Attorney-General (SA) v Kelly - [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

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.
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 custody until further order on the basis that he is a person who is unwilling to control his sexual instincts.[4] The offences of indecent assault and unlawful sexual intercourse fall within the definition of “relevant offence” for the purposes of and thus satisfying the jurisdictional requirement for the making of an order under section 23 of the Sentencing Act.
[4] Subsection 23(2a) empowers an application by the Attorney-General in these terms:
(2a) 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.
Mr Kelly has a history of sexual offending. Prior to the 2006 offending, he had been convicted of two other offences of indecent assault, one in 1995 and one in 1997.
The asserted basis of the application is that Mr Kelly is unwilling to control his sexual instincts as that concept is defined in section 23(1) of the Sentencing Act, namely that there is a significant risk that he would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts.
The voluminous written material before the Court includes expert forensic psychiatric reports from Dr Jules Begg and Dr Pei Lim, as required by section 23(3) of the Sentencing Act. Each has concluded that Mr Kelly is unwilling to control his sexual instincts as that term is defined for the purposes of section 23. In addition, the Court has before it a neuropsychological report from Dr Emma Scamps and a rehabilitation report from Katharine Short. Each has concluded that Mr Kelly is at high risk of reoffending. All of these experts gave oral evidence which served only to support and not detract from the opinions expressed in their respective reports and to confirm that in each case their opinion had a proper evidentiary foundation.
For the reasons that follow, I will make the order as sought in the application.
The respondent’s personal circumstances
Mr Kelly was born in Ceduna in July 1972. He is now 45 years of age. Both of his parents are Aboriginal and they separated when he was a young child. He was initially raised by his grandmother and then later by his mother and stepfather. Mr Kelly spent most of his childhood residing with his extended family in the Koonibba mission, approximately 50 kilometres outside of Ceduna.
Mr Kelly changed schools several times and displayed behavioural problems. He stopped attending school during Year 8 or 9 and he has relatively poor literacy and numeracy skills. He left Koonibba at the age of 14 and subsequently moved between Adelaide, Ceduna and Clare. Mr Kelly has largely been unemployed since leaving school apart from short periods of casual work.
When Mr Kelly was aged 15 or so, he commenced a relationship with a girl also aged around 14. The pair had a son when Mr Kelly was around 16 years of age. The relationship between Mr Kelly and his partner ended after approximately 12 years largely as a result of his repeated incarceration. He has not had any other significant adult relationships. He has limited contact with his son and his former partner.
Mr Kelly has an extensive history of alcohol and drug abuse that began in his adolescent years. He began drinking alcohol at the age of 15 and has had a history of severe alcoholism since the age of 17. He began using cannabis at the age of 14 and continued to do so on a regular basis, and at times using significant amounts, for most of his adult life prior to his incarceration. He also engaged in the abuse of a number of prescription medications and the use of intravenous amphetamines. Mr Kelly has reported that each time he offended, he had been heavily affected by alcohol and cannabis.
Mr Kelly was first diagnosed with schizophrenia in 1992. This diagnosis has subsequently been confirmed on a number of occasions. He has also been diagnosed with a personality disorder of mixed borderline and antisocial type, a moderate intellectual disability due to alcohol abuse, and as suffering from alcohol and poly-substance abuse.
The respondent’s criminal offending
Mr Kelly has a long history of offending, beginning when he was 14 years of age. His earlier offending included numerous break and enter offences, damage property and theft offences. Prior to 1995, Mr Kelly had not committed any sexual offences. However, his adult antecedents include a number of sexual offences, all of which are “relevant offences” for the purpose of section 23.
The October 1995 offending
Mr Kelly’s first sexual offence was an act of indecent assault which occurred on 19 October 1995, when he was around 23 years of age. The offence was committed against a girl aged eight years and 10 months. Mr Kelly, having recently been released from custody, accompanied a man he knew whilst in custody and the man’s partner to their house. After consuming alcohol and drugs at the house, Mr Kelly entered the bedroom of the couple’s two children and indecently assaulted the girl. Mr Kelly pleaded guilty and was sentenced to imprisonment for five months, to be served cumulatively on a sentence for driving offences, resulting in a total period of imprisonment of 19 months and one week. A non-parole period of 10 months was set.
