Driver v Attorney-General (SA) - [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 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.

Sentencing Act 2017 (SA) ss 3, 57, 58, 59; Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(4); Criminal Law (Sentencing) Act 1988 (SA) s 23, referred to.
R v England (2004) 87 SASR 411, distinguished.
Attorney-General (SA) v Driver [2021] SASC 66; R v Driver (2011) 111 SASR 245; Wichen v The Queen [2020] SASC 157; Wichen v The Queen (2021) 138 SASR 134; Anderson v The Queen (1993) 177 CLR 520; R v O’Shea (1997) 94 A Crim R 560 at 564; R v England (2004) 87 SASR 411; Attorney-General (SA) v Smallbone [2018] SASC 2; R v Mountford [2019] SASC 16; R v Hoare [2017] SASC 7; Thomas v Attorney-General (2019) 133 SASR 302; R v Ainsworth (2008) 100 SASR 238; R v Whyte [2006] SASC 56; DPP (WA) v Moolarvie [2008] WASC 37; Woods v DPP (WA) [2008] WASCA 188; Lee v State Parole Authority of New South Wales [2006] NSWSC 1225; R v Armfield [2005] SASC 108; R v Humphrys (2018) 131 SASR 344; Attorney-General v Tipping [2019] SASC 133; DPP (WA) v Moolarvie [2008] WASC 37 ; Woods v DPP (WA) [2008] WASCA 188; Lee v State Parole Authority of New South Wales [2006] NSWSC 1225; R v Armfield [2005] SASC 108; Laidlaw v Hulett; ex parte Hulett (1998) 2 Qd R 45; Briginshaw v Briginshaw (1938) 60 CLR 336; Helton v Allen (1940) 63 CLR 691; Sheldon v Sun Alliance Australia Limited (1989) 53 SASR 97, considered.

DRIVER v ATTORNEY-GENERAL (SA)
[2022] SASCA 13
Court of Appeal – Criminal: Kourakis CJ, Doyle and Bleby JJA

THE COURT: On 3 March 2021, on the application of the Attorney‑General, a judge of this Court ordered that the appellant be detained in custody until further order, pursuant to s 57(7) of the Sentencing Act 2017 (SA). He dismissed the Attorney-General’s alternative application that the appellant be made subject to an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA). On 4 June 2021, the judge published his reasons for making the order.[1]
[1] Attorney-General (SA) v Driver [2021] SASC 66.
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).
The appellant was initially sentenced to a term of 16 years’ imprisonment, with a non-parole period 10 years. On his successful appeal against sentence, he was resentenced to a term of 11 years’ imprisonment, with a non-parole period of five years and six months.[3]
[3] R v Driver (2011) 111 SASR 245.
The appellant became eligible for release on parole on 6 January 2015. He was not granted parole. His head sentence expired on 6 July 2020. However, on 1 July 2020, the primary judge made an interim detention order, pursuant to s 57(5) of the Sentencing Act. That interim order was in place until the s 57(7) order of 3 March 2021, the subject of the present appeal.
The primary judge heard the Attorney-General’s application over a number of days between 21 August 2020 and 3 March 2021. The evidence tendered by counsel for the Attorney-General included an affidavit of Alyona Andreevna Haines, the solicitor within the Crown Solicitor’s Office with the conduct of the matter. The exhibits to this affidavit included a psychiatric report of Dr Craig Raeside dated 31 January 2011, the Department of Correctional Services (DCS) pre-sentence report of G Ramsay dated 13 December 2010 and the DCS Sentence Management Unit Summary of N Billing and C Sim, dated 5 January 2017. Counsel for the Attorney-General also tendered further psychiatric reports of Dr Raeside dated 7 December 2019 and 31 March 2020, a psychiatric report of Dr William Brereton dated 29 April 2020 and correspondence from the Attorney‑General’s counsel regarding ongoing treatment, dated 12 March 2021.
Counsel for Mr Driver tendered a psychology report of Mr Richard Balfour dated 16 June 2020, affidavits of the appellant’s mother, his ‘traditional father’ and Mr Lewis Charles (all of which concerned the prospects of the appellant being released to live in the Northern Territory, his culture and connection to country), correspondence with the NDIS and correspondence regarding residence at a rehabilitation centre. The judge also received material concerning the capacity of the Parole Board to ensure the supervision of the appellant in the Northern Territory and his ongoing treatment or counselling while imprisoned.
The judge made the following general finding with respect to the experts:[4]
I found the expert evidence helpful. There was really no challenge made to any of it. I was particularly impressed by the evidence from Dr Raeside, although the evidence of all of the experts was of assistance to me. In so far as it becomes necessary to make a finding in the event of differences, I prefer the evidence of Dr Raeside and Dr Brereton to that of Mr Balfour. Nonetheless, I accept Mr Balfour’s evidence regarding the statements made to him by Mr Driver.
[4] [2021] SASC 66 at [15].
The ultimate conclusions drawn by the primary judge should be read in light of the provisions of s 57 of the Sentencing Act. Sub-section 57(1) defines a ‘person to whom this section applies’. There was no dispute that the appellant, by reason of his convictions for the identified offences, came within this definition. That sub‑section then provides a definition of ‘unwilling’:
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 the person's sexual instincts.
Sub-sections 57(3), (4) and (5) provide procedural mechanisms for the Attorney-General to make an application to the Supreme Court for an indefinite detention order while the person remains in prison serving a sentence of imprisonment. Sub-sections 57(6) and (7) then provide:
(6)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, the person's sexual instincts.
(7)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.
Sub-sections 57(8) and (9) then prescribe the matters to be taken into account on an application under sub-s 57(3):
(8)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 to protect the safety of the community (whether as individuals or in general).
