Attorney-General (SA) v Warsap - [2024] SASC 14

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v WARSAP
[2024] SASC 14
Judgment of the Honourable Justice McDonald
6 February 2024
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
On 29 April 2011, the respondent was sentenced to a term of 13 years imprisonment with a 9-year non-parole period for the offence of persistent exploitation of a child.
Prior to the expiry of the respondent’s head sentence on 10 September 2022, the applicant filed two applications. The first sought an order pursuant to s 57 of the Sentencing Act 2017 (SA) detaining the respondent in custody until further order of the Court on the basis that he is either incapable of or unwilling to control his sexual instincts. The second sought an order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 making the respondent the subject of an extended supervision order. Whilst the former of these two orders was contested, the latter was not opposed.
Court-ordered reports were received from Dr Craig Raeside and Dr Amisha Jayawant, both of whom opined that the respondent met the criteria for a diagnosis of a paedophilic disorder and that he was unwilling to control his sexual instincts. As such, his risk of committing a further serious sexual offence remained high. During the proceedings, the respondent privately engaged Ms Susan Heinrich, a forensic psychologist, who produced a report reflecting positively on Mr Warsap’s progress while in custody. Drs Raeside and Jayawant subsequently produced addendum reports following Mr Warsap’s engagement with Ms Heinrich. All three experts, as well as the respondent himself, gave evidence during the proceedings.
Held, declining to make an order under s 57 but granting the extended supervision order, given the respondent’s circumstances, as well as the limited progress that he will likely make if kept in custody, the protection of the community from the risk posed by the respondent is best achieved through the granting of an extended supervision order for a period of three years.
Sentencing Act 2017 (SA) s 57; Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, referred to.
R v Hoare [2017] SASC 7; R v Schuster [2016] SASCFC 86, considered.

ATTORNEY-GENERAL (SA) v WARSAP
[2024] SASC 14
Criminal: Application

McDONALD J: The Attorney-General has made an application pursuant to s 57 of the Sentencing Act 2017 (SA) that Mr Warsap be detained in custody until further order of the Court on the basis that he is either incapable of or unwilling to control his sexual instincts.[1]
[1] FDN 1 dated 10 August 2022 (SCCRM-22-326).
In the alternative the Attorney-General seeks an order that Mr Warsap be the subject of an extended supervision order (“ESO”) pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“HRO Act”).[2]
[2] FDN 1 dated 10 August 2022…

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 Warsap

Details

AGLC: Attorney-General (SA) v Warsap [2024] SASC 14
Case: [2024] SASC 14
Decision Date: 6 February 2024

CaseChat Overview and Summary

The case of Attorney-General (SA) v Warsap involved the Attorney-General appealing the sentence of Warsap. Warsap had been convicted of sexual offences and was sentenced to imprisonment with post-custodial orders. The appeal focused on the appropriateness of the sentence, particularly the post-custodial orders, and whether they were sufficient to ensure public safety and manage Warsap's risk of reoffending.

The central legal issues in this appeal were whether the sentence imposed by the primary judge was manifestly inadequate and whether the post-custodial orders were appropriate. The Attorney-General argued that the sentence was inadequate due to the severity of the offences and the risk Warsap posed to the community. The court had to determine whether the sentence and post-custodial orders were sufficient to manage Warsap's risk of reoffending and to ensure public safety.

The court considered the evidence provided by various experts, including Dr Jayawant and Ms Heinrich. Dr Jayawant noted that Warsap's dynamic risk factors had not been tested in the community, while Ms Heinrich observed that Warsap had made progress in his thinking and accepted responsibility for his actions. Ms Heinrich also highlighted the potential risks of extended custody and the benefits of community-based treatment and support. The court found that the primary judge had given appropriate weight to the expert evidence and the need for post-custodial orders. It concluded that the sentence was not manifestly inadequate and the post-custodial orders were appropriate.

The appeal was dismissed, and the original sentence and post-custodial orders were upheld. The court emphasised the importance of ongoing monitoring and support for Warsap in the community to manage his risk of reoffending. The court acknowledged the significant progress Warsap had made but stressed the need for continued treatment and supervision to ensure public safety.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Dr Jayawant expressed a similar view in her addendum report, she said:Despite his engagement and learnings from the SBC in prison and in psychological sessions with Ms Heinrich, Mr Warsap’s dynamic risk factors are untested in the community since he has been in a secure, controlled custodial environment.Expert Evidence All three experts supplemented their reports by giving evidence.Ms Heinrich By the time Ms Heinrich came to give evidence she had conducted a further five therapeutic sessions with Mr Warsap. It follows that she had spent considerably more time with Mr Warsap than the other two experts and that time was spent in a therapeutic as opposed to forensic context. It was Ms Heinrich’s evidence that in the time between preparing her report and giving evidence she had observed some further progress in Mr Warsap in that there appeared to have been a shift in his thinking. She explained that prior to his attendance at the SBC program, Mr Warsap believed that his deviant sexual attraction and his behaviour in acting on that attraction was genetic and was beyond his control. She said that Mr Warsap now accepts that he can control this behaviour and take responsibility for his actions and make positive choices. In furtherance of that Mr Warsap had developed strategies to avoid acting on his sexual urges. In evidence Ms Heinrich expressed a firm view that to retain Mr Warsap in custody for any further length of time would be counterproductive. In response to a question about whether there was any future treatment that may be beneficial to Mr Warsap, either in custody or in the community, she said: [8]If I address custody first. I am not aware of any other programs that would be of benefit to Mr Warsap in custody. The research that I’m aware of in the area sort of suggests that when people have completed treatment, if they are held in custody and remain in custody for extended periods of time, that over time that period can lose its effectiveness because they can't apply those skills. One of the biggest risk factors towards recidivism generally, not just sexual recidivism, is a sense of resentment towards authority, towards courts, towards the law and there is a risk that the longer Mr Warsap remains in custody, that at some point, especially given his complete sentence I understand is now over, that at some point he might start to experience that resentment. That is not there at this point. I can't think of any useful treatment programs, but I think if the court is inclined to release Mr Warsap, holding him for an extended period of time before releasing may actually have the risk of increasing, the effect of increasing his risk in the community. Helping Mr Warsap to adapt to the community in the first instance. He has been in custody for a very long time and coming out to the community is naturally going to be quite a shock for him. So when he is first released, I would see a range of appropriate supports in place, things like supervision from Community Corrections. He has indicated a desire and I would be happy to see him for psychology appointments. I also think the COSA programs through OARS will also provide him with another supportive kind of outlet. I would see that there be an initial need for treatment to begin with, to be able to - I'm not sure if I'm using the right word - tweak his plans to fit his actual setting in the community, depending on where he's living and what he actually does with his day. So looking at really honing that risk management strategy, I think open communication between all the people working, supervising Mr Warsap so we can be monitoring risk factors and his engagement. I would anticipate that over time as he settles into the community, some of those treatment needs might reduce a little bit, but it would probably be that ongoing monitoring, especially noting that his historic offending - it's been 19 years and then nine years between convictions - it's that ongoing monitoring and providing him with that support in the long-term and that constant reminder, I suppose, of the things he's learnt and helping him to apply the things he's learnt in different settings as life changes for him.[8] TX 12-13.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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