Kelly v Attorney-General (SA) - [2024] SASC 103

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

KELLY v ATTORNEY-GENERAL (SA)
[2024] SASC 103
Judgment of the Honourable Justice McDonald
15 August 2024
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
On 15 November 2017, a Judge of this Court ordered that the applicant be detained until further order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) on the basis that he was unwilling to control his sexual instincts. At the institution of those proceedings, the applicant had been serving a sentence of 13 years imprisonment with a non-parole period of eight years for the offences of indecent assault, unlawful sexual intercourse, and aggravated serious criminal trespass in a place of residence. The applicant’s offender history contains numerous instances of sexual offending against female children.
The applicant now applies for release on license pursuant to s 59(1) of the Sentencing Act 2017 (SA) (‘the Act’). The applicant’s basis for so doing is that he is now capable of controlling, and willing to control his sexual instincts within the meaning of s 59(1a)(a) of the Act, and that he no longer presents an appreciable risk to the safety of the community under s 59(1a)(b) of the Act.
The respondent opposes the applicant’s release on license.
On 6 February 2023, the Court directed that two legally qualified medical practitioners examine the applicant and report to the Court with an assessment of the applicant’s mental condition and whether he was incapable of, or unwilling to control, his sexual instincts. Reports were provided by Dr Owen Haeney and Dr Narain Nambiar on 1 August 2023 and 10 August 2023 respectively. Both experts gave evidence concurrently during the hearing of the matter on 19 February 2024.
Held, dismissing the application:
1.The evidence before the Court does not establish that the applicant is willing to control his sexual instincts.

Criminal Law (Sentencing) Act 1988 (SA) s 23; Sentencing Act 2017 (SA) s 59, referred to.
Hore v the Queen; Wichen v the Queen (2022) 273 CLR 153, applied.
Attorney-General (SA) v Kelly [2017] SASC 164, considered.

KELLY v ATTORNEY-GENERAL (SA)
[2024] SASC 103
Criminal: Application
McDONALD J:

On 15 November 2017, Nicholson J found Mr Kelly to be unwilling to control his sexual instincts as that term was defined for the purpose of s 23(1) of the Criminal Law (Sentencing) Act 1988 (SA).[1] On that basis, his Honour ordered that at the expiration of the term of imprisonment that Mr Kelly was serving, he be detained in custody until further order of the Court.
[1] Section 23 has since been replaced by s 57 of the Sentencing Act 2017 (SA), which is in substantially the same terms.
On 17 January 2023, Mr Kelly filed an originating application for release on licence pursuant to s 59 of…

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.

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Details

Case: [2024] SASC 103
Decision Date: 15 August 2024

CaseChat Overview and Summary

The matter of Kelly v Attorney-General (SA) involved a decision regarding the sentencing and post-custodial orders for Mr Kelly, a dangerous sexual offender with a significant criminal history and psychiatric conditions. The primary legal issue the court needed to address was whether Mr Kelly's risk of reoffending could be sufficiently mitigated to justify his release on licence. The court also had to consider the broader implications of such a decision for community safety and the effective management of high-risk offenders.

In examining the evidence, the court focused on Mr Kelly's psychiatric history, his self-reported changes, and the recommendations of the psychiatrists. The psychiatrists, Dr Haeney and Dr Nambiar, provided evidence that while there were some positive indicators, such as reduced libido and improved behaviour in custody, these were largely based on Mr Kelly's self-reporting, which had been unreliable in the past. The court also considered the limited activities schedule proposed for Mr Kelly post-release, which raised concerns about his potential free time and the adequacy of supervision. The court ultimately determined that, despite some positive developments, the risk Mr Kelly posed to the community was too high to justify his release on licence at that time.

The reasoning of the court was grounded in the paramount consideration of community safety and the need for robust post-custodial measures to manage Mr Kelly's risk effectively. The court found that the current evidence did not sufficiently mitigate the risk of reoffending, and therefore, the application for release on licence was dismissed. This decision underscores the stringent criteria that must be met before a dangerous sexual offender can be considered for release, reflecting the high stakes involved in such decisions.

The final orders of the court were that Mr Kelly's application for release on licence was dismissed. The court did not make any further orders regarding his post-custodial supervision or treatment.