(9)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 (6)) provided 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 61;
(d)     any other matter that the Court thinks relevant.
The primary judge expressed his conclusion on the question of whether the appellant was unwilling to control his sexual instincts as follows:[5]
Ultimately, I am left in the position where the psychiatrists agree that Mr Driver presents a high risk to the community and that he is, when presented with the opportunity, unwilling to control his sexual impulses. In my view those opinions are, on the evidence, clearly correct.
The nature of Mr Driver’s offending, his degree of insight (or rather lack of insight) into the causes of his offending and its effect on his victims, and the rather rudimentary way in which he expresses himself about how he might avoid reoffending, all combine to demonstrate that Mr Driver is both at high risk of reoffending and, given the opportunity, unwilling to control his sexual instincts. Within the terms of s 57(1), there is a significant risk that Mr Driver will, given the opportunity to commit a sexual offence, fail to exercise appropriate control of his sexual instincts.
[5] [2021] SASC 66 at [226]-[227].
The judge considered that while the power in s 57 is ‘not explicitly conditioned’ on making that finding of unwillingness, an order should not be made in the absence of such a finding.[6] In Wichen v The Queen, Kourakis CJ said:[7]
Secondly, the power to make an order of indefinite detention is not expressly conditional on a finding that the person is incapable of controlling, or unwilling to control, their sexual instincts. However, if the power is not implicitly so conditioned, an order is nonetheless unlikely to be made in the absence of such a finding.
[6] [2021] SASC 66 at [236].
[7] [2020] SASC 157 at [107] (Kourakis CJ).
The proposition that it is an implicit condition of the exercise of the power in s 57(7) that the person be found to be incapable of controlling, or unwilling to control, their sexual instincts, is at least consistent with observations by this Court.[8] In any event, the primary judge in the present case treated it as such. Grounds 1-3 and 6 are directed, variously, to the conclusion that the appellant is unwilling to control his sexual instincts and aspects of the reasoning underpinning it.
[8] Wichen v The Queen (2021) 138 SASR 134 at [31]. At the time of writing, the High Court has granted special leave to appeal against this judgment.
Having found that the appellant was unwilling to control his sexual instincts, the judge then considered the exercise of the discretion under s 57(7). His conclusion that it was appropriate and necessary to make an order was based on the complexity of the appellant’s criminogenic factors, and the fact that his offending was not easily addressed or explained. His offending was not directly the result of alcohol or illicit drugs:[9]
Whilst it is tempting to think that Mr Driver might improve with further time and therapy, the evidence and the opinions of the psychiatrists suggest otherwise. His is a complex case which is unlikely to be improved by further treatment or therapy.
Despite extensive intervention over many hours outside a group setting, with a therapist “one-on-one”, Mr Driver has not been able to maintain the improvements made in the course of his therapy. He remains unable to express any real empathy for his victims and he tends to communicate concrete thought processes. Apart from recognising a connection with pornography, Mr Driver lacks insight into the causes of his offending. He has, at times, been prepared to tell examiners that he fantasises about hurting women and that he likes raping women, “a little”.
In addition, none of the psychiatrists or the psychologist who gave evidence before me thought that it was appropriate to release Mr Driver into the community, even on an extended supervision order based on residence in South Australia, without very close supervision, if not a form of close home detention. As I have indicated, the NDIS funding is insufficient to ensure that this can be established.
However, even if I was wrong about that, and the NDIS funding did allow for 24-hour supervision, I remain very concerned about the risk posed by Mr Driver’s isolation, limited capacity for social interaction and likely difficulty establishing meaningful relationships with women so as ensure that he can to meet [sic] his sexual needs. As I see it, there is the very serious risk that Mr Driver will again become isolated, angry and sexually frustrated, with the result that he will engage in the kind of brazen sexual offending for which he has been incarcerated. In these circumstances, I do not see electronic monitoring as representing any effective means of curbing the dangerous risk that Mr Driver poses to women in the community. At best, electronic monitoring will only indicate to authorities that Mr Driver is breaching the terms of an order. It will not inhibit or prevent further offending.
[9] [2021] SASC 66 at [241]-[244].

Grounds 4 and 5 complain that the judge erred in failing to exercise his residual discretion to decline to make an order detaining the appellant until further order, and in failing to exercise his discretion to subject the appellant to an extended supervision order pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA).
The grounds directed to the conclusion that the appellant is unwilling to control his sexual instincts are logically anterior to those challenging the exercise of the discretion. It is convenient to start with Ground 6.
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
In the course of considering the evidence of the psychiatrists and the psychologist on whether the appellant is incapable of controlling, or unwilling to control, his sexual instincts, the primary judge made the following finding:[10]
I accept, and find, that the statement Mr Driver made to Dr Raeside about raping other women for which he has not been apprehended, represents what Mr Driver thought and what has occurred. Each of Dr Raeside, Dr Brereton and Mr Balfour agreed, and I find, that this significantly increases the risk posed by Mr Driver. I accept Dr Raeside’s evidence that this statement tends to indicate a marked lack of inhibition. Many offenders would be most reluctant to make statements such as these to examiners.
(Emphasis added)
[10] [2021] SASC 66 at [224].
This finding is based on the following passage from Dr Raeside’s report of 31 January 2011:
I note that during my interview with Mr Driver I again cautioned him about the lack of confidentiality and again indicated the nature of my assessment. I asked him if there had been other times in which he had raped women, but gotten away without being apprehended to which he indicated there had been. Again he explained his behaviour by attributing it to having been “brainwashed” when a teen and seemed to suggest that he’d had strong sexual images in his mind since then.
