R v Ainsworth - [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 a non-parole period.
(Per Layton J) Discussion on power to set a non-parole period at the same time as making an order for indeterminate detention.
Criminal Law Consolidation Act 1935 (SA) s 48, s 49, s 170, s 270B, s 348, s 352, s 353, s 354; Criminal Law (Sentencing) Act 1988 (SA) s 3, s 9, s 23, s 27A, s 32; Crimes Act 1958 (Vic) s 568; Criminal Appeals Act 2004 (WA) s 23, s 31; Criminal Code (WA) s 689; Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) s 7; Criminal Appeal Act 1912 (NSW) s 6; Habitual Criminals Act 1957 (NSW); Criminal Code Act 1899 (Qld) s 688E, referred to.
R v Whyte [2006] SASC 56; R v Capalbo [2005] SASC 47; (2005) 238 LSJS 245; Buckley v The Queen [2006] HCA 7; (2006) 80 ALJR 605; Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611; Watson v Anderson (1976) 13 SASR 329; Kotz v Police [1999] SASC 399; (1999) 205 LSJS 176; Papps v Police [2000] SASC 183; (2000) 77 SASR 210; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; R v Keyte [2000] SASC 382; (2000) 78 SASR 68; R v Armfield (2005) 155 A Crim R 299, applied.
Strong v The Queen [2005] HCA 30; (2005) 224 CLR 1; McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121, distinguished.
R v Williams [2006] SASC 377; (2006) 96 SASR 226, not followed.
R v Bishop [1998] 1 VR 531; R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704; R v Hughes [2003] QCA 460; [2004] 1 Qd R 541; Dal v Western Australia [2006] WASCA 246; (2006) 33 WAR 143; R v Henderson [1966] VR 41; Penny v Western Australia (2006) 36 WAR 48; Wells v The Parole Board and the Secretary of the State for the Justice [2007] EWHC 1835 31 July 2007; R v England [2004] SASC 254; (2004) 89 SASR 316; Shrubsole v Rodriguez (1978) 18 SASR 233; O, C v Police [2007] SASC 346; R v Astill (No 2) (1992) 64 A Crim R 289, discussed.
R v Van de Worp [2000] WASCA 154; White v The Queen [2003] WASCA 197; HAS v The Queen [2005] WASCA 29; Harvey v State of Western Australia [2005] WASCA 117; R v Anglesey [2002] WASCA 194; R v Palmieri [1998] 1 VR 486; R v Hatten [2007] QCA 46; Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465; R v Baltensperger [2006] SASC 246; (2006) 96 SASR 34; R v Kiltie (1986) 41 SASR 52; Fardon v The Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575; Griffiths v The Queen (1977) 137 CLR 293; R v O'Shea (1982) 31 SASR 129, considered.

R v AINSWORTH
[2008] SASC 67
Court of Criminal Appeal: Doyle CJ, White and Layton JJ

DOYLE CJ: I agree with the orders proposed by White J. I agree with his reasons for making those orders. I add the following remarks.
The appeal raises a number of issues under s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”), under other provisions of that Act and under provisions of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). The Court found it necessary to list the appeal for further submissions so that it had the benefit of submissions on a number of issues that were not raised in the first hearing. Even at that further hearing new issues arose.
It has not been necessary or appropriate to resolve all of those issues on this occasion. On some of them the Court had the benefit of only very brief submissions.
In my opinion the matters identified in the reasons of White J, and in the reasons of Layton J, warrant consideration by the Attorney-General. Amendments to the relevant legislation may be appropriate.
I mention two matters in particular.
The question of whether the effect of s 32(8) of the Sentencing Act is to preclude the fixing of a non-parole period, or merely to remove the requirement to fix a non-parole period (subject to s 32(5)(c)) needs clarification. In addition, in his reasons White J identifies a limitation on the Court’s power to remit a matter for re-sentencing under s 353(4)(a)(ii) of the CLCA which has not been previously identified. The limitation is likely to be of practical significance only rarely. However, in the present case its effect is to prevent the Court from following what might be thought to be the preferable course of remitting the matter for reconsideration, without first having to decide whether or not “a different sentence should have been passed”. On the approach taken by White J, with which I agree, the Court is driven to determine the matter on the evidence as it is, and without the benefit of evidence addressed to the issues identified by White J. While I respectfully differ from the approach taken by Layton J, I acknowledge the force of the argument that she advances, and I acknowledge the practical advantage of the Court being able to remit the matter for reconsideration, without having to decide that “a different sentence should have been passed”. However, it is also appropriate to acknowledge that the effect of doing so would be to give the prosecutor the opportunity to renew the application under s 23(2) of the Sentencing Act, and to improve the case by presenting different evidence. Some would take the view that that would be unfair to the defendant. If the provisions of s 353(4)(a)(ii) were to be amended, it would be necessary to give careful consideration to these matters.
Finally, I record that I agree with the view expressed by White J that it remains open to the Attorney-General to make an application under s 23(2a) of the Sentencing Act, although it may be that having regard to the terms of s 23(2b) no such application can be made more than 12 months before the defendant is eligible to apply for release on parole, if a non-parole period is fixed. The Court heard no submissions on that point, and so I express no view on it.
WHITE J: The appellant appeals against an order that he be detained in custody indefinitely.
The appellant was convicted in the District Court, on his own pleas, on two counts of rape, one count of assault with intent to rape, one count of aggravated serious criminal trespass in a place of residence, and one count of false imprisonment. These offences were committed during separate incidents against three different victims. The appellant was also convicted, on his own pleas, of three offences of unlawful sexual intercourse with a fourth victim.
The District Court referred the appellant to this Court because of an application by the prosecution that he be dealt with under s 23(5) of the Criminal Law (Sentencing) Act 1988 (SA) (Sentencing Act).
A judge of this Court imposed a single sentence of imprisonment for 15 years for all of the offences. Being satisfied that there was a significant risk that, given the opportunity, the appellant would fail to exercise appropriate control of his sexual instincts, the judge also ordered, under s 23, that he be detained in custody until further order. Given the order for indefinite detention, the judge declined to fix a non-parole period and adjourned further consideration of that issue to a date to be fixed.
The appellant appeals against the order of indefinite detention and against the refusal to fix a non-parole period. No appeal is brought against the sentence of 15 years imprisonment.
The appeal gives rise to a number of separate issues:
(i) whether an appeal lies against an order for indefinite detention under s 23(5) of the Sentencing Act;
(ii)    whether an order for indefinite detention under s 23(5) may be made only if at least two medical practitioners appointed under that subsection have reported that the offender is incapable of controlling, or unwilling to control, his or her sexual instincts;
(iii)   whether the reasons given by the judge for the conclusion that the appellant was unwilling to control his sexual instincts were adequate;
(iv)    the powers of this Court if satisfied that the judge’s reasons were inadequate; and
(v)     whether the order of indefinite detention was an appropriate exercise of the power conferred by s 23(5).
The Circumstances of the Offending
The appellant is now aged 31. He has no criminal antecedents. His offending occurred in separate incidents during a period of about three and a half years, from July 2000 until December 2003.
On 31 July 2000 at about 6.30 pm, the appellant forced a 33-year-old woman who was walking alone through the West Parklands into bushes adjacent to Glover Avenue. He was armed with a knife. The appellant engaged in one act of penile-vaginal intercourse, penetrated her vagina digitally on four separate occasions, and penetrated her anus digitally once. At the end of this incident, the appellant told his victim that he was ashamed and sorry for what he had done. He threw the victim’s jeans and boots out of her sight in the darkness so that she could not follow him as he fled.
The next rape was committed about eighteen months later, on 7 February 2002. The victim was a 20-year-old woman who was walking alone at about 8.00 pm near the Bakewell Bridge at Mile End. The appellant was again armed with a knife. He forced the woman to the side of the road, and then engaged in both digital and penile-vaginal intercourse with her. Afterwards the appellant apologised, but again attempted to prevent pursuit by throwing her jeans away. This offence was quite brazen as it occurred close to a well-used street and while it was still light.
The appellant was charged with the offence of penile rape[1] only for these first two incidents.
[1] Criminal Law Consolidation Act 1935 (SA) s 48.
The third incident occurred 20 months later on 10 October 2003. At about 5.00 pm, the appellant followed a 19-year-old overseas student to her hostel and forced her to allow him inside as she entered the building. Once inside, he used duct tape to gag her. When this was unsuccessful, he sought to restrain the victim’s screams for help by inserting his handkerchief into her mouth and applying more tape. He then applied a set of handcuffs. The victim indicated that she needed to go to the toilet. The appellant accompanied her and, when she had finished, prevented her from pulling her pants and jeans back up. The incident was interrupted when a resident of the hostel came to investigate the victim’s screams. The appellant then desisted and quickly left the hostel. The victim was left bound and handcuffed. The police had to use bolt cutters to remove the handcuffs. The entry into the premises constituted the offence of aggravated serious criminal trespass into a place of residence;[2] the assault on the victim constituted the offence of assault with intent to rape;[3] and the taping and handcuffing of the victim constituted the offence of unlawful imprisonment.[4]
[2]    Criminal Law Consolidation Act 1935 (SA) s 170(2).
[3]    Criminal Law Consolidation Act 1935 (SA) s 270B.
[4]    This is a common law offence.
The three offences of unlawful sexual intercourse[5] were committed between 11 December 2003 and 24 December 2003, and involved a 14-year-old girl. The appellant met this victim through an internet chat room. The victim initially told the appellant that she was 17 years old. The appellant falsely stated his own name and age. They arranged to meet. During their first meeting, the appellant and the victim had consensual penile-vaginal intercourse in the backseat of his car.
[5] Criminal Law Consolidation Act 1935 (SA) s 49(3).
A few days later, the victim telephoned the appellant and they arranged to meet a second time. By this time, the appellant knew that the victim was aged only 14 years. At their second meeting, the appellant and the victim engaged in two acts of consensual penile-vaginal intercourse. The appellant then took the victim to a house in Adelaide and, when his girlfriend was absent, to the house which he shared with her. From 15 December 2003 to 24 December 2003, he had sexual intercourse with her daily, sometimes on multiple occasions. On one occasion, the appellant handcuffed the victim’s hands behind her head and performed an act of cunnilingus on her. On another occasion, the appellant slapped the victim and forced her to perform an act of fellatio on him. Although charged with nine offences involving this victim, the prosecution accepted the appellant’s pleas to three offences in satisfaction of all the charges. These were the penile-vaginal intercourse which occurred at the first meeting, the incident involving cunnilingus while the victim was handcuffed, and the incident involving fellatio. The judge’s sentencing remarks indicate, however, that she was satisfied that the other incidents alleged by the victim had also occurred.
