O'Shea v Director of Public Prosecutions No. Sccrm-97-103 Judgment No. S6644

O’SHEA v DPP

Perry J

This is an application by a prisoner serving indeterminate detention, for release on licence pursuant to s24(1) of the Criminal Law (Sentencing) Act 1988 ("the Sentencing Act"), or alternatively for an order discharging the order of indeterminate detention pursuant to which he is held in custody.

The matter has a long history.

History of the matter

Mr O’Shea is 59 years of age. His first conviction was recorded in this Court on 4 October 1960. On that occasion, he pleaded guilty before Mr Justice Reed to three counts of indecent assault on a young girl who was just under the age of nine years.

Dr J.D. Litt, a psychiatrist, gave evidence which Reed J accepted, to the effect that Mr O’Shea was capable of controlling his sexual impulses. Dr Litt recommended psychiatric treatment, but Reed J felt constrained to order a term of imprisonment. Mr O’Shea was sentenced to concurrent terms of two years imprisonment on each count.

After serving that sentence, he was released from custody on 20 February 1962.

In 1967 he came before this Court again when he pleaded guilty to three counts of indecent assault, two of them relating to a young boy aged eight, and the other to a young boy aged ten. He asked that three other similar offences be taken into account. They involved indecent handling and photographing of several other young boys aged between ten and eleven years.

He appeared before Mr Justice Hogarth. Dr Litt was again asked upon to provide a report. He described Mr O’Shea as :

". . . an emotionally immature, inadequate individual with homosexual tendencies. In my opinion, he can only be helped by extended psychotherapy which will not be available in a gaol setting. The best possible treatment for him would be from an extended stay in a mental hospital where long-term psychotherapy is practised.

I believe that if he was sent back to gaol this will be of no benefit to the community ie he has already been in gaol and has repeated a sexual offence and I think that his homosexual tendencies will only be exaggerated in an all male setting."

Hogarth J directed that Mr O’Shea be examined by two medical practitioners pursuant to the provisions of s77a, as it then stood, of the Criminal Law Consolidation Act 1935.

Two psychiatrists, Dr Salter and Dr Hoff, examined Mr O’Shea and gave evidence. They both expressed the opinion that Mr O’Shea was not incapable of exercising proper control over his sexual instincts. They recommended, however, that he be detained in a mental hospital for treatment. They also described him as having an "immature personality".

Pursuant to subs(4) of s77a, upon receipt by the court of a report from the examining medical practitioners that the offender was not incapable of exercising proper control over his sexual instincts, the court could nonetheless order the offender to be detained in an institution if it was thought to be "expedient". Such detention could be either for a period fixed by the court or "during His Majesty’s pleasure".

Hogarth J ordered Mr O’Shea to be detained in an institution for three years, after which time he was to be set free on a bond for a period of five years. Hogarth J expressed the hope that His Excellency the Governor would see fit to direct Mr O’Shea’s detention in Hillcrest Hospital.

That recommendation was accepted. Mr O’Shea was detained at Hillcrest Hospital for three years between July 1967 and July 1970.

Mr O’Shea was then discharged. He became active in community affairs. He founded and became the executive director of an organisation known as the Children’s Foundation of SA and Camp Sunshine Children’s Camp conducted by that organisation at Norton Summit.

In 1977 he appeared again in this Court, when he pleaded guilty to two counts of indecent assault, both involving young children, one a female of the age of about 9 years and 10 months, and the other a male of about the age of 7 years and 7 months. Those offences occurred between 1975 and 1977. In addition, Mr O’Shea asked that four other similar offences be taken into account. They were said to have been committed in about June of 1977 and involved young children of both sexes.

Subsequently Mr O’Shea communicated with the sentencing judge, Jacobs J, denying his involvement in the offences which he had asked to be taken into account. Jacobs J did not express any final opinion upon that, as he did not think that it would have any bearing on the course which he proposed to follow. He directed a further examination by three medical practitioners pursuant to s77a.

The case attracted much public attention at the time. Public interest was fuelled by the attendance in court of a former Governor of South Australia, Sir Mark Oliphant, who gave evidence on Mr O’Shea’s behalf. Sir Mark testified that both he and his wife had been "very impressed" with what had been done for an "extraordinary community of children" by the organisation with which Mr O’Shea had been involved. He described the applicant’s work as being of "considerable social importance to SA".

But there was by then a change in the views expressed by the medical practitioners as to Mr O’Shea’s condition. The unanimous view of the three doctors who had been ordered to examine Mr O’Shea at that stage was that he was, within the meaning of s77a, incapable of exercising proper control over his sexual instincts. Dr Litt was one of the doctors.

Dr Litt was critical of the lack of treatment. He said:

"In spite of previous recommendations, this man has never had adequate psychiatric treatment and I do not consider that incarceration in either Yatala or Hillcrest is going to help him resolve his problem. The core of this problem is that he regresses to infantile patterns of behaviour when he is confronted with major life stresses and although these episodes are occurring at wide intervals, he still needs psychotherapeutic help."

He suggested that a suspended sentence combined with treatment offered the best chance of helping Mr O’Shea.

During the course of his sentencing remarks, delivered on 28 February 1978, Jacobs J observed, inter alia:

"..... one cannot fail to have some compassion for the accused in his present predicament, nor to acknowledge the good that he has done or sought to do in the community, sometimes against very formidable odds. Nor can one fail to be aware of the impact of these present offences upon his attempts to establish, somewhat late in life, a satisfactory family life, and these are all matters which, as I say, inevitably give rise to a claim for compassion and, indeed, for sympathy and as much understanding as one can command."

He went on to say:

"It may be said in his favour that at least when he was released from custody after the sentence of imprisonment in 1962, for some two or three years, he was not known to be involved in offences of this kind and again, when his period of institutional care and supervision ended, after the 1967 offences it may be said that there was a period of successful adjustment, at least to the extent again that he was not known to have been involved in this kind of conduct. But the fact remains that perhaps under the stresses of the tasks he had undertaken this underlying paedophilia has again got the better of him."

After referring to the need to balance the interests of the community and the interests of Mr O’Shea, His Honour proceeded:

"But it is I think, clear, that there has to be some treatment which will hopefully effect a quite radical change in outlook by the prisoner, and perhaps help him to get his priorities right, which I think he has, perhaps in an excessive enthusiasm, failed to do previously. Until he does that, then the disposition which he has manifested to commit offences of this kind remains."

He went on to order that in lieu of imposing any sentence on either count, Mr O’Shea be detained at an institution ‘during Her Majesty’s pleasure’.

During the course of his sentencing remarks, Jacobs J further observed:

"No doubt the prisoner will see this order as being punitive as in a sense no doubt it is because at least for the time being, he will be deprived of his liberty. But he ought not to see it as wholly indeterminate or as it were a life sentence. His progress and his treatment which I am assured will be undertaken, will be under constant review." (emphasis added)

I digress momentarily to observe that under s77a, the effect of the order for detention as pronounced by Jacobs J was that the detention should be "in such institution as the Governor directs, and until the Governor gives a direction as to such institution, in any gaol". S77a further provided that "every offender":

(b) shall not be released unless-

(i) the Governor is satisfied, on the recommendation of the parole Board, that he is fit to be at liberty and terminates his detention;

or

(ii) the Governor releases him upon licence in pursuance of this section.

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(7a) Where an offender has been detained in an institution pursuant to this section, the Governor may, on the recommendation of the parole Board, release that person upon licence.

(7b) The terms and conditions upon which a person is released upon licence under this section shall be determined by the Governor upon the recommendation of the Parole Board."

Although the order pronounced by Jacobs J provided for detention "in an institution", it appears that from there on, except for certain periods when he was released on licence, Mr O’Shea has served out the detention in gaol, more particularly Yatala gaol. Mr O’Shea received some psychiatric treatment while in gaol, but that ceased in 1980.

In December 1996, a similar application to that which is now before me was entertained by Olsson J. In the course of his reasons given in support of his dismissal of the application Olsson J summarised the relevant events concerning Mr O’Shea’s incarceration, following the order of Jacobs J made in February 1978.

That summary appears to have been extracted from a long report given to him by the Parole Board. The same report was included in the materials tendered by Mr O’Shea at the commencement of the hearing before me. I have adopted the findings of Olsson J, but only after considering whether any evidence given before me, which includes Mr O’Shea’s own evidence, should cause me to qualify them in any way. No other evidence was given before me which leads me to take a different view about any of those matters. In any event, they are largely non-contentious. Olsson J’s factual summary is, therefore, a convenient way of setting out my own conclusions.