Dr Raeside was asked about this statement when giving evidence:
QWithout knowing what those instances were, does that simply indicate that there is greater risk than merely the offences of which he has been convicted.
AAssuming what he told me is true, that would increase his risk.
He was not cross-examined on the topic. Mr Balfour, who was called by the appellant, was cross-examined on whether the appellant had disclosed other rapes for which he had not been apprehended:
QDid he tell you anything about – and I’m not suggesting this is inconsistent – but did he tell you anything about having – there’d been other times when he’d raped women but had got away without being apprehended.
AI wouldn’t have explored or asked those questions and he didn’t spontaneously divulge anything like that, otherwise it would be in the report.
QNo, I understand.
AAnd it would be of a concern.
QIt would be of concern, all right.
HIS HONOUR
QSorry, just to be clear. You’re saying that if, in fact, there had been other rapes for which he’d not been apprehended, that would be a matter of concern.
AYes, if, you know, DNA profile had suddenly showed up another four or five break and enter rapes had no suspect, it would be a greatly concern because it would be another important index of the strength of his desire to rape women and to live the – assuming they’re all white women – the fantasies he’d seen in the dirty movies.
QAnd likewise, if he admitted to other occasions, similarly you’d been concerned.
AYes, because it means that he has very strong deviant sexuality, the technical term’s a paraphilia.
The extracts set out above comprise the totality of the evidence on the matter. That is, there was evidence that the appellant had admitted to other rapes, in the terms described in Dr Raeside’s report. Dr Raeside then expressed the opinion that if the admissions were true, that matter would contribute to an assessment of increased risk of reoffending. Mr Balfour concurred with that opinion. A fair reading of Mr Balfour’s evidence is that his opinion of concern was premised on the admissions being true.
Contrary to the primary judge’s summary, Dr Brereton did not give evidence on this topic. That does not affect consideration of the ground. The complaint is that the judge found that the appellant did rape other women, without making that finding beyond reasonable doubt. That finding was then significant to the conclusion that the appellant was unwilling to control his sexual instincts.
It was uncontentious that the finding as expressed should not be interpreted as having been beyond reasonable doubt. The appellant submitted that this being so, it was not permissible for the judge to have regard to these uncharged criminal acts, in that they were ‘akin’ to matters of aggravation in the sentencing process which require proof beyond reasonable doubt.
The appellant’s argument relied on both analogy and precedent. The analogy was with the sentencing process. If such acts were to be taken into account as part of the ‘offending matrix’ supporting the conclusion that the appellant was unwilling to control his sexual instincts, then there could be no relevant distinction between the requirements of proof of uncharged acts for this purpose and matters of aggravation for the purpose of sentencing.
In the sentencing process, matters of aggravation are required to be proved beyond reasonable doubt, as they form part of the basis upon which a defendant is to be sentenced.[11] That is, they comprise part of the factual matrix of wrongdoing to which the sentencing exercise attaches. Sentencing serves several purposes, including protection of the community and punishment of the individual.
[11] Anderson v The Queen (1993) 177 CLR 520 at 536 (Deane, Toohey and Gaudron JJ).
Section 3 of the Sentencing Act 2017 (SA) deems the primary purpose for sentencing a defendant for an offence to be to protect the safety of the community (whether as individuals or in general). Section 4 then lists ‘secondary purposes’, which include ensuring that the defendant is punished for the offending behaviour, to publicly denounce the offending behaviour, to deter both the defendant and others from engaging in such behaviour and to promote the rehabilitation of the defendant. Thus, while sentencing carries a broad, protective purpose, it is also a direct response to proved criminal acts. That response incorporates punishment.
By contrast, this Court has observed on a number of occasions that detention orders, whether under s 57 or the previous s 23 of the Criminal Law (Sentencing) Act 1988, have a protective, rather than a punitive purpose.[12] As Hinton J explained in R v Hoare:[13]
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”.[14]
(Footnote in original)
[12] R v O’Shea (1997) 94 A Crim R 560 at 564 (Doyle CJ); R v England (2004) 87 SASR 411 at [11] (Bleby J); Attorney-General (SA) v Smallbone [2018] SASC 2 at [116] (Hinton J); R v Mountford [2019] SASC 16 at [56] (Nicholson J); Wichen v The Queen (2021) 138 SASR 134 at [38] (Kelly P, Lovell and Bleby JJA).
[13] [2017] SASC 7 at [64].
[14] R v Ainsworth (2008) 100 SASR 238 at [81] (White J, Doyle CJ agreeing).
Following amendments to ss 58 and 59 of the Sentencing Act in 2018 (providing for discharge of an order under s 57 and release on licence, respectively), in Thomas v Attorney-General[15] Kourakis CJ observed that the rehabilitative purposes of an indefinite detention order, facilitated by the former regimes of release on licence and discharge, and been overtaken by the purpose of preventative detention:[16]
The amendments to s 58 of the Sentencing Act 2017 have radically changed the purpose of the indefinite detention order regime. Preventative detention is now its primary purpose…
[15] (2019) 133 SASR 302.
[16] Thomas v Attorney-General (2019) 133 SASR 302 at [48] (Kourakis CJ, Nicholson and Parker JJ agreeing).
The concern of the section remains one of community protection, based primarily on an assessment of risk (framed in s 57(7) as a question of appropriateness). The primary integer of this assessment is whether the person is incapable of controlling, or unwilling to control, their sexual instincts. While conviction of a relevant offence enlivens the discretion, the assessment looks beyond that conviction. Other facts will also inform the risk contemplated by the section. That does not mean that the person is to be detained in a punitive response to those facts. Rather, the assessment of whether the person is incapable of controlling, or unwilling to control, their sexual instincts will take those facts into account, as will the ultimate assessment of risk that informs the discretion. The analogy to the process of sentencing for a proved offence is, subject to the discussion immediately following, inapt.
