Attorney-General (SA) v Molloy - [2024] SASC 6

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v MOLLOY
[2024] SASC 6
Judgment of the Honourable Justice McIntyre
19 January 2024
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
The applicant seeks an indefinite detention order under s 57 of the Sentencing Act 2017 (SA), or in the alternative that an extended supervision order be made under s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA). The applicant submits that the respondent is unwilling or incapable of controlling his sexual instincts and that he poses a significant risk to the safety of the community. It is said that this risk will not be substantially ameliorated by an extended supervision order and that, accordingly, it is appropriate to make an order under s 57.
The respondent contends that it is inappropriate to make an order under s 57 because he is voluntarily taking anti-libidinal medication, he is willing to consent to an extended supervision order with stringent terms and that this, combined with his National Disability Insurance Scheme (NDIS) plan, will reduce any risk to the community.
Held:
1. The Respondent is a person to whom s 57 of the Sentencing Act 2017 (SA) applies.
2. The Respondent is unwilling or incapable of controlling his sexual instincts.
3. It is appropriate, in all the circumstances, to grant the application for an indefinite detention order under s 57 of the Sentencing Act 2017 (SA).
4. The alternative application for extended supervision order dismissed.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 9; Criminal Law Consolidation Act 1935 (SA) s 56; Sentencing Act 2017 (SA) s 57, referred to.
Hore v The Queen, Wichen v The Queen [2022] HCA Attorney General (SA) v Grosser [2016] SASC 49; Driver v Attorney-General [2022] SASCA 13; Thomas v Attorney General [2019] SASCFC 21, considered.

ATTORNEY-GENERAL (SA) v MOLLOY
[2024] SASC 6
Criminal: Application

MCINTYRE J: This is an application by the Attorney-General that the respondent, Nicholas Molloy, be detained until further order under s 57 of the Sentencing Act 2017 (SA) (‘Sentencing Act’) on the grounds that he is incapable of controlling, or unwilling to control, his sexual instincts.
In the alternative to this application the Attorney-General has also made an application for an extended supervision order (‘ESO’) under section s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’).
The respondent does not oppose the making of an ESO but does contest the making of an order for detention under s 57 of the Sentencing Act.
For the reasons that follow I consider it appropriate to make an order detaining the respondent under s 57(7) of the Sentencing Act. In those circumstances I dismiss the applicant’s alternative application for an ESO.
Background
The respondent is 28 years old. He had a…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2024] SASC 6
Decision Date: 19 January 2024

CaseChat Overview and Summary

The case of Attorney-General (SA) v Molloy concerned the appropriate post-custodial order for the respondent, who had been convicted of multiple sexual offences. The applicant, the Attorney-General of South Australia, sought either a detention order under the Sentencing Act or an Extended Supervision Order (ESO) for the respondent. The respondent, who had a history of sexual offending and was deemed to have high risk of reoffending, was considered for release from prison but required significant supervision to protect the community.

The primary legal issues were whether the respondent’s risk of reoffending was too high to be managed under an ESO and whether the community could be adequately protected if he were released under the terms of the ESO and the National Disability Insurance Scheme (NDIS) plan. The court needed to balance the respondent’s rights with the need to protect the community, considering his history of sexual deviancy and the effectiveness of the proposed NDIS plan and anti-libidinal medication.

The court concluded that the respondent’s risk of reoffending was too high to be managed effectively under an ESO. It found that the continuation of the respondent’s sexualised behaviour in prison, despite being on anti-libidinal medication, indicated that he would likely engage in inappropriate sexual behaviour in the community. The court was also concerned that the NDIS plan relied heavily on the flawless implementation of its protocols, which was deemed unrealistic. Given these findings, the court determined that the community would not be adequately protected if the respondent were released under an ESO. Consequently, the court dismissed the applicant’s alternative application for an ESO and made a detention order under s 57(7) of the Sentencing Act.