I quote from Olsson J’s reasons:

"· On 15 December 1980, following receipt of a recommendation of the Parole Board in that regard, Executive Council approved the release of the applicant on licence. However, that licence was revoked on or about 27 January, 1981, when it appeared to the Parole Board that, contrary to its conditions, he had been associating with young children. He was returned to custody.

On 27 September 1983 the applicant was again released on licence. Once again his period of freedom was short lived. It appeared that, in early 1985, the applicant was advertising (if not actually running) a camp for disabled children. (Before Olsson J there was a dispute as to whether it was established that he actually ran such a camp or not. Mr Mancini denied the accuracy of the Parole Board Report in that regard, but he addressed no evidence to establish that assertion.) Furthermore, it was ascertained that he was doing so under an assumed name ‘Michael Harrison’. The Parole Board revoked the licence and the appellant was once more returned to custody.

There he remained until 1986, when, after favourable psychiatric and psychological reports, the Parole Board recommended the applicant’s release to Executive Council. That body declined to act on the recommendation. It further declined a like recommendation proffered by the Parole Board in October 1986.

The refusals of the Executive Council were challenged by the applicant in proceedings which went on appeal to the High Court. That court, in effect, rejected the applicant’s claim to relief.

On 1 December, 1987, the Parole Board once more recommended a release on licence. This was agreed to, subject to quite strict terms. Those terms, inter alia, stipulated that -

· the applicant was not to join or become involved in any organisation which either directed children’s activities, raised money for or on behalf of children’s charities or was in any way involved with children whatsoever.

· he was not to associate with any child under the age of 16 years (other than children of his marriage) except in the presence of another adult, without first obtaining the prior written permission of his parole officer.

Upon release the applicant secured accommodation with a Mr Johnson, who conducted a school bus service for children in the Adelaide Hills. Mr Johnson became concerned at some of the activities of the applicant and passed over to his parole officer envelopes and letters which suggested that the applicant was in receipt of correspondence from computing companies to which he was representing himself under false names - mail having been addressed to post office boxes in the eastern suburbs. It also appeared that the applicant was compiling lists of children who travelled on the School Buses, other than for the purposes of the business.

The applicant proffered innocent explanations for the above situations and it does not appear that the Parole Board pursued the matter further at the time. On 17 March, 1989, he moved to live at Marden, and continued to see his parole officer weekly and a psychologist (Mr Geoff Pope) fortnightly.

In mid 1989 the Parole Board agreed that the applicant could share his considerable computing skills with elderly people at the Koster Neighbourhood Centre in Trinity Gardens. However, in July 1990, the probation officer reported that the applicant had been seen giving computer lessons to young children at the Centre. When questioned he admitted this conduct and conceded that he was in breach of the conditions of his licence. The Board warned the applicant, by letter, against any repetition of such a breach.

In June 1991 the Board became aware that the applicant was representing himself as chairman of a group that taught computer classes to children and was advertising such classes. He was thereupon interviewed and also warned against such activities.

In July 1991 the Board was made aware of an association between the applicant and a ten year old boy H.M., albeit with the concurrence of the boy’s mother, in relation to teaching computer skills.

The Board conducted an inquiry into the matter, particularly in light of allegations of sexual abuse of the child. It appears to have looked into a variety of aspects of the applicant’s association with H.M. It concluded that he had breached his licence conditions and ordered him back into custody.

It is to be noted that, on 30 April, 1993, the applicant was convicted of two sexual offences in relation to H.M., but that these were later quashed on appeal. On the other hand it was established that the applicant introduced H.M. to one Humphries, a paedophile. Humphries subsequently seduced H.M. into homosexual activities and took him interstate.

In 1994 the applicant applied to this court for an order, pursuant to section 24 of the CLSA, that he again be released on licence. That application came before Mohr J. Having considered psychiatric reports from Professor Goldney and Dr Clayer, a report from the then Chief Clinical Psychologist of the Sexual Offenders Treatment and Assessment Programme (SOTAP) (Mr Fugler) and other material, Mohr J made an order, dated 24 June, 1994, that the applicant be released on licence.

The Parole Board accordingly directed his release on licence, subject to quite stringent conditions.

It is fair to say that, in making the order, Mohr J seems to have been influenced by no means unanimous views of the professional experts, at the time, to the effect that the applicant should be released on such a basis. One of them went no further than saying that the applicant could be given the benefit of the doubt concerning his assurance about future sexual behaviour. In his report of 11 May, 1994 Mr Fugler seems to have been cautiously optimistic that some benefit might accrue to the applicant as a consequence of involvement in the treatment phase of the SOTAP activities.

In the event the Parole Board imposed no less than 26 specific licence conditions on the applicant! These were expressed in the following terms-

That you shall not commit any offence.

That you shall not possess any offensive weapon unless you have first obtained the permission of the Parole Board to do so and comply with the terms and conditions of that permission.

That you are under the supervision of a Parole Officer, and that you shall obey the reasonable directions of that Parole Officer, which includes (shall include but are not limited to) the following:

That you are of good behaviour, keep peace towards persons, and do not commit any breach of the law.

That you carry out faithfully all instructions and requirements of the Parole Officer under whose supervision you have from time to time been placed (in this document referred to as "your Parole Officer").

That immediately upon your release you report to your Parole Officer.

That you report as and when required by your Parole Officer.

That you report in person, on three separate occasions each week, to the Parole Officer under whose supervision you have from time to time been placed and this is not to be varied without Parole Board approval.

That you do not leave or attempt to leave the State of South Australia without the prior written permission of the Parole Board.

That you obey the directions of your parole officer with regard to your employment and accommodation.

That you do not change your place of residence without the prior written permission of the Parole Board.

That you attend for counselling at the Sexual Offenders Treatment Assessment Program as directed by the Parole Board.

That you undergo such psychiatric or psychological or medical or other treatment and or counselling as your Parole Officer shall from time to time direct.

That you not remain on any premises occupied by you if any person under the age of 16 years enters those premises.

That you not associate with, or attempt to associate with, any person under the age of 16 years whether or not that person is in the company of another adult.

That you not directly or indirectly communicate with, or attempt to communicate with, any person under the age of 16 years whether by written correspondence, telephone or any other electronic means, including facsimile and computer.

That you not be involved in, or be linked to, any computer network through the telephone system or other electronic means.

That you do not join or become involved in any organisation which either directs children’s activities, raises money for, or on behalf of children’s charities, or is in any way involved with children whatsoever.

That you do not record, collate, retain or collect names, addresses or any other information relating to children.

That you do not place, attempt to place, or arrange to place by advertisement or notice in any newspaper, magazine or other written publication, any advertisement without the contents of such advertisement or notice having first been approved by your Parole Officer.

That you do not use a false name or undertake any activity under a false name.

That you do not change or attempt to change your name without the prior written permission of the Parole Board.

That you follow your Parole Officer’s direction in relation to the people with whom you associate.

That you maintain a written diary of your daily activities including where you go, who you meet and who visits you and produce that record to your Parole Officer when directed to do so.

That you do not make any statement or give any interview to the print or electronic media.

That you not receive any payment from the print or electronic media."

The applicant commenced the SOTAP program on 10 October 1994 and he was the subject of six monthly reviews by the Board. His parole officer was requested to provide quarterly progress reports and SOTAP was also asked to make periodic reports.

The evidence of the witness Glanville (who is the Director of an organisation known as Prison Fellowship of Australia and has provided personal support to the applicant since his release on licence in 1994) is to the effect that he obtained a Housing Trust flat at Henley Beach, where he resided whilst living on licence in the community. Glanville assisted him to procure certain basic furniture and chattels which he required for day to day living purposes, as well as a second hand computer.

It emerged from Glanville’s evidence that the applicant sustained personal injury as a consequence of a motor vehicle accident which occurred on 1 September 1995. At the time the applicant was a passenger in a car driven by Glanville. Both sustained injury, but it was said that the applicant was admitted to hospital and suffered injuries more serious that those sustained by Glanville. The significance of this situation was that the sequelae of the injuries is said to have prevented the applicant from participating in the SOTAP programme at the time - although his bona fides in that regard seem to be challenged by SOTAP.

In January 1995 the Parole Board became aware that the applicant was leasing a post office box at Kensington Park, a very considerable distance from his place of residence. (Mr Mancini asserted from the bar table and Glanville said that the applicant told him that this was a post office box which his client had leased over a very long time.) The applicant informed the Board that he had held this box for a lengthy period prior to the previous cancellation of his licence and desired to keep it. The Board agreed to this request on the basis that the parole officer was given access to it and would collect mail on a random basis to check its nature.