The April 1997 offending
In 1997, Mr Kelly was convicted of an indecent assault, committed on 23 April 1997. He had been on parole for the 1995 offence, having been released from custody some weeks earlier. The victim was a three year old girl. Mr Kelly had been at the house of the mother of the victim. After having been asked to leave and doing so, he returned to the house and broke in. He performed an act of cunnilingus upon the victim and caused the girl to perform an act of fellatio upon him. Mr Kelly was intoxicated by alcohol at the time of the offence. A sentence of imprisonment for seven years and seven months was imposed, with a non-parole period of five years.
On 22 December 2000, whilst in prison for the 1997 offence, Mr Kelly briefly escaped from custody. He pleaded guilty to an escape custody charge and a sentence of six months imprisonment, to be served cumulatively upon the sentence he was serving at the time of his escape, was imposed.
The July 2006 offending
In August 2007, Mr Kelly pleaded guilty to the offences of aggravated serious criminal trespass in a place of residence, indecent assault and unlawful sexual intercourse. The offences were committed on 1 July 2006, a few months after his release from custody on 28 April 2006.
The victim of this offending was a nine year old girl. Mr Kelly broke into the house of people whom he did not know and went to a bedroom where the victim and her brother were sleeping. He touched the girl indecently and penetrated her vagina with his finger. The girl woke and began screaming, waking her parents who apprehended Mr Kelly. He was affected by drugs and alcohol at the time of the offending. A head sentence of 13 years was imposed, with a non-parole period of eight years. Mr Kelly is currently serving this sentence.
While serving this term of imprisonment, Mr Kelly was convicted of aggravated assault upon a prison officer. He was sentenced to three months imprisonment to be served cumulatively upon the 13 year term of imprisonment for the July 2006 offending. Mr Kelly’s non-parole period was extended by one month. Mr Kelly’s non-parole period expired on 31 July 2014.
Whilst serving this latest period of imprisonment, Mr Kelly was approved for participation in the ‘Sexual Behaviour Clinic-me’ (SBC) program, a group based rehabilitation intervention program for convicted sex offenders. He commenced the SBC program on 26 November 2013 and completed the program on 25 February 2015. This was Mr Kelly’s first opportunity to engage in treatment for his sexual offending behaviour during his periods of imprisonment. Following his completion of the SBC program, Mr Kelly was assessed as still posing a very high risk of sexual reoffending.
The law
Pursuant to subsection 23(4) of the Sentencing Act, this Court, upon application by the Attorney-General, may order that an imprisoned person who has been convicted of a relevant sexual offence and who is found to be unwilling to control, or incapable of controlling, his or her sexual instincts be detained in custody until further order. The fundamental purpose of an order for indefinite detention pursuant to section 23 is the safety of the community.[5] Section 23 of the Sentencing Act, insofar as presently material, is in the following terms.
[5] Section 23(5) of the Sentencing Act provides that this is the paramount consideration when determining whether to make an order for indefinite detention.
23—Offenders incapable of controlling, or unwilling to control, sexual instincts
(1)    In this section—
institution means—
…
person to whom this section applies means—
(a)..
(b)…
(c)a person who is the subject of an application by the Attorney-General under subsection (2a);
relevant offence means—
(a)an offence under section 48, 48A, 49, 50, 56, 58, 59, 63, 63A, 63B, 69 or 72 of the Criminal Law Consolidation Act 1935; or
(b)-(d)…
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.
(2)    …
(2a)     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.
(2b)     The Attorney-General may make an application under subsection (2a) in respect of a person serving a sentence of imprisonment whether or not an application to the Supreme Court to have the person dealt with under this section has previously been made (but, if a previous application has been made, a further application cannot be made more than 12 months before the person is eligible to apply for release on parole).
(3)    The Supreme Court must, before determining whether to make an order that a person to whom this section applies be detained in custody until further order, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of a person to whom this section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, his or her sexual instincts.
