Attorney-General (SA) v Smallbone - [2018] SASC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v SMALLBONE
[2018] SASC 2
Judgment of The Honourable Justice Hinton
17 January 2018
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
Application by the Attorney-General for an order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) that the respondent be detained in custody until further order, or alternatively, an order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) that the respondent be subject to an extended supervision order.
The respondent is presently serving a term of imprisonment of three years for unlawful sexual intercourse contrary to s 49(3) of the Criminal Law Consolidation Act 1936 (SA) (“CLCA”). That offence was committed in breach of a good behaviour bond entered into as part of a suspended sentence for an offence of gross indecency committed in the presence of a 14 year old and five breaches of bail. All of the respondent’s offending was committed in breach of a paedophile restraining order obtained under s 99AA of the Summary Procedure Act 1921.
The respondent opposed both applications but submitted that if the Court were minded to grant any order, that an extended supervision order under s 7 of the High Risk Offenders Act 2015 was adequate. He argued that his age, criminal history and the availability of treatment in the community were factors militating against any order being made. Further, he argued that his poor engagement with the Sexualised Behaviour Clinic program while imprisoned was the result of cognitive deficits rather than defiance.
Held:
1. The respondent is unwilling to control his sexual instincts within the meaning of section 23 of the Criminal Law (Sentencing) Act 1988 (SA).
2. The respondent is to be detained in custody until further order.
3. The application for an extended supervision order pursuant to s 7 of the High Risk Offenders Act 2015 is dismissed.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7; Criminal Law (Sentencing) Act 1988 (SA) s 23, referred to.
Attorney-General (SA) v Wells [2017] SASC 149; Attorney-General (SA) v Hoare [2017] SASC 7, applied.

ATTORNEY-GENERAL (SA) v SMALLBONE
[2018] SASC 2
Criminal: Application
HINTON J.
Introduction

This is an application by the Attorney-General for the State of South Australia seeking an order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act) that Martin Ablett Smallbone be detained in custody until further order. In the alternative the Attorney seeks an order under s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act) that Mr Smallbone be subject to an extended supervision order for five years.
On 19 June 2015 Mr Smallbone was sentenced to imprisonment for three years…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Attorney-General (SA) v Smallbone

Details

AGLC: Attorney-General (SA) v Smallbone [2018] SASC 2
Case: [2018] SASC 2
Decision Date: 17 January 2018

CaseChat Overview and Summary

The Attorney-General for South Australia applied for an extended supervision order under the High Risk Offenders Act 2009 (SA) against Mr Smallbone, a convicted sex offender. The application was made under section 23 of the Sentencing Act 1995 (SA) based on Mr Smallbone’s unwillingness to control his sexual instincts. The matter was heard in the Supreme Court of South Australia, where the court was required to determine if Mr Smallbone posed an appreciable risk to the community if not supervised and whether it was appropriate to make an order for his detention under section 23(4) of the Sentencing Act.

The primary legal issue before the court was whether Mr Smallbone was unwilling to control his sexual instincts within the meaning of section 23(1) of the Sentencing Act. The court considered evidence from two forensic psychiatrists, Drs Raeside and Nambiar, who both concluded that Mr Smallbone had the capacity to control his sexual instincts but was unwilling to do so. The court accepted this evidence and found that Mr Smallbone posed a significant risk to the community if not supervised. The court further determined that Mr Smallbone’s history of offending, conduct in prison, and limited insight into his offending behaviour indicated a high risk that he would reoffend if released without supervision. Consequently, the court was satisfied that it was appropriate to make an order for Mr Smallbone’s detention under section 23(4) of the Sentencing Act.

The Supreme Court of South Australia dismissed the Attorney-General’s application under the High Risk Offenders Act, finding that an extended supervision order was not necessary. Instead, the court made an order for Mr Smallbone’s detention under section 23(4) of the Sentencing Act. The court noted that if it was wrong in its determination, it would have imposed an extended supervision order for five years with specific conditions. The court concluded that Mr Smallbone’s history of offending and lack of insight into his behaviour indicated a considerable risk that he would reoffend if not supervised, justifying the detention order.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