In late June 1995 the Board became aware that, in breach of his licence conditions, the applicant had been writing letters to the media under Glanville’s name, with Glanville’s active cooperation. He was cautioned against a continuance of that activity.

On 7 September 1995 (ie. a few days after the motor vehicle accident) SOTAP reported about the applicant in these terms -

"While Laurie has demonstrated a level of intellectualised understanding of victim impact issues, there has been no consistent demonstration of emotional congruence in relation to this. His primary emphasis appears to be self-focused regarding his own victimisation and the consequences he has experienced further to his own sexual offending history. When he does address issues of victim impact, this tends to be in a generalised and intellectualised manner. He is yet to demonstrate an emotionally congruent and personalised acceptance of responsibility for the likely consequences of his offending behaviour upon his specific victims.

With respect to his offending behaviour, Laurie is considered to have demonstrated only a superficial level of responsibility. He continues to present his offending in a sanitised and minimised fashion. Considerable concern is expressed regarding his limited levels of honesty and openness in his presentation of his offence history. Material that he has presented in group therapy sessions has differed considerably from material that is on record. There has been no consistent demonstration on Laurie’s behalf that he has abandoned the use of defence mechanisms, including such processes as rationalisation, minimisation, and other forms of denial. He continues to present with a pronounced victim-stance.

Attempts to address the above issues have been an ongoing focus regarding Laurie’s involvement in the treatment programme. These attempts have met with limited success only. Laurie continues to demonstrate patterns of evasiveness, superficial compliance, and hostility. To avoid addressing these issues, he has actively stated that he gains little from the SOTAP process, and has, on a number of occasions, appeared to attempt to undermine the processes of the treatment programme. Concern is also expressed regarding significant tendencies on Laurie’s behalf to collude with other group members in attempting to avoid addressing the salient issues.

At this stage, SOTAP is very concerned about Laurie’s lack of progress. It is SOTAP’s opinion that Laurie continues to present an ongoing serious concern in terms of his potential risk for re-offence."

Arrangements were made to transfer the applicant to a different group but, as I understand the situation, he did not ever attend the SOTAP programme again after his accident.

On 30 January 1996, at its direction, the applicant attended before the Board for interview, consequent upon receipt of a police report that he had used a false name to obtain computer material. The hearing was adjourned several times, both at the request of the applicant’s solicitor and so that the Board could obtain additional information.

As a result of investigations made it emerged that -

· unbeknown to the Board and the applicant’s parole officer, he had leased and was receiving mail at a post office box at Kent Town.

· Police inquiries had been initiated into the receipt, by a variety of politicians, of an anonymous letter which accused Ms Francine Pinnock of SOTAP and Ms Janice Mears of the Department of Correctional Services of assisting paedophiles in their abusive actions. On interview, the applicant admitted that he was the author and that his intention had been to cause trouble for the persons named.

· on searching his flat the police seized a series of computer discs and transcribed certain contents of them. Inter alia, these revealed that, in late 1995, the applicant had been corresponding under three false names, holding himself out as the Secretary of an organisation known as "Compucare" and the Public Relations Officer of "Computers in Community Action". In essence he was soliciting the donation, by commercial organisations in the industry, of computer software and some items of hardware to teach children, or enable children’s programmes to be pursued.

In the course of its report to the court the Parole Board commented about the foregoing situation to this effect.

"Whilst the use of the false names, Mark Vincent and Lawrie Halton in itself constituted a breach of his conditions the Board was particularly concerned that the requests related to assisting troubled, disabled and lonely children. It seemed like an initial step into forming some sort of computer club which would be accessible to children and which would ultimately bring Mr O’Shea into contact with children. In the view of the Board this was a pattern of behaviour very similar to patterns of behaviour before which had led to Mr O’Shea sexually assaulting children. The fact that he kept it secret reinforced the Board’s view that there was no innocent explanation for it. There was no explanation from Mr O’Shea, he declined to answer questions on the topic to the Board. In the context of the pattern of behaviour and the reports from SOTAP which suggested that he continued to present an ongoing serious concern in terms of his potential risk for re-offence, the Board considered that it was proper and appropriate to cancel his licence."

Accordingly, the licence was cancelled and the applicant returned to custody, where he has remained until the present time.

In her report to the Parole Board dated 16 May, 1996, the Director of SOTAP made these important points:-

"As you are aware Mr O’Shea was transferred into the Tuesday evening group, of which I was co-ordinator. He was to commence his attendance on Tuesdays from 5 September, 1995. He had been disruptive in the Monday group: avoiding taking responsibility for discussing his offending behaviour wherever possible. He did this by criticising the group process and its facilitators in an attempt to deflect the focus from himself. He described the facilitators as "skilled, trained manipulators" and was continually disrespectful of the group process. He made a particular point of stating that he has gone through therapy over a period of many years and that he has worked through his problems and no longer requires help. He maintained, and still maintains, a strong victim-stance with respect to his offending behaviours and circumstances.
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By 24 January SOTAP was planning to suspend Mr O’Shea from the Programme because of his lack of participation and our awareness that he was continuing to engage in pro-offender thinking and behaviours. He continued to lobby people to support his extreme views about sexual offender treatment and he established a relationship with at least one other long term offender in treatment at SOTAP, who was also a major concern of ours with respect to his potential to reoffend.
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It is my assessment that Mr O’Shea remains at the same high risk of reoffending as he was prior to undertaking any treatment. He has actively argues against treatment and his need for it. He maintains a lifestyle that places him in a high risk for reoffending and it is my assessment that he is very unlikely to alter his current behaviours. He is completely unresponsive to any attempts to treat or counsel him with respect to his offender thinking and behaviours.

It is my assessment also that Mr O’Shea would not benefit from treatment in future because of his fixated views and hostile attitude.

The comments made in September, 1995 by Ms Ahrens to Mr Bailey concerning Mr O’Shea still apply:

he is self-focused and considers himself to be the victim of other people’s abusive behaviour;

he has no appreciable understanding of the impact of his behaviours on his victims and no empathy for them;

he intellectualises and fails to demonstrate any congruence between thoughts and feelings;

his admissions of responsibility are at best, superficial;

he continually minimises his offending behaviour,

his account is at variance with material on record. There is also considerable variance between his stated poor health and presentation;

he is still denying the nature, impact, extent, significance of and responsibility for his offending."

During the course of the hearing before him, Olsson J heard evidence from a psychologist, Ms Noelene Brown. She had been responsible for a number of counselling sessions with Mr O’Shea. After he was taken into custody, she saw him on several occasions in gaol. As well she maintained contact by telephone. Contrary to the views expressed by two psychiatrists, Dr Clayer and Professor Goldney, Ms Brown contended that Mr O’Shea did not necessarily present a significant risk to the community if released on licence, and that he could be assisted by ongoing psychological treatment.

On the other hand, the psychiatric evidence was that there was no form of treatment which offered any real hope of improvement. Professor Goldney stated that the applicant was "deficient in the capacity to exercise proper control" over his sexual instincts, whereas Dr Clayer put the matter in a less direct fashion when he offered the view:

"... he lacks the capacity to make rational judgments and decisions about how to act, including how to act sexually."

Olsson J went on to hold that, given the psychiatric evidence, which he preferred to that given by Ms Brown, Mr O’Shea had not discharged the onus of demonstrating that it was proper to accede to his applications, either for the discharge of the detention order, or for release on licence.

Before parting with the matter, Olsson J observed:

"..... I do not suggest that all attempts toward rehabilitation ought to be abandoned. On the contrary, I consider that all reasonable steps ought to be taken to provide the means of achieving this; and to afford the applicant an opportunity of demonstrating, if he can, that he is genuinely motivated to participate, in a constructive manner, in appropriate psychological counselling and therapy. It is surely not impossible for the correctional authorities to arrange for this whilst the applicant is in custody. After all, Ms Brown, for example, is employed by the Department for Correctional Services and could, presumably be made available, if that was felt appropriate. No doubt SOTAP could assist, if the applicant demonstrated a genuine change of attitude and preparedness to co-operate. If need be, special leave, or attendance under escort, could be granted to enable the applicant to attend appropriate therapy sessions."

Mr O’Shea appealed against the dismissal of his applications. That appeal was heard by the Full Court in June and July 1997.

In the meantime, on 4 April 1997, the application which has been heard by me was filed.