The appellant invoked, by way of precedent, R v England.[17] In that case also, Bleby J observed that the former s 23 of the Criminal Law (Sentencing) Act 1988 had a protective, rather than a punitive, purpose. However, the appellant relied upon the following passage:[18]
In some cases it may be that the opinion as to inability to control sexual instincts depends upon certain aggravating features of the offence. As in any sentencing exercise, those features will have to be established to the satisfaction of the sentencing judge beyond reasonable doubt if the opinion is to carry any weight. However, the formation of the opinion on the question whether the person is incapable of controlling sexual instincts cannot itself be reasonably regarded as a matter of aggravation in the offending. Therefore, I do not consider that the approach to matters of aggravation is relevant to this determination save as to the finding of any relevant primary facts which might constitute aggravation.
(Emphasis added)
[17] (2004) 87 SASR 411.
[18] R v England (2004) 87 SASR 411 at [52] (Bleby J).
Justice Bleby summarised the process requiring the expression of the opinion by two medical practitioners, at that time required by s 23(5) of the former Act. He continued:[19]
Secondly, the court will need to assess the strength of those opinions, taking into account a number of factors relevant to the assessment of expert evidence. That will include identifying the relevant primary facts surrounding the proven offending on which the medical practitioners have based their opinions, and ensuring that they are established to the court’s satisfaction beyond reasonable doubt.
[19] R v England (2004) 87 SASR 411 at [58] (Bleby J).
This not having occurred with respect to the offending comprising the uncharged acts about which the appellant made admissions to Dr Raeside, the appellant says that the fact-finding process, which supported the conclusion that he was unwilling to control his sexual instincts, miscarried.
The defendant in England had been convicted in the District Court of two counts of indecent assault and four counts of rape. He was remanded to appear for sentence before the Supreme Court pursuant to s 23(2) of the (now repealed) Criminal Law (Sentencing) Act 1988. Pursuant to s 23(6) of that Act, as with the current s 57(12), the Court had the power to make an order of indefinite detention in addition to, or instead of, a sentence of imprisonment.[20] In the event, Bleby J found the defendant to be incapable of controlling his sexual instincts and concluded by proposing to direct that he be detained in custody until further order. He also proposed to sentence the defendant to imprisonment.[21]
[20] Criminal Law (Sentencing) Act 1988 (SA) (repealed) s 23(4), (6).
[21] R v England (2004) 87 SASR 411 at [98] (Bleby J).
Justice Bleby was, therefore, undertaking two tasks in that case. The passage relied on by the appellant, above, is clearly directed to the enquiry into whether the defendant was able to control his sexual instincts. It was not directed to the sentence of imprisonment for the offending that might be imposed.
It is necessary to be careful with the language deployed. His Honour found the purpose of a direction that a defendant be detained in custody until further order, pursuant to s 23(5), to be protective rather than punitive. He continued:[22]
In those circumstances, there would appear to be some difficulty in including an order for detention under s 23 in the definition of “sentence”. However, s 23 is Pt 2, Div 3 of the Act. The heading to that Division is “Division 3 – Sentences of indeterminate duration”. The only order for detention in custody until further order referred to in Div 3 is a direction under s 23. The heading to a Division of the Act forms part of the Act: s19(2) of the Acts Interpretation Act 1915 (SA). A “sentence of indeterminate duration” is defined in s 3 as meaning “detention in custody until further order”. That is the phrase used in s 23(5).
In my opinion, it follows that Parliament has intended that a direction made under subs (5) must be regarded as a sentence of indeterminate duration. It would be strange indeed if Parliament intended that a “sentence of indeterminate duration” should not be a “sentence” for the purposes of the Act. Some word other than “sentence” would, in all probability, have been used in the phrase “sentence of indeterminate duration” if it did so intend.
However, there is an even more compelling reason why the direction should be regarded as a sentence for the purposes of the Act. While it may not be the imposition of a penalty for the purposes of para (a) of the definition “sentence”, such a direction under subs (5) is a “direction affecting penalty” within para (d) of the definition. It affects penalty in one of two ways. It may result in no sentence of imprisonment being imposed at all: s 23(6). As will be seen, if a sentence of imprisonment is also imposed, it may well have some bearing on the fixing of a non-parole period in respect of that sentence, and will come within para (c) of the definition.
[22] R v England (2004) 87 SASR 411 at [12]-[14] (Bleby J).
The result of these conclusions from the terms of the Criminal Law (Sentencing) Act 1988 was that a direction under s 23(5) was to be regarded as a ‘sentence’ for the purposes of the Act. The Court was not, therefore, bound by the rules of evidence. The approach to factual questions in considering whether to make such a direction would be similar to that applicable to the process of sentencing. It was on this basis that his Honour concluded that for the purposes of making a direction, any primary fact, which might constitute aggravation of the offending, was required to be proved beyond reasonable doubt.
As set out above, Bleby J did not consider the formation of an opinion on the question whether the person is incapable of controlling their sexual instincts to be a matter of aggravation of the offending. He continued:[23]
It is important to bear in mind precisely what it is that the court is called upon to be satisfied about. It is that the particular person is incapable of controlling his or her sexual instincts. That is not a readily observable fact. It is not something that can readily be inferred by a finder of fact from other primary facts. It depends upon the formation and acceptance of an opinion which in turn depends, not only on the establishment of ascertainable facts, but on expert interpretation of the significance of those facts and of the weight be to [sic] given to them. It is not a process which is amenable to satisfaction beyond reasonable doubt. Rather, it is a process more akin to that described by Dixon J in Briginshaw v Briginshaw…
[23] R v England (2004) 87 SASR 411 at [53] (Bleby J).
