Driver v Attorney-General (SA)

Case [2022] SASCA 13

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

DRIVER v ATTORNEY-GENERAL (SA)

[2022] SASCA 13

Judgment of the Court of Appeal  

(The Honourable Chief Justice Kourakis, the Honourable Justice Doyle and the Honourable Justice Bleby)

3 March 2022

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

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES

Appeal against an indefinite detention order, pursuant to s 57(7) of the Sentencing Act 2017 (SA).

The appellant was convicted of three counts of rape, two counts of indecent assault, one count of assault causing harm, and two counts of aggravated criminal trespass in a place of residence. On his eventual appeal, he was sentenced to a term of 11 years’ imprisonment, with a non-parole period of five years and six months.

The appellant was not granted parole when he became eligible. Prior to his head sentence expiring, on the application of the Attorney-General, the primary judge had made an interim detention order, pursuant to s 57(5) of the Act. Subsequently, having found that the appellant was unwilling to control his sexual instincts for the purposes of s 57(1) of the Act, the judge made an order detaining the applicant until further order, pursuant to s 57(7) of that Act. He dismissed the Attorney-General’s application that, in the alternative, the appellant be made subject to an extended supervision order, pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA).

The issues raised on this appeal are whether:

●the judge’s finding that the appellant was unwilling to control his sexual instincts was affected by error (Grounds 1-3);

●       in any event, the judge erred in the exercise of his discretion (Grounds 4-5); and

●the judge erred in finding that the appellant had committed rapes for which he had not been charged, without making those findings beyond reasonable doubt (Ground 6).

Held (by the Court), dismissing the appeal:

1.It was open to the judge to give weight to the psychiatrists’ evidence with respect to the appellant’s ‘unwillingness’ to control his sexual instincts. The judge stepped through all of the evidence at length and in detail, and there was ample evidence to support his conclusions. The finding that the appellant was unwilling to control his sexual instincts was not affected by error.

2.The judge was plainly alive to the separate discretions arising under the different Acts, and to the enlivening of the discretion to make an extended supervision order. His conclusion as to the exercise of his discretion was premised squarely on his findings about the gravity of the risk that the appellant poses to women in the community. That conclusion was open and was not attended by error.

3.When considering whether to make an order under s 57(7), it will be necessary to find facts, in addition to the facts the subject…

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Driver v Attorney-General (SA) [2022] SASCA 13
Case
[2022] SASCA 13
Decision Date

CaseChat Overview and Summary

The appeal concerned the sentencing of the appellant, who had been convicted of multiple sexual offences, including rape, indecent assault, assault causing harm, and aggravated criminal trespass. The central dispute revolved around the primary judge's decision to impose an extended supervision order, which required a finding that the appellant was unwilling to control his sexual instincts and that such an order was appropriate. The appeal was heard by the Court.

The legal issues before the Court were whether the primary judge erred in finding that the appellant was unwilling to control his sexual instincts, whether the judge erred in the exercise of his discretion to make an extended supervision order, and whether the judge erred in finding that the appellant had committed rapes for which he had not been charged, without making those findings beyond reasonable doubt. The appellant argued that the evidence was insufficient to support the conclusion of unwillingness to control his sexual instincts, particularly given the time elapsed since the offending and his participation in a sexual behaviour clinic program.

The Court held that it was open to the primary judge to give weight to the psychiatrists’ evidence regarding the appellant’s unwillingness to control his sexual instincts, finding ample evidence to support his conclusions. The judge was also found to be alive to the separate discretions under the relevant Acts and correctly exercised his discretion to make an extended supervision order, premising this decision squarely on the gravity of the risk the appellant posed to women. The Court clarified that when considering an order under s 57(7), facts relevant to a person’s unwillingness and the appropriateness of an order must be found on the civil standard, and the judge’s finding of uncharged rapes was based on the appellant’s admissions, not a finding of criminal guilt.

The appeal was dismissed.