The Full Court gave its decision on 13 August 1997. The appeal was dismissed.
In the course of his reasons for decision, Doyle CJ, with whom the other two members of the Court concurred, made some observations as to the different principles to be applied on the one hand in the case of an application for discharge of an order for indefinite detention, and on the other in the case of an application for release on licence. I will refer to those matters when I come to deal with the questions of law relevant to the present applications.

At this stage I will deal with the evidence tendered on the hearing before me.

The evidence

A considerable volume of medical reports and other material has been generated with respect to the various court hearings and the activities of the Parole Board over the years.

At the outset of the case I received in evidence thirty reports from various specialists, largely psychiatrists and psychologists, dated between October 1960 and October 1996.

Furthermore, pursuant to s25 of the Criminal Law (Sentencing) Act ("the Sentencing Act"), I made an order for additional reports to be furnished by certain psychiatrists. As a result, I received in evidence reports from Associate Professor David Ben-Tovim, Dr John Litt, and from Dr Ken O’Brien. The first two interviewed Mr O’Shea, but the latter did not interview Mr O’Shea for the purposes of his report. Dr O’Brien was asked only to comment in general terms as to the use of anti-libidinal medication.

As well, I received a further report from the Parole Board with which was supplied a copy of a most helpful summary of Mr O’Shea’s involvement with the Board since he first came before the court in 1960. I have already referred to this document, which had been furnished to Olsson J for the purposes of the hearing conducted by him in 1996.

In addition, I was assisted by a report prepared for Olsson J in May 1996 by Ms Noelene Brown and an up-date of it prepared in November last year.

Apart from the material to which I have so far referred, I was furnished with copies of the informations, remarks on sentence and other documents from the court records concerning Mr O’Shea’s appearances in this Court in answer to the various prosecutions against him, an index prepared by Mr O’Shea of the occasions upon which he asserts he has been assaulted while in custody between December 1977 and February 1998, and a copy of a number of newspaper cuttings concerning Mr O’Shea. The newspaper cuttings contain in the main articles or reports made with reference to the occasions upon which Mr O’Shea has been before the court, or when he has been released on licence.

Four psychiatrists gave evidence: Dr Ben-Tovim, Dr Litt, Dr O’Brien and Dr John Couper-Smartt. As well, I heard evidence from the psychologist Ms Noelene Brown, and from the Chair of the Parole Board, Ms Frances Nelson QC.

I accept the evidence of all of those witnesses. They were all endeavouring to assist the Court, and in the process of doing so, brought to bear a considerable body of collective expertise.

It is true that only Ms Noelene Brown expressed much confidence in any program of treatment. In the earlier hearing before Olsson J, he discounted her evidence where it conflicted with that given by the psychiatrists, and preferred their evidence where it conflicted with hers.

On my own assessment of the witnesses, I would not draw such a strong dividing line. I do not class Ms Brown as naive or yielding to manipulation by Mr O’Shea, although he is certainly manipulative. While the psychiatric evidence as to Mr O’Shea’s ability, or lack of it, to control his sexual instincts must be accepted, like Olsson J, I do not dismiss entirely the possibility that Mr O’Shea’s rehabilitation might be assisted if arrangements could be made for the administration of the therapy suggested by Ms Brown, either by her or by some other psychologist.

I do not pause to discuss the evidence given by the various experts separately, as, except for the possibility that some good might come from psychological treatment, there were no differences between them as to the essential issues to be addressed.

Mr O’Shea gave evidence. He was not impressive as a witness. I do not accept his evidence except where it is intrinsically likely or supported by other credible evidence. Most of his evidence was taken up with long-winded explanations designed to cast an innocent light on situations in which he had found himself and in blaming others for his inability to behave as others had hoped he might when at large in the community. In a sense, however, this evidence underscored the sad reality of the fact that he has become trapped in a setting which offers him little hope of rehabilitation and scrutinises his every activity on the occasions when he has been released so relentlessly that the process becomes self-defeating.

From this body of material I make the following further findings and observations as to Mr O’Shea’s condition and management.

Ÿ Mr O’Shea has a long-standing inability to control his sexual instincts, which is probably permanent, except that it may subside as he grows into old age.

Ÿ If Mr O’Shea was to be released into the general community, whether on licence or by way of a discharge of the order for his detention, there is a substantial risk that he will offend again.

Ÿ Mr O’Shea’s behavioural problems are multi-faceted and include, apart from his established paedophilia, a narcissistic personality, a lack of feeling of remorse for his victims, a tendency to cast himself in the role of the victim, and a manipulative personality associated with a propensity to deceive others in an endeavour to get his own way.

Ÿ With the exception of Ms Brown, none of the specialists or other professionals who have dealt with Mr O’Shea consider that there is any realistic prospect of effective treatment for his condition.

Ÿ No effective treatment of any kind has been offered to him in recent years while he has been in prison, and no effective treatment can be offered to him while he remains in that setting.

Ÿ Ms Brown believes that Mr O’Shea has learned some skills in recent times while in custody, that he is now demonstrating a greater understanding of his offending, and that the application of cognitive therapeutic psychological techniques, whether administered by her or others expert in that area, offers some hope of a change in his beliefs and attitudes and eventually in his offending behaviour.

Ÿ The use of anti-libidinal medication should not be regarded as an end in itself or any ready answer to Mr O’Shea’s condition. Of the two available agents, Androcur (Cyproterone Acetate), an oral preparation, and Depot-Provera (Medroxyprogesterone Acetate) administered by injection, both have a risk of side effects. The use of either of them should not be countenanced except as an adjunct to a full treatment program of carefully instituted and monitored therapies.

Ÿ The Parole Board opposes Mr O’Shea’s release on licence. But if it was ordered by the Court, it would co-operate in endeavouring to formulate appropriate conditions of release and such logistical and psychiatric or other expert professional assistance as may be available within the system to assist in his rehabilitation.

Against the background of those findings and observations, there are other features of the evidence and materials put before me which are relevant to the determination of the applications.

There is evidence that Mr O’Shea has suffered abuse, assaults and other ill-treatment while he has been in gaol. He has kept a record of what he says were the main incidents, from which his solicitor has prepared a chronology commencing in December 1977 through to February 1998.

In the record, he complains of having been kicked, punched, spat upon, pelted with objects thrown at him, scalded by boiling water and threatened with anal rape. He says that he has been forced to participate in oral sex with other inmates. These incidents are said to have occurred against a background of constant verbal abuse.

Mr O’Shea suggests as well that on one or two occasions when he was released from gaol on licence, he has suffered attacks at the hands of ex-prisoners and others, such as, for example, an occasion when he was assaulted at a shopping centre in 1994 or 1995 (the evidence is not entirely clear as to when that is alleged to have occurred).

He has for some time been held in protective custody at Yatala, which tends to furnish some support for his allegations as to his treatment in gaol.

Other support for that appears in the evidence of Ms Brown. In one of her reports she said that not only had she received a number of letters from Mr O’Shea in which he raised his fears for his safety while in prison and complained of abuse and occasional assaults, but "while attending Mr O’Shea in prison I witnessed the abusive remarks and veiled threats made by several other prisoners". I assume from her other evidence that this was at some time in 1996 and before March 1997.

Be that as it may, in giving her oral evidence, when asked about this, she said that while attending Mr O’Shea in prison, prisoners would walk past the room in which she was interviewing him and make gestures and use words such as "fucking arsehole" and ask her questions to the effect of, "Why are you wasting time on that person?"

Part of the report of the Royal Commission on "Allegations in Relation to Prisoners under the Charge, Care and Direction of the Director of the Department of Correctional Services and Certain Related Matters" published in 1981 was put before me, presumably in support of the allegations of assaults upon Mr O’Shea. The report confirms that there was evidence given before the Royal Commission of allegations of assaults on prisoners by fellow prisoners. The Commission reached the conclusion that:

"The complaints which were made show the existence of a difficult, long-standing and well recognised problem".

The Commission noted that:

"Most of the prisoners who are assaulted by their fellow prisoners are persons who have committed offences which, in the prisoner’s ethic, are considered disgraceful, for instance, sexual offences against children ...."

The part of the report of the Royal Commission which was tendered in evidence does not refer specifically to Mr O’Shea. It can only be accepted as general support for the existence of a phenomenon, which, quite apart from the report, is a matter which the criminal courts have, over the years, become aware of.

Even so, if the veracity of Mr O’Shea’s complaints in this respect rested on his word alone, I would have considerable difficulty in accepting the complaints, at least in the terms in which he elaborates upon them.

