1988 to make an order for indefinite detention of the respondent, Kelly, upon his release from imprisonment. The application was predicated on Kelly's status as a dangerous sexual offender, necessitating an evaluation of whether Kelly was unwilling to control his sexual instincts, which would justify an indefinite detention order. The case presented a complex interplay between legislative provisions concerning dangerous offenders and the principles of judicial discretion in sentencing.

The court had to determine whether Kelly met the criteria for an indefinite detention order under section 23 of the Sentencing Act, specifically whether he was unwilling to control his sexual instincts to a significant degree. This required an analysis of the evidence, including expert psychiatric opinions, to assess Kelly's risk of reoffending. The court also had to weigh this against the significant deprivation of liberty that such an order would entail, balancing the interests of public safety against Kelly's rights.

The court meticulously examined the statutory framework and relevant case law to interpret the threshold for "unwillingness" as defined by the amended section 23. It considered the requisite standard of proof and the broader factors influencing the risk assessment. The decision hinged on whether the evidence presented a substantial risk of Kelly failing to control his sexual instincts, thereby justifying an indefinite detention order. The court concluded that the evidence did not meet the threshold of "significant risk" required by the statute, and thus Kelly's application for an adjournment was denied.

The court ultimately determined that an indefinite detention order under section 23 was not warranted, and the application was dismissed. The ruling underscored the stringent criteria necessary to impose such a severe restriction on personal liberty, highlighting the importance of a balanced approach between public protection and individual rights.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

While not explicit, the power to make an order pursuant to section 23 requires, as a threshold question, that the Court be satisfied that the person the subject of the application is either incapable of controlling, or unwilling to control, his or her sexual instincts.[6] The law as it relates to the question of whether or not a person is unwilling to control his or her sexual instincts was recently summarised by me in the following terms.[7][6] R v Schuster [2016] SASCFC 86; (2016) 125 SASR 388 at [97], R v Whyte [2006] SASC 56 at [10], R v Ainsworth [2008] SASC 67; (2008) 100 SASR 238 at [24]. [7] R v Sumner [2015] SASC 177 at [32]-[33], [35]-[38] reversed on the facts R v Sumner [2016] SASCFC 59. However, this summary of the law was not disturbed on appeal.In R v Whyte,[8] White J discussed, in detail, the notion of “unwilling” in the context of determining whether an order under section 23 is necessary.[9] His Honour observed: [10][8] [2006] SASC 56. [9] Previously, a person would be subject to indefinite detention pursuant to an order made under section 23 only in circumstances where the person was “incapable of controlling” their sexual instincts. Following an amendment to s 23 in 2005, an order for indefinite detention may be made in circumstances where the person is “unwilling to control” their sexual instincts. [10] R v Whyte [2006] SASC 56 at [23]. The statutory definition is in the nature of a deeming provision, ie, requiring the Court to presume that an offender is unwilling to control his or her sexual instincts if there is a significant risk that he or she would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of those instincts.His Honour continued:[11][11] R v Whyte [2006] SASC 56 at [25]. The assessment is not, however, to be confined to the risk that a relevant offence may be committed. The risk to be assessed is the risk that the offender will fail to exercise appropriate control of his or her sexual instincts, not that he or she will commit a relevant offence. The definition is not to be construed as though it referred to the risk that, given an opportunity to commit a relevant offence, the offender would do so. In most cases, failure to exercise appropriate control of sexual instincts would be evident if a person attempted to commit a relevant offence,[12] or who aided, abetted, counselled or procured the commission of such an offence.[13][12] Criminal Law Consolidation Act 1935 s 270A.[13] Criminal Law Consolidation Act 1935 s 267. White J also identified factors the Court should consider when assessing the relevant risk and the level of risk that would support an order for indefinite detention.[14] [14] R v Whyte [2006] SASC 56 at [29]-[30].[T]he 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.Before a Court concludes that a person is unwilling in the defined sense, it must be satisfied that the risk of failure to exercise appropriate control is “significant”. In context, the word “significant” has the meaning of “substantial”.[15] Put more colloquially, the Court must be satisfied that there is a “good chance” that the risk will eventuate.[16] The mere possibility of a failure to exercise appropriate control of sexual instincts will not be sufficient. But on the other hand the Court does not have to predict that the offender will fail to exercise appropriate control, or even consider it probable that he will fail to exercise such control.. . . .The paramount consideration when determining whether an order for indefinite detention is appropriate is the safety of the community.[17] In addition to this consideration, subsection (5a) requires me to consider the abovementioned reports, any evidence and representations put to the Court on behalf of the defendant and any other relevant matter. An issue arising under section 23 concerns the basis upon which any assumptions of fact, upon which the medical practitioners have based their opinion as to the defendant’s unwillingness, must be established. Bleby J in R v England said this.[18] [T]he Court will need to assess the strength of [the medical practitioners’] opinions, taking into account a number of factors relevant to the assessment of expert evidence. That will include identifying the relevant primary facts surrounding the proven offending on which [the] medical practitioners have based their opinions, and ensuring that they are established to the court’s satisfaction beyond reasonable doubt. Ultimately, the question of whether or not an offender is unwilling, as defined, is a matter for the Court. An opinion to that effect by any or all of the medical practitioners who provide a report is neither a necessary nor a sufficient requirement, although the Court must “have regard” to their opinions.[19] If I were to conclude that the defendant is unwilling, in the relevant sense, I still must then consider whether I should exercise the discretion to make an order pursuant to section 23(4).[20] I must engage in an exercise of balancing the interest of the community to be protected against the significant deprivation of liberty that would result from an order for indefinite detention.[21][15] Cf; the concept of “unacceptable risk” which appeared in the Queensland legislation considered in Fardon v Attorney-General (Qld) [2004] HCA 46.[16] Boughey v The Queen (1986) 161 CLR 10 at 22 per Mason, Wilson and Deane JJ.[17] Criminal Law (Sentencing) Act 1988 s 23(5). [18] R v England (2004) 87 SASR 411 at [58]. [19] R v Ainsworth [2008] SASC 67; (2008) 100 SASR 238 at [41]. [20] R v Whyte [2006] SASC 56 at [15]; R v England (2004) 87 SASR 411 at [56], [60]. [21] R v Armfield [2005] SASC 108 at [67].The expert and other evidence

