R v Ainsworth

Case [2008] SASC 67

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

R v AINSWORTH

[2008] SASC 67

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Layton)

12 March 2008

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

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - POWERS OF APPELLATE COURT

Appellant sentenced for several offences, including two counts of rape, one count of assault with intent to rape and three counts of unlawful sexual intercourse - sentence of imprisonment for 15 years imposed - sentencing judge found appellant to be unwilling to control his sexual instincts and under s 23 Criminal Law (Sentencing) Act 1988 (Sentencing Act) ordered that he be detained indefinitely - non-parole period not fixed.

Whether the subject of an indefinite detention order is entitled to appeal against the order - whether s 23(5) of the Sentencing Act requires two medical practitioners to report that an offender is incapable of controlling, or unwilling to control, his or her sexual instincts before an order for indefinite detention may be made - whether an appeal can be made against an order for indefinite detention without placing the sentence for the substantive offences in issue - whether the Full Court is empowered under s 353(4) CLCA to quash a sentence appealed against without first being satisfied that a different sentence should have been passed - whether the reasons of the judge for making the order of indefinite detention were adequate - whether the order of indefinite detention was an appropriate exercise of power under s 23(5) of the Sentencing Act.

Held:  the subject of an indefinite detention order has a right of appeal against the order - two medical practitioners must report to the court before an order under s 23(5) may be made, but it is not necessary that both report that the offender is incapable of, or unwilling to, control his or her sexual instincts - insufficient reasons were given for the conclusion that the appellant was unwilling to control his sexual instincts - insufficient reasons were given for the decision to exercise the power to make the detention order.

Held: (per majority) - without determining the issue of whether the appellant is unwilling to control his sexual instincts, the exercise of the power to make the order for indefinite detention was inappropriate in this case - the effect of s 353(4) CLCA is that the Full Court may quash a sentence appealed against only if first satisfied that a different sentence should have been imposed - an order for indefinite detention may be quashed without also setting aside the sentence imposed for the substantive offences - order of indefinite detention quashed - matter referred back to sentencing judge for consideration of the issue of…

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R v Ainsworth [2008] SASC 67
Case
[2008] SASC 67
Decision Date

CaseChat Overview and Summary

The case of R v Ainsworth involves an appeal against the sentence imposed on the appellant who was found guilty of multiple sexual offences. The sentencing judge imposed a sentence of imprisonment for 15 years and ordered indefinite detention under section 23 of the Criminal Law (Sentencing) Act 1988, finding that the appellant was unwilling to control his sexual instincts. The appellant appealed against the order for indefinite detention. The court was required to decide several legal issues, including whether the subject of an indefinite detention order is entitled to appeal against the order, whether section 23(5) of the Sentencing Act requires two medical practitioners to report that an offender is incapable of controlling, or unwilling to control, their sexual instincts before an order for indefinite detention may be made, and whether an appeal can be made against an order for indefinite detention without placing the sentence for the substantive offences in issue.

The court held that the subject of an indefinite detention order has a right of appeal against the order. It found that two medical practitioners must report to the court before an order under section 23(5) may be made, but it is not necessary that both report that the offender is incapable of, or unwilling to, control their sexual instincts. The court also found that insufficient reasons were given for the conclusion that the appellant was unwilling to control his sexual instincts and for the decision to exercise the power to make the detention order. The majority held that, without determining the issue of whether the appellant is unwilling to control his sexual instincts, the exercise of the power to make the order for indefinite detention was inappropriate in this case. The court concluded that the Full Court may quash a sentence appealed against only if first satisfied that a different sentence should have been imposed and that an order for indefinite detention may be quashed without also setting aside the sentence imposed for the substantive offences. The order of indefinite detention was quashed, and the matter was referred back to the sentencing judge for consideration of the issue of a non-parole period.

The court found that the psychiatric and psychological evidence provided by Dr O'Brien and Dr Raeside was insufficient to support the conclusion that the appellant was unwilling to control his sexual instincts. Dr Raeside diagnosed the appellant with narcissistic personality disorder and considered that the appellant represented a significant risk of further offending. However, Dr O'Brien and Mr Fugler, a clinical forensic psychologist, provided evidence that the appellant was capable of controlling his sexual instincts and that he had not acted on his sexual impulses since July 2000. The court concluded that there were difficulties in determining this ground of appeal and that the reasons given by the judge for making the order of indefinite detention were inadequate.