There are several observations to be made about the applicability of this reasoning to the appellant’s argument. First, the definition of ‘sentence’ in the Sentencing Act 2017 contains similar wording to that in the repealed Act relied on by Bleby J, being ‘the making of any other order or direction affecting penalty’. However, Division 5 of Part 3, in which s 57 is located, is not headed ‘Sentences of indeterminate duration’, but rather, ‘Offenders incapable of controlling, or unwilling to control, sexual instincts’. As contemplated by Bleby J, other words are now used.
Having said that, s 57(12) operates in the same way as the former s 23(6), on which Bleby J relied to conclude that an order for indefinite detention was ‘a direction affecting penalty’, and therefore a ‘sentence’ for the purposes of the Act. In the present case, however, the power in s 57(12) was not enlivened. The application was made under s 57(3). The order for indefinite detention is not capable of affecting the penalty imposed for the appellant’s index offending, although that will still be the case in some instances.
The purpose of this analysis is not to explore the limits of the reasoning of Bleby J in England. Rather, it is to place in context the conclusion in that case that primary facts constituting aggravation of the offending were required to be proved beyond reasonable doubt, even though the conclusion to which they are directed, that the person is incapable of controlling (or unwilling to control) their sexual instincts is to be established to the civil standard, in accordance with the principles in Briginshaw v Briginshaw.[24]
[24] (1938) 60 CLR 336.
In England, Bleby J was considering whether the process was akin to the sentencing process such that the rules of evidence did not apply. In concluding that this was the case, he considered that primary facts going to aggravation of the offending – being the index offending on which the jurisdiction to make an indefinite detention order was enlivened – were required to be proved beyond reasonable doubt.
In the present case, the Attorney-General brought the application under s 57(3), that is, where the appellant had been convicted and was already serving a sentence of imprisonment. All facts had long since been found for the purposes of sentencing. All relevant matters of aggravation of the index offending can be taken to have been proved beyond reasonable doubt.
The task in England, that of determining primary facts of aggravation of the index offending for the purpose of making an order capable of ‘affecting the penalty’ for that offending, therefore does not arise. In the present case, the primary judge’s task was to determine whether it was appropriate to order that the appellant be detained in custody until further order. That task incorporated, by implication, the question whether he was unwilling to control his sexual instincts. The question now is whether, in determining facts relevant to that task, the judge was required make any finding that the appellant had raped other women (expressed at that level of abstraction), beyond reasonable doubt.
To summarise, the abstract analogy with sentencing is inapt, as an order under s 57(7) has no punitive function. The reasoning in England is not directly applicable either, as it is concerned with proof of primary facts relating to the index offending to which the power responds directly. The standard of satisfaction required under s 57(7) is the civil standard, although the subject matter would demand that this should be approached in accordance with the principles explained in Briginshaw v Briginshaw.

Where, in civil proceedings, one party alleges conduct of a criminal nature against another, the standard of proof remains the civil standard, although the court is required to bear in mind the gravity of the allegation and the consequences for the party adversely affected by a finding of such conduct.[25]
[25] Helton v Allen (1940) 63 CLR 691; Sheldon v Sun Alliance Australia Limited (1989) 53 SASR 97.
In Laidlaw v Hulett; ex parte Hulett,[26] the appellant was the subject of proceedings on complaint under s 4 of the Peace and Good Behaviour Act 1982 (Qld). This regime required a complaint in writing that a person had made a threat of a specified kind to the complainant’s person or property, and that the complainant was in fear of the person. If a Justice of the Peace was satisfied that the complaint was substantiated, a summons could be issued for the person to appear in the Magistrates Court. The Court would hear and determine the matter of the complaint and pursuant to s 6 of the Act, was empowered to make an order that the person keep the peace and be of good behaviour. In that case, the complainant alleged that the appellant had threatened to kill her with a knife.
[26] (1998) 2 Qd R 45.
A majority of the Queensland Court of Appeal held that proof of the allegations beyond reasonable doubt was not required before an order could be made.[27] The whole Court held, applying Briginshaw v Briginshaw,[28] that the strength of the evidence that was required so as to establish the basis for an order had to take into account the seriousness of the allegation made.[29]
[27] Laidlaw v Hulett; ex parte Hulett (1998) 2 Qd R 45 at 52 (McPherson JA), 55 (Shepherdson J).
[28] (1938) 60 CLR 336.
[29] Laidlaw v Hulett; ex parte Hulett (1998) 2 Qd R 45 at 49 (Fitzgerald P), 52 (McPherson JA), 55 (Shepherdson J).
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. Any allegation of particular seriousness that is relevant to these inquiries should be approached on the basis of the principles stated by Dixon J in Briginshaw v Briginshaw.[30] That includes any allegation of conduct that would be criminal: there is no reason to infer that the legislature intended that the criminal standard should apply.
[30] (1938) 60 CLR 336 at 362.
In expressing his finding that the appellant’s statements about ‘raping other women’ represented ‘what has occurred’,[31] the judge was not purporting to make a finding of criminal guilt. In context, that finding can be no more than the judge accepting the truth of the appellant’s admissions, at the level of abstraction at which they were made, devoid of detail as they were. Those admissions were relevant to the inquiry at hand.
[31] [2021] SASC 66 at [224].
The appellant’s submission edged into a complaint that the judge did not approach this finding in accordance with Briginshaw principles in any event, and that given the circumstances of the admissions and the lack of detail in Dr Raeside’s report as to how they were actually couched, the finding was not open.