(4)    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.
(5)    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 the safety of the community.
(5a)     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 (3)) furnished 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 25;
(d)any other matter that the Court thinks relevant.
(5b)     …
(5c)     …
(6)    …
(7)    If the detention is in addition to a sentence of imprisonment, the detention will commence on the expiration of the term of imprisonment, or of all terms of imprisonment that the person is liable to serve.
(8)    …
(9)    The progress and circumstances of a person subject to an order under this section must be reviewed at least once in each period of 12 months—
(a)…
(b)… by the Parole Board,
for the purpose of making a recommendation about whether the person is—
(c)if the person is in custody—suitable for release on licence under section 24;
(d)…
(10)     …
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

Section 23(3) of the Sentencing Act provides that the Court, before determining whether to make an order for indefinite detention pursuant to section 23(4), must have regard to the reports of at least two legally qualified medical practitioners who have been directed by the Court to enquire into the mental condition of the respondent.
The Court has before it a report by Dr Jules Begg dated 17 August 2016 and a report by Dr Pei Lim dated 28 November 2016. Each is a well qualified and experienced forensic psychiatrist. Each gave oral evidence explaining and in support of the conclusions in their respective reports. Dr Begg and Dr Lim each expressed the opinion that Mr Kelly is a person who is unwilling to control his sexual instincts.
Dr Begg expressed the following opinion as part of his “summary and assessment”.
Despite acknowledging to others the presence of deviant sexual fantasies, he did not report these to myself. When he did not tell me of any fantasies I specifically warned him it was important to share all of his thinking about the previous offending, and that the interview was not just focused on his current circumstances. Despite this encouragement, he maintained the position that he did not have, nor ever had, deviant sexual fantasies towards children, which is not consistent with his previous reports to others. He had no reason to lie to me, because he knew that I would have known what he had said to others. I determined that this was a reflection of antisocial personality – not a consciously derived lie (although this could not be fully excluded), but more likely a denial within himself of his deviancy. This is very concerning, considering the extensive amount of treatment he has received. It indicates to me the treatment has not been effective. It has not translated into a longer term understanding. He says the rights words – that offending is bad for victims et cetera, but he distances himself from the offending by denying his sexual fantasies and blaming alcohol.
I therefore concluded that his circumstances have not improved from the time of the offending. The only change is that he is now older. Older people tend to offend less than younger people. This was not enough to persuade me against a conclusion that he would be unwilling to control his sexual instincts, because given an opportunity to commit a relevant offence he would, in my opinion fail to exercise appropriate control of his sexual instincts.
During his oral evidence given in April this year, Dr Begg confirmed these opinions and expressed the views that Mr Kelly: lacks emotional empathy; puts his own agenda first; lacks a necessary sense of healthy guilt for wrongdoing; and is unable to acknowledge to himself his sexual deviancy notwithstanding that the record clearly shows such to be present.
Dr Pei Lim’s report is very comprehensive. Dr Lim discussed in detail Mr Kelly’s personal history, psychosexual history, drug and alcohol history, medical history, forensic history, psychiatric history, sexual offending history, current attitudes to his offending, progress whilst in prison and mental state examination and then expressed the following conclusions and opinions.
11.17The Risk for Sexual Violence Protocol (RSVP) considers both static and dynamic factors (eg factors that may be modified through intervention and treatment response). There are 22 risk factors in the RSVP which can be categorised into five domains, namely sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability.
11.18Mr Kelly is considered a persistent sex offender with sexual offences against female children spanning over a decade. This takes into account the lengthy periods of incarceration which limited his access to potential victims. His sexual offending is not diverse but contains striking similarities as previously described. There is some evidence of coercion in the first offence when a young female child was made to perform a sexual act on him.
11.19There is evidence that he minimises his risks, with partial failure to accept responsibility for his previous offences. Mr Kelly’s view that the current application arose out of racism enables him to minimise the severity of his offences and deflect personal responsibility for addressing his sexual deviancy.
