Attorney-General (SA) v Thomas
[2018] SASC 45
•5 April 2018
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 45Criminal: 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 control, his sexual instincts and an order that he be detained in custody until further order, such detention to commence at the expiration of the term of imprisonment the respondent is presently serving. In the alternative, the Attorney-General seeks a finding that the respondent is a high risk offender and poses an appreciable risk to the safety of the community, and an order that he be subject to extended supervision on proposed terms for a period of five years upon the expiration of his current term of imprisonment.
The respondent conceded the application pursuant to s 7 of the HRO Act. He is not opposed to the Court making an order that he be subject to an extended supervision order. He submits that the making of an extended supervision order is sufficient to protect the community, having regard to the risk that he poses. Accordingly, it is convenient to consider the application pursuant to s 23 of the Sentencing Act.
Application for indefinite detention
Section 23 of the Sentencing Act provides:
23—Offenders incapable of controlling, or unwilling to control, sexual instincts
(1)In this section—
institutionmeans—
(a)a prison; and
(b) a place declared by the Governor by proclamation to be a place in which persons may be detained under this section; and
(c)in relation to a youth, includes a training centre;
person to whom this section applies means—
(a)a person convicted by the Supreme Court of a relevant offence; or
(b)a person remanded by the District Court or the Magistrates Court under subsection (2) to be dealt with by the Supreme Court under this section; or
(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)an offence under section 23 of the Summary Offences Act 1953; or
(ba)an offence against a corresponding previous enactment substantially similar to an offence referred to in either of the preceding paragraphs; or
(c)any other offence where the evidence indicates that the defendant may be incapable of controlling, or unwilling to control, his or her sexual instincts; or
(d)an offence of failing to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse where the defendant is a registrable offender within the meaning of the Child Sex Offenders Registration Act 2006;
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)If, in proceedings before the District Court or Magistrates Court, a person is convicted of a relevant offence and—
(a)the court is of the opinion that the defendant should be dealt with under this section; or
(b)the prosecutor applies to have the defendant dealt with under this section,
the court will, instead of sentencing the defendant itself, remand the convicted person, in custody or on bail, to appear before the Supreme Court to be dealt with under this section.
(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)A copy of a report furnished to the Supreme Court under subsection (5a) must be given to each party to the proceedings or to counsel for those parties.
(5c)If a person to whom this section applies refuses to cooperate with an inquiry or examination for the purposes of this section, the Supreme Court may, if satisfied that the order is appropriate, order that the person be detained in custody until further order having given—
(a)paramount consideration to the safety of the community; and
(b)consideration to any relevant evidence and representations that the person may desire to put to the Court.
(6)If a person to whom this section applies has not been sentenced for a relevant offence, the Supreme Court will deal with the question of sentence at the same time as it deals with the question whether an order is to be made under this section and, if the Court decides to make such an order, the order may be made in addition to, or instead of, a sentence of imprisonment.
(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)A person detained in custody under this section will be detained—
(a)if the defendant is under 18 years of age—in such institution (not being a prison) as the Minister for Youth Justice from time to time directs;
(b)in any other case—in such institution as the Minister for Correctional Services from time to time directs.
(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)if the person is detained in, or released on licence from, a training centre—by the Training Centre Review Board; or
(b)in any other case—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; or
(d)if the person has been authorised to be released, or has been released, on licence under section 24—suitable to be so released.
(10)The results of a review under subsection (9), including the recommendation of the relevant Board, must be embodied in a written report, a copy of which must be furnished to the person the subject of the report, the Attorney‑General and—
(a)in the case of a report of the Training Centre Review Board—to the Minister for Youth Justice;
(b)in the case of a report of the Parole Board—to the Minister for Correctional Services.
This Court may order that a person to whom s 23 applies be detained in custody until further order if satisfied that the order is appropriate. The making of an order is conditioned on the Court obtaining reports from at least two legally qualified medical practitioners into the mental condition of the respondent, and whether he is incapable of controlling, or unwilling to control, his sexual instincts.
In exercising the discretion to make an order, the paramount consideration is the safety of the community. Further, the Court must also take into account the following matters:
1. the reports of the two medical practitioners;
2.any relevant evidence or representations that the respondent may desire to put to the Court;
3. any report required by the Court under s 25; and
4. any other matter that the Court thinks relevant.
Section 25 of the Sentencing Act provides:
25—Court may obtain reports
(1)A court may, for the purpose of obtaining assistance in making a determination under this Division or Schedule 2, require the Parole Board, the Training Centre Review Board or any other body or person to furnish the court with a report on any matter.
(2)A copy of any report furnished to a court under subsection (1) must be given to each party to the proceedings or to counsel for those parties.
The principles applicable to the statutory scheme providing for an indefinite detention were analysed in R v Hoare, by Hinton J who said:[1]
[1] [2017] SASC 7 at [63]-[73].