Insofar as this complaint went beyond the ground of appeal, which complains only of an obligation to make the finding beyond reasonable doubt, it is impermissible. In any event, however, Dr Raeside’s record of the appellant’s statement was not explored or challenged at trial. It was before the judge as an unchallenged admission. There was no complaint at trial that this evidence was incapable of supporting such a finding. Had it been the focus of such attention, there might well have been much to say. However, left as it was, there was no error in the judge proceeding as he did. We dismiss this ground.
Whether the primary judge erred in relying, or placing more than little weight, on the opinions of Dr Craig Raeside and Dr William Brereton, that the appellant was unwilling to control his sexual instincts, when they were not qualified experts in recidivism (Ground 2)
Each of Dr Raeside and Dr Brereton expressed opinions on the ‘unwillingness’ of the appellant to control his sexual instincts, this being a defined term, requiring that there be ‘a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of the person's sexual instincts’.
Dr Raeside wrote on 31 January 2011 (noting that the definition of ‘unwilling’ in s 23 of the Criminal Law (Sentencing) Act 1988 (SA), as in force at the time, was not materially different):
Nevertheless, I would be strongly of the opinion that Mr Driver’s offending behaviour indicates that he is unwilling to control his behaviour and given opportunity reacts quickly and severely, immediately attempting to engage in sexual behaviour with the victim.
He confirmed this opinion on 25 March 2011. In his report of 31 March 2020, he said:
As noted, I assessed Mr Driver and prepared a report to the Supreme Court, 31/1/11, pursuant to a Section 23 Application at that time with respect to Mr Driver’s capacity and willingness to control his sexual instincts. I expressed the view that Mr Driver’s offending clearly indicated limited ability to control his sexual behaviour. This might be even further eroded if he was shown to have cognitive impairment (which a later neuropsychological assessment failed to find). I therefore expressed the strong opinion that Mr Driver’s offending behaviour indicated that he was “unwilling to control his [sexual] behaviour and given opportunity reacts quickly and severely, immediately attempting to engage in sexual behaviour with the victim”.
Subsequent assessments in custody have not substantially reduced that risk.
Therefore, for current purposes, I would offer the opinion that Mr Driver remains unwilling to control his sexual instincts within the meaning of the Act. That is, if given opportunity, he is very likely to commit a relevant sexual offence by failing to exercise appropriate control of his sexual instincts.
(Emphasis in original)
Dr Raeside confirmed his opinion in oral evidence. When asked about the appellant’s apparent gains from completion of the Sexual Behaviours Clinic while in custody, he said:
The question of gains from the program, as I have outlined in my reports, there were some gains but I don’t think they’ve changed his overall risk, and on the other side, his extended period in an institution, without being in society is probably worse than his social functioning, which in turn increases his risk upon returning to the community.
There are two matters to mention at this stage. First, Dr Raeside’s qualification to express this opinion was not challenged. Secondly, he expressed his opinion in terms of the language of the statutory test, applying a framework of risk and explaining his assessment of that risk.
Dr Brereton’s opinion of 10 February 2011 contained the following passages:
When considering a person’s risk of sexual offending, it is useful to consider four broad areas of functioning: sexual interest and arousal patterns; thought processes associated with sexual behaviour (particularly distorted patterns of thinking linked to offending); emotional regulation, and problem solving / life management skills.
…
There are some concerning aspects to Mr Driver’s offending with regards to his ability or willingness to control himself. During the rape he continued to sexually assault his victim despite the arrival of her friends at the house, including their knocking on the bedroom window. His indecent assaults on women in the park indicate a willingness to persist offending in a public place in quite a brazen manner without consideration of the consequences.
I understand that, in order to specifically address the requirements of s.23, I must consider whether Mr Driver is incapable of controlling, or unwilling to control, his sexual instincts. … I understand that unwillingness is defined as being present, “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 my opinion, the nature of Mr Driver’s offending which included a willingness to persist even when likely to be caught, means there is a significant risk that if he were given the opportunity to sexually offend he would fail to exercise appropriate control of his sexual instincts.
Dr Brereton’s expertise to make this statement of opinion was not challenged either. He also expressed his opinion in terms of objective risk, as required by the definition of ‘unwilling’. He confirmed this opinion in his oral evidence.
The appellant complains that none of the reports of these witnesses that were relied upon made any reference to the psychiatrists’ expertise in ‘predicting’ that a person who does not suffer from a mental illness would, given an opportunity to commit a sexual offence, fail to exercise appropriate control of their sexual instincts. He complains that these opinions were, therefore, inadmissible. He complains in the alternative that if they were not inadmissible, the judge gave them unwarranted prominence in his reasons for decision. He relied primarily on the following passages in R v Whyte,[32] which concerned an application under s 23 of the repealed Act:[33]
In the present case both the forensic psychiatrists who, at the direction of the Court, examined the defendant recognised that the statutory definition of the word “unwilling” required a consideration of matters going beyond an assessment of his present state of mind. Dr Nambiar said in his evidence that whilst it was within the professional confidence of a forensic psychiatrist to express an opinion on a person’s capacity to control sexual instincts, a psychiatrist was in no better position than a layman to provide an opinion on the question of whether a person was willing to control his or her sexual instincts. Dr Branson confined his attention to the defendant’s mental condition.
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.
[32] [2006] SASC 56.
[33] R v Whyte [2006] SASC 56 at [28]-[29] (White J).
There are several observations to be made. First, the recording of an assessment of a different psychiatrist in a different case as to the scope of expertise covered by forensic psychiatry cannot dictate the treatment of the opinions given in this case. That is presumably why the appellant framed the challenge in the way that he did. However, on the question of admissibility, the primary difficulty for the appellant lies in the terms of s 57(9), which requires the Court to take into account the reports of the legally qualified medical practitioners. Those practitioners are tasked, by s 57(6), ‘to 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, the person's sexual instincts’.