Relevant Statutory Provisions
Section 23 of the Sentencing Act provides for a regime of indefinite detention for persons who are either incapable of controlling, or unwilling to control, their sexual instincts. Subsections (1) to (7), as in force at the time of sentencing, provided as follows:
(1)     In this section—
"institution" means—
(a)     a prison; and
(b)     a place declared by the Governor by proclamation to be a place in which persons may be detained under this section; and
(c)     in relation to a youth, includes a training centre;
"person to whom this section applies" means—
(a)     a person convicted by the Supreme Court of a relevant offence; or
(b)     a person remanded by the District Court or the Magistrates Court under subsection (2) to be dealt with by the Supreme Court under this section; or
(c)     a person who is the subject of an application by the Attorney-General under subsection (2a);
"relevant offence" means—
(a) an offence under section 48, 49, 56, 58, 59, 63, 63A, 63B, 69, 72 or 74 of the Criminal Law Consolidation Act 1935;
(b) an offence under section 23 of the Summary Offences Act 1953;
(c)     any other offence where the evidence indicates that the defendant may be incapable of controlling, or unwilling to control, his or her sexual instincts;
"unwilling"‑a person to whom this section applies will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts.
(2)If, in proceedings before the District Court or Magistrates Court, a person is convicted of a relevant offence and—
(a)     the court is of the opinion that the defendant should be dealt with under this section; or
(b)     the prosecutor applies to have the defendant dealt with under this section,
the court will, instead of sentencing the defendant itself, remand the convicted person, in custody or on bail, to appear before the Supreme Court to be dealt with under this section.
(2a)If a person has been convicted of a relevant offence, the Attorney-General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section.
(3)The Supreme Court will direct at least 2 legally qualified medical practitioners nominated by the Court to inquire into the mental condition of a person to whom this section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, his or her sexual instincts.
(4)     For the purpose of an inquiry under subsection (3), each medical practitioner—
(a)     must carry out an independent personal examination of the person; and
(b)     may have access to any evidence before the court by which the person was convicted; and
(c)     may obtain the assistance of a psychologist, social worker, community corrections officer or any other person.
(5)The Court may order that a person to whom this section applies be detained in custody until further order if—
(a)     the Court, after considering the medical practitioners' reports and any relevant evidence or representations that the person may desire to put to the Court, is satisfied that the order is appropriate; or
(b)     the person refuses to cooperate with an inquiry or examination under this section and the Court, after considering any relevant evidence and representations that the person may desire to put to the Court, is satisfied that the order is appropriate.
(6)If a person to whom this section applies has not been sentenced for a relevant offence, the Supreme Court will deal with the question of sentence at the same time as it deals with the question whether an order is to be made under this section and, if the Court decides to make such an order, the order may be made in addition to, or instead of, a sentence of imprisonment.
(7)If the detention is in addition to a sentence of imprisonment, the detention will commence on the expiration of the term of imprisonment, or of all terms of imprisonment that the person is liable to serve.

The effect of these provisions is that a person who is convicted of a “relevant offence” may be remanded to the Supreme Court to be “dealt with” under s 23. The offences of rape and unlawful sexual intercourse are included in this list of relevant offences. The offence of assault with intent to commit rape is not specifically listed as a relevant offence, but is probably such an offence in this case because the evidence concerning it “indicates that the defendant may be incapable of controlling, or unwilling to control, his … sexual instincts”.[6]
[6] See the definition of “relevant offence” in Sentencing Act s 23(1).
The court must direct at least two legally qualified medical practitioners to inquire into the “mental condition” of the offender, and to report to the court on whether the offender is incapable of controlling, or unwilling to control, his or her sexual instincts (s 23(3)). A person is to be regarded as unwilling to control his or her sexual instincts “if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts”[7] For the purposes of their inquiry and report the medical practitioners must carry out an “independent personal examination” of the offender and may obtain the assistance of others, including a psychologist, (s 23(4)). The court may make an order that the offender be detained indefinitely if, after considering the medical reports and any evidence or representations from the offender, it is “satisfied that the order is appropriate” (s 23(5)).
[7] See the definition of "unwilling" in Sentencing Act s 23(1).
In R v Whyte,[8] I expressed the view that while s 23(5) does not explicitly require the court to be satisfied that the offender is either incapable of controlling, or unwilling to control, his or her sexual instincts for an indefinite detention order to be made, such a condition is implicit in the section. The power of the court to make an order for indefinite detention is not enlivened unless the court is satisfied that an offender lacks the requisite capacity or willingness. I remain of that view.
[8] [2006] SASC 56 at [10].
If an offender has not been sentenced, the making of an order under s 23 is to be considered at the same time as the court considers the question of sentence. The order for indefinite detention may be in addition to, or instead of, a sentence of imprisonment (s 23(6)). If a sentence of imprisonment is imposed, the order for detention commences on the expiry of that sentence (s 23(7)). In the present case, that means that the order of indefinite detention will not commence until the appellant has completed the 15-year term of imprisonment.
The court may also make an order of indefinite detention after an offender has been sentenced. This may only be done on the application of the Attorney-General made while the offender remains in prison serving a sentence of imprisonment.
Does an Appeal Lie Against an Order of Indefinite Detention?
There was some discussion about the appellant’s entitlement to appeal against the order for indefinite detention.
It was common ground that s 27A of the Sentencing Act provides for appeals against certain kinds of orders incidental to, or consequential upon, an order for indefinite detention. It does not, however, provide for any appeal against the order itself. Both parties submitted that the entitlement to appeal against the order is found in s 352(1)(a)(iii) of the Criminal Law Consolidation Act 1935 (SA) (CLCA) which provides:
(1) Appeals lie to the Full Court as follows:
(a) if a person is convicted on information—
…
(iii)the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the permission of the Full Court;
In effect both a convicted person and the DPP may, with the permission of the court, appeal against a “sentence passed on the conviction” of the person.
Section 348 of the CLCA contains the definition of “sentence” applicable to s 352. It provides that:
“sentence” includes any order of the court of trial or of the judge thereof made on, or in connection with, a conviction with reference to the convicted person, or any property, or with reference to any moneys to be paid by the person, and also includes an order under section 39 of the Criminal Law (Sentencing) Act 1988 discharging the convicted person, without imposing a penalty, on the person entering into a bond.
The definition refers to an order of “the court of trial”. On a strict reading, that may be the District Court in this case because the appellant was arraigned and pleaded guilty in that Court before he was referred to the Supreme Court to be dealt with under s 23 of the Sentencing Act. However, I consider that in the context of Part II of the CLCA, which is concerned with appeals and cases stated, the expression “court of trial” is capable of including the sentencing court, even if the court in which the person is convicted is not that court. If the definition is understood in that way, the order for indefinite detention can be said to have been made “in connection with” the appellant’s convictions.
In any event, the effect of s 348 is to define “sentence” in an inclusionary way. It extends the meaning that “sentence” would ordinarily convey, not specifying exhaustively the type of order which may be a sentence for the purpose of an appeal to the Court of Criminal Appeal. In its ordinary meaning, “sentence” is capable of including an order relating to the punishment imposed by a court after a person has been convicted of an offence.[9] The definition of “sentence” for the purposes of the Sentencing Act confirms this: it defines “sentence” as “the imposition of a penalty” and the “making of any other order or direction affecting penalty”.[10] Although this definition does not govern the meaning in the CLCA, it does provide support for the meaning of “sentence” which I have just outlined. A “sentence” in this sense can be said to have been passed “on” the conviction of the offender. The word “on” is capable of referring to a relationship of sequence.
[9] See in a comparable context McGarry v The Queen [2001] HCA 62 at [7]; (2001) 207 CLR 121 at 126 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. In a different context see Griffiths v The Queen (1977) 137 CLR 293 at 307 per Barwick CJ.
[10] Sentencing Act s 3(1).
In short, s 352(1)(a)(iii) is capable of being construed so as to entitle a convicted person to appeal against an order for indefinite detention. That is because it is an order “relating to” or “in connection with” an order of penalty imposed by the court consequent upon the conviction of the offender.
In my opinion, effect should be given to this construction. If it is not, then the subject of an order under s 23(5) would have no means of appeal. This Court should be reluctant to adopt a construction which would have that effect. Given the very nature of the order and the seriousness of its effects on the subject it is unlikely that Parliament intended that there should be no means of appeal. Further, it is unlikely that Parliament intended that orders incidental to, or consequential upon, an order for indefinite detention may be appealed,[11] but that the actual order for indefinite detention may not. The construction which I prefer means that the subject of an indefinite detention order will have a means of appeal whether or not the order is made at the time of sentencing for the substantive offence, or later on the application of the Attorney-General. I note that in R v O’Shea[12] (in relation to the predecessor of s 23(5)) and in R v England[13] this Court proceeded on the basis that an appeal under s 352(1)(a)(iii) did lie against an order for indefinite detention.
[11] Sentencing Act s 27A.
[12] (1982) 31 SASR 129.
[13] [2004] SASC 254 at [14]; (2004) 89 SASR 316 at 320-21 per Doyle CJ.
I conclude therefore that the appeal is competent. The question of whether the DPP may appeal against a decision of the court not to make an order under s 23(5) can be deferred until it arises for consideration.
Must Two Doctors Report that the Offender is Incapable of Controlling or Unwilling to Control his or her Sexual Instincts?
As previously noted, s 23(5) requires that the court must first be satisfied that an offender lacks the requisite capacity or willingness before it may exercise the power to make the order for indefinite detention.
Mr Niarchos, for the appellant, submitted that s 23(5)(a) also requires that at least two medical practitioners report to the court that the offender lacks the requisite capacity or willingness before an order for indefinite detention can be made. That condition was not satisfied in this case. As will be seen later, only one of the two forensic psychiatrists who examined the appellant at the direction of the court reported that the appellant was unwilling, in the defined sense, to control his sexual instincts.