11.20Although he blames alcohol and drugs for his offending, he has a very poor understanding of the emotional triggers and chain of events that precede his substance abuse. He has a limited understanding into his pattern of offending, including: the interplay between loneliness, social rejection from adult women, sexual entitlement and anger. The last 2 sexual offences against children were preceded by his inability to have his sexual needs met by adult women of his choice.
11.21Mr Kelly indicated that he has always known that drugs and alcohol disinhibit him and increase his sexual urges. Despite this knowledge, he has relapsed rapidly into substance abuse soon after release each time, with limited evidence of attempting to control his use. Furthermore, Mr Kelly is unduly reliant on his religion to reduce his risks, which absolves him of the responsibility to address his sexual deviancy and reasons behind substance use. Despite his reassurances that he knows the harmful effects, he still justifies the abuse of alcohol and drugs, stating “a lot of Aboriginal people do it”. Previous reports speculated that he might have used alcohol to disinhibit himself sufficiently to enact his sexual fantasies about children. I am unable to comment on this as he has refused to discuss his underlying fantasies and rapidly became hostile.
11.22Mr Kelly has longstanding difficulties with problem-solving and coping with stress. He has repeatedly used alcohol and substance use and sexual activity to manage negative emotions. Despite having his own accommodation, receiving psychiatric reviews and attending church prior to his current offences, he gravitated towards drug using peers and stayed with them to alleviate his loneliness. It is likely that he will default to similar dysfunctional coping strategies in less supervised environments.
11.23Although Mr Kelly attended the SBC program for sex offenders, the facilitators noted his ambivalence and fluctuating motivation. He engaged poorly in the module designed to address his relationship deficits (eg capacity to maintain stable adult relationships) and feelings of rejection. More significantly, he refused to address his sexual deviancy.
11.24There is limited evidence that psychotic symptoms drove his offending and he has never received a mental impairment defence. Furthermore, there is limited evidence of increased sexual disinhibition when unwell during his admissions at James Nash House.
11.25Mr Kelly has an anti-social personality disorder which will impact negatively on his risk of recidivism and his ability to gain meaningful insight into his offending. Furthermore, previous assessments noted that he had psychopathic traits including: deceitfulness, manipulating others for his own gain, recklessness, disregarding societal rules and putting his own needs above other people’s rights by offending. He has a history of repeated prior supervision failure, including reoffending on parole, escape from custody, using drugs and offending (aggravated assault) even whilst in custody. All of these factors mean that his risk of recidivism will be considerable even with an intensively supervised release.
11.26The best predictor of future sexual recidivism is past behaviour. His repeated sexual offending despite legal sanctions and previous reassurances to desist is concerning. In view of the above, particularly his unwillingness to address his sexual deviancy, I believe he is unwilling to alter his behaviour.
11.27Based on all of the above, I believe that Mr Kelly is at high risk of sexual re-offending as he is unwilling to control his sexual instincts, because there is a significant risk that he would, given an opportunity, fail to exercise appropriate control of his sexual instincts.
Dr Lim, in evidence also given in April 2017, confirmed these opinions in essential respects.
The Court also has before it a very comprehensive report by Dr Emma Scamps, a clinical neuropsychologist, dated 1 October 2016. Dr Scamps also gave oral evidence in support of her report. Dr Scamps concluded that Mr Kelly is either incapable of controlling, or unwilling to control, his sexual instincts. Dr Scamps performed a number of actuarial risk psychometric assessments, the results of which indicated that the respondent remains at high risk of reoffending.
The Court also has before it a report by Ms Katharine Short dated 28 February 2017. Ms Short is the manager of the Rehabilitation Programs Branch for the Department of Correctional Services. She has formal qualifications and significant practical experience in criminology, applied social studies and social work. Her role includes the overseeing of the provision of rehabilitation programs throughout this State’s prisons and the supervision of the staff who provide and facilitate those programs. Prior to this role, Ms Short was engaged as a senior clinician in the provision and facilitation of such programs, including violence prevention and sexual behaviour clinics. Ms Short was involved with Mr Kelly as a clinician facilitating the delivery of the SBC program. In her report and in her oral evidence, also given in April 2017, Ms Short addressed Mr Kelly’s responsiveness to previous treatment programs. She expressed this opinion.