It is difficult to conclude from this statutory requirement anything other than that the opinions of medical practitioners engaged under s 57(6), on that question of unwillingness, must necessarily be admissible. How the Court then treats them is another matter. Those opinions, however couched, will not, as White J observed in R v Whyte, ‘ordinarily encompass all the matters relevant to the Court’s assessment’.[34] Further, the limits of those opinions, including the limits imposed by the medical practitioner’s expertise, remain available to be tested in cross‑examination. That is the case, however those opinions may be expressed.
[34] [2006] SASC 56 at [29] (White J) (emphasis added).
In the present case, as already observed, at the hearing of the application, no challenge was made to the expertise of the two psychiatrists to express the opinions that they did. While they both expressed views on the ultimate question of ‘unwillingness’ (which they expressed in terms of risk), in response to the questions they were asked, each explained the basis of their conclusion. There was no challenge to their capacity to give those explanations, either. It is not necessary to review the authorities the respondent cited in support of the general proposition that assessments of future risk of re-offending fall within the scope of the skills possessed by psychologists and psychiatrists.[35]
[35] The respondent referred to DPP (WA) v Moolarvie [2008] WASC 37; Woods v DPP (WA) [2008] WASCA 188; Lee v State Parole Authority of New South Wales [2006] NSWSC 1225; and R v Armfield [2005] SASC 108.
The primary judge’s conclusion that the appellant was unwilling to control his sexual instincts within the statutory meaning of the word was not reduced to a simple acceptance of those opinions. Rather, as set out in the introductory part of these reasons, he expressed the conclusion, based on the whole of the evidence, that those opinions were correct.[36] The judge applied the definition of ‘unwilling’ in the manner explicated in R v Whyte.[37] It was open to him to give to the psychiatrists’ evidence the weight that he gave. We dismiss Ground 2.
Whether the primary judge failed to have sufficient regard to the appellant’s limited intellectual functioning, poor communication skills and cultural dissonance in assessing the significance of statements made by the appellant in respect of this attitude towards sexual offending and victim empathy (Ground 3)
[36] [2021] SASC 66 at [225]-[227].
[37] [2006] SASC 56 at [29] (White J).
This ground appears to complain of the weight the primary judge attributed to certain matters. It does not complain that he had no regard to them. The appellant did not develop this ground in oral submissions, and only briefly in written submissions. The ground is without merit. The judge had express regard, in the course of his reasons, to:
·the appellant having a learning disability and low intellectual functioning, rather than an intellectual disability, and the causes of this;[38]
·the appellant’s poor communication and social skills;[39]
·the appellant’s cultural dissonance.[40]
[38] [2021] SASC 66 at [71]; [82]; [181]; [195]; [196].
[39] [2021] SASC 66 at [76]; [82]; [119]; [124]; [126]; [139]; [165].
[40] [2021] SASC 66 at [119]; [176]; [210]-[212].
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’.
Mr Balfour reported on 16 June 2020:
I then explored with Mr Driver what are his masturbatory fantasies. He said that he fantasised about touching women on the buttocks and breasts. He said that when he is masturbating, he sometimes thinks about hurting women. He said that he does not have fantasies about wanting to kill women.
Mr Driver said that he liked the idea of raping women. I asked him whether he liked that idea a lot or a little. He said that he only likes it a little.
The appellant’s submission in respect of this evidence was that while it was not disputed that his psychosexual profile was adversely affected by watching pornography as a teenager, when combined with the other matters outlined above, the evidence that this continued to have an effect was tenuous.
That submission overstates matters. It looks to excise, artificially, the effect of one causative element of his psychosexual development by reference to more recent developments during the appellant’s incarceration. It appears to ignore, or not appreciate, that assessment of the appellant’s psychosexual development is a matter of historical fact and expert opinion based on contemporary assessments. The assessments, while noting and incorporating some amelioration of risk during the appellant’s time in custody, still placed the appellant at a high risk of reoffending. As noted above, Dr Raeside did not consider the assessments in custody to indicate a substantially reduced risk.

In further support of this ground, the appellant challenged the primary judge’s reliance on the uncharged acts the subject of Ground 6, and the opinions expressed by the psychiatrists on the issue of ‘unwillingness’, being the subject of Ground 2. These challenges having failed, they cannot support the present ground.
The final submission in support of this ground was that in concluding that the appellant lacked insight into the causes of his offending, its effect on the victims and that he was only able to express in a rudimentary way how to avoid reoffending,[42] the primary judge failed to have adequate regard to ‘competing’ evidence and had insufficient regard to the matters the subject of Ground 3.
[42] [2021] SASC 66 at [227].
The immediate difficulty with this submission is that this ground is concerned with the adequacy of evidence to support the conclusion at all, not the more problematic proposition that the judge should have preferred evidence that competed with that which he did accept.
In any event, the appellant pointed to statements in the reports of Dr Raeside and Dr Brereton recording rudimentary and unsophisticated answers to questions designed to elicit indications of empathy towards the appellant’s victims. He submitted that these responses should be assessed in light of his low intellect, poor communication skills, shyness and the limited opportunity to develop a relationship with the psychiatrists. He contrasted this with his ability to develop a relationship with the therapists in the sexual behaviour clinic program, and the statement in the report of 15 May 2018:
Mr Driver’s post-treatment assessment indicated reduction in a number of his dynamic risk factors, particularly in his problem solving skills, concern or empathy toward others, general sense of social rejection and insight into his sexual offending behaviour.