However, the tender by his counsel of the index of assaults which was prepared from his contemporaneous notes, coupled with the fact that he was not cross examined as to his complaints, are matters which must be taken into account in reaching a view as to the truth of the complaints. There is as well the small amount of corroboration to be gleaned from the evidence of Ms Brown, and the fact that he has been placed in protective custody.

That it is well established that a certain class of prisoner, particularly those incarcerated for sexual offences with young children, is often separated out as a particular target for abuse by fellow prisoners, is likewise a matter which can properly be regarded as going towards the acceptance of Mr O’Shea’s complaints in that respect.

At the end of the day, I am satisfied that he has been the target of more or less constant harassment, abuse and assaults since he was first incarcerated in 1977 and during the periods since then in which he has been in gaol. I must, therefore, take into account the fact, as it was put to Ms Brown, to which she assented during the course of her examination, "In layman’s terms, he serves his time hard".

In a sense, I think that the same comment can be made about the periods of time which Mr O’Shea has spent out of gaol since his incarceration in 1977. Over that period of twenty years or so, he has been in gaol for fourteen years, and at large in the community during the balance of that time.

The press cuttings to which I have referred, together with his own evidence, satisfies me that, particularly on the occasions upon which he has been released on licence, an inordinate amount of attention has been given to him in the press. The press cuttings indicate that he is regularly described as some kind of "monster".

For example, on the occasion of his release on licence by Mohr J of this Court in 1988, the heading in an article in the public press was "Victims’ anguish over release of monster".

Another press article published on another occasion, and which appears to have occupied the best part of a page of a daily newspaper, is headed in bold type "The predators". While the main focus of that article is another alleged paedophile, Mr O’Shea is also featured. A photograph of Mr O’Shea is published in conjunction with that article over the caption "Lawrence O’Shea: SA’s most notorious paedophile".

Another feature article appears under the heading "Sinister world of career paedophile".
While no doubt the press will defend its freedom to publish such material, the maudlin interest in him upon the occasions of his release on licence, bordering on the hysterical, and his constant harassment, are factors which could hardly be regarded as conducive to his successful rehabilitation, however poor the prognosis might be of achieving that gaol.

Quite apart from the factors to which I have referred, which are negative enough, there are other matters to be considered in addressing the possibility of Mr O’Shea’s release.

I was most impressed with the evidence given by Ms Nelson QC, the Chair of the Parole Board. Her evidence, together with the evidence of Dr Ken O’Brien, a psychiatrist who has had a very substantial involvement in the delivery of public health services in this State, has assisted me in recognising the problems inherent in facing up to a possibility of Mr O’Shea’s release.

Dr O’Brien’s evidence was to the effect that whereas in 1986 and 1987 he advised in favour of release on licence subject to a program of treatment, he was now less "sanguine" about supporting Mr O’Shea’s release on licence. He said that the success of release on licence is more likely to depend on practical and supervisory conditions rather than upon any psychiatric assessment or treatment. Medication, as he saw it, should be merely adjunctive. He thought that any program of management while on release on licence would be complicated by reason of the inability or refusal of Mr O’Shea to recognise that he has a significant problem.

The only comprehensive program available in South Australia for persons suffering from Mr O’Shea’s condition is the Sexual Offenders Treatment and Assessment Program (SOTAP). While it has been suggested that there were problems in the delivery of the SOTAP program in recent years, the organisation has recently undergone a restructuring. Dr O’Brien was unable to comment one way or the other on the effectiveness of it as an organisation dealing in this area at this stage.

Dr O’Brien thought that if there was to be release on licence, there would have to be some sort of management "team", including a psychologist, a psychiatrist and a social worker, together with a senior probation/parole officer. The provision of resources to fund a level of supervision of that kind is, to say the least, problematic.

Ms Nelson QC has held the position as Chair of the Parole Board for a period of the order of fifteen years, and has had considerable experience in dealing with Mr O’Shea over that period. As I have said, the Parole Board is opposed to Mr O’Shea’s release. But if release on licence was to be ordered by the Court, the Board would co-operate in endeavouring to put together some sort of management team along the lines suggested by Dr O’Brien. She regarded Dr O’Brien as extremely well experienced, and indicated that the Board has always been guided by the advice he is prepared to give in this area.

She gave evidence that there is no sexual offenders treatment program available in prison, although the Parole Board has frequently suggested to the Government that that is "essential". She confirmed the lack of resources available for the sort of supervision that Mr O’Shea requires.

Mr O’Shea mounted an attack upon the partiality of the Parole Board. Having heard Ms Nelson and having perused a considerable volume of material produced by the Parole Board, in my opinion, there is no substance in Mr O’Shea’s complaint in that regard. It is obvious that Mr O’Shea has presented a most difficult cluster of management problems for the Parole Board to grapple with. It has discharged its role conscientiously and sensitively, striking what appears to me to be an appropriate balance between Mr O’Shea’s concern to be released and the interests of the community.

While the opposition of the Parole Board to release on parole is a factor which must be taken into account by me in determining Mr O’Shea’s application directed to that end, the discretion as to whether or not Mr O’Shea should be released on parole, or for that matter, is to be discharged altogether, is for me to determine rather than the Parole Board. Sections 23 and 24 of the Sentencing Act vest a discretion in the Supreme Court, that is, the Supreme Court alone as to the authorisation of the release on licence or discharge of a detainee in Mr O’Shea’s circumstances.

This leads me to a consideration of the legal provisions which govern the exercise of the discretion. Insofar as the discretion is created by statute, it is from the statutory provisions that the relevant principles must be drawn.

The statutory provisions

As I have explained, the order for Mr O’Shea’s indeterminate detention was made on 28 February 1978 by Jacobs J, acting pursuant to the discretion conferred by s77a(3) of the Criminal Law Consolidation Act. A declaration under the section could be made following conviction upon any of a number of specified sexual offences, not only relating to children, but including rape, indecent assault, indecent interference, committing an act of gross indecency, forcible abduction, buggery with an animal and incest. Some of the offences falling within the eligible category are no longer on the statute book.

Other provisions of the Criminal Law Consolidation Act provided for a discretion to order indeterminate detention on other grounds, namely, (s77) conviction of specified sexual offences while suffering from a venereal disease, and (s319) persons declared to be "habitual criminals".

The relevant provisions of the Criminal Law Consolidation Act, including s77a, were repealed in 1988 upon the coming into effect of the Sentencing Act. Division 3 of the Act applies to "sentences of indeterminate duration" as to which there are now only two categories, "habitual criminal" (s22) and "offenders incapable of controlling sexual instincts" (s23).

The discharge of an order made under s23 is governed by subs(11) and (12) which are as follows:

"s23 ...............

(11) Subject to this Act, a person will not be released from detention under this section until the Supreme Court, on application by the Director of Public Prosecutions or the person, discharges the order for detention.

(12) The Supreme Court may not discharge an order for detention under this section unless-

(a) it has first obtained and considered the report of at least two legally qualified medical practitioners each of whom has independently examined the person; and

(b) having taken into account both the interests of the person and of the community, it is of the opinion that the order for detention should be discharged."

Release on licence is governed by s24. The discretion for this Court to authorise the release on licence applies to persons detained both as habitual criminals and as sex offenders the subject of an order made under s23.

Relevantly, s24 provides:

The Supreme Court may, on application by the Director of Public Prosecutions or the person, authorise the release on licence of a person detained in custody under this Division.

On the Court authorising the release of a person under subsection (1), the appropriate board must order the release of the person on licence on the day specified by the Court.

The release of a person on licence under this section will be subject to such conditions as the appropriate board thinks fit and specifies in the licence.

Where the Supreme Court has refused a person’s application for release on licence, the person may not further apply for release for a period of six months, or such lesser or greater period as the Court may have directed on refusing the application.

The appropriate board may-

(a) on application by the Director of Public Prosecutions or the person, or of its own motion, vary or revoke a condition of a licence or impose further conditions; or

(b) on application by the Director of Public Prosecutions, or of its own motion, cancel the release of a person on licence, if satisfied that the person has contravened, or is likely to contravene, a condition of the licence.

..................

(10) Where a person who has been released on licence commits an offence while subject to that licence and is sentenced to imprisonment for the offence, the release on licence is, by virtue of this subsection, cancelled.

(11) Where a person has been subject to a licence under this section for a continuous period of three years, the order for his or her detention under this Division will, unless the Supreme Court, on application by the Director of Public Prosecutions, orders otherwise, be taken to have been discharged on the expiration of that period.