Mr Kelly’s post-treatment risk assessment on 13/03/2015 indicated that the following dynamic risk factors required further intervention: Significant Social Influences; Capacity for Relationship Stability; General Social Rejection; Impulsivity; Poor Problem-Solving Skills; Sex as Coping; Deviant Sexual Preference; Cooperation with Supervision. Following completion of the SBC-me program Mr Kelly was estimated as remaining at very high risk of sexual re-offending.
Ms Short outlined the further rehabilitation and case management options that would be available to Mr Kelly in the event that an order for indefinite detention were to be made.
In the event that an order for indefinite detention was made, initially Mr Kelly would be offered the opportunity to take part in additional assessments to determine in more detail the unique factors that had led to the above responsivity barriers affecting both his participation and progress in treatment. Broadly, it was considered that the responsivity factors outlined above had adversely impacted on Mr Kelly’s trust, motivation, insight and willingness to engage more fully in treatment for his sexual offending behaviour.
Following a detailed assessment and formulation of Mr Kelly’s current treatment needs, he would be offered individual treatment with an experienced DCS clinician; the purpose of that intervention would be to create a strong therapeutic alliance with Mr Kelly to allow his unique responsivity factors to be addressed in therapy so that further treatment could occur in a meaningful way.
After a period of individual treatment, Mr Kelly would be considered for options including further placement in a SBC-me program, or continued individual intervention to address his risk factors and treatment needs; that decision would be made following feedback and advice from the clinician engaged in his individual treatment. These phrases of treatment would provide an opportunity to target Mr Kelly’s dynamic risk factors.
The anticipated timescales for the proposed treatment plan above were dependent on Mr Kelly’s willingness to engage with DCS staff involved in his treatment. If Mr Kelly were to engage in a meaningful way with the proposed treatment plan, depending on the availability of resources within [the Rehabilitation Programs Branch], it was anticipated that the assessment phase may take up to six months to complete. Individual intervention would take between six to twelve months; and at that stage further options for treatment in either a group setting or individually would be considered.
All of the above proposed intervention would be undertaken in light of Mr Kelly’s assessed cognitive deficits; shorter sessions would be conducted to take account of his attention span and working memory, and behavioural strategies would be favoured over cognitive strategies as ways to manage his risk factors.
Finally, it was noted that if Mr Kelly were unwilling to engage meaningfully in the therapy offered, then continued incarceration would not result in any reduction to the risk of his sexual re-offending in the community after release.
During Ms Short’s oral evidence, she gave an indication of the priorities observed when offering rehabilitation programs to serving prisoners.
There’s a combination of ways that our programs are populated. While those prisoners with specific release dates are prioritised, we try to include within every program at least one person who doesn’t. That might include somebody under s.23, it might also include a prisoner under a life sentence. So we are assisting to move those people through the system as well.
This raised a concern as to how readily Mr Kelly might be accommodated in appropriate programs in the event an order for indefinite detention were to be made. As a consequence, the Court requested that a report be provided by Dr Henry Pharo, the Director of Offender Rehabilitation Services for the Department of Correctional Services. Dr Pharo’s report, dated 28 April 2017, addresses the issue of the availability of treatment programs to sentenced sex offender prisoners, including those subject to orders for indefinite detention. Dr Pharo provided the following clarification of Ms Short’s observation concerning priorities.
[T]he [Rehabilitation Programs Branch] policy for placement on a rehabilitation program is as follows:
· Prisoners are prioritised based on their parole eligibility date with higher priority given to those individuals who are approaching their parole eligibility date – this would apply to both prisoners with a fixed sentence length, and prisoners serving a life sentence.
· In the case of prisoners detained under section 23, the [Rehabilitation Programs Branch] consider these prisoners to be high priority for rehabilitation, noting that their rehabilitation plan may or may not include a group-based rehabilitation program. If a prisoner detained under section 23 is required to undertake a group-based rehabilitation program as part of their rehabilitation plan, then all efforts are made by the department to prioritise their placement as soon as is practicably possible.