Mr Niarchos referred to the history of s 23(5). Before its amendment in 2005,[14] s 23(5) provided that this Court could make an order for indefinite detention if (relevantly) each of at least two medical practitioners reported on oath that the offender was incapable of controlling his or her sexual instincts. Thus, a threshold for the enlivening of the court’s power (and a safeguard for the offender) was that at least two medical practitioners considered the offender to lack the requisite capacity.
[14] Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) s 7.
The 2005 amendment was not, in the appellant’s submission, intended to alter this requirement. Its principal purpose was to permit the court to make an order for indefinite detention of an offender who lacked either the capacity or willingness to control sexual instincts, or who refused to co-operate with the court ordered medical examinations. This, it was submitted, is evident from the second reading speech of the Attorney-General on the introduction of the amending Bill into Parliament. After referring to two cases in which the prosecution had experienced difficulties in seeking an order for indefinite detention,[15] the Attorney-General said:
The bill proposes to deal with these situations explicitly. It is proposed that s 23 be amended so that a term of indefinite detention may be ordered by the court if each of two psychiatrists forms an opinion that a convicted offender is either incapable of controlling, or unwilling to control, his sexual instincts, and deals explicitly with the case in which the offender refuses to co-operate with the assessment required by the court. [Emphasis added].[16]
[15] R v Kiltie (1986) 41 SASR 52; R v England [2004] SASC 254; (2004) 89 SASR 316.
[16] Hansard, House of Assembly 11 April 2005, p 2275.
The 2005 amendment was (relevantly) in the same terms as the Bill introduced by the Attorney-General. The appellant submitted that the second reading speech made it plain that the opinion of two medical practitioners was to remain a threshold requirement for the making of a s 23(5) order.
I recognise the force of this submission. However, if the medical practitioners must report, both in form and in substance[17] in the terms of the statutory prescription, it could have some unfortunate consequences. The definition of “unwilling” in s 23(1) is not easy to apply. If the appellant’s submission be correct, one can imagine that there would often be disputes about whether a medical practitioner had reported in exactly the way contemplated by that definition. The concept of “significant risk” provides an illustration. It suggests a risk of substance. That, however, still begs the question as to the extent of the risk which the definition contemplates. To some extent, it is the context of s 23 which provides an indication of the extent of the risk required. The risk must be so substantial as to justify an order depriving the offender of his liberty indefinitely.[18] It is easy to imagine, however, that a medical practitioner may not assess the matter in that way. Further, as I endeavoured to indicate in R v Whyte,[19]the medical opinions may not encompass all of the matters relevant to the question of whether a significant risk exists. This indicates that if the doctors must report in terms of the definition, there will be considerable scope for contention as to whether they have done so. That counts against the appellant’s contention.
[17] R v England [2004] SASC 254 at [22]; (2004) 89 SASR 316 at 324 per Doyle CJ.
[18] Cf Fardon v The Attorney-General (Qld) [2004] HCA 46 at [22]; (2004) 223 CLR 575 at 593 per Gleeson CJ.
[19] [2006] SASC 56 at [29].
Ultimately, it is the words of s 23 which must be construed. Section 23(5) contains no express requirement that at least two court-ordered medical practitioners must consider that the offender lacks the requisite capacity or willingness. It does not make the content of the opinions of the medical practitioners either a necessary or sufficient condition for the making of an order. Section 23(5) effectively requires instead that the court must obtain at least two medical opinions and that it must have due regard to those opinions. It may be that the Attorney-General was mistaken in his appreciation of the effect of the 2005 amendment. It may be that the amendment went further than the Attorney-General intended at that time. As I have said, however, it is the actual words used by Parliament which must be construed. I am unable to see in those words any indication that the court must first be satisfied that two medical practitioners consider that the offender lacks the requisite capacity or willingness to control his or her sexual instincts. Insofar as the reasons of Sulan J in R v Williams[20] may suggest a different view, I respectfully disagree.
[20] [2006] SASC 377 at [15]-[16]; (2006) 96 SASR 226 at 230-31.
The Challenge to the Finding that the Appellant is Unwilling to Control his Sexual Instincts
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.
Mr Fugler considered that the appellant’s drug taking may have disinhibited him but that the anti-social elements of his personality were a more persuasive explanation for his behaviour.
Dr O’Brien considered that the appellant did not have any psychiatric pathology. His own clinical appraisal of the appellant’s psychological profile was confirmed by the formal assessment of Mr Fugler. Like Mr Fugler, he considered that the evidence did not suggest that the appellant was incapable of controlling his sexual instincts. Again, like Mr Fugler, he considered that it was a complex question whether the appellant was willing to control his sexual instincts. It is clear that Dr O’Brien considered that the risk to be assessed was that of the appellant failing to exercise the requisite control at some time in the future, taking into account the educative and deterrent effect of the appellant’s likely prolonged period of incarceration. Dr O’Brien did consider that there was a risk that the appellant would not exercise the requisite control in the future, as his behaviour was related to his intrinsic personality traits which were not likely to alter. Further, Dr O’Brien considered past behaviour generally to be a powerful predictor of future behaviour. The fact that the appellant had in the past chosen not to exercise appropriate control was significant. In his oral evidence, Dr O’Brien referred to the possibility that the offending could be attributed to a number of factors which had caused an aberrant period in an otherwise normal life. Dr O’Brien considered that the question of whether the risk that the appellant would fail to exercise appropriate control of his sexual instincts was to be regarded as significant was not so much a medical question as a matter for the court itself to determine.

Apart from the apparent change in Mr Fugler’s opinion which I have mentioned, the oral evidence of these three witnesses was generally in accord with their written reports.
The appellant did not lead any medical or oral evidence in relation to his sentencing or in relation to the question of indefinite detention.
(ii) The Judge’s Reasons
The judge gave her decision in relation to indefinite detention at the same time as, and as part of, the sentencing of the appellant.
The reasons include remarks and explanations of the kind conventionally given in sentencing. In relation to s 23, the judge referred to the exceptional nature of the order for indefinite detention and its purpose in providing appropriate protection for the public. The judge summarised the opinions of Doctors Raeside and O’Brien and Mr Fugler. After imposing the sentence of imprisonment for 15 years, the judge said:
There remains the question of the fixing of a non-parole period and the s 23 declaration. In considering whether I should make the declaration sought by the Director I am faced with the difficulty of making a present assessment of future risk despite the obvious difficulties in doing that, particularly in light of the sentence which I have just imposed. Having considered all of the matters contained in the medical reports as well as the evidence given by each of the experts, I am satisfied that as the matter stands there is a significant risk that you would, if given an opportunity to commit a relevant offence, fail to exercise control of your sexual instincts. I therefore propose to grant the application made by the Director. I therefore order that you be detained until further order, such period of detention to commence at the expiration of the sentence I have just imposed. In view of that order I consider that it is inappropriate to fix a non-parole period today and that question will be adjourned to a date to be fixed.
The judge was aware of the process for review of the appellant’s circumstances while he was subject to the s 23 order. She told the appellant that it may be possible for the order to be discharged “in the not too distant future” if he could make good progress with his rehabilitation.
(iii) The Requirement for Adequate Reasons
Section 9 of the Sentencing Act requires a court sentencing a defendant who is present in court to state its reasons for imposing the sentence and to cause an explanation of the legal effect and obligations of the sentence to be given in simple language to the defendant. Quite apart from this statutory obligation, it has been held that a sentencing judge should give, at the least, brief reasons for the sentence being imposed, including disclosing the process of reasoning which led to that sentence.[21] The nature and extent of the reasons of a sentencing judge must, to a significant degree, be determined by the circumstances of the particular case.
[21] R v Capalbo [2005] SASC 47 at [98]; (2005) 238 LSJS 245 at 261 and see the cases cited therein.
An indefinite sentence involves a departure from a fundamental principle of sentencing, namely, that of proportionality.[22] The purpose of the order is principally protective, in other words, to protect the public from conduct of a particular kind by the offender. It has been said that because of the exceptional nature of the order, it should be confined to cases in which it is really required.[23] Further, a judge should only make the order upon cogent evidence and with a clear appreciation of the exceptional nature of the course that is being taken.[24] It is clear that an application for such an order should be treated with commensurate care and detail.[25]
[22] Buckley v The Queen [2006] HCA 7 at [6]; (2006) 80 ALJR 605 at 607; Chester v The Queen [1988] HCA 62 at [20]; (1988) 165 CLR 611 at 618; McGarry v The Queen [2001] HCA 62 at [24]; (2001) 207 CLR 121 at 130 per Gleeson CJ, Gaudron, McHugh, Gummow and Heyne JJ and at 146 per Kirby J.
[23] Strong v The Queen [2005] HCA 30 at [78]-[79]; (2005) 224 CLR 1 at 30 per Kirby J.
[24] Buckley v The Queen [2006] HCA 7 at [6]; (2006) 80 ALJR 605 at 607.
[25] McGarry v The Queen [2001] HCA 62 at [31]; (2001) 207 CLR 121 at 132 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
In my opinion, the reasons for a decision under s 23(5) should reflect these considerations.
In most cases, a conclusion that a person is unable or unwilling to control his or her sexual instincts will depend on a number of intermediate findings. These include the reasons for the offending; whether the offending is attributable to conditions which are temporary or intractable; and the resolution of any differences in the medical opinions. When the issue is an unwillingness to control sexual instincts, each of the elements of the definition of unwillingness should be addressed. If the judge considers that the threshold for making such an order has been satisfied, the reasons should then address the matters relevant to the exercise of the power to order indefinite detention. The judge should also address the principal matters put in opposition to the order on behalf of the offender.
(iv) Were the Reasons of the Judge Adequate?
The appellant submitted that the reasons in this case were not adequate. In my opinion, that submission should be accepted, as the reasons did not address a number of important issues.
The judge said that she had considered the contents of the written and oral evidence of the experts. However, the judge did not provide any reasons for her conclusion that there was a significant risk that the appellant would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts. The judge did not, for example, make any finding about the appellant’s current psychiatric or psychological state, or of his mental state at the time of his offending. Nor is there any finding as to the materiality of those states to the relevant risk involved.