Orders

Orders of the court

Held (by the Court), dismissing the appeal:

1. It was open to the judge to give weight to the psychiatrists’ evidence with respect to the appellant’s ‘unwillingness’ to control his sexual instincts. The judge stepped through all of the evidence at length and in detail, and there was ample evidence to support his conclusions. The finding that the appellant was unwilling to control his sexual instincts was not affected by error.

2. The judge was plainly alive to the separate discretions arising under the different Acts, and to the enlivening of the discretion to make an extended supervision order. His conclusion as to the exercise of his discretion was premised squarely on his findings about the gravity of the risk that the appellant poses to women in the community. That conclusion was open and was not attended by error.

3. When considering whether to make an order under s 57(7), it will be necessary to find facts, in addition to the facts the subject of the index offending, that are relevant to the questions of the person’s ‘unwillingness’ and the ‘appropriateness’ of an order. Those questions require determination on the civil standard. In expressing his finding that the appellant had committed rapes for which he had not been charged, the judge did not purport to make a finding of criminal guilt. He did no more than accept the truth of the appellant’s admissions, at the level of abstraction at which they were made.

Background

Background to the litigation

The issues raised on this appeal are as follows:·whether the judge’s finding that the appellant was unwilling to control his sexual instincts was affected by error (Grounds 1-3);·whether, in any event, the judge erred in the exercise of his discretion (Grounds 4-5); and·whether the judge erred in finding that the appellant had committed rapes for which he had not been charged, without making those findings beyond reasonable doubt (Ground 6). Background On 16 June 2011, the appellant was convicted of three counts of rape, two counts of indecent assault, one count of assault causing harm and two counts of aggravated criminal trespass in a place of residence. On the appellant’s eventual appeal against sentence, the Court of Criminal Appeal described the offending in the following terms, on which description the primary judge in the present matter relied:[2] On 27 April 2009, at about 5.15 am, the complainant, who was awake in bed, heard the sound of glass shattering. The sound was caused by the defendant breaking into the house through the rear door. The complainant and her husband confronted the defendant, causing him to run away. In respect of this offending, the defendant pleaded guilty to aggravated serious criminal trespass in a place of residence.On 16 May 2009, a different complainant returned to her home in the early hours of the morning. She had just gone to bed when she heard a knock on the front door. When she opened the door, there was no one present. The complainant returned to her room and went to bed. She again heard knocking on the front door. She then heard someone at the back door of the house and heard the sound of glass breaking. She was frightened and telephoned a friend. As she was calling her friend and was about to open her bedroom door, the door was kicked in. The complainant saw the defendant coming towards her. He was wearing a mask. The defendant pushed the complainant on to the bed and subsequently grabbed and pushed her to the floor. She yelled. The defendant placed his hand over her mouth, pushed down on her throat and lifted her on to the bed. He forced the complainant to commit two acts of fellatio. The defendant then forced her on to the floor again and to have vaginal sexual intercourse with him. As this was occurring, she heard voices. The complainant managed to escape from the bedroom to where her friend was at the back door. The friend telephoned the police. The defendant fled. The police arrived shortly thereafter.The complainant sustained physical injuries, including bruising to her shoulders and back. She feared for her life. She is now frightened at night and fearful that she may be attacked again. She suffers depression and panic attacks. She feels ashamed. She has not felt able to tell her family about the incident.The events of 16 May 2009 gave rise to the offences of aggravated serious criminal trespass in a place of residence, assault causing harm and three counts of rape, being the two acts of fellatio and the act of vaginal sexual intercourse. The defendant pleaded guilty to each offence.The defendant also pleaded guilty to two counts of indecent assault which arose from incidents occurring on 6 July 2009.On that date, a third complainant was walking along the Linear Park track when she noticed a person behind her. That person was the defendant. The complainant began to jog to get some distance between her and the defendant. She saw the defendant again as she walked towards Lower Portrush Road. She stopped to allow the defendant to pass and, as he did, he grabbed her on the left buttock. The defendant fled. The complainant ran home. She now fears being out in public alone. She feels unsafe and isolated. She has trouble trusting people. She feels a loss of independence.On the same day, a fourth complainant was walking along the Linear Park track when she saw the defendant walking towards her. They passed each other and, a few moments later, the complainant was grabbed from behind by the defendant. The defendant grabbed at her pants and dragged her to the ground. The complainant screamed. The defendant attempted to drag her towards the trees near the track. The complainant kicked the defendant, causing him to release her. He fled. The complainant continues to feel frightened when left alone in an empty house. She panics easily. The attack upon her was the day before her year 12 exams. Her results were less than she had anticipated.[2] R v Driver (2011) 111 SASR 245 at [3]-[9] (Gray, Sulan and Blue JJ).