(12) For the purposes of this section-

"the appropriate board", in relation to proceedings under this section, means-

(a) if the person the subject of the proceedings is being detained in a training centre, or has been released on licence from a training centre - the Training Centre Review Board;

(b) in any other case - the Parole Board."

On the occasion of the application dealt with by Olsson J, it was contended that the result of the repeal of s77a meant that the detainee did not come within the scope of ss23 and 24 of the Sentencing Act for the purposes of an application for discharge of the order for detention or for release on licence. That contention was abandoned before the Full Court. It was not renewed before me.

It follows that in considering the two applications, I must have regard to the relevant provisions of those two sections.

In the decision of the Full Court on appeal from Olsson J, to which I have referred, Doyle CJ (with whom Matheson and Nyland JJ concurred) made a number of observations as to the requirements of the two sections.

With respect to release on licence under s24(1), Doyle CJ said:

"To begin with, as the judge noted, s24(1) specifies no criteria at all for a release on licence. A release on licence is quite different from the discharge of an order for detention. Of its nature, a release on licence is a temporary measure which can be terminated by the Parole Board or automatically upon the person being sentenced to imprisonment for an offence. A release on licence will be subject to conditions that will enable the Parole Board to exercise significant control over the activities of the person released, and enable the Parole Board to provide for supervision of the person. Indeed, no less than twenty-six conditions were specified when O’Shea was released on licence in 1994. All in all, a release on licence can be regarded as a means to test the suitability of a person for release, whereas the discharge of an order puts the person in question beyond the control of the Parole Board. It sets the person free unconditionally.

That being so, release on licence may be appropriate although an order for discharge is not appropriate. Release on licence will be considered much more readily. ........

.... the breadth of the discretion under s24(1) is such that there is no point in trying to identify the grounds upon which an order might properly be made. I consider that all one can usefully say is that it will be necessary to consider, among other things, the risk of the person concerned offending. But in my opinion there is scope for much more weight to be given to the desirability of testing the person’s fitness for, and preparing the person for, a return to the community, by allowing a period of controlled and supervised freedom."

Earlier, His Honour dealt with the requirements of s23. He said:

"I deal first with the application under s23.

That provision contemplates a person who has been detained because the person is incapable of controlling his or her sexual instincts. During argument I thought that the court could discharge an order only if satisfied that O’Shea was capable of controlling his sexual instincts. It would be sensible to provide that the regime of indefinite detention would terminate only if the incapacity, which was the basis for the regime, had come to an end. However, Parliament has not said that in terms. It seems unlikely that it would have left something so fundamental to be implied. On reflection, I came to the conclusion that it was unlikely that Parliament would have intended that an order should be discharged only if the person was capable of controlling his or her sexual instincts and the court forms the opinion referred to in subsection (12)(b).

I have come to the conclusion that the requirement for the discharge of an order for detention is simply that specified in subsection (12). That is, that the court is satisfied that the order should be discharged, after taking into account the interests of the person and of the community. Clearly enough, the court would consider the risk of further offending by the person. The greater the risk, the less likely the court would be to discharge the order. If the court is in fact satisfied that the person is capable of controlling his or her sexual instincts, one would expect the order to be discharged as of course. But, in my opinion, it is not essential that the court be so satisfied before it can discharge the order. Even though the court is not affirmatively satisfied that the person is capable of controlling his or her sexual instincts, the court might conclude that the risk of further offending was sufficiently slight for it, having considered the interests of the person and of the community, to discharge the order for detention.

In so concluding I proceed on the premise that the purpose of the making of an order for detention is not punitive but preventive. Prevention is what underlies the section, not punishment.

It follows, in my opinion, that s23(12) does not mean that the order can be discharged only if the court is satisfied that there is no risk of the person offending. It goes without saying that the community accepts the presence within it of persons who may well offend against the criminal laws that regulate the community. Offenders who have completed their term of imprisonment but are likely to offend again, are nevertheless released. Detention, unless and until there is no risk of a person further offending, would be extremely harsh treatment. In my opinion it would be necessary for the section to be expressed in much clearer terms, before the court should interpret it as meaning that. (emphasis added)

His Honour went on to observe:

It follows, that while the capacity to control sexual instincts is a very important issue under subsection (12), and proof of that capacity would ordinarily lead to an order for discharge, that is not the issue under subsection (12).

I am fortified in reaching this conclusion by the terms of s24(11). A continuous period of three years on licence results in the discharge of the order for detention, unless the court orders otherwise. The scheme of the Sentencing Act indicates that a person may be released on licence, even though the court is not satisfied that that person is capable of controlling his or her sexual instincts. The automatic discharge of the detention order, after the expiry of three years, unless the court orders otherwise, indicates that Parliament was not concerned to maintain an order for discharge until capacity to control sexual instincts was established.

The breadth of the discretion vested in the court makes it impossible to specify, in advance, criteria for the discharge of an order. I do not consider that one can usefully say anything more than I have said."

It is clear from the Chief Justice’s observations as to s23 that it is not necessary that the court should be satisfied that the detainee is capable of controlling his or her sexual instincts before discharging the order for detention.

Neither do I construe the Chief Justice’s use of the words "the court might conclude that the risk of further offending was sufficiently slight" to mean that only in where the risk was either not apparent or "slight" could discharge from the order ever be contemplated. The detention may be so long, and the futility of further detention from the point of view of rehabilitation so plain that eventually a point may be reached that the balance swings in favour of discharge, even where the risk of further offending is other than "slight". True it is, that a case where that situation is reached will be rare. But the possibility that such cases may arise cannot be excluded entirely.

The only words which effectively govern the exercise of the discretion are those which appear in subs(12), and in particular the words in sub-paragraph (b):

"... having taken into account both the interests of the person and of the community, it is of the opinion that the order for detention should be discharged".

The subsection also requires that the court must first obtain and consider the report of at least two legally qualified medical practitioners who have independently examined the detainee. But it must follow from the passage in the Chief Justice’s reasons to which I have just referred that it is not a pre-condition for the discharge of the detention order that either or both of the medical practitioners should express the opinion that the detainee is capable of controlling his or her sexual instincts.

Of course, if the reporting medical practitioners, and for that matter, as is the case here, other medical practitioners, have all indicated not only that the detainee is incapable of controlling his sexual instincts but that there is a substantial risk of re-offending upon release, that is a weighty matter to be taken into account in considering an application for discharge. In most cases, the expression of such an opinion would result in the dismissal of the application. In that context, I must give effect to the words of the Chief Justice:

"The greater the risk the less likely the court would be to discharge the order."

However, having regard to the Full Court’s decision, it must follow that no single factor, or even a combination of factors, can be regarded as determinative of an application for discharge. Each case will depend upon its own peculiar circumstances. To approach the matter in any other fashion would be to put a gloss on the words of the section as interpreted by the Full Court.

The human rights arguments

In the formal statement of grounds accompanying the application for his release or discharge, Mr O’Shea contends, inter alia, that his continued detention is contrary to the International Covenant on Civil and Political Rights (the ICCPR) which is appended to the Human Rights and Equal Opportunity Commission Act 1986 (Cth), and contrary to the Declaration on the Rights of Disabled Persons which is also appended to the same Act.

After the conclusion of oral argument on the hearing of the application, I permitted counsel to submit written argument on what might loosely be described as the "human rights issues". In the result, Mr O’Shea, through his counsel, has put forward a very substantial submission on this topic, to which the respondent has made a written submission in reply.

After carefully considering this aspect of the matter, it seems to me that none of the material put forward in the submissions has any impact on the nature of the discretion to be exercised by me in considering the two applications.

It is first contended by Mr O’Shea that Part 2, Division 3 of the Sentencing Act, which includes ss23 and 24, is contrary to Article 14.1 of the ICCPR. That article is in the following terms:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The Press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children."

The ICCPR was ratified by Australia on 13 August 1980. It appears on the statute books as a schedule to the Human Rights and Equal Opportunity Commission Act. As I have elsewhere observed:

"The rights and freedoms recognised in the Covenant, those recognised in the other international instruments set out in the schedules to the Act, and any other international instruments which may be declared to be an international instrument for the purposes of the Act (see s47) become touchstones by which the Human Rights Commission may report to the relevant Minister the results of an examination of any enactment to ascertain whether it might be inconsistent with any human right (s11(1)(e)). The Commission may also inquire into any ‘act or practice’ which may be inconsistent with or contrary to any human right (s11(1)(f)) and report to the Minister if conciliation is not effective."

The provisions of the ICCPR or other international instruments do not form part of Australian law unless they have been validly incorporated into the municipal law by statute.