It is also relevant to note that, under The Act, there is a requirement for all prisoners detained under section 23 to be reviewed annually. This system creates another point of reference whereby the progress of these individuals within the system is monitored on a regular basis and ensures that these individuals continue to be treated as a high priority within the system.
Dr Pharo also addressed Mr Kelly’s circumstances directly. He indicated that if, following a period of “individualised treatment” as described by Ms Short, Mr Kelly were to be considered suitable for further group based therapy, “he would be treated as a high priority for placement on the next available program”.
The parties’ submissions
The applicant submitted that Mr Kelly should be found to be unwilling to control his sexual instincts within the meaning of section 23, and that an order for indefinite detention should be made in order to ensure the safety of the community, having regard to the risk that he poses.
Counsel for the applicant relied on five matters in support of the contention that Mr Kelly is unwilling to control his sexual instincts in the defined sense that there is a significant risk that he would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts.[22]
[22] Criminal Law (Sentencing) Act 1988 s 23(1).
First, Mr Kelly’s history of sexual offences exhibits a pattern of opportunistic offending against young girls in similar circumstances, where the victims were strangers to Mr Kelly and the offending occurred in their homes.
Second, each instance of offending occurred relatively shortly after Mr Kelly had been released from custody. Counsel referred in particular to the 2006 offending which occurred only two months or so following Mr Kelly’s release from custody after having served a period of imprisonment of nearly eight years.
Third, Mr Kelly attributes blame for his offending to external factors, such as drugs and alcohol, and has demonstrated a lack of insight into his personal responsibility for the offending.
Fourth, notwithstanding Mr Kelly’s attendance at the SBC program for 125 sessions over a period of around 15 months, there has been no reduction in the high level of risk of sexual offending posed by Mr Kelly. Further, he has failed consistently to report and to attempt to address his deviant sexual attraction towards young girls during his participation in the program.
Fifth, the opinions of the two psychiatrists and the neuropsychologist strongly support a finding that Mr Kelly is unwilling to control his sexual instincts and poses a very significant risk of reoffending in this respect.
The applicant contended that, should the Court find that Mr Kelly is unwilling to control his sexual instincts, an order for indefinite detention should be made. Counsel submitted that other options short of indefinite detention are not apt to ensure the adequate protection of the community particularly given the serious and opportunistic nature of Mr Kelly’s offending, that on each previous occasion the offending occurred shortly after his release from custody, and the opinions of the three experts that he remains at high risk of future reoffending.
Counsel for the applicant further submitted that Mr Kelly’s reported lack of insight into his offending and unwillingness to address his sexual attraction towards young girls is such that an order for indefinite detention should be made in order to provide the opportunity for Mr Kelly to undertake further rehabilitative programs in a properly supervised environment.
Counsel for Mr Kelly did not directly challenge the opinions of the experts or their factual basis. Cross-examination was directed at placing these opinions in a broader context and endeavouring to elicit some positive features concerning Mr Kelly’s participation in the SBC program, his increasing awareness of the wrongfulness of his past behaviour and his developing maturity. It was not submitted that the Court could not or should not reach a conclusion that Mr Kelly met the definition of being unwilling to control his sexual instincts.
The primary submission put on behalf of Mr Kelly was that the Court should not exercise its discretion to make an order pursuant to section 23 at this time; that such would be premature and unnecessary.
Mr Kelly contended that an order pursuant to section 23 was not necessary to enable him to continue to participate with his rehabilitation. Rehabilitation options would be available in the community upon his release, particularly if released on licence in accordance with the Criminal Law (High Risk Offenders) Act 2015 regime and under strict supervision. Further, Mr Kelly had engaged relatively well with the SBC program, missing only four of the 129 sessions available to him. Counsel also contended that Mr Kelly had made efforts to acknowledge his sexually deviant behaviour and the motivations for his offending.