The court considered the issue of a non-parole period and concluded that, by reason of her order for indefinite detention, the judge thought it inappropriate to fix a non-parole period. The court held that the order for indefinite detention should be set aside and that the question of a non-parole period should now be considered. The matter was referred back to the judge for consideration of this issue. The court did not consider whether section 32(8) of the Sentencing Act precludes altogether a non-parole period being fixed when a judge makes an order for the indefinite detention of an offender.

In summary, the court allowed the appeal and quashed the order for indefinite detention made by the judge. The matter was referred back to the judge for consideration of a non-parole period. The court's decision was based on the inadequate reasons given by the judge for making the order of indefinite detention and the finding that the exercise of the power to make the order was inappropriate in this case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It was not suggested at first instance that the appellant is incapable of controlling his sexual instincts. The order for indefinite detention depended upon the finding that the appellant is unwilling to control those instincts. The appellant challenged that finding. As will be seen, I consider that there are difficulties in determining this ground of appeal.(i) The Psychiatric and Psychological Evidence The court directed Dr O’Brien and Dr Raeside to inquire into the appellant’s mental condition and to make the report under s 23(4). Both Dr O’Brien and Dr Raeside are experienced forensic psychiatrists. Dr Raeside examined the appellant on one occasion and provided a written report. He considered that the appellant did not suffer from a psychiatric illness, but had “strong underlying narcissistic personality features” which were sufficient to warrant a diagnosis of personality disorder. Dr Raeside explained the effect of that disorder as follows:A Narcissistic Personality Disorder is generally characterised by a lack of empathy for others, a pervasive sense of grandiosity (in fantasy or in behaviour), the need for admiration, and chronic intense envy. These people are hypersensitive to criticism, exploitative of others, egocentric with an inflated sense of self-importance, feel entitled to special treatment, and demand constant attention. Dr Raeside considered that the appellant’s offending behaviour was “tied” into his narcissism. Dr Raeside also recorded a history from the appellant of drug use, including Ecstasy. He thought that this was probably a significant factor in increasing the appellant’s sexual drive. Dr Raeside concluded:Whatever the actual underlying cause it is my opinion that Mr Ainsworth represents a significant risk of further offending. He appears to have difficulty with control of his behaviour but more so with his willingness. As such I believe he would be a significant risk of similar offending if given adequate opportunity. I would therefore support the s 23 application. [emphasis in the original] Dr O’Brien interviewed the appellant on three occasions. After his first examination, he considered that a psychological assessment of the appellant would be of assistance. In particular, he considered that it would indicate whether the appellant had some innate personality characteristics to which his offending could be attributed. Acting on the request of Dr O’Brien, a judge directed that Mr Fugler, a clinical forensic psychologist, assess the appellant and provide a report. Mr Fugler is not a legally qualified medical practitioner. As I understand the position, s 23(4)(c) was invoked for this purpose. Mr Fugler interviewed the appellant on three occasions. He administered a recognised personality inventory. That assessment revealed the appellant to have a marked disregard for social standards and values, narcissistic personality traits, impulsivity, and a tendency towards poor judgment. Mr Fugler proffered the opinion that while the appellant was capable of controlling his sexual instincts, the question of his willingness to do so was more complex. In his written report, Mr Fugler referred to the absence of evidence that the appellant had committed other offences from July 2000 until his arrest in December 2004. He thought it probable that the appellant had had other opportunities, if so minded, to commit similar offences. He thought that this indicated that the appellant had not acted on his sexual impulses. The implication was that the appellant was willing to control his sexual instincts. However, in his oral evidence Mr Fugler proffered the view (without objection) that the risk of the appellant re-offending made it “foolhardy” for him to be released without “incredible amounts of supervision”. The reasons for this apparent change in position were not explored in Mr Fugler’s oral evidence.

