Driver v Attorney-General (SA)

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.