Attorney-General (SA) v Thomas - [2018] SASC 45

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v THOMAS
[2018] SASC 45
Judgment of The Honourable Justice Stanley
5 April 2018
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
The Attorney-General brought two applications seeking an order for the indefinite detention of the respondent, pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) and, in the alternative, for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (HRO Act).
The respondent conceded the application pursuant to s 7 of the HRO Act and submitted an extended supervision order would be sufficient to protect the community.
Held: Application for indefinite detention granted. Application for an extended supervision order dismissed.
1. The power to make an order for indefinite preventive detention is exceptional and should be exercised with caution.
2. The respondent represents a high risk of re-offending and exhibits poor prospects of rehabilitation. The consideration of public safety will not be satisfied by the making of an extended supervision order.
3. The respondent be detained in custody until further order, pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA).
Criminal Law (Sentencing) Act 1988 (SA) s 23, s 25; Criminal Law (High Risk Offenders) Act 2015 (SA) s 7; Child Sex Offenders Registration Act 2006 (SA); Criminal Law Consolidation Act 1935 (SA) s 63A, referred to.
R v Hoare [2017] SASC 7; McGarry v The Queen (2001) 207 CLR 121; R v Robertson [2010] SASC 41; R v Healey [2008] SASC 83; Buckley v The Queen (2006) 80 ALJR 605; R v England (2004) 87 SASR 411; R v Schuster [2016] SASCFC 86, applied.

ATTORNEY-GENERAL (SA) v THOMAS
[2018] SASC 45
Criminal: Application
STANLEY J.
Introduction

The Attorney-General has brought two applications seeking an order for the indefinite detention of Paul William Craig Matthew Thomas (the respondent), pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act) and, in the alternative, for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (HRO Act). Both applications were filed on 12 October 2017.
The respondent is currently serving a term of imprisonment for the offences of accessing child exploitation material, contrary to s 63A(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), aggravated accessing child exploitation material, contrary to s 63A(1) of the CLCA and failing to comply with reporting obligations, contrary to s 44(1) of the Child Sex Offenders Registration Act 2006 (SA). That sentence was imposed by a judge of the District Court on 24 July 2017 and backdated to commence on 14 November 2016. His term of imprisonment will expire on 6 April 2018.
Pursuant to the s 23 application, the Attorney-General seeks a finding that the respondent is incapable of controlling, or unwilling to…

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 Thomas

Details

AGLC: Attorney-General (SA) v Thomas [2018] SASC 45
Case: [2018] SASC 45
Decision Date: 5 April 2018

CaseChat Overview and Summary

In Attorney-General (SA) v Thomas, the Attorney-General sought an order for the indefinite detention of the respondent pursuant to s 23 of the Sentencing Act 1988 (SA). The case arose from the respondent's extensive history of sexual offending against children, including indecent assault, abduction, and possession of child pornography. The court was tasked with determining whether the respondent's risk to the community justified the making of an indefinite detention order, or whether an extended supervision order under the High Risk Offenders Act 2006 (SA) would suffice.

The primary legal issue before the court was whether the respondent's risk of reoffending warranted an order for indefinite detention under s 23 of the Sentencing Act, as opposed to an extended supervision order under s 7 of the High Risk Offenders Act. The court considered the respondent's history of non-compliance with supervision orders, his poor response to treatment, and his ongoing risk of sexual offending. The psychiatric evidence provided by Dr William Brereton indicated that the respondent had a personality disorder with antisocial and borderline traits, and posed a very high risk of further sexual offending. The court was also mindful of the need to balance the respondent's right to liberty against the need to protect the community.

The court concluded that the respondent's history of non-compliance with supervision, his lack of insight into his offending, and his ongoing risk of reoffending warranted an order for indefinite detention. The court rejected the respondent's submission that an extended supervision order would be sufficient, noting the seriousness of his past offences and his failure to take responsibility for his actions. The court found that an order for indefinite detention offered the best prospect for the respondent to undergo the necessary rehabilitation treatment to protect the community.