Evidence

Evidence Before The Court

The appellant did not explain what, on his case, was ‘insufficient’ in the regard that the judge had to these matters such as to amount to error. The judge stepped through all of the evidence at length and in detail. The argument appeared to merge into the broader argument, prosecuted as Ground 1, that there was insufficient cogent and reliable evidence to support the primary judge’s conclusion. Subject to the incorporation of this complaint into the broader complaint in Ground 1, Ground 3 fails.Whether there was insufficient cogent and reliable evidence for the primary judge to be satisfied that the appellant was unwilling to control his sexual instincts (Ground 1) This complaint focuses on the obligation of the primary judge to be satisfied that at the time of the decision, the appellant was unwilling to control his sexual instincts. The appellant had committed the offending in 2009, at the age of 18, some 12 years prior to the hearing of the application. He complains that whatever conclusions may have been drawn at the time of the offending, the evidence was insufficient to support the conclusion that the judge drew in 2021. The judge found the most important risk factor to be as follows:[41]By far and away the most important risk relates to Mr Driver’s early psycho-sexual development and the effects of watching pornography whilst he was a teenager. As Dr Raeside pointed out, many people in our community are exposed to pornography without any thought of sexual offending. For Mr Driver, however, the combination of his mediated language disorder, limited intellectual functioning and difficulties interacting with others, when combined with the impact of watching pornography, create in him a firm set of sexual fantasies related to having sex with women and hurting them.[41] [2021] SASC 66 at [220]. In relation to this risk factor, the appellant points to several matters. While in prison, he has not had access to pornography. Between 2014 and 2018, he attended approximately 70 hours of a modified sexual behaviour clinic program. The post‑treatment assessment report of 15 May 2018 concluded that his risk range for sexual re-offending had reduced from ‘very high’ to ‘high’. It also said:His overall attitudinal and behaviour changes were reflected in his motivation and stated commitment to refrain from further sexual offending and distance himself from specific risk factors such as substance abuse, impersonal sexual outlets (e.g. watching pornography on DVD) and pre-occupation with thoughts of sexual acts. The report’s assessment of the appellant’s risk of sexual offending as ‘high’, speaks for itself. Further, the passage relied on by the appellant, extracted above, was heavily qualified by the immediately following sentence:It should, however, be noted that some changes were context specific and as yet not demonstrated across relevant high-risk situations or consistent over time. The appellant then pointed to statements in the most recent reports of Dr Burgess and Dr Nambiar (12 April 2019, for the Parole Board), Dr Raeside and Dr Brereton, where he denied seeking out sexual or pornographic shows or having rape fantasies. Even then, Dr Brereton reported:When asked if he ever has thoughts of rape or hurting others while masturbating, he initially seemed to agree but then said, ‘No’. He then reverted to his original comment about that he does not think about sex at all. Instead, he thinks about his family, ‘I’ve been in prison a long time’.

Decision

Reasons for decision

The primary judge was plainly alive to the separate discretions and to the enlivening of the discretion to make an extended supervision order. He expressly took account of the consequential gravity of making an order under s 57. It is untenable to submit that he took an approach that required there to be no material risk before exercising the discretion to make an extended supervision order. His conclusion as to the discretions was premised squarely on his findings about the gravity of the risk that the appellant poses to women in the community. He reached that conclusion first having regard to the inadequacy of resourcing to provide the supervision that would be required, and secondly, in any event. That conclusion was open and was not attended by error. We dismiss these grounds.Conclusion We dismiss the appeal.

Ratio Decidendi

Legal Principle Established

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