Orders

Orders of the court

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Background

Background to the litigation

In making this assessment the “paramount consideration” is the protection of the safety of the community.[4][4] Sentencing Act 2017 (SA) s 59(3).Mr Kelly’s background and criminal record In order to put this application into context it is necessary to set out some of the more pertinent aspects of Mr Kelly’s background and criminal record.Personal circumstances Mr Kelly was the only child of a short lived relationship between his mother and father. He was raised by his mother, and later his grandparents, and had limited contact with his father. He has a number of half-siblings on both sides of his family. Mr Kelly was born in Ceduna, growing up in the Koonibba Aboriginal Community. He spent time in Koonibba, Ceduna and Port Lincoln as his mother and stepfather often moved around. Mr Kelly described them as “good people” and said that his family was supportive, however he experienced the familial adversity of two of his step-siblings committing suicide. In terms of education, Mr Kelly participated in special classes at school and finished his schooling in year 7 or 8. Since then he has rarely worked other than for a short period, at the age of 18, when he worked at a winery. At the age of about 14, Mr Kelly ran away from home and started associating with antisocial peers, which inevitably led to his introduction to substance abuse and criminal offending.Psychiatric history As early as 1996, Mr Kelly was diagnosed with schizophrenia. At that time he reported experiencing auditory hallucinations. He was also diagnosed with an alcohol and substance abuse disorder and a personality disorder of a mixed borderline and antisocial type. Between 1996 and 2002, Mr Kelly was admitted to James Nash House on eight occasions with a diagnosis consistent with chronic paranoid schizophrenia, an antisocial personality disorder and substance abuse issues. In December 2002, Mr Kelly underwent a further psychological assessment. At that time, he reported his previous diagnosis of schizophrenia and described ongoing auditory hallucinations. He said that these had continued despite treatment with antipsychotic medication. In June 2004, Mr Kelly was assessed by the Correctional Service Management Assessment Panel. He told the Panel that he had fabricated his diagnosis of schizophrenia as a way of being transferred to James Nash House. Further psychiatric assessments were undertaken in 2016 as a consequence of the s 23 application. In an interview with a psychiatrist, Dr Jules Begg, Mr Kelly maintained that he had fabricated his diagnosis of schizophrenia. Dr Begg observed that Mr Kelly did not show any active signs of psychosis and postulated that there was some credibility to his claim that he had fabricated the symptoms. However, Dr Begg noted that Mr Kelly had been repeatedly assessed by very senior psychiatrists, over a prolonged period of time, and that there was little doubt that when he was originally admitted to James Nash House, he was suffering from psychosis. Dr Begg was not therefore prepared to revise the diagnosis.

Evidence

Evidence Before The Court

The activities schedule sets out a plan to occupy Mr Kelly’s time, seven days a week. There is however very little detail. Other than generic references like “leisure activity” and “spiritual practice”, the only detail in the plan is that it is proposed that between 10 am and 2 pm on Thursdays Mr Kelly will attend at the “Aboriginal Community Men’s Group” and between 9 am and 12 pm on Wednesday he will attend at the “Tiraapendi Wodli Men’s breakfast and yarning group”. Unfortunately, this schedule does little to allay concerns about how much free time Mr Kelly will have on his hands if released from custody. Further, it highlights and brings into sharp focus the limited time that he will spend with an NDIS worker.The evidence of Dr Haeney and Dr Nambiar Dr Haeney and Dr Nambiar gave concurrent evidence confirming and elaborating on the opinions that they expressed in their reports. The cross-examination of the psychiatrists fell into two central themes; those matters favourable to Mr Kelly, that may indicate that his risk to the community has reduced; and secondly, conditions that could be imposed as part of the terms of a licence that would potentially further reduce the risk posed by Mr Kelly if released. Although Mr Truscott relied upon the combined effect of both matters, it is instructive to consider each separately. Dealing firstly with those circumstances said to point favourably away from the risk of Mr Kelly reoffending if released. These include the incentive for Mr Kelly to abide by the conditions of a licence given the extended period of time that he has experienced in custody; his reported decrease in libido and masturbation; the positive changes and increased awareness identified in the Bruggemann report and the offender management plan; the reduction in poor and maladaptive behaviour in custody; and the suggestion that whilst Mr Kelly has reoffended, he has not done so immediately upon his release. In addition to this, whilst Mr Truscott accepted that Mr Kelly had escaped from custody, he suggested that the nature of the escape made it a relatively minor offence of its type, and that was relevant to an assessment of the risk that he poses. In respect of many of these matters, the psychiatrists emphasised that whilst they potentially signified an improvement in Mr Kelly’s risk profile, they were entirely dependent on Mr Kelly’s self-reporting, the reliability of which has at times been at least questionable. Further, even if his intentions were genuine, there remained a real question mark over his ability to resist his sexual urges, if the opportunity presented itself. On the topic of Mr Kelly’s report of a reduced sex drive and a desire to masturbate, Dr Nambiar did not necessarily accept that it was “an encouraging development”.[32] He made the point that Mr Kelly has, in fact, been inconsistent on this topic. On one occasion, talking about masturbating about once a fortnight and then on another occasion once or twice a year. Dr Nambiar made the point that this is a good illustration of the risk of relying on Mr Kelly’s self-reporting.[32] T13.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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