Decision

Reasons for decision

NICHOLSON J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

I indicated during the hearing that I would rule on Mr Kelly’s application for an adjournment as part of my resolution of the Attorney-General’s application under section 23.Consideration I turn first to consider the application for an adjournment. The adjournment is refused. The Criminal Law (High Risk Offenders) Act 2015 confers jurisdiction on this Court to make, in prescribed circumstances, an extended supervision order in respect of a person who is characterised as a high risk offender.[24] Where such an order is made it takes effect upon that person’s release from prison and, in effect, requires such an offender’s release into the community to be subject to nominated conditions[25] designed to permit further supervision of the person and to effect restrictions on their movements and activities, all intended to provide enhanced protection for the community. [24] Criminal Law (High Risk Offenders) Act 2015 s 7.[25] Criminal Law (High Risk Offenders) Act 2015 s10. This legislative regime applies to serious sexual offenders and serious violent offenders, as defined. Before making such an extended supervision order, the court must be satisfied that the offender in question is a high risk offender, as defined, and poses an appreciable risk to the safety of the community if not supervised under the order.[26] Similarly to the approach mandated under section 23 of the Sentencing Act, the paramount consideration in determining whether to make an extended supervision order must be the safety of the community.[27][26] Criminal Law (High Risk Offenders) Act 2015 s 7.[27] Criminal Law (High Risk Offenders) Act 2015 s 7(5). It was Mr Kelly’s contention that suitable protections could be put in place as part of an order made under this regime and that such an order would be significantly less restrictive of his personal liberty than would an order for indefinite detention pursuant to section 23. At present, it would not be open to the Court to proceed in this alternative manner because subsection 7(1) of the Criminal Law (High Risk Offenders) Act makes it plain that the Court will only have jurisdiction to make an extended supervision order upon an application made by the Attorney-General. There is no scope under the Act for the respondent to make any such application or for the Court to act of its own motion. Further, it is not open to the Attorney-General to make an application at present because subsection 7(2) provides that an application for an extended supervision order may only be made within 12 months of the expiry of the term of imprisonment being served. In this case, that 12 month period would not commence to run until, at the earliest, 30 June 2018.[28][28] There may be a debate as to whether the 12 month period would commence to run from 30 June 2018, which is 12 months before the sentence with respect to the respondent’s sexual offending is due to expire, or from 30 September 2018 which is 12 months before the respondent’s total period of imprisonment is due to expire. It is unnecessary for me to form a view on this issue.