Two further propositions are relevant:

(a) "In interpreting and applying a statute, where its language allows, that construction should prevail which is consistent with international law and any international instrument entered into by Australia before its enactment."

(b) "Particularly in areas of the law involving human rights, but not necessarily limited to such areas, existing principles of the common law may legitimately be developed by reference to international law and international instruments entered into by Australia. This proposition is subject to the rider that courts must apply it with circumspection, and may not use the principle so as to create a new right previously unknown, as opposed to developing an existing principle of the common law where its redefinition is called for."

The problem with Mr O’Shea’s argument is that Part 2, Division 3 of the Sentencing Act, and in particular ss23 and 24, do not pose any question as to their construction or application the resolution of which might be assisted by reference to international instruments, including the ICCPR.

Statutory provisions permitting the potentially indeterminate detention of so-called "habitual criminals" and persistent sex offenders have been in existence for many years, in all Australian jurisdictions, in the United Kingdom and elsewhere. Their existence, and their modification over the years, is a reflection of social attitudes which find expression through the political process. So long as detention is not imposed arbitrarily, and provided that there are appropriate, fair, mechanisms available for periodic review and release, I cannot see that the provisions conflict with human rights norms.

More particularly, within the meaning of Article 14.1 of the ICCPR, I cannot accept the claim that ss23 and 24 operate so as to impair the equality of citizens before the "courts and tribunals" of South Australia.

All prisoners, whether serving a sentence of imprisonment or a period of detention under the provisions now in question, no doubt suffer not only a deprivation of liberty, but also a curtailment of their ability to exercise the rights which may be exercised by those whose liberty is not confined. But all persons, whether in gaol or not, are nonetheless equal before the law, in the relevant sense.

Mr O’Shea’s counsel also submitted that the principle that international instruments may properly be utilised in the development by the courts of principles of the common law, is in some way relevant to the present exercise.

But the exercise of the discretion either to discharge the order for detention or to release on licence does not involve the development of any principle of the common law. It involves, rather, the construction and application of relevant statutory principles. Of course, some common law rules assist in the interpretation of statutes, but that is another matter.

True it is that the common law does not permit indefinite detention:

"... It is now firmly established that our common law does not sanction preventative detention. The fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender."

But that principle of the common law has no application where the exercise of a discretion to imprison or release from custody is governed by statutory provisions of the kind now in question.

That is not to say that statutory provisions which have the potential for indefinite detention, either in the case of so-called habitual criminals or in the case of offenders whose capacity to control their sexual behaviour is impaired, have not from time to time been the subject of criticism.

For example, in the first report of the Criminal Law and Penal Methods Reform Committee of South Australia, presided over by the Honourable Justice Mitchell, as she then was, there appears the following with reference to s77a of the Criminal Law Consolidation Act 1935:

"... s77a is to be evaluated at two levels: whether it is satisfactory on the assumption that its basic postulate, special provision for sexual offenders, is correct; and whether that assumption is correct or necessary. On the first count s77a is highly unsatisfactory. On the basis of a single conviction for an offence including an overt sexual element it authorizes an inquiry into the offender’s capacity for controlling his sexual behaviour the consequences of which for him may be extremely serious. The offences covered range from rape and carnal knowledge to the mere nuisance of indecent exposure in public. They include offences of abduction, procuring and permitting the use of premises which are not in the same sense sexual offences at all and are highly unlikely to be committed for any purpose other than monetary profit. The belief reflected by s77a that two suitably qualified doctors, presumably psychologists or psychiatrists, can conduct an inquiry which will reveal whether the offender is capable of controlling his sexual behaviour is not shared nowadays by those members of the medical profession with experience of forensic psychiatry. The degree of administrative control over the offender which is conferred on this unreliable basis is almost total. These features of s77a we regard as going far beyond the needs of the occasion, even assuming that some such legislation is desirable. To this assumption we now turn. The most striking feature of s77a in practice is that the section as a whole is very little used. What does happen is that the power to order an inquiry into the offender’s mental condition is used reasonably often but that medical reports tend to assert that he is incapable of controlling his sexual instincts only in cases of mental illness so severe as to seriously affect control of behaviour generally, including sexual behaviour. The other powers in the section therefore come into operation only very rarely, not least perhaps because psychiatrists at the present day do not wish to be ordered by the court to attempt treatment which they believe will be ineffective. When added to the defects of s77a which have already been listed, this practice suggests that its basic flaw lies in isolating overt sexual behaviour as falling into a special category. The real problem with some offenders is not sexual instinct but mental illness. Mental illness can manifest itself in many ways, of which overt sexual behaviour is only one. Moreover distorted sexual pressures are not necessarily recognizable as such from their outward manifestations. Depending on the particular individual, criminal behaviour ranging from larceny in the form of kleptomania to fetishistic murders has been identified as having a sexual basis. There is in our opinion no ground at all at the present day for placing offenders who have committed any of the offences contemplated by s77a in a special category, and certainly no ground for attaching the consequences of a declaration under the section to that category."

It was, of course, the prerogative of Parliament to determine whether or not it would accept that recommendation for the repeal of the provision. Instead, in due course, it re-enacted the provision, albeit with some significant modifications, in the form in which it now appears in the Sentencing Act.

Furthermore, it was recently held that corresponding provisions in the Sentencing Act (1991) (Victoria) were not incompatible with the Commonwealth Constitution.

I do not overlook the fact that in Teoh the High Court has held that the adoption by Australia of an international instrument gives rise to a legitimate expectation that administrative decision makers will act in conformity with the instrument.

It might be argued (although this was not one of Mr O’Shea’s arguments) that consideration by this Court of an application either to discharge a detention order or to allow release on licence smacks more of an administrative decision than a judicial process. Furthermore, I do not know that it has yet been authoritatively decided that the adoption by Australia of an international instrument may equally give rise to a legitimate expectation as to the manner of exercise of a judicial as opposed to an administrative discretion.

The application of the decision of the High Court in Teoh to administrative decision makers acting under the law of the State of South Australia has been modified by the Administrative Decisions (Effect of International Instruments) Act 1995 which came into force on 30 November 1995. The operative section provides:

"3(1) An international instrument (even though binding in international law on Australia) affects administrative decisions and procedures under the law of the State only to the extent the instrument has the force of domestic law under an Act of the Parliament of the Commonwealth or the State.

It follows that an international instrument that does not have the force of domestic law under an Act of the Parliament of the Commonwealth or the State cannot give rise to any legitimate expectation that-

(a) administrative decisions will conform with the terms of the instrument; or

(b) an opportunity will be given to present a case against a proposed administrative decision that is contrary to the terms of the instrument.

However, this Act does not prevent a decision-maker from having regard to an international instrument if the instrument is relevant to the decision."

While no doubt that statute will be effective in nullifying the kind of legitimate expectation identified by the High Court in Teoh, s3(3) recognises that the adoption by Australia of an international instrument may render the terms of the international instrument relevant to the making of a decision to which the Act otherwise applies.

I put aside the interesting question whether any of the international instruments referred to counsel for Mr O’Shea may, despite the Administrative Decisions (Effect of International Instruments) Act 1995, be relevant to the making of an administrative decision, and whether or not there is any reason to suppose that they might equally be relevant to the making of a quasi-administrative decision by this Court. The point was not argued, and I am able to reach my decision in this case without deciding the point.

For the reasons which I have given, I do not consider that the exercise of the discretions involved by the application in this case is assisted by reference to what I have described as the human rights argument.

To make it clear, in reaching my decision in this case, I have simply had regard to the discretions to be found in ss23 and 24 of the Sentencing Act as they have been interpreted and explained by the Full Court in its decision in November 1997.

Conclusions

This case presents some unusual features:

(a) The length of the detention has been long; fourteen years spread over twenty years in all.

(b) Since his initial incarceration in 1978, Mr O’Shea has not been convicted of any criminal offence, as opposed to breaches of parole conditions.

(c) The length of the detention is far in excess of any possible sentence of imprisonment which might have been imposed for the crimes to which Mr O’Shea pleaded guilty before the detention order was pronounced.

(d) The nature of the detention, having regard to the abuse, assaults and ill-treatment suffered by Mr O’Shea while in gaol, has been particularly harsh.

(e) Indefinite detention was clearly not contemplated by Jacobs J when he made the order in the first place. I have already referred to his remarks, which included the words:

"He (O’Shea) ought not to see it as wholly indeterminate or, as it were, a life sentence. His progress and his treatment, which I am sure will be undertaken, will be under constant review."