Counsel reminded the Court that Mr Kelly was not due for release until 30 September 2019. Whilst Mr Kelly’s non-parole period has expired, an earlier made application for parole is not being pursued pending the outcome of the Attorney-General’s application. Counsel submitted that the further treatment needs of Mr Kelly could be addressed during the more than two years (as at the time of submissions) of the head sentence that remains to be served.

Mr Kelly raised a concern arising from the Department for Correctional Services’ priorities within the serving prison population for access to sexual offender rehabilitation programs. Places in such programs are not unlimited. If in fact the places in such programs are allocated according to expected release dates, such that those with earlier release dates are afforded priority, it would seem to follow that a prisoner subjected to indefinite detention with no nominated or known release date, would receive a low priority. Given the very limited resources of the Department in this respect, this could lead to substantial delay in being afforded access to an appropriate program.
Mr Kelly noted (correctly) that for various reasons the opportunity for him to access rehabilitation programs did not arise until late in his present term of imprisonment. It was submitted that an order for indefinite detention should not be made before Mr Kelly has been able to participate further in such programs. An opportunity to engage in further treatment and assessment would allow clinicians and psychiatrists to better advise the Court as to Mr Kelly’s risk of reoffending.
Counsel referred to the remarks of Gray J in R v Wichen,[23] in submitting that the Court must have regard to the extreme nature of an order for indefinite detention and the public interest in the rehabilitation of offenders when determining whether to make such an order.
[23] [2005] SASC 323; (2005) 92 SASR 528.
During the hearing, Mr Kelly applied, ore tenus, for an adjournment of the present 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. Counsel submitted that this approach would allow Mr Kelly an opportunity to demonstrate his willingness and commitment to engage in the rehabilitation options available to him in custody before the Court determines whether an order for indefinite detention ought to be made. Mr Kelly has indicated, through his counsel, a willingness to consent to an order pursuant to section 7, were such an application to be made by the applicant.
The applicant opposed the application for an adjournment. Counsel submitted that the Court has sufficient information before it concerning the rehabilitation and treatment options available in custody and that, were an order for indefinite detention to be made, the annual review requirements of subsection 23(9) of the Sentencing Act would commence, potentially enabling Mr Kelly to apply for release on licence upon receiving a positive review.
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.
As it happens, not only is the Attorney-General not in a position to make such an application at this stage, there is no indication that the Attorney-General proposes to do so if and when the opportunity were to become available.
Indeed, counsel for the applicant, during submissions, made it plain that it was the applicant’s view that the Court had before it an appropriate case for an indefinite detention order independently of any availability of an extended supervision order. Counsel contended that the former order was appropriate in the circumstances and bearing in mind that, once made, opportunity would arise, provided that Mr Kelly could demonstrate appropriate rehabilitative progress, for him to bring an application to be released into the community on licence pursuant to the regime provided for in section 24 of the Sentencing Act.
In these circumstances, it would not be appropriate to adjourn the Attorney-General’s application to a date to be fixed simply to wait and see whether the Attorney-General may or may not bring an application under section 7 of the Criminal Law (High Risk Offenders) Act in the alternative to his application under section 23.
I accept the applicant’s submissions and, as I have indicated earlier, take the view that the adjournment should be refused and that the application by the Attorney-General for an indefinite detention order should be considered and resolved on its merits independently of the possible availability in the future of jurisdiction to make an extended supervision order.
I have reviewed Mr Kelly’s history of sexual offending, his personal circumstances, the evidence concerning his responsiveness, to this point, to efforts towards his rehabilitation whilst in custody including, in particular, his attendance at the SBC program, together with the expert reports of Dr Begg, Dr Lim, Dr Scamps and Ms Short. I am satisfied that Mr Kelly is a person who is unwilling to control his sexual instincts. Important considerations in this respect include: Mr Kelly’s extensive history of sexual offending; the fact that the history exhibits a pattern indicating a strong motivation by Mr Kelly to persistently offend in a particular way against a particular type of victim; the fact that Mr Kelly has repeatedly succumbed to the temptation to offend in this way very soon after his release from prison; Mr Kelly’s lack of insight into his sexual deviancy and failure to accept any personal responsibility; and Mr Kelly’s ambivalence and fluctuating motivations during his participation in the SBC program.