The reasons do not contain any evaluation of the nature or extent of the relevant risk, or of the kind of relevant offences which are the subject of the risk. The reasons do not indicate whether the judge was proceeding on the basis of the opinion of Dr Raeside, Dr O’Brien, or both. This was important as Dr Raeside and Dr O’Brien had not approached the matter in the same way. Dr Raeside addressed the appellant’s present willingness to control his sexual instincts, whereas Dr O’Brien considered what the position would be at the time in the future when the appellant had completed a lengthy period of incarceration. In my opinion, it is the former approach which is required by s 23. The reasons do not indicate the use made by the judge of the report of Mr Fugler. His opinion was admissible at least to the extent that it provided part of the basis for the opinion of Dr O’Brien. There may be an issue (which does not have to be considered in this case) as to whether, in the absence of the consent of the appellant, his opinions were admissible for any wider purpose.
Further, features of counsel’s submissions at first instance were not addressed in the reasons. Counsel had submitted that the appellant’s offending had occurred during a limited period in his life when a number of adverse factors had been operating to cause his aberrant behaviour. Counsel drew support for this submission from the oral evidence of Dr O’Brien. After referring to a number of matters about which the appellant had informed him, Dr O’Brien said:
… you could see it is an aberrant three years in his life, you could argue that for the most part he has been a pro-social man with a reasonably good employment record, some dysfunctions in his family but nothing very remarkable and in the context of significant adversity, coupled with alcohol and polysubstance abuse, he indulged in the behaviours which he had previously not contemplated. You could argue that, I’m not necessarily arguing it, I’m just putting it as a point of view.
Dr O’Brien said that he was not able to express a view either way as to whether such a characterisation of the appellant’s conduct was appropriate. It can perhaps be inferred from the judge’s decision that she did not act on that characterisation. It was, however, an important feature of the appellant’s case and, in my opinion, should have been addressed in the reasons.
A second matter is the appellant’s drug and alcohol consumption during the period of his offending. I have referred earlier to the opinions of Dr Raeside and Mr Fugler on this matter. In the passage quoted above, Dr O’Brien also referred to the possible influence of the appellant’s alcohol and drug consumption. To the extent that the appellant’s offending in the past could be attributed to drugs or alcohol, it was material to the assessment of the ongoing risk. The judge made no finding on that matter and did not explain how, if at all, account was taken of those factors.
The third matter emphasised by counsel was the lengthy period between each offence, and the lengthy period between the last offence in December 2003 and the appellant’s arrest in the United States in December 2004. There was no suggestion that the appellant had engaged in further offences during these periods. Counsel submitted that this provided evidence that despite the opportunities which must have been available, the appellant had controlled his sexual instincts. As noted, this was also referred to by Mr Fugler. The reasons of the judge do not address this submission.
A principal purpose of the requirement for adequate reasons is to enable an appellate court to perform its function.[26] In my respectful opinion, the deficiencies in the reasons in this case impair the ability of this Court to assess the basis for the decision of the judge, and to determine whether the finding as to the appellant’s unwillingness to control his sexual instincts was appropriate.
[26] Watson v Anderson (1976) 13 SASR 329; Kotz v Police [1999] SASC 399; (1999) 205 LSJS 176; Papps v Police [2000] SASC 183 at [19]; (2000) 77 SASR 210 at 214 per Gray J; Soulemezis v Dudley(Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259 per Kirby P; R v Keyte [2000] SASC 382 at [38], [55] and [64]; (2000) 78 SASR 68 at 76 and 80 per Doyle CJ and 82 per Williams J.
Inadequate Reasons and the Powers of this Court
In some appeals, a conclusion that the reasons given at first instance were inadequate would be sufficient to warrant the appeal being allowed, the order quashed, and the matter remitted for further hearing. Appeals against sentence may, however, stand in a different position. It has been said that a failure to give adequate reasons for a sentence does not in itself constitute a sufficient ground for the setting aside of a sentence.[27] Whatever the general position, the course of setting aside the order of indefinite detention on the sole ground of the inadequacy of the reasons cannot be followed in this case. The powers of this Court on an appeal against sentence are contained in s 353(4) of the CLCA:
[27]   Shrubsole v Rodriguez (1978) 18 SASR 233 at 236 per Wells J. See also R v Capalbo [2005] SASC 47 at [98]; (2005) 238 LSJS 245 at 261 per White J; O, C v Police [2007] SASC 346 at [27] per Layton J.
(4)     Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a)     if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)     in any other case—dismiss the appeal.
The effect of s 353(4) is that this Court may quash the sentence appealed against only if it is first satisfied that some other order should have been made. Otherwise the court must dismiss the appeal.
This is the view which has been taken of the interstate counterparts of s 353(4).
In R v Simpson[28] the New South Wales Court of Criminal Appeal considered an appeal against sentence in which, amongst other things, a complaint was made about the adequacy of the judge’s sentencing remarks. Spigelman CJ, with whom three members of the Court of Criminal Appeal agreed, said of s 6(3) of the Criminal Appeal Act 1912 (NSW):
Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: “If it is of the opinion that error has occurred in the sentencing process”. That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that “some other sentence … is warranted in law and should have been passed”. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to “quash the sentence and pass such other sentence in substitution therefore” is not satisfied. [29]
In the same case, Sully J said:
Whenever an applicant for leave to appeal against sentence submits that there is cause to show why this Court should intervene and reduce the primary sentence, it is, as I think, obvious that the first thing to be established by the applicant is that the primary sentencing discretion has miscarried, by reason of some error of fact or of law; or because of the cumulative effect of errors of both fact and law. The error, whether of fact or of law, may be either latent or patent; but whether latent or patent, some error must be demonstrated before this Court becomes entitled at all to consider interfering with the sentence passed at first instance …
Error once demonstrated, it does not follow automatically that this Court will, without more, intervene in fact and resentence. Before that can happen properly in law, the condition specified in s 6(3) of the Criminal Appeal Act 1912 must be satisfied: that is to say, this Court must be persuaded, not only that error has been shown in the process of reasoning of the primary sentencing Court, but that some other sentence is “warranted in law”.[30]
[28] [2001] NSWCCA 534; (2001) 53 NSWLR 704.
[29] Ibid at [79]; 720-21.
[30] Ibid at [99]-[100]; 723. See also R v Astill(No 2) (1992) 64 A Crim R 289 at 303-4.
In R v Hughes[31] McPherson JA said of the Queensland counterpart to s 353(4):
The jurisdiction on appeal to set aside or vary a sentence imposed for a crime was first conferred by s 668E(3) of the Code, which was introduced by the Criminal Code Amendment Act 1913. Like other such provisions in Australia, it was based on the Criminal Appeal Act 1907 in England. On an appeal against sentence, s 668E(3) adopts as the criterion for interference that “some other sentence … is warranted in law and should have been passed”. If that requirement is satisfied the sentence is to be quashed, and that other sentence passed in substitution therefor. Otherwise the appeal is to be dismissed.[32]
[31] [2003] QCA 460; [2004] 1 Qd R 541.
[32] Ibid at [2]; 543.
A similar approach has been taken in Western Australia in relation to s 689(3) of the Criminal Code. See, for example, R v Van de Worp;[33] White v The Queen;[34] HAS v The Queen;[35] Harvey v State of Western Australia;[36] and R v Anglesey.[37] In Dal v Western Australia, the appeal was instituted under s 31 of the Criminal Appeals Act 2004 (WA). Section 31(4) is in similar, but not identical terms, to s 689(3) of the Criminal Code and s 353(4) of the CLCA. In Dal a sentence of indefinite detention was set aside by the Full Court because of insufficient findings by the sentencing judge, without the Court first determining that a different sentence should have been passed. However, the Full Court did not advert expressly to its own previous decisions concerning the effect of s 689(3). Although this point was not specifically addressed in McGarry v The Queen,[38] which also concerned the comparable Western Australian preventative detention legislation, there is a passage in the joint judgment of Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ which tends to support the approach taken in the earlier Western Australian cases concerning s 689(3) of the Criminal Code (WA).[39]
[33] [2000] WASCA 154 at [6], [10] per Wallwork J.
[34] [2003] WASCA 197 at [38]-[39].
[35] [2005] WASCA 29 at [71] per Roberts-Smith JA.
[36] [2005] WASCA 117 at [56] per Roberts-Smith JA.
[37] [2002] WASCA 194 at [8].
[38] [2001] HCA 62; (2001) 207 CLR 121.
[39] Ibid at [9]; 126.
In Victoria, since 1997, the Court of Criminal Appeal has been empowered to quash a sentence and to remit the matter for re-sentencing without having first to form the view that a different sentence should have been passed.[40] Before 1997, it seems generally to have been accepted that s 568(4) of the Crimes Act 1958 (Vic) precluded the Court from quashing a sentence unless it was first satisfied that a different sentence should have been passed. In R v Henderson,[41] an appeal based on the appellant not having had an adequate opportunity to make submissions in mitigation prior to being sentenced, Winnecke CJ (with whom Hudson and Gillard JJ agreed) said of s 568(4):
[I]n the case of an appeal against sentence the powers of this Court are limited to those set out in s 568(4) of the Crimes Act 1958. That sub-section provides that: “On an appeal against sentence the Full Court shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed, and in any other case shall dismiss the appeal”. In our view, it is clear from those provisions that the power of this Court on such an appeal is limited to considering whether the Court thinks in the circumstances of the case that a different sentence should have been passed, and if that condition is satisfied, then the Court’s duty and power is to pass such other sentence in substitution therefor as it thinks should have been passed. In these circumstances the irregularity which occurred does not in our opinion of itself invalidate the sentence, but it does, we think, afford good ground for the application for leave to appeal against the sentence, and accordingly under s 567(d) the Court grants leave to appeal against the sentence.[42]
The approach taken in R v Palmieri[43] was to similar effect.
[40] Crimes Act 1958 (Vic) s 568(5).
[41] [1966] VR 41.
[42] Ibid at 43-4.
[43] [1998] 1 VR 486.