The court ordered that the respondent be detained under s 57(7) of the Sentencing Act, ensuring that he would remain in custody to protect the community from the high risk of reoffending he posed. This decision underscored the importance of effective risk management strategies in cases involving high-risk offenders.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow I consider it appropriate to make an order detaining the respondent under s 57(7) of the Sentencing Act. In those circumstances I dismiss the applicant’s alternative application for an ESO. Background The respondent is 28 years old. He had a traumatic upbringing involving physical, emotional, and sexual abuse from a young age.[1] He has a number of disabilities and mental health issues and, when in the community, is unable to live independently. The respondent has been convicted and sentenced for offences of a sexual nature, specifically two occasions of assault with intent to commit rape and one occasion of indecent assault. [1] Exhibit A6 at [8.1]. In June 2020, the respondent was residing at a disability support facility and the victim was one of four overnight shift workers. On the night of 20 June 2020, the respondent left his accommodation and made his way to the office area where the victim was working. She asked the respondent who his support worker was and what he was doing at the office. The respondent did not answer the victim’s questions. The victim left the office and went to the kitchen to retrieve her mobile telephone to call another support worker. The respondent followed her to the kitchen and eventually pushed himself against her and firmly placed his hand around her neck. The respondent then dragged her back toward the office, threw her onto the carer’s bed in the office and fell on top of her. The respondent loosened his grip enough for the victim to get out of his hold by which time another resident was standing at the door, the victim having earlier called for help. The victim was able to push the respondent out of the room and lock the doors. During police interview following this incident the respondent admitted that he felt sexually aroused that night and intended to rape the victim. On 9 December 2019 another victim was walking along a road in Murray Bridge. The respondent approached her from behind and slapped her on the buttock. The victim challenged him, and the respondent returned home. The respondent did not know the victim. This is the indecent assault. In July 2014, the respondent committed a similar offence to that of his 20 June 2020 offending. He was living at Disability SA Housing accommodation. He assaulted a female residential care worker with the intention of raping her. In 2015 the respondent was convicted of several offences including offences of violence and two aggravated indecent assaults. In each case, the circumstance of aggravation was that the victim was a care worker. Another offence involved threats to kill a care worker. Prior to the respondent’s imprisonment for the June 2020 offending, he engaged in sexually deviant behaviour that was not the subject of criminal charges. This included episodes of sexual aggression, masturbating in public places viewing adult pornography of a violent nature hiding in bushes near female staff cars and threatening to sexually assault them, leering at females, and talking about sexual themes in a perverse and loud manner.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

It is contended that the respondent’s risk is too high to be ameliorated on an ESO and that, whilst the protocols contained with the NDIS Plan proposed offer additional supports to the respondent, the safety of the community is almost wholly reliant on the flawless implementation of the protocols. It is said that wholesale reliance upon the NDIS plan and protocols is unrealistic therefore inappropriate. Conclusions It is my view that, on the totality of the evidence, the community would not be adequately protected from the risk posed by the respondent if he were to be released into the community on the proposed terms of the ESO and the NDIS plan. In making that finding I note that on two occasions, including the index offending, the respondent was residing at a disability support facility at the time of the offence. The victims in each case were support workers or carers. On the 2019 occasion the respondent had absconded from his residential facility and indecently assaulted a woman walking in the street. Since being imprisoned for the index offending the respondent has engaged in ongoing inappropriate and sexualised behaviour as outlined in the affidavit material. The inappropriate sexualised behaviour is ongoing and frequent although it may be decreasing in intensity and frequency following the respondent commencing anti-libidinal therapy just over 10 months ago. It is clear from the evidence of Dr Burgess and Dr Raeside that this continuation of sexualised behaviour whilst in custody is unusual and concerning. I accept the applicant’s submission that this behaviour demonstrates what the respondent’s behaviours are likely to be in the community. It is, as Dr Raeside said, inevitable that, given the opportunity, the respondent will engage in inappropriate sexual behaviour in the community whether amounting to a criminal offence or not. The anti-libidinal medication has not reduced the respondent’s risk to an acceptable level for release into the community. It has had some effect on reducing his deviant behaviour, but the concerning behaviour continues. The evidence of the psychiatrists was that further increases in dose may be appropriate and necessary. This Court does not have power to make an order compelling the respondent to take anti-libidinal medication. The respondent’s submissions are based upon his continuing consent to the medication. The additional conditions proposed may have the effect of early detection of any cessation of medication. There is, however, no order that the Court can make to guarantee regular and consistent compliance with the respondent’s medication regime. Accordingly, his present compliance with anti-libidinal medication is insufficient to ensure protection of the safety of the community should he be released from custody. Further, whilst the medication has ameliorated his behaviour to some extent it appears to have had little effect on his continued desire to behave inappropriately in a sexualised manner. It seems, from the evidence, that his behaviour in custody is very likely a direct manifestation of his underlying sexual deviancy and impairments in his ability to control his sexualised behaviour.

Ratio Decidendi

Legal Principle Established

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