I recognise, as White J pointed out in R v Whyte,[29] that before a court ought conclude 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 the sense of being substantial. In other words, I need to be satisfied with respect to Mr Kelly that there is a “good chance” that the risk of sexual re-offending will eventuate.[30] The mere possibility of a failure to exercise appropriate control will not be sufficient. On all of the evidence before the Court, I am more than comfortably satisfied that the risk in the case of Mr Kelly is significant.
[29] [2006] SASC 56 at [30].
[30] Boughey v The Queen (1986) 161 CLR 10 at 22.
Having made that finding, it is within my discretion to make the order as sought. In exercising that discretion, I am mindful of the observations of Bampton J in R v F, JM.[31]
In determining whether to take the serious and extraordinary step and order a person who has served his or her sentence be detained indefinitely, it is to be borne in mind that an order for indefinite detention is not a sentence and it is not imposed for punishment of the person. It [is] also to be borne in mind that whilst the primary purpose of a s 23 order is the protection of the community, “another purpose is to ensure that” the person “receives appropriate treatment, review and supervision”.
[citations omitted]
[31] [2015] SASC 99 at [45].
I am concerned at the limited opportunities Mr Kelly has had during his lengthy period in prison to engage in rehabilitative programs and processes. Nevertheless, the SBC program in which he did participate appears to have been a very lengthy and comprehensive program which, whilst Mr Kelly completed it, did not give rise to an encouraging outcome.
I recognise that there is still a substantial period of time before Mr Kelly’s present term of imprisonment will expire (approximately two years) during which Mr Kelly, if given the chance, might prove himself further in terms of rehabilitation prospects. I also recognise that, if Mr Kelly were to be released under strict supervision and if he were to undertake further rehabilitative activities available in the community, such may limit the risk of re-offending he otherwise would pose. These are matters that temper the significant risk of sexual re-offending that Mr Kelly, being judged today, poses. Putting it another way, these are matters that bear positively on the weight to be given to the respondent’s submission that such an extreme order depriving Mr Kelly of his liberty once his term of imprisonment has come to an end is not warranted in all of the circumstances; the necessary goal of protection of the public can be achieved in other ways.
However, having considered the submissions put on behalf of Mr Kelly by his counsel, including the matters just adverted to, I am of the view that the paramount consideration, being the safety of the community, must be given substantial and indeed determinative weight in this case. I am not persuaded that anything less than an order for indefinite detention under section 23 would sufficiently ameliorate the risk to the public that Mr Kelly would pose upon his release. Mr Kelly has a history of repeated supervision failures including escaping custody, offending while in custody and serious re-offending while under supervision on parole. I agree with Dr Lim’s conclusion that Mr Kelly’s “risk of recidivism will be considerable even with an intensively supervised release”.
In addition, I am persuaded after hearing from Ms Short and Dr Pharo that the opportunities for appropriate rehabilitative programs and assistance will be more readily available to Mr Kelly whilst in custody rather than in the community. That is not to say that the programs mapped out by Ms Short will necessarily be available to him in full before he completes his sentence. Nevertheless, I am satisfied that those offering the professional assistance available in the custodial environment will be best placed to understand Mr Kelly’s history and progress to date and his future rehabilitative needs and to assist with those future needs.
Subject to a material change in circumstances in the future, it would be an unacceptable risk to permit Mr Kelly to be released solely with the expectation that he would be supervised and undergo rehabilitation in the community. Further, as I have indicated, should Mr Kelly respond appropriately to that which will be offered to him whilst he remains in custody, he may well be in a position in the future to apply for a release on licence pursuant to the regime provided for in section 24 of the Sentencing Act.
Bearing in mind the need to protect the community, the need to ensure that Mr Kelly receives appropriate treatment, review and supervision and notwithstanding that there will be further deprivation of his liberty following the completion of his present prison term, I am satisfied that an order, pursuant to section 23 of the Sentencing Act, that Mr Kelly be detained in custody until further order is appropriate. I make that order.