In R v Bishop[44] the Full Court was satisfied that the appellant had been denied procedural fairness during the sentencing process. Ormiston JA, with whom Charles JA and Harper AJA agreed, held that s 568(4) required, in those circumstances, that the Full Court “should determine whether a different sentence should be passed”.[45] As there was no power to remit the matter to the sentencing court, the Full Court then proceeded itself to determine that a different sentence should have been passed and to impose that sentence. It is not clear whether, had there been a power to remit, the Full Court would have exercised it without first determining that a different sentence should have been passed, or whether, without that intermediate step, it would have remitted the matter for re-sentencing. The express statement of Ormiston JA to the effect that s 568(4) required the Court to determine whether a different sentence should be passed suggests the former approach, but the position is not altogether clear.
[44] [1998] 1 VR 531.
[45] Ibid at 536 per Ormiston JA.
Thus, despite the difficulties caused by the insufficiency of the reasons in this case, my opinion is that the court must nevertheless determine whether the order for indefinite detention was appropriate. It cannot quash the order and then reconsider the matter itself, or remit the matter for a fresh consideration, without having first determined that question. If the court concludes that the order for indefinite detention was inappropriate, it should allow the appeal and quash the order. There would be no point to a remittal in those circumstances.

In these circumstances, the determination of the appeal is best achieved, in my opinion, by considering the exercise of the power to order indefinite detention. For this purpose, I will assume, without deciding, that the appellant was properly considered to be unwilling to control his sexual instincts.
The Exercise of the Power to Make the Order
The reasons of the judge do not contain any explanation for the exercise of the power to make the order. Having found that the appellant was unwilling in the requisite sense, the judge said simply “I therefore propose to grant the application”. This appears to indicate that the judge may have proceeded on the basis that the power to order indefinite detention should be exercised upon the court being satisfied about the appellant’s requisite incapacity or unwillingness. The judge does not appear to have considered, as a separate step whether the making of the order for indefinite detention was appropriate. Such a separate consideration was necessary.[46]
[46] McGarry v The Queen [2001] HCA 62 at [7]; (2001) 207 CLR 121 at 126, per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
In my opinion, once the judge had decided that a sentence of imprisonment of 15 years was appropriate, the utility of an order for indefinite detention needed to be considered. As already noted, a principal purpose of an order for indefinite detention is the protection of the public. While the appellant remains incarcerated under the sentence imposed by the judge, the community is protected from him. The order for indefinite detention does not presently enhance that protection. It will not operate in practice until the expiry of this term of imprisonment on 17 December 2019. The protective effect of the 15-year term of imprisonment should not be ignored as the following passage from Buckley v The Queen[47] makes plain:
In R v Leitch the New Zealand Court of Appeal said that, when considering the exercise of its discretion, a sentencing court “will ordinarily consider whether the protective purpose of preventative detention could reasonably be met by an available finite sentence of imprisonment”. Similarly, in the recent Victorian case of R v Davies, Charles and Nettle JJA said that, before answering the critical question whether the case was of such exceptional rarity that an indefinite sentence should be imposed, it was necessary first to consider what fixed term of imprisonment would have been appropriate. The Queensland legislation applied in the present case requires a judge to specify a nominal sentence, which becomes relevant for purposes of review and for the consequences of decisions made on review. The significance of the nominal sentence, however, goes beyond that. In the first place, where a judge, sentencing a dangerous offender, is deciding whether the protection of society requires an indefinite sentence, the protective effect of a finite sentence, fixed according to ordinary sentencing principles, including the need to protect the public, is a matter to be weighed carefully. An indefinite sentence is not merely another sentencing option. Much less is it a default option. It is exceptional, and the necessity for its application is to be considered in the light of the protective effect of a finite sentence. Second, the available finite sentence sets the time frame by reference to which the temporal issues earlier mentioned are to be examined.”[48] [Citations omitted] [Emphasis added].
[47] [2006] HCA 7 at [7]; (2006) 80 ALJR 605 at 607.
[48] Ibid at [7] and see also [42]; 607 and see also 612; R v Hatten [2007] QCA 46 at [14]-[16].
Another matter which bears upon the utility of the order is that an application for an order for indefinite detention under s 23 can be made by the Attorney‑General whilst the appellant is serving his sentence.[49] The future protection of the public does not require the matter to be addressed at this stage.
[49] See Sentencing Act s 23(2a).
While subject to an order for indefinite detention under the Sentencing Act, the progress and circumstances of an adult offender must be reviewed at least once every six months by the Parole Board (s 23(9)). The Parole Board must, following each review, provide a written report to the Minister for Correctional Services and to the offender (s 23(10)). Procedures of this kind are clearly appropriate when the order for indefinite detention is the only reason for the detention of the person in custody. They are less obviously appropriate for a person who is, independently of such an order, serving a lengthy term of imprisonment.
Although the principal purpose of an order for indefinite detention is the protection of society, another purpose is to ensure the offender receives appropriate treatment, review and supervision.[50] If the making of the order would secure for the appellant appropriate assistance to control his sexual instincts, that would be a factor indicating some present utility to the order. However, at least on the evidence in this case, that will not occur. Correspondence from the Rehabilitation Program Branch of the Department of Correctional Services indicates that, by reason of limited resources, sexual behaviour rehabilitation programs are directed to those who are close to the end of their sentence. While the order for indefinite detention stands, the appellant can never be in that category. The prospect that the appellant will receive any assistance in the control of his sexual instincts in the short to medium term whilst in prison therefore seems unlikely. In my opinion, there is a particular unfairness in the appellant being detained in custody indefinitely on the ground that he is unwilling to control his sexual instincts, yet, at the same time, being denied access to treatment which may address his lack of control.
[50] Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465.
For these reasons, I consider that, at the time of the sentencing, even if the appellant was properly found to be unwilling to control his sexual instincts, the power to order indefinite detention could not reasonably have been exercised in favour of making such an order.
I would allow the appeal and quash the order for indefinite detention.
This does not mean that an order for indefinite detention will never be appropriate when the court imposes a lengthy sentence of imprisonment. Much may depend upon the evidence before the court as to the utility of the order. This is likely to vary from case to case, and may depend in particular upon evidence about the offender’s psychiatric or psychological state, the effect of the order upon the offender, and the availability of therapeutic programs. In this case, the evidence did not indicate that the order had any present utility.
My conclusion also does not mean that an order for indefinite detention may never be appropriate in this case. As I have noted, s 23(2a) of the Sentencing Act provides that the Attorney-General may apply to have an offender dealt with under s 23 while he remains in prison serving his sentence of imprisonment. Any such application in the case of the present appellant will have to be addressed in the circumstances then pertaining.
Disposition of the Appeal
At the initial hearing of the appeal, neither party suggested that the quashing of the order for indefinite detention meant that the sentence of imprisonment for 15 years also had to be set aside.
Later, the court invited further submissions from the parties on two discrete issues. In the course of those further submissions, Mr Niarchos, for the appellant, submitted that if the court set aside the order for indefinite detention, it should also set aside the sentence imposed for the substantive offences, even though no appeal had been brought against that sentence. In this respect, Mr Niarchos referred to McGarry v The Queen; [51] Strong v The Queen;[52] and Dal v Western Australia[53] but did not develop the submission. Mr Brebner QC, who appeared for the DPP at the time of the making of further submissions, contended to the contrary, but also did not develop the submission.
[51] [2001] HCA 62 at [9]; (2001) 207 CLR 121 at 126 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
[52] [2005] HCA 30 at [25] and [29] per McHugh J and at [66]-[72] per Kirby J; (2005) 224 CLR 1 at 13-15, 26-28.
[53] [2006] WASCA 246 at [56]-[58] per Buss JA; (2006) 33 WAR 143 at 161-62.
In McGarry, the majority (Gleeson CJ, Gaudron, Hugh, Gummow and Hayne JJ) held that because the sentencing judge could make the order for indefinite imprisonment in addition to imposing a sentence for the substantive offence, the order for indefinite imprisonment was “a part of the sentence which is imposed (just as much as, in other cases, will be a parole eligibility order, or any orders suspending the imprisonment)”.[54] Later, it was said that the decision to make an order for indefinite imprisonment and the decision fixing the nominal sentence formed part of a single sentencing decision.[55] The majority then concluded:
It follows that if an appellate court concludes that the sentencing judge’s discretion miscarried in fixing the nominal term of imprisonment, the whole of the sentence imposed by the sentencing judge, including the order for indefinite imprisonment, should be set aside and the appellate court would then be obliged itself to re-sentence the offender.[56]
[54] [2001] HCA 62 at [7]; (2001) 207 CLR 121 at 126.
[55] Ibid at [8]; 126.
[56] Ibid at [9]; 126.
This reasoning was applied in Strong in the context of the Habitual Criminals Act 1957 (NSW).[57]
[57] Strong v The Queen [2005] HCA 30 at [11], [25]-[27] and [67]-[72]; (2005) 224 CLR 1 at 9, per Gleeson CJ, 13-14 per McHugh J and 27-8 per Kirby J.
The present case is the converse of the circumstances considered in McGarry and Strong in that, on the view I take of the disposition of the appeal, it is the order for indefinite detention which should be set aside. There are, however, indications in some of the judgments in McGarry and Strong that this difference may be immaterial and that the sentence for the substantive offences should also be set aside.
There are, however, in my opinion, material differences between the South Australian legislation and the legislation considered in McGarry and Strong. The Criminal Code (WA) does not contain any definition of the word “sentence” for the purpose of its appeal provisions. For the reasons earlier given, the definition of the word “sentence” in s 348 of the CLCA indicates, in my opinion, that an order for indefinite detention may be regarded as a separate sentence for the purposes of the appeal provisions in ss 352 and 353. Further, unlike the Western Australian and New South Wales positions, under s 23 of the Sentencing Act the order for indefinite detention need not be made at the time of initial sentencing. Subject to s 23(2b), the Attorney-General may, while the offender remains in prison serving a sentence of imprisonment, apply to have him or her dealt with under s 23. This may suggest that the provision in s 23(6) that an order for indefinite detention may be made “in addition to” the sentence for the substantive offence is a provision about the occasion when the power may be exercised, rather than an indication that the order is to be part of one sentencing decision.