Decision

Reasons for decision

There remains the question of a non-parole period. By reason of her order for indefinite detention, the judge thought it inappropriate to fix a non-parole period and adjourned the fixation of a non-parole period to a date to be fixed. On the approach which I favour, the order for indefinite detention should be set aside. This means that the question of a non-parole period should now be considered. I would refer the matter back to the judge for consideration of this issue. In these circumstances, it is not necessary to consider whether the effect of s 32(8) of the Sentencing Act is to preclude altogether a non-parole period being fixed when a judge makes an order for the indefinite detention of an offender.Conclusion In summary, I would make the following orders: I would allow the appeal and quash the order for indefinite detention which was made by the judge. I would refer the matter back to the judge for the purpose of consideration of a non-parole period. LAYTON J: I have had the opportunity of reading the draft reasons for decision of White J. This appeal has raised many complicated issues in what appeared, on its face, to be an appeal based primarily on whether the trial Judge erred in making an order for indefinite detention (“the order”). I state from the outset my conclusion; namely, that the sentence imposed by the Judge on 28 June 2007 should be quashed and the matter remitted to another judge of this Court for re-sentencing pursuant to s 353(4) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”). The sentence to which I refer comprises the order for indeterminate detention as well as the sentence of imprisonment for 15 years and the failure to fix a non-parole period. My reasons involve concurrence with particular reasoning of White J on certain issues although we differ on others and in our conclusions. In addition, however, there are other reasons which have persuaded me and reinforced my conclusion. I commence with the reasons of White J and respectfully agree with his Honour’s conclusions on the following matters. First, the interpretation of s 23(5) of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) (at [24]). Second, that the appeal is competent pursuant to s 352(1)(a)(iii) of the CLCA, although our reasons differ. Third, that the reasons given by the Judge were inadequate and do not contain relevant findings which are required before an order for indeterminate detention is made (at [59]-[66]). Further, that the Judge did not identify the basis upon which she decided to exercise the power to make the order for indeterminate detention (at [77]). I differ from White J in his reasoning in three important respects. First, I consider that the sentence which is the subject of appeal in this case pursuant to s 352(1)(a)(iii) brings the whole of the sentencing process before the Court and not simply one of the components, namely the order for indeterminate detention. Second, the interpretation of White J in respect of the powers of the appellate Court under s 353(4) of the CLCA where a court concludes that the reasons of a Judge when sentencing were inadequate and that no findings were made on critical issues. Third, his Honour’s conclusion that an order for indefinite detention should be quashed because the Judge could not reasonably have exercised her discretion to make the order when her Honour had already imposed a sentence of imprisonment for 15 years.The scope of appeal against sentenceSection 23 of the Sentencing Act

Ratio Decidendi

Legal Principle Established

This definition would include the imposition of a sentence of imprisonment[61] as well as fixing a non-parole period.[62] Further, an order for indeterminate detention is treated as a “sentence” in its own right in the Sentencing Act. Division 3 under which s 23 appears, refers to “[s]entences of indeterminate duration” and in turn this is interpreted in s 3 as follows:sentence of indeterminate duration means detention in custody until further order;[61] Section 3(a) “sentence” Criminal Law (Sentencing) Act 1988 (SA).[62] Section 3(c) “sentence” Criminal Law (Sentencing) Act 1988 (SA). Therefore, each of the individual components of the sentencing decision under s 23(6) could be treated as a “sentence” under the Sentencing Act. However in the context of s 23(6) where there are three optional combinations, the whole becomes the sentence. The three alternative sentencing options suggest that judicial consideration is required to take account of which option is the most appropriate and that becomes the “sentence” passed by the court pursuant to the requirements in s 23 and particularly s 23(6). That sentence is the appropriate subject of an appeal pursuant to s 352(1)(a)(iii) of the CLCA. Put another way, s 23(6) would not require separate appeals to be instituted against each component. Although an appeal against sentence may focus on one particular component, the whole of the sentence must be considered. I will return to this topic later in my reasons. Sub-section 352(1)(a)(iii) and s 348 of the CLCA The appeal process under Part 2 Division 3 of the CLCA must be read in conjunction with the Sentencing Act under which convicted persons are sentenced. The right of appeal conferred by s 352(1)(a)(iii) of the CLCA is a right to “appeal against sentence passed on conviction”. Bearing in mind the provisions of s 23(6) as discussed above, the expression “sentence” encompasses the sentencing option chosen by the Judge, not just one aspect of the sentence. Similarly, under s 353(4) of the CLCA, the power of the Court, “… if it thinks a different sentence should have been passed”, is to quash the sentence passed and to either substitute the sentence that ought to have been passed or to remit the matter for re-sentencing. This power applies to the whole of the sentencing option. This approach is also consistent with, and encompassed by, the inclusory definition of “sentence” in s 348 of the CLCA as discussed in the reasons of White J. In a common scenario, a convicted person sentenced to imprisonment with a non-parole period, who wishes to complain about the non-parole period, necessarily appeals against the sentence as a whole. The head sentence and the non-parole period are each part of the sentence. If no complaint is made about the head sentence, the Court will ordinarily consider only the complaint about the non-parole period. But if the appeal succeeds, the Court’s decision is to quash the sentence as a whole, and, in this hypothetical example, to impose the same head sentence as before but to fix a new non-parole period. The Court does not simply quash or vary the non-parole period, leaving the offender to serve a head sentence fixed by the sentencing Judge and a non-parole period fixed by the Court of Criminal Appeal.