(f) The last mentioned observation by Jacobs J is to be considered together with the remarks made by him in his report to the Full Court on 16 July 1982 when he stated, inter alia:

"The underlying purpose of my order has not been achieved and the order to that extent has been frustrated."

In the same report he went on to say:

"In addition to any question that might properly be raised as to the propriety of my order - which was not intended as a sentence of indeterminate imprisonment with little prospect of release - " (emphasis added)

(g) For one reason or another, psychiatric treatment given early in the detention has had no effect in ameliorating Mr O’Shea’s condition, and there has been very little, if any, psychiatric treatment since apart from the treatment at SOTAP in 1994.

(h) No treatment has been offered to Mr O’Shea in recent years during his incarceration in prison, and indeed, there are no facilities now available for any such treatment to be given in that setting.

In the concluding remarks in his judgment delivered in December 1996, Olsson J stated, "I consider that all reasonable steps ought to be taken to provide the means of achieving" Mr O’Shea’s rehabilitation, and added:

"It is surely not impossible for the correction authorities to arrange for this while the applicant is in custody."

(j) Despite those remarks, no further psychiatric or other treatment has been offered to Mr O’Shea in the intervening period.

(k) Mr O‘Shea will not get any better in gaol, and while unlikely to be successfully treated out of gaol, what little prospect there is of effecting improvement in his condition depends upon his release into the community.

The exercise of the discretion to order discharge from detention essentially involves a balancing out of the interests of the detainee on the one hand, and of the community on the other. I have to accept that it is most unusual to contemplate a discharge of the detention order while there remains a substantial risk of re-offending.

Over the period of years that have ensued since Mr O’Shea was first incarcerated, to use the words of Jacobs J as long ago as 1982, "the underlying purpose" of the order which he made "has not been achieved and the order to that extent has been frustrated". If that was so in 1982, it is certainly so in 1998. In the words of Mr Borick in putting his submissions on behalf of Mr O’Shea, the court should be prepared to recognise that "enough is enough".

The decision of the Full Court makes it clear that recognition of the interests of the community does not mean that a person who poses a risk to the community must be detained indefinitely until the risk is removed. The community may also have a legitimate interest in ensuring that persons are not incarcerated for the term of their natural life simply because they happen to be unfortunate enough not to be able to overcome a condition which poses some risk to the community, that detention being far beyond whatever they may have deserved by way of penalty for the crime that has brought them under attention. To yield to the contrary view would be to subvert the remedial intention underlying Division 3 of the Sentencing Act, an intention made clear by the necessity for the periodic review every six months contemplated in s23(9).

Acceptance of the arguments put forward by the Crown would mean that Mr O’Shea would be detained in custody for the rest of his natural life. As Ms Abraham put it for the Crown, "nothing has changed - why release him?". But nothing will change while he is left in gaol. To accept that argument means, in practical terms, that he will never be released.

I am unable to construe the relevant statutory provisions so as to countenance such a draconian result. It seems to me that the length of the period of detention is a relevant factor in the exercise of the discretions whether to discharge or release on licence. The longer the period of the detention, quite apart from any other factor, the stronger the case for release. Eventually a point is reached at which it would not be right to countenance further detention, even though there remains a risk of recidivism.

While no doubt Mr O’Shea must accept some responsibility for his condition, having regard to the long and unhappy history of his detention, and the way in which he has been treated both while in custody and on periods when he was released on licence, it seems to me that he is very much a casualty of the system.

The use of the word "institution" in s23 makes it plain that the section does not only contemplate incarceration in a gaol. It is perhaps unfortunate that a more flexible approach has not been adopted in determining the appropriate place for his incarceration over the years to date. I realise that the answer may be that there are now no other suitable institutions for this purpose.

At all events, his release, whether by discharge of the order or on licence, does not mean that he would be free to commit crimes. His incarceration at Yatala will be replaced by a regime in which, like everyone else in the community, he will be subject to the operation of the criminal law. If he commits any further crimes, he can no doubt be expected to be charged and dealt with appropriately. In that respect, he will not differ from any other person in the community, including the very many persons who have previously been convicted of criminal offences and who have, after serving a term of imprisonment, been set free in the community.

My first inclination was to exercise the discretion in favour of discharging the order. I formed that view having regard to the various factors to which I have referred, particularly the length and nature of his detention.

Furthermore, if the order is discharged, the ordinary processes of the criminal law to which he would be subject include the possible exercise of the jurisdiction of the Court should it be invoked, to make a restraining order if Mr O’Shea is found loitering near children in the circumstances postulated by s99A of the Summary Procedure Act 1921.

But after the most anxious consideration, I have been persuaded that it would be preferable to release Mr O’Shea on licence rather than to discharge the order for his detention.

One of the reasons which has finally led me to that conclusion is that if I were to discharge the order altogether, I would be powerless to create any regime of supervision or assistance to Mr O’Shea once he was to be released from custody. I regard that situation as unfortunate. I point out that Hogarth J in the order in which he made on 26 July 1967 was able to order detention under s77a of the Criminal Law consolidation Act 1935 for a period of three years, to be followed by release on a good behaviour bond for a period of five years, during which Mr O’Shea was to be under the supervision of a probation officer. Hogarth J was able to follow that course by ordering the detention on one of the counts and permitting Mr O’Shea’s release on a bond on the other counts of the information then before him.

Be that as it may, the relevant provisions of the Sentencing Act permit me to allow the application only on the footing that I either discharge Mr O’Shea from the order, in which event he would be released without any means of ensuring his supervision or control, or release on licence which would, of course, be subject to such conditions as might be imposed by the Parole Board pursuant to s24(3) of the Act. I note that this Court no longer has the ability, for example, to permit a person in custody to be released on a common law bond, that power having been removed by s36 of the Sentencing Act.

Were it not for my inability to see to it that Mr O’Shea had some form of supervision upon his release from custody, the case for the discharge of the order would be made out.

However, there are now compelling reasons why his incarceration in an institution which, in practical terms, seems to mean gaol, should be brought to an end, hopefully permanently. In those circumstances, I propose to authorise his release on licence pursuant to s24(1) of the Sentencing Act, leaving it to the Parole Board to define the conditions to be specified in the licence (s24(3)).

Consideration by the Parole Board of the formulation of conditions may take some little time. While it is entirely a matter for them to define such conditions as they think appropriate, it will be seen that I have questioned the wisdom of imposing so many discrete conditions as were imposed upon the last occasion of his release, some 26 conditions. It seems to me, with great respect to those formulating those conditions, that the situation might adequately be dealt with by the simple formulation of a much smaller number of conditions, making clear that Mr O’Shea must not in any way associate with children, and must comply with whatever directions are given to him by his parole officer as to place of residence and as to treatment.

As to the latter, I am not at all sure, on the evidence which has been given before me, that group therapy sessions such as those which I assume are still conducted by the SOTAP program are necessarily the best option to be pursued. I detected a note of caution in the evidence given to me as to the effectiveness of the SOTAP program following its reconstruction, and in any event, Mr O’Shea, rightly or wrongly, has not performed well so far in group therapy situations.

Be that as it may, it is not for this Court in any way to interfere with the exercise of the duty of the Parole Board to define the conditions of the release on licence.

Whatever conditions are imposed, it would be foolhardy to think that Mr O’Shea’s return to the community will not be accompanied by some difficulties of adjustment. This calls for some degree of flexibility in the operation of whatever conditions may be imposed.

Furthermore, the situation calls for some sort of pre-release program to be devised and implemented, such as is given to most prisoners before they are released from custody. I assume that this will be carried out by the Department of Correctional Services. In any event, I would like to think that there is some institution other than a gaol in which Mr O’Shea can be held in custody during the time when any pre-release program is carried out.

I realise that there is a limit on the amount of funding which is available to implement what might be thought to be an adequate program of post-release supervision. However, nothing in life is ideal. Mr O’Shea’s release on licence will be accompanied by such a program of assistance directed towards his rehabilitation in the community as can reasonably be given, having regard to the extent of available funds. The rest will be up to him.

Hopefully, he will see through a period of three years on licence without committing any further offences, in which event, short of any order by the Supreme Court to the contrary, he will be taken to have been discharged from the order for detention (s24(11)).

Pursuant to s24(2), it is for this Court to specify the date of the release of Mr O’Shea on licence. In all the circumstances, to enable an appropriate pre-release program to be implemented, and for the Parole Board to have a reasonable time to formulate the conditions to be specified in the licence, I order that he be released in approximately four months time, that is to say, on Monday 31 August 1998.

[1998] SASC 6644

1 May 1998