The judge’s decision fixing the head sentence for the substantive offences could not have been (and was not) influenced by her decision to make an order for indefinite detention. Once the judge decided to impose a sentence of imprisonment for the substantive offences, that sentence had to be determined in the usual way and without reference to the possibility of an indefinite sentence also being imposed. There is no relationship between the two such that the setting aside of the order for indefinite detention impacts upon the sentence for the substantive offences. There is not the same relationship as there is, for example, between the fixing of a head sentence and the fixing of a non-parole period.
In many cases, of which the present seems to be one, no good purpose will be served by the quashing of the sentence of imprisonment for the substantive offences. Neither party in the present appeal suggested that the sentence of imprisonment for 15 years was inappropriate. However, if the sentence is quashed then either this Court would have to exercise the sentencing discretion afresh, or it would have to remit the matter for that purpose. In either event it would mean that the Court’s resources would be diverted unnecessarily. There is the public interest in the finality of the proceedings. If an offender, in circumstances such as the present, is re-sentenced following a remittal, the offender may be in jeopardy of receiving a more severe sentence than was the case originally. Sentencing judges can, of course, be expected to exercise restraint on re-sentencing, but it is possible for a more severe sentence to be imposed. The decision of this Court in R v Baltensperger[58] in an analogous context provides an example.
[58] [2006] SASC 246; (2006) 96 SASR 34.
The matters to which I have just referred, the related issue of whether an appeal against one element of a sentence puts the whole sentence in issue on appeal, as well as other issues related to them, were not addressed in counsels’ submissions. In my opinion, the Court should not express a concluded view about these issues without the benefit of detailed submissions from counsel. In those circumstances, although the position is not entirely satisfactory, I think it appropriate to proceed on the basis that the decisions in McGarry and Strong do not require the setting aside of the sentence for the substantive offences by reason only of the setting aside of the order for indefinite detention. The correctness of this approach may have to be reconsidered in a later appeal.
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 sentence
Section 23 of the Sentencing Act
There was a single sentencing decision made by the Judge on 28 June 2007 in respect of three “relevant offences” pursuant to s 23(6) of the Sentencing Act. The single sentencing decision consisted of the order for indeterminate detention as well as the sentence of imprisonment for 15 years and the failure to fix a non-parole period. Section 23(6) of the Sentencing Act provides for three options for sentencing: namely, a sentence of imprisonment; or a sentence of indeterminate detention;[59] or a combination of a sentence of imprisonment and indeterminate detention.[60] In this case the Judge chose the third of the available options.
[59] “Sentence of indeterminate detention”, Criminal Law (Sentencing) Act 1988 (SA) s 3.
[60] R v England (2004) 87 SASR 411; R v Armfield (2005) 155 A Crim R 299.
I note that pursuant to the Sentencing Act, being the Act under which the appellant was sentenced, the term “sentence” is defined under s 3 as follows:
sentence means—
(a)     the imposition of a penalty; or
(b)     the decision of a court to offer a defendant an opportunity to enter into a bond; or
(c)     the fixing, extending or negating of a non-parole period; or
(d)     the making of any other order or direction affecting penalty;
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.
This interpretation is generally consistent with the approach of the majority in McGarry v The Queen.[63] As the Court said there, dealing with similar although not identical legislation:
… the decision to make an order for indefinite imprisonment, and the decision fixing the nominal sentence, form part of a single sentencing decision.
Although their Honours’ observation is not conclusive on the interpretation in our legislation because they were dealing with different legislation, it is consistent with the approach which I take. The same can be said of the observations made in Strong v The Queen by Gleeson CJ,[64] McHugh J (dissenting),[65] Kirby J (dissenting)[66] and possibly by Callinan and Heydon JJ.[67] In Penny v Western Australia[68] these two decisions of the High Court were interpreted and applied in the manner in which I understand them.[69] A like approach was taken by the same Court in Dal v Western Australia (“Dal”).[70]
[63] (2001) 207 CLR 121, [8] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).
[64] (2005) 224 CLR 1, [11].
[65] Ibid, [25].
[66] Ibid, [66]–[72].
[67] Ibid, [129].
[68] (2006) 36 WAR 48.
[69] Ibid, [52]–[66].
[70] (2006) 33 WAR 143, [56]–[59].
In this case, whilst the order for indeterminate detention combined with the failure to set a non-parole period were the two critical elements which were the specific subject of appeal and not the 15 year sentence of imprisonment, the appeal necessarily raises the whole of the sentence imposed by the Judge as discussed above.
As his reasons indicate, White J takes the view that only the order under s 23(5) of the Sentencing Act is before the Court. His Honour’s interpretation leads to the conclusion that if error is found in the making of the order under s 23(5), and assuming that the appellant has not complained of the decision in relation to the head sentence and non-parole period, the Court would quash or set aside the order for indeterminate detention, leaving the head sentence and non-parole period standing as the final outcome.
Further, as White J also concludes that the indeterminate detention order should be set aside but that the non-parole period should be remitted for fixation, leaving the head sentence standing, the whole exercise in my respectful view, becomes a fragmented and potentially unjust exercise. The head sentence was imposed by the Judge in conjunction with an order for indeterminate detention. Potentially a different order in relation to imprisonment may have been imposed if the Judge had not also made an order for indeterminate detention.
Whilst I appreciate that the Attorney-General has power to make an application for an order for indeterminate detention after a person has been convicted and sentenced for the offending but is still in prison,[71] and indeed to reapply for an order,[72] that situation is different from the circumstances which have arisen in this case where a sentencing exercise has already been undertaken which involved the imposition of contemporaneous orders. Apart from potential arguments involving double jeopardy on any re‑application being made, it would not be open for the Judge considering a re‑application to make, for example, an order under s 23 for indeterminate detention instead of a sentence of imprisonment. These matters would, in my view, impose significant restraints on a court endeavouring to administer justice in the circumstances of this case.
[71] Section 23(2a), Criminal Law (Sentencing) Act 1988 (SA).
[72] Section 23(2b), Criminal Law (Sentencing) Act 1988 (SA).
To my mind these are practical considerations which support the view that I have expressed.
Importantly, on this point I also note that the fact that the sentence as a whole is brought before the Court on appeal does not, in my view, expose an appellant to a risk of an unexpected and unwanted increase in an aspect of the sentence not the subject of complaint. An appellant is protected against an increase in “the severity of the sentence” by the Court of Criminal Appeal by s 353(5) of the CLCA, which provides as follows:
The Full Court must not increase the severity of a sentence on an appeal by the convicted person except to extend the non-parole period where the Court passes a shorter sentence.
Any re-sentencing judge upon remittal would be expected to also abide by this requirement.
Powers of the appellate Court under s 353(4) of the CLCA
I agree with White J that the Judge’s reasons do not adequately explain the basis upon which the Judge found that Mr Ainsworth would, “given an opportunity to commit a relevant offence, fail to exercise appropriate control of his … sexual instincts”. In my respectful opinion the Judge has simply made ultimate findings using the words of the section without making findings on critical matters which underlie the criteria which must be satisfied before an order can be made. These deficiencies and the lack of appropriate findings are correctly identified in paragraphs [59]-[66] of the reasons of White J.
I agree with White J that the Judge needed to be satisfied that, and to explain why, it was appropriate to make the order in addition to imposing a sentence of imprisonment of 15 years. Likewise, in my view, the Judge needed to be satisfied that, and to explain why, it was appropriate not to fix a non-parole period.
I agree with White J that a failure to give adequate reasons for sentence does not of itself constitute a sufficient ground for setting aside a sentence. In this case there was, in my view, not simply an inadequacy of reasons, but a failure to make findings on critical underlying or intermediate issues upon which a Court should be satisfied before making the order for indeterminate detention in the circumstances of this case.[73]
[73] For example, Dal v Western Australia (2006) 33 WAR 143 discussed hereafter.
The powers of the Court in relation to appeals against sentence are contained in s 353 of the CLCA. For convenience I repeat the provisions of s 353(4):
(4)     Subject to subsection (5), on an appeal against sentence, the Full Court must—
(a)     if it thinks that a different sentence should have been passed—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
(ii)quash the sentence passed at the trial and remit the matter to the court of trial for resentencing; or
(b)     in any other case—dismiss the appeal.
As White J points out, on an appeal against sentence, this Court’s power to intervene is conditional on it being satisfied “that a different sentence should have been passed” (s 353(4)(a) of the CLCA). White J has also helpfully referred to a number of cases involving legislation in other States and the interpretation of various courts about the limitations of the powers of a court in relation to appeals against sentence. Those courts have interpreted legislation in which an appellate court was required to find not only that a “different sentence” or “some other sentence” should have been passed but, further, to “pass such other sentence in substitution”.[74] This combination meant that the appellate court was obliged to:
(a) be of the opinion that a different sentence should have been passed; and
(b) identify, in exact terms, the sentence which should be substituted for the earlier sentence.
[74] See R v Simpson (2001) 53 NSWLR 704 dealing with s 6(3) of the Criminal Appeal Act 1912 (NSW); R v Hughes [2004] 1 Qd R 541 dealing with s 688E(3) of Criminal Code Act 1899 (Qld); R v Van de Worp [2000] WASCA 154; White v The Queen [2003] WASCA 197; HAS v The Queen [2005] WASCA 29; Harvey v State of Western Australia [2005] WASCA 117; R v Anglesey [2002] WASCA 194 all dealing with s 689(3) of the Criminal Code (WA); R v Henderson [1966] VR 41; R v Palmieri [1998] 1 VR 486; R v Bishop [1998] 1 VR 531 all dealing with s 568(4) Crimes Act 1958 (Vic) before the 1997 amendment.
It is my opinion that this second step is not required where, in South Australia, the appellate court has been given an additional and optional power to remit the matter for re-sentencing. A remittal of “a matter for re-sentencing” gives broader scope to the powers of the appellate court, in particular where the appellate court is not in a position to be satisfied as to the sentence which should be substituted. In reaching the conclusion that a different sentence should have been passed by the sentencing judge, the appellate court may be satisfied that the sentence should not have been passed by reason of identified errors, but it is not thereby required to determine the exact sentence that should be imposed. If the appellate court has formulated an exact sentence which it considers should have been imposed in substitution, there would be little need to “remit the matter for re-sentencing”. The phrase “remit a matter for re-sentencing” is broad in its expression and should not, in my view, be interpreted in a restrictive manner.