Whilst the exercise of the power contained in s 23(4) is not expressly conditioned upon the Court finding that the offender subject of an application is incapable of controlling, or unwilling to control, his or her sexual instincts, the Full Court has stated that the question whether the subject is incapable or unwilling to control his or her sexual instincts is a threshold question that must be answered yes or no, otherwise, bearing in mind the scheme created by Part 2 Division 3 of the Sentencing Act, no proper foundation exists for the Court to consider the risk that the offender poses to the safety of the community. Having answered the threshold question, there remains vested in the Court a residual discretion – despite the Court finding that a person to whom the section applies is incapable or unwilling to control his or her sexual instincts, it may be inappropriate that an order for indeterminate detention be made. Here it is important to bear in mind, for example, that the application may be made well in advance of the completion of an offender’s determinate sentence, when there is much time remaining for the offender to take advantage of courses and programs offered by the Department for Correctional Services.
While a conviction for a “relevant offence” is a precondition to the engagement of the scheme, the scheme’s purpose is not punitive. Rather, it is concerned with preventing recidivist sexual offending through incapacitation and rehabilitation. The scheme does not punish an offender twice for the same offences or increase the punishment for those offences. While it operates by reference to an offender’s status as a person convicted of a relevant offence, it sets up its own normative structure. The purpose of an order of indeterminate detention is to protect the community from sexual offenders where the risk posed by such a person is such that it is inappropriate that they be released, even when they have completed what would otherwise be their period of imprisonment for the offences that they have committed. Additionally it is to ensure that the person “receives appropriate treatment, review and supervision”.
An order for indeterminate detention should only be made where there is cogent and reliable evidence justifying the making of the order. In this regard Bleby J’s observations in R v England made in relation to a prior version of s 23 remain apposite. He said:
... satisfaction as to the inability of a person to control their sexual instincts is a matter of assessing the opinions to that effect, their strengths and their weaknesses, to a point where the court can be satisfied that the incapacity is present. In doing so, the court will need to take account of the seriousness of the declaration it is asked to make and the gravity of the consequences of giving the direction. To borrow the words of Dixon J in Briginshaw v Briginshaw, the necessary degree of satisfaction cannot be produced “by inexact proofs, indefinite testimony or indirect inferences”. It will require cogent and acceptable evidence in order to justify the making of the declaration and the giving of the direction. But even then, there is a residual discretion conferred by the use of the word “may” in the subsection. In that respect it may also be appropriate to consider, as in the case of R v Fahey and R v Riley whether, if a sentence is also imposed, the defendant is likely, at the end of the custodial period, to resume similar sexual activities. This will, in turn, require consideration, among other things, of the defendant’s access to and the likely effect of various regimes of treatment, and whether they can be effected in the prison setting or in some other institution contemplated by the section.
(footnotes omitted).
What amounts to an incapacity to control one’s sexual instincts is not defined. King CJ considered what amounted to incapacity in R v Kiltie in the context of discussing a progenitor of s 23. He said:
… The incapacity referred to in the section is an incapacity to exercise control resulting from innate mental characteristics. It is not that temporary incapacity to exercise self-control which results from the paralysis of will power caused by the ingestion of alcoholic liquor or drugs. Nor is it a strong inclination towards sexual offending resulting from deprivation of the means of satisfying sexual desire unless there is, in addition, an innate incapacity to control that inclination.
Unwilling is defined in s 23(1) as follows:
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.
In R v Whyte White J recorded that the two forensic psychiatrists who provided reports in that matter “…recognised that the statutory definition of the word “unwilling” required consideration of matters going beyond an assessment of his present state of mind”. White J added:
In my opinion, the 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.
In R v Schuster the Full Court observed:
…more importantly it was necessary for the medical practitioners and the judge to consider the circumstances in which and degree to which Mr Schuster is unable or unwilling to control his sexual instincts. A detailed consideration of these matters was necessary in order to assess the nature and extent of the risk to public safety presented by Mr Schuster. For example, the risk profile of a person with a desire or inclination to offend in an opportunistic or impulsive way would raise different considerations to those in the case of a person whose modus operandi has been, or is likely to be, one involving a longer term grooming of potential victims.
Whilst these observations were made in the context of an appeal against an application for release on licence under s 24 of the Sentencing Act they are, in my view, equally applicable to an application made under s 23.
Something more should be said here as to the significance of s 23(5). In R v Schuster the Full Court tackled the question of the significance of making the public safety the paramount consideration in the context of an application for release on licence. It said:
What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility.
I think these observations apply equally to s 23(5). So too the observation that the “exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety”. The Court quoted from the judgment of the Queensland Court of Appeal in Attorney-General (Qld) v Francis as reflecting the approach to be adopted. In that case Keane and Holmes JJA and Dutney J said:
The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.
Again such approach may be seen to apply equally to an application made under s 23. If the Court is satisfied that the offender is incapable or unwilling to control his or her sexual instincts, the question is whether an order for indeterminate detention is apt to ensure adequate protection of the community, having regard to the risk to the community posed by the offender.