The court granted the application for indefinite detention under s 23 of the Sentencing Act, ordering that the respondent be detained in custody until further order. The application for an extended supervision order was dismissed as it was brought in the alternative to the application for indefinite detention.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In 1995, the respondent indecently assaulted a 16 year-old boy. In 2004, the respondent committed further offences, including three counts of abduction of a child and six counts of causing a child to expose his body. In 2012, he committed the offence of aggravated possessing child pornography. In 2015, the respondent contravened an interim control order made under the Child Sex Offenders Registration Act 2006 (SA) by loitering near a children’s playground, and by living within 500 metres of a public park. In the same year, he further contravened reporting conditions under that Act by having a number of teenage boys camping in the backyard of his residence. In 2016, the respondent committed the offences for which he is currently imprisoned, namely, accessing child exploitation material, aggravated accessing child exploitation material and failure to comply with reporting obligations.Psychiatric evidence The Court received reports from two psychiatrists, Dr William Brereton and Dr Paul Furst. The psychiatrists were also called by the applicant to give evidence before me. Dr Brereton, having canvassed the respondent’s personal and offending history observed that his response to supervision has been remarkably poor. The respondent has failed to comply with reporting obligations and moved addresses without notification, taken up residence somewhere inappropriate, loitered near a playground, and has failed to take sex offender treatment as ordered. Dr Brereton diagnosed that the respondent is suffering from a personality disorder, with antisocial and borderline traits. He considers the respondent’s offending indicates a sexual interest in pubertal and pre-pubertal children, particularly boys. Dr Brereton describes the respondent as having a grossly distorted attitude regarding his sexual behaviour. In his interview with the respondent, the respondent completely denied sexual offending and used elaborate and improbable rationalisations to account for his offending and explain why it was not sexual. Dr Brereton could not satisfy himself whether the respondent believed what he was telling him, or consciously dissembling. Either explanation, however, caused Dr Brereton great concern with regard to the risk of future offending. Dr Brereton considers the respondent has clear problems in terms of relational style and emotional regulation. He has had a number of turbulent relationships and has a history of emotional instability. Dr Brereton noted that in other assessments the respondent has described a certain emotional congruity with children and adolescents, also indicated by police finding adolescents camping and having a party at his property, which increases his risk, as it increases his chances of gravitating towards adolescents and spending time with them. He considers the respondent’s self-management, problem-solving and life management skills, including antisocial behaviour, are also an area of significant concern. He considers the respondent has a substantial history of antisocial behaviour, in addition to his sexual offending. The respondent’s ability to manage his life is limited, as is evidenced by his poor employment record. Dr Brereton considers that the respondent’s ability to cope with adverse circumstances is poor, as evidenced by his tendency towards antisocial behaviour and alcohol dependency. Importantly, Dr Brereton is of the opinion that the respondent’s poor response to supervision shows his poor judgment, his lack of appreciation of the gravity of his offending and his failure to take any responsibility for the management of his own risk. Overall, he is of the opinion that the respondent is a very high risk of further sexual offending. In oral evidence, he said that this risk extended to contact offences as well as accessing child exploitation material offences. Nevertheless, he considered there is no reason to believe that the respondent would be incapable of controlling his sexual interests. Nonetheless, Dr Brereton considered that the respondent represented a significant risk of failing to exercise appropriate control of his sexual instincts if he were given an opportunity to commit a relevant offence. To that extent, he considers him unwilling to control his sexual instincts. Dr Brereton said that, while he is pessimistic about the outcome of treatment for the respondent’s sexual deviancy and recidivism, it is nonetheless something worth trying. His pessimism is founded on the failure of previous measures to manage the risk, the respondent’s total failure to admit that he is a risk, his avoidance of sex offender treatment previously, and his poor response to supervision.

Decision

Reasons for decision

STANLEY J

In this case, the consideration of public safety will not be satisfied by the making of an extended supervision order, and requires the making of an order for indefinite detention pursuant to s 23 of the Sentencing Act. The making of an order for indefinite detention offers the best prospect that the respondent will undergo the rehabilitation treatment that is required for the future protection of the public. Accordingly, I would grant the application pursuant to s 23. As the application for an extended supervision order was brought in the alternative to the application for indefinite detention, that application can be dismissed.Conclusion I would order that the respondent be detained in custody until further order, pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA). I would dismiss the application pursuant to s 7 of the HRO Act.

Ratio Decidendi

Legal Principle Established

Established by: STANLEY J

On the hearing of the application, the respondent did not give or call evidence. Consideration In considering the application pursuant to s 23 of the Sentencing Act, it is crucial to commence by acknowledging the power to make an order for indefinite preventive detention is exceptional and should be exercised with caution.[2] As Kirby J said in McGarry v The Queen:[3] In part, the reason why the system of criminal justice treats an order of indefinite imprisonment as a serious and extraordinary step, derives from the respect which the law accords to individual liberty and the need for very clear authority, both of law and of fact, to deprive a person of liberty, particularly indefinitely. In part, this approach rests upon the indisputable feature of almost all criminal sentencing in Australia that limits the sentence imposed to one that is proportionate to the offence of which the person has been convicted. In part, it reflects a tendency to recoil from preventive detention that involves punishing a person “not for something that he has done but because of something it is feared he might do”. In part, it represents a realistic acknowledgment of limitations experienced by judicial officers, parole officers and everyone else in predicting dangerousness accurately and estimating what people will do in the future.[Citations omitted.][2] R v Robertson [2010] SASC 41 at [15]; R v Healey [2008] SASC 83 at [70]; Buckley v The Queen (2006) 80 ALJR 605 at 607; R v England [2004] SASC 20 at [56], (2004) 87 SASR 411 at 423.[3] [2001] HCA 62 at [61], (2001) 207 CLR 121 at 141-142. I am satisfied on the evidence that the respondent is unwilling to control his sexual instincts within the meaning of s 23 of the Sentencing Act. I reject the submission of the respondent that the evidence is ambivalent. I found the evidence of Dr Brereton persuasive, although both he and Dr Furst are in agreement on this issue. Accordingly, the question is whether an order for indefinite detention is required to ensure adequate protection of the community, having regard to the risk to the community posed by the respondent. That requires consideration of whether an extended supervision order made pursuant to s 7 of the HRO Act would be sufficient to ensure the safety of the community. This requires an evaluative exercise. The respondent submits that the preferable course to be adopted by the Court is to make an extended supervision order. He puts this submission on the basis that an order pursuant to s 7 of the HRO Act would be sufficient to protect the community, given the relatively low level of offending committed by the respondent since 2005 and the absence of any sexual contact offending since 1995. In those circumstances, an extended supervision order is to be preferred over an order for indefinite detention, as it involves less interference with the personal liberty of the respondent. He further submits that there is no guarantee that if an order is made pursuant to s 23 that the respondent would be able to undertake the sexual behaviour clinic program commencing in October 2018.