Therefore, I consider that s 353(4) of the CLCA enables an appellate court to exercise the power to remit where it considers that the decision-making process of a sentencing judge is flawed such that the sentence should not have been passed. At that point the appellate court may either:
(a) substitute a different sentence from that which was imposed; or
(b)if it is unable to determine what sentence should be imposed by reason, for example, of the need for further evidence or the need for findings on certain issues, the matter can be remitted for re-sentencing.
This interpretation is in line with the reasoning in R v Bishop (“Bishop”),[75] where Ormiston JA[76] and Charles JA[77] remarked on the absence of such a power in the Victorian legislation. Ormiston JA noted that under s 568(4) of the Crimes Act 1958 (Vic), there was no power to remit the matter to the lower court for re‑sentence, after hearing all relevant evidence:[78]
Section 568(4) requires in these circumstances that this court should determine whether a different sentence should be passed. In the light of R v Palmieri [1998] 1 VR 486, there seems to be no power, surprisingly, to remit the matter to the lower court for re-sentence after hearing all relevant evidence. No argument was heard on this matter, but neither was any suggestion made that the conclusions reached in Palmieri were wrong. To my knowledge, there is no authority to suggest that there is power to remit when an appeal is allowed. Thus the court must take the unusual step of hearing the excluded evidence for itself and go through the relevant sentencing process after having heard that evidence. The power to hear evidence in exceptional cases is given by s 574 of the Crimes Act to this court, although it is rarely exercised: see, for example, R v Rostom [1996] 2 VR 97.
[75] [1998] 1 VR 531.
[76] Ibid, 536–37.
[77] Ibid, 537–38.
[78] Ibid, 536.
Similarly Charles JA observed:[79]
The absence of any power under s 568(4) of the Crimes Act 1958 to remit the matter for a fresh hearing (R v Webber (1996) 86 A Crim R 361 at 365; R v Palmieri [1998] 1 VR 486) made it necessary for this court to receive the evidence of Mr Bishop. I remain of the view that in exceptional circumstances (e.g. the very unusual case where a sentencing judge may be said to have denied a prisoner natural justice) it would be preferable for this court to have the power to remit a sentencing plea for hearing by the same or a different judge. Such a course could only be possible after an appropriate amendment of s 568(4).
[79] Ibid, 537-38.
Ormiston JA had previously concluded that there had been:[80]
… a denial of natural justice in the sentencing process and it must now be put right.
[80] Ibid, 536.
Both judges in Bishop appeared to contemplate that, had the legislation permitted the matter to be remitted, they would have allowed the appeal and remitted the matter for resentencing. Instead, because there was no power to remit the matter for re-sentencing, the Court of Appeal went on to hear the evidence and determine the sentence for itself.
In Dal,[81] the circumstances before the Court of Appeal closely resembled the circumstances in this case. The Court was considering the imposition by a sentencing judge of a fixed period of imprisonment and an order for indefinite detention. The Court of Appeal concluded that the sentencing judge had made errors of law as a result of the failure to make critical findings of fact, and to take those findings into account, when exercising a power to order that an offender be imprisoned indefinitely.
[81] (2006) 33 WAR 143.
The relevant legislation contained similar powers as expressed in our legislation.
Section 31 of the Criminal Appeals Act 2004 (WA) provides, relevantly:
(1)This section applies in the case of an appeal commenced by an offender under section 23, … against —
(a) the sentence imposed or any order made as a result of —
(i) a conviction on indictment; or
… ;
(3)Unless under subsection (4) the Court of Appeal allows the appeal, it must dismiss the appeal.
(4) The Court of Appeal may allow the appeal if, in its opinion —
(a)in the case of an appeal referred to in subsection (1)(a), a different sentence should have been imposed; or
…
(5)If the Court of Appeal allows an appeal referred to in subsection (1)(a), it must set aside the sentence and —
(a)may instead impose a new sentence that is either more or less severe; or
(b)may send the charge back to the court that imposed the sentence to be dealt with further.
It can be seen that, similar to the South Australian legislation, there was a power to remit a matter for sentencing if the Court was of the opinion that a “different sentence should have been imposed”.
The Court in Dal decided that the sentencing judge should not have made the order for indefinite imprisonment.[82] The Court then decided that it was not appropriate for it to re-sentence the appellant, on the basis that the material necessary for the Court to re‑sentence was not before the Court. Instead, the Court held that the matter should be remitted to the learned sentencing judge for that purpose.[83] I emphasise at this point that in Dal the Court’s power was emanating from s 31 of the Criminal Appeals Act 2004 (WA) rather than the limited s 689(3) of the Criminal Code (WA) which does not have the power of remittal.
[82] (2006) 33 WAR 143, [57].
[83] Ibid, [59].
I also note that the Court in Dal did not conclude that an order for indeterminate detention could not be made on the evidence, but simply that the sentence should not have been passed because of the absence of necessary and appropriate findings. Without expressly specifying it, the Court inferentially concluded that a different sentence should have been passed, namely that no order for indefinite imprisonment should have been made. In remitting the matter for re‑sentencing, the Court appears to have accepted, as a possibility, that upon proper findings being made, the ultimate decision might be to make an order for indefinite imprisonment. In addition, as I have previously noted, the Court also took the view that it should set aside the whole of the sentencing decision consisting of both the fixed terms of imprisonment and the indefinite imprisonment.[84]
[84] Ibid, [58].
Applying a similar approach to the Court of Appeal in Dal, I consider that the findings and reasons of the Judge were inadequate and the lack of appropriate findings do not sustain the order for indeterminate detention. In my view, therefore, a different sentence should have been passed, namely no order for indeterminate detention should have been made.
In this case it is not appropriate for this Court to substitute another sentence pursuant to the provisions of s 353(4)(a)(i). This case is likely to require further evidence and determination and assessment of a number of factual issues. Instead, I consider that the appropriate order is to quash the sentence and remit the matter to a judge of the Supreme Court for re‑sentencing pursuant to s 353(4)(a)(ii) of the CLCA.
It also follows, in my view, that in the process of re-sentencing, another sentencing judge may conclude, after giving full consideration to the evidence and making the requisite findings, that an order for indeterminate detention would indeed be appropriate for the appellant. There was material before the Judge which potentially could have justified an order for indeterminate detention, if there had been appropriate findings and reasons. I therefore do not agree with the approach taken by White J that the order for indeterminate detention should be set aside and thereby be removed from being considered by a judge upon such a re-sentencing.
The order for indefinite detention should be set aside
I agree with White J that the Judge’s finding that Mr Ainsworth was unwilling to control his sexual instincts should not lead inevitably to a conclusion that an order should be made under s 23(5) of the Sentencing Act.
I also agree with White J that the reasons of the Judge do not contain any explanation for the exercise of the power to order indeterminate detention. I endorse his Honour’s observations that utility is an important factor, particularly if a long sentence of imprisonment is also being considered. His reasoning is powerful. However, in my view, the consideration of utility does not mean that the combination of a long-term period of imprisonment as well as the indeterminate order for detention in this case should lead this Court to set aside the order. Instead, for reasons previously expressed, I consider that the order for indeterminate detention should not have been made, but not simply because a 15 year imprisonment sentence was imposed at the same time. I recognise that such a combination of orders may be appropriate in this case so as to impose fitting punishment for the appellant’s offending and to appropriately protect the community in the future. These considerations would be for a judge on re-sentencing.
Additional reasons
I now turn to additional reasons which reinforce my view that a different sentence should have been passed and that the sentence should be quashed and remitted. These additional reasons concern the effect on the appellant of the whole of the sentence imposed by the Judge, which includes not only the order, but the sentence of imprisonment and in particular the failure to fix a non-parole period.

I commence with s 23(6) of the Sentencing Act. It is apparent from the alternative types of sentencing provided within that section, that a court is required to determine which of the options it considers appropriate in the given circumstances. The orders are required to be fashioned having regard ultimately to the protection of the community; but at the same time the interests of the offender should not be ignored, given that the nature of the order is detention for an indeterminate period. There is statutory recognition of the interests of the offender in relation to orders of indeterminate detention, as expressly reflected in s 23(12)(b) of the Sentencing Act which provides:
The Supreme Court may not discharge an order for detention under this section unless -
(a) …
(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 observations of Bleby J in R v England are also apposite: [85]
In doing so, [making a declaration in relation to an order for indeterminate detention] the Court will need to take account of the seriousness of the declaration it is asked to make and the gravity of the consequences of giving the direction.
[85] R v England (2004) 87 SASR 411, [56].
In this case, the appellant did not appeal in relation to the length of the sentence of imprisonment. However, the appellant did appeal against the failure of the Judge to set a non-parole period, although the argument was put somewhat faintly given that the prime focus of the appeal was on the order for indeterminate detention.
In relation to the non-parole period, the Judge stated:[86]
I therefore order that you be detained until further order, such period of detention to commence at the expiration of the sentence I have just imposed. In view of that order I consider that it is inappropriate to fix a non-parole period and that question will be adjourned to a date to be fixed. [Emphasis added]
Further, the Judge referred to:[87]
…some positive signs with respect to your rehabilitation. I hope that while in prison you will receive some treatment to assist you in addressing the various problems which have brought you to this situation … [I]f you continue to make good progress with your rehabilitation, it should be possible for the s. 23 order to be discharged in the not too distant future in which case the court would be in a position to fix an appropriate non-parole period with respect to the sentence I have just imposed. [Emphasis added]
[86] Sentencing Remarks of Nyland J dated 28 June 2007, 13.
[87] Ibid, 13-14.
In the passages emphasised, the Judge in not adjourning the question of fixing a non-parole period, instead appears to have assumed four things. First, that the making of an indeterminate detention order automatically meant that it was thereby inappropriate to fix a non-parole period. Second, that a non-parole period could be fixed before the period of the sentence of imprisonment had expired. Third, that the order for indeterminate detention could be discharged prior to the expiration of the sentence of imprisonment. Fourth, that the appellant would receive treatment whilst in prison to assist with rehabilitation and the potential discharge of the order within the period of imprisonment.