A discrete statement in one report, such as this, identifying some level of progress in rehabilitation, hardly undermines fatally the preponderance of evidence on which Drs Raeside and Brereton identified the appellant’s risk factors, and the totality of the evidence on which the judge relied. To select isolated passages from the considerable volume of reportage on the appellant’s history and presentation is not helpful in this context. In any event, and as already noted, the same paragraph from which this passage is taken placed a heavy qualification on the confidence of the authors in the appellant to maintain the indicated improvements over time.
There was ample evidence capable of supporting the primary judge’s conclusion. Ground 1 is without merit.
Whether the primary judge erred in failing to exercise his residual discretion to decline to make an order detaining the appellant until further order, or to exercise his discretion to impose an extended supervision order pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (Grounds 4 and 5)
The appellant prosecuted these grounds together, concentrating on the option of an extended supervision order, involving 24-hour supervision. The judge observed that it was ‘largely common ground’ that it would be inappropriate simply to release the appellant into the community on an extended supervision order.[43] He then turned to the practicalities of supervised release, identifying that:[44]
Mr Driver would require, at the least, close supervision and support around the clock every day of each week.
[43] [2021] SASC 66 at [228].
[44] [2021] SASC 66 at [230].
He then considered evidence of the NDIS plan in place from February 2021 to February 2022, and the short, medium and long-term goals of the plan, which had an emphasis on independent living skills. The total funding of the support package was $147,004.54, made up of various different elements, including ‘Core Supports’ and ‘Transport Funding’. The judge continued:[45]
Whilst I do not doubt the significance of this funding, and the undoubted benefits associated with these various funding models, they are nowhere near the level anticipated by Mr Balfour. The funding does not ensure 24-hour supervision, 7 days a week. For example, funding includes only 15 hours of nursing delegation of care to assist with a Diabetes Management Plan, and 84 hours of specialist support coordination. Whilst this level of funding support might be appropriate for a person with some degree of intellectual disability, it is wholly inadequate for assisting a man such as Mr Driver to reintegrate into the community and stay sufficiently occupied and closely supervised so as to avoid the high risk that he poses to the community.
Likewise, whilst the scope for Mr Driver to utilise this funding and reside at LTW is of some assistance, the period of residence is only a maximum of 24 weeks and does not provide anything like the long-term arrangement that Mr Balfour envisaged.
[45] [2021] SASC 66 at [233]-[234].
The judge then turned to the exercise of the discretions. He noted expressly that the practical effect of an order pursuant to s 57 was that a person will ‘rarely, if ever, be released’, and the risks to individual liberty posed by such an order.[46] He noted the existence of the separate discretion to make an extended supervision order of the Criminal Law (High Risk Offenders) Act 2015. He continued:[47]
There is unquestionably a degree of unfairness associated with Mr Driver’s array of difficulties and disadvantage, however I remain troubled that his offending is not easily addressed or explained. His offending was not directly the result of alcohol or illicit drugs. He was sober when he committed his offences.
Whilst it is tempting to think that Mr Driver might improve with further time and therapy, the evidence and the opinions of the psychiatrists suggest otherwise. His is a complex case which is unlikely to be improved by further treatment or therapy.
[46] [2021] SASC 66 at [237], citing R v Humphrys (2018) 131 SASR 344 at [10] (Kourakis CJ, Vanstone and Nicholson JJ agreeing).
[47] [2021] SASC 66 at [240]-[241].
He noted that the appellant had not been able to maintain the improvements made in his therapy. He reiterated his conclusions about the appellant’s inability to express real empathy, his concrete thinking, his lack of insight into the causes of his offending and his admission that he likes raping women, ‘a little’. He paid particular regard to the opinions of the psychiatrists that it would not be appropriate to release the appellant into the community without very close supervision, bordering on home detention, and that the NDIS funding was insufficient to ensure this. He concluded:[48]
However, even if I was wrong about that, and the NDIS funding did allow for 24-hour supervision, I remain very concerned about the risk posed by Mr Driver’s isolation, limited capacity for social interaction and likely difficulty establishing meaningful relationships with women so as to ensure that he can to [sic] meet his sexual needs. As I see it, there is the very serious risk that Mr Driver will again become isolated, angry and sexually frustrated, with the result that he will engage in the kind of brazen sexual offending for which he has been incarcerated. In these circumstances, I do not see electronic monitoring as representing any effective means of curbing the dangerous risk that Mr Driver poses to women in the community. At best, electronic monitoring will only indicate to authorities that Mr Driver is breaching the terms of an order. It will not inhibit or prevent further offending.
[48] [2021] SASC 66 at [244].
The appellant’s complaint about this is that the judge did not have to be satisfied that there was no material risk before exercising the discretion to impose an extended supervision order. He referred to cases where serious recidivist offenders were made the subject of such orders, notwithstanding that there remained a material risk that they might reoffend.[49]
[49] R v Humphrys (2018) 131 SASR 344; Thomas v Attorney-General (2019) 133 SASR 302; Attorney-General v Tipping [2019] SASC 133.
That much is obvious, but it does not assist with whether the primary judge erred in the exercise of his discretion. The appellant went so far as to submit, without any analysis, that he ‘would seem to present no greater risk to the community’ than the offenders in those cases offered as comparisons. That submission paid no regard to how the modus operandi of those offenders differed from the appellant’s brazen, opportunistic attacks. Each of those had offended against children, following a period of grooming. The conclusions of the Court in each case as to the efficacy of electronic monitoring were based on entirely different risk profiles.[50]
[50] R v Humphrys (2018) 131 SASR 344 at [21], [33]; Thomas v Attorney-General (2019) 133 SASR 302 at [69], [86]; Attorney-General v Tipping [2019] SASC 133 at [4]-[10], [46]-[50].
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.