I turn to consider the reports ordered under s 7(3) of the High Risk Offenders Act and s 23(3) of the Sentencing Act and the further treatment available to Mr Smallbone.The Reports and Evidence of the Legally Qualified Medical Practitioners As mentioned, Drs Raeside and Nambiar, who are both forensic psychiatrists with considerable experience, each provided reports to the Court. Both doctors also gave oral evidence at the hearing on 11 December 2017 and were cross-examined. Mr Smallbone did not challenge either doctors’ expertise. Both were of the opinion that Mr Smallbone had the capacity to control his sexual instincts but was unwilling, within the meaning of the Sentencing Act, to do so. Both support an order under s 23 of the Sentencing Act and do so in preference to an order under s 7 of the High Risk Offenders Act. Dr Raeside Dr Raeside interviewed Mr Smallbone in prison on 15 November 2017. He agreed with many of the conclusions set out in the SBC Post-Treatment Report. His initial impression of Mr Smallbone was one of surprise when Mr Smallbone said that he “had never been charged with anything” when asked to explain how he had first come to the attention of police.[55] [55] Exhibit AG5, page 9. Mr Smallbone told Dr Raeside that he did not think that there were any ongoing effects from the sexual abuse he experienced as a child until it “came up again in the SBC course”. He said that it “didn’t stress me at all” and “was just a coincidence that my offending involved teenage boys.” It was apparent to Dr Raeside that Mr Smallbone had a limited and incorrect understanding of some of the issues surrounding his offending as raised in the SBC program.[56] [56] Exhibit AG5, page 8. Dr Raeside reports that Mr Smallbone was unwilling to discuss the circumstances in which he committed the offence of unlawful sexual intercourse in any detail, stating only that the victim came around to see a 17 year old boy staying with him, and things “evolved from there”. Dr Raeside reported his concern that this simplistic account of the offence was:[57]…consistent with concerns raised at various times during his Sexual Behaviour Clinic assessments in custody to indicate his tendency to blame the victim, or at least blame the circumstances (such as the boy coming to the house) rather than accepting responsibility for his own behaviour. As will be noted, notwithstanding participation in the SBC whilst in custody, Mr Smallbone’s general thinking and views about his offending behaviour appear not only to have not improved, but there are features to suggest that it has actually decreased with various risk factors of his offending having increased. (emphasis in original)[57] Exhibit AG5, page 10. Mr Smallbone acknowledged in his interview with Dr Raeside that he changed to homosexual attraction around the age of 45 or 50. He said he had gained no insight into this shift from participation in the SBC program. He said he did not masturbate and was not sexually active, which as Dr Raeside noted, is contrary to recent evidence of his behaviour in prison.[58] [58] Exhibit AG5, page 11.

Decision

Reasons for decision

HINTON J

Given the above, the application under the High Risk Offenders Act is moot. In any event, I indicate that if I am wrong in determining that it is appropriate to make an order under s 23(4) of the Sentencing Act in this case, I would have imposed an extended supervision order for five years subject to the conditions proposed by the Attorney-General as set out above. In my view, taking into account Mr Smallbone’s history of offending, his conduct in prison, the Post‑Treatment Report, and the opinions and evidence of Drs Raeside and Nambiar, Mr Smallbone poses an appreciable risk to the safety of the community if not supervised.Conclusion I am satisfied that Mr Smallbone is unwilling to control his sexual instincts and that, under s 23(4) of the Sentencing Act, it is appropriate to order that he be detained in custody until further order. The Attorney‑General’s application under s 7 of the High Risk Offenders Act is dismissed.

Ratio Decidendi

Legal Principle Established

Established by: HINTON J

Lastly, Counsel noted that Mr Smallbone had demonstrated some recognition of the effect of his offending, which was said to indicate that he had gained some benefits from the SBC program. Consideration I deal first with the application under s 23 of the Sentencing Act. As mentioned the application proceeded on the basis that Mr Smallbone is unwilling to control his sexual instincts within the meaning of s 23(1) of the Sentencing Act. In my view Mr Smallbone is unwilling to control his sexual instincts in the relevant sense. I accept the evidence of Drs Raeside and Nambiar. That evidence satisfies me that if Mr Smallbone was released into the community without supervision and left to his own devices, there is a significant risk that he would, given an opportunity to commit a sexual offence against a child, fail to exercise appropriate control of his sexual instincts. I recognise that a mere possibility of a failure to exercise appropriate control is not sufficient. The risk of a failure to exercise appropriate control must be “significant” in the sense of being substantial.[76] Bearing in mind the escalation of Mr Smallbone’s sexualised behaviours since 2010 in the community and, more recently, his conduct while in prison, his history of socialising with adolescents, including intellectually disabled adolescents, his social anxiety when engaging with same aged-peers, his limited insight into the triggers for and effects of his offending, his inability to demonstrate changed or modified problem thinking and behaviours, his refusal to accept responsibility for his offending and limited apparent response to external supervision including while in prison, I consider that there is a significant risk, a considerably high risk, that given an opportunity to sexually offend against a male teenager, he would do so. [76] R v Whyte [2006] SASC 56, [30]. See also Attorney-General (SA) v Kelly [2017] SASC 164, [60]. Particularly concerning is the offence-paralleling behaviour that Mr Smallbone has engaged in whilst in prison, and that he has engaged in such behaviour during the course of the SBC program. Mr Smallbone has demonstrated limited insight into the power imbalance between an adult and a child, still less the power imbalance between an adult and intellectually disabled child. It is concerning that he gave Dr Nambiar the impression that engaging in sexual talk with children was “not inappropriate”. In articulating to Dr Raeside what he had learnt from the SBC program, he appeared to be simply parroting back terms and expressions used in the program. His responses in relation to his social functioning that “this is what I do” and “I’ve been this way for years”, suggests that Mr Smallbone’s social functioning is entrenched. That throughout the SBC program Mr Smallbone repeatedly identified avoidance as the primary way in which he could reduce his risk of reoffending provides no comfort that he would be willing and able to call on other mechanisms to control his sexual instincts should the likely scenario arise in which he finds himself with an opportunity to reoffend. This is particularly true given Mr Smallbone’s isolated lifestyle and absence of family or wider social supports to act as protective factors in the community.