In relation to the fourth assumption, the appellant’s counsel submitted that there was no real evidence or insufficient evidence before the Judge as to the availability of treatment for the appellant. Instead, the approach taken by the Judge to defer the fixing of a non-parole period appears to have assumed the availability of treatment as a consequence of the order for indeterminate detention having been made. As a result, the failure to set a non-parole period has inadvertently had a significant adverse effect on the appellant. Information which was placed before this Court, being a letter from the Rehabilitation Program Branch of the Department for Correctional Services dated 20 July 2007, indicated the limitations of the sexual rehabilitation programs and that programs were directed to those close to release. This was the same problem adverted to by Gray J in R v Armfield.[88]
[88] (2005) 155 A Crim R 299, [100]-[103].
On the information before this Court, the treatment of this appellant will not commence until he is due to be released from imprisonment. Therefore, in the absence of a non-parole period, that will not occur until the approach of the end of his 15 year imprisonment period. In real terms, the likely outcome would be that the appellant would have to serve the whole of the 15 year period of imprisonment before there would be any real chance of getting appropriate treatment to enable him to be released from indefinite detention. Hence, this points to the importance of the failure to fix a non-parole period.
This information also affects the second and third assumptions made by the Judge. Further, I note that s 23(7) of the Sentencing Act relevantly provides that the “detention is to commence on the expiration of the term of imprisonment”. Absent a non-parole period being set, detention will not commence until the appellant has completed his 15-year sentence of imprisonment.
Judges in this Court have previously recognised that the availability and provision of treatment regimes and rehabilitation is not simply an administrative matter to be dealt with outside the court sentencing process, but is a relevant consideration in assessing the approach to be taken in relation to sentencing.
In R v England Bleby J indicated:[89]
… consideration, among other things, of the defendant’s access to and the likely effect of various regimes of treatment, and whether they can be effected in the present setting or in some other institution contemplated by the section.
[89] (2004) 87 SASR 411, [56].
Gray J also appropriately observed in R v Armfield:[90]
Counsel for the Crown submitted that these matters were to be considered by the Department for Correctional Services and the executive branch of government rather than the courts.
Although the provision of resources at correctional institutions can be described as an administrative matter, the practicalities of Mr Armfield’s likelihood to receive treatment and rehabilitation while in custody are relevant matters to consider when sentencing.
[90] (2005) 155 A Crim R 299, 323 [102]-[103].
Power to set a non-parole period
In the course of argument about the effect of the failure to fix a non-parole period, an issue arose as to whether a court had power to impose a non-parole period in respect of a person upon whom an order for indeterminate detention was also being made at the same time as a sentence of imprisonment. Counsel for the DPP made submissions, which he understandably indicated he had not had the opportunity to fully consider. In effect, he submitted that s 32(8) of the Sentencing Act prevented a non-parole period being set in relation to the appellant in this case.
Section 32(8) provides:
32—Duty of court to fix or extend non-parole periods
…
(8)This section does not apply in relation to a person who is serving, or is liable to serve, a sentence of indeterminate duration.
In interpreting the meaning of sub-section (8), it is necessary to place it in its statutory context.
Division 2 of Part 3 of the Sentencing Act empowers a court to fix non-parole periods in relation to sentences of imprisonment.
Section 32(1)(a) provides the starting point:
32—Duty of court to fix or extend non-parole periods
(1)Subject to this section, where a court, on convicting a person of an offence, sentences the person to imprisonment, the court must—
(a)if the person is not subject to an existing non-parole period—fix a non-parole period;
This sub-section indicates that the fixing of a non-parole period is a mandatory duty of the court. The sub-sections that follow contain certain modifications and qualifications in relation to this duty.
Sub-sections 32(2), (3) and (4) modify the application of non-parole periods in circumstances such as where there are pre-existing offences or offences committed during a period of release on parole.
Sub-section 32(5) contains qualifications to non-parole periods where persons are sentenced to life imprisonment or serious offences in which there is a mandatory minimum non-parole period.
Section 32(5)(c) also provides that a court may decline to fix a non-parole period if it would be inappropriate by reason of named circumstances, specifically:
… if the court is of the opinion that it would be inappropriate to fix such a period because of—
(i)    the gravity of the offence or the circumstances surrounding the offence; or
(ii)    the criminal record of the person; or
(iii)     the behaviour of the person during any previous period of release on parole or conditional release; or
(iv)     any other circumstance.
There is no reference to indeterminate detention in s 32(5)(c).
The DPP’s submission was that the express wording of s 32(8) meant that none of the sub-sections in s 32 applied. That is, the power of a court to fix a non-parole period did not apply in relation to a person who is serving or liable to serve a sentence of indeterminate duration. In this case it would mean that a non-parole period could not be set.
If the DPP’s contention is correct, it has some anomalous consequences. For example, if a person has already been convicted and sentenced to imprisonment prior to an application being made for a declaration pursuant to s 23, then such sentence would already include a non-parole period under s 32(1)(a). Therefore, if a sentence of indeterminate detention is subsequently made, s 23(7) would result in the detention commencing from the expiration of the term of imprisonment, namely, at the end of the non-parole period. This would enable such a person to access treatment and the rehabilitation processes prior to the completion of the head sentence. However, such an outcome would not be possible if the DPP is correct in his contentions in relation to the application of s 23(6).
A further anomaly is that s 32(8) of the Sentencing Act only refers to the circumstance in which a person “is serving or is liable to serve a sentence of indeterminate duration”. The provisions of s 23(6) of the Sentencing Act, as previously discussed, provide for three options, one of which is a sentence of imprisonment standing alone, in which the court would be required to fix a non-parole period. However, if a court decided to impose a sentence of imprisonment together with an order for indeterminate detention, then a non-parole period could not be set in relation to the sentence of imprisonment.
In my view these anomalies and discriminatory effects were not the intendment of Parliament. An alternative reading of s 32(8) is that the words “this section does not apply” indicates that the mandatory duty of a court to set or fix a non-parole period as provided in the section, does not apply where a person is serving or is liable to serve a sentence of indeterminate duration, but instead it is discretionary.
This interpretation would not be inconsistent with the approach taken by Gray J in R v Armfield,[91] although the argument concerning the power of the Court to fix a non-parole period was not before him. Gray J observed that:[92]
It appears to be contrary to the rationale behind s 23 for the Court to make an order for indeterminate detention whilst at the same time expressing a view as to when the defendant may be able to be released into the community.
[91] R v Armfield (2005) 155 A Crim R 299.
[92] Ibid, 323 [104].
At the same time, his Honour recognised that the fixing of a non-parole period was not necessarily excluded where an order for indeterminate detention was also made and it was dependent on the assessment of the offender’s rehabilitation prospects (my wording).[93] Gray J decided that in the circumstances of the case before him, it was not appropriate to fix a non-parole period.[94]
[93] Ibid, 323 [105].
[94] Ibid.
I do not consider that the combination of making an order for indeterminate detention and at the same time fixing a period of non-parole in relation to the sentence of imprisonment is inherently contradictory. I recognise that there is a tension between the need for a court to be satisfied that an offender is incapable of controlling or unwilling to control his or her sexual instincts and at the same time setting a non-parole period which is dependent on the prospects of rehabilitation. Nevertheless, there are important principles and freedoms at stake. The object of an order for detention is not to penalise the offender, but to provide an avenue for treatment and protection of the community.[95] The object of imprisonment is a fusion of elements of retribution and deterrence. The two have different aims. A sentence of imprisonment is usually accompanied by fixing a non-parole period, as discussed above. To exclude the offender from having an opportunity of being released on parole because of an order being made which is designed to enable him to have treatment is a contradiction of outcome. In circumstances such as this, it can result in injustice to the offender. It is important to note that the public is appropriately protected at the end of the non-parole period as the detention order commences at that point and remains in place unless discharged or an offender is released on licence.
[95] Ibid, 307 [36].
There are some parallels to be drawn from the discussion of the High Court Queens Bench Division in Wells v The Parole Board and the Secretary of the State for the Justice.[96]
[96] [2007] EWHC 1835.
The High Court in that case considered the situation of two prisoners, both of whom were “short tariff lifers”. One of the prisoners was also an IPP, being the accepted acronym for imprisonment for public protection, that is imprisonment for an indeterminate period. The issue before their Lordships was whether the inability of the prisoners to access treatment programs because of scarce resources could appropriately be the subject of judicial review. The answer was in the affirmative. In the course of the reasoning of Lord Justice Laws, with whom Mr Justice Mitting concurred, the Court was highly critical of the failure by the Secretary of State to ensure that treatment initiatives were available to short tariff lifers. The Court concluded that the failure to make such programs available meant that short-term lifers would be unable:[97]
… to maximise the opportunity … to demonstrate they were no longer a danger to the public by the time their tariff expired or as soon as possible thereafter …
[97] [2007] EWHC 1835, [26], [29].
Further, their Lordships pertinently noted the incongruity of providing for a review process in such circumstances as: [98]
…the process of review is a meaningless one. It is like asking how many miles an army has marched through the night where there are no orders for it to march at all.
Their Lordships concluded:[99]
Thus the existence of measures to allow and encourage the IPP prisoner to progress is as inherent in the justification for his continued detention as are the Parole Board reviews themselves; and without them that detention falls to be condemned as unlawful as surely as if there were no such reviews.
[98] Ibid, [49].
[99] Ibid.
These observations by the Court were in a context in which the legislation obliged courts to set a minimum tariff in relation to lifers. That protection is not available to those who are sentenced to indeterminate detention in South Australia. The approach required of English courts in setting a minimum tariff would not be dissimilar to the approach which would be required of a court in this State setting a non-parole period with regard to imprisonment in the context of also making an order for indeterminate detention. Having said that, however, the analogy cannot be taken too far.
Returning to the present case, the Judge made specific note of the appellant’s progress with some positive signs in respect of his rehabilitation. Such an observation would be relevant to the exercise of the discretion to fix a non-parole period, apart from the consequences of the failure to fix one in this case, as discussed above.
In conclusion, I consider that the overall effect of the order made by the trial Judge for indeterminate detention, together with the 15 year imprisonment sentence with no parole period means that, in my view, a different sentence should have been passed. As a consequence, I am fortified in my view that a different sentence should have been passed and that the sentence should be quashed and the matter remitted for re-sentencing upon all aspects of the sentence.