[Footnotes omitted.]
Section 23 applies to the respondent, as he is currently serving a sentence of imprisonment for a relevant offence within the meaning of s 23(1), namely, two offences under s 63A(1) of the CLCA. The Court has not obtained any report pursuant to s 25.
The respondent’s personal circumstances
The respondent is a 49 year-old man of Aboriginal descent who identifies as one of the Stolen Generation. He was fostered as a baby and discovered he was adopted at the age of seven. This had a significant impact on him. He reports suffering sexual abuse as a child around the age of four. He left school early in Year 10. He began using cannabis and alcohol at the age of 13, and used amphetamines and other illicit substances in his 20s. In 2005, he was noted to have alcohol dependence and to abuse cannabis. He has a history of depression and has been prescribed antidepressant medication. He has four children to two women and has had a series of short-term relationships. He has a history of self-harm. He has not been in paid employment since 2010. He has a history of non-sexual criminal offending, including forgery, break and enter, theft, unlawfully on premises, assault, possession of a gun, and driving offences.
Sexual offences
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.
Dr Furst diagnoses the respondent as suffering from paedophilia of a non‑exclusive type primarily attracted to males. He notes the respondent has a history of repeated offending, poor relationships, impulsivity, a failure to plan ahead, and a lack of empathy for others resulting in a diagnosis of antisocial personality disorder. He considers the respondent to be in the high risk category for committing a sexual offence if he does not receive further rehabilitation. In Dr Furst’s view, the most likely offence would be another offence related to child exploitation material or failure to adhere to reporting requirements but, having regard to the respondent’s age, Dr Furst considers his risk of committing a contact offence is not as high, but still higher than other sexual offenders. Dr Furst considers that the respondent is clearly capable of controlling his sexual instincts as evidenced by the opportunity he had to offend against teenage boys who were camping at his house without him committing any sexual offence against them. However, Dr Furst says that, given the respondent is within the high risk range, he could be considered as unwilling to control his sexual instincts and there is a significant risk that he would fail to control his sexual instincts if he was given the opportunity to commit a relevant offence.
Evidence of Mr Sim
Clark Sim is a clinical psychologist and the manager of the Rehabilitation Programs Branch of the Department for Correctional Services. He is responsible for the sexual behaviour clinic program delivered through the Department for Correctional Services. This is a custodial program that seeks to address the risk factors of sexual offenders undergoing the treatment program. The program is delivered by a combination of group and individual sessions encompassing approximately 250 hours of treatment time over a nine to 10 month period. Mr Sim considers the program would be suitable for the respondent if he was subject to a s 23 order. The next program commences in October 2018 and is likely to conclude about August 2019. Each program can accommodate 12 offenders. There are about 100 offenders currently on the wait list for the program. About 20 have been given a priority listing. Mr Sim considers that the respondent could be given priority for treatment in the next available program if he was subject to a s 23 order. While he cannot guarantee that he would be admitted to this program, because he would have to undertake pre-program assessment, including screening for suitability and approval of an application to the Serious Offender Committee for the respondent to be included in the program, Mr Sim considered that it is likely that the respondent would be successful in admission to the program if he was subject to a s 23 order and he made an application to participate.
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.
I do not accept these submissions. I accept the evidence of Dr Brereton that the respondent represents a high risk of further sexual offending including, where the circumstances are propitious, contact offending against teenage and child males. While it is a salient consideration that the respondent has not committed a contact sexual offence since 1995, and that much of the offending relating to accessing child exploitation material is at the lower end of the scale of seriousness, the Court is concerned with the seriousness of the risk that the respondent poses to the safety of the community. The seriousness of that risk is highlighted by the respondent’s denial of the risk he poses and his reluctance to undergo the necessary treatment to reduce that risk. In my view, the safety of the community will be best protected by the respondent undergoing the course of sexual behaviour clinic program treatment which will most likely be available to him in a custodial setting. I have no confidence that the making of an extended supervision order, including a requirement that he attend treatment at Owenia House, would culminate in the successful completion of such treatment. The Court can only be satisfied that the safety of the community is protected by an order for indefinite detention that will provide the best chance of the respondent successfully undergoing the treatment he needs and will provide an incentive for him to do so. Pursuant to s 23(9), his progress and circumstances must be reviewed at least once in each 12 month period for the purposes of assessing whether the respondent is suitable for release on licence pursuant to s 24. In these circumstances, once the respondent has undergone and completed treatment and an opportunity has occurred to assess the success of that treatment, consideration can be given to his release on licence.
I come to this view on the basis of the safety of the community being this Court’s paramount consideration. In the case of the respondent, he represents a high risk of re-offending and presently exhibits poor prospects of rehabilitation. As the Full Court said in R v Schuster,[4] the effect of making public safety the paramount consideration is that relatively smaller degrees of risk will outweigh considerations which, even strongly, support release. The exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety.
[4] [2016] SASCFC 86 at [80], (2016) 125 SASR 388 at 406.
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.
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