R v Armfield - [2005] SASC 108

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v ARMFIELD
Judgment of The Honourable Justice Gray
24 March 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - MISCELLANEOUS MATTERS - SEX OFFENDERS INCAPABLE OF CONTROLLING SEXUAL INSTINCTS
Defendant pleaded guilty to one count of unlawfully on premises, two counts of indecent assault, two counts of housebreaking and entering with intent to commit an offence, six counts of rape, one count of aggravated serious criminal trespass in a place of residence, one count of assault with intent to rape, and one count of attempted aggravated serious criminal trespass in a place of residence.
Crown application for order for indeterminate detention pursuant to section 23(5) of the Criminal Law (Sentencing) Act 1998 (SA) that defendant incapable of controlling his sexual instincts.
Consideration of circumstances and nature of offending - defendant as 'sexual predator' - offending of a serious nature - offending occurred in victims' homes - some offending involved physical threats - consideration of defendant's criminal antecedents - history of sexual offending - consideration of defendant's personal antecedents.
Discussion of statutory scheme - section 23 Criminal Law (Sentencing) Act 1998 (SA) - consideration of rationale behind orders for indeterminate detention - consideration of need to protect community and provide offender with treatment - inquiry by medical experts required before order for indeterminate detention can be made - consideration of expert evidence - experts of the opinion that defendant incapable of controlling his sexual instincts - consideration of defendant's level of risk to community - high risk of reoffending in a sexual manner - consideration of meaning of 'mental condition' - consideration of possibility of review of order for indeterminate detention following appropriate treatment.
Held - defendant incapable of controlling his sexual instincts - order for indeterminate detention.
Defendant sentenced - discussion of prospects for rehabilitation and sexual offenders rehabilitation programs - consideration of gravity of offending and devastation of victims - consideration of guilty pleas, contrition and remorse - consideration of defendant's co-operation with investigating authorities - consideration of principle of totality - account taken of breach of bonds - held - not appropriate to impose non parole period.
Summary Offences Act 1953 (SA) s 17(1); Criminal Law (Consolidation) Act 1935 (SA) s 48, s 56, s 170(2), s 269C, s 270A and s 270B; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 18A and s 23, referred to.
R v England (2004) 87 SASR 411; Veen v R (1979) 143 CLR 458; The Queen v Kiltie (1986) 41 SASR 52; R v England [2004] SASC 254; R v O'Shea (1982) 31 SASR 129; Fardon v Attorney-General of State of Queensland (2004) 210 ALR 50; R v O'Shea (No 2) (1997) 193 LSJA 286; O'Shea v DPP (1998) 71 SASR 109; R v Simpson (2004) 89 SASR 515; R v Ryan (2001) ALR 193; R v Malvaso (1989) 168 CLR 227; R v Golding (1980) 24 SASR 161; R v Proom (2003) 85 SASR 120; Walter (1994) 178 LSJS 271; Symonds [1999] SASC 217 at [21]; Skrjanc v R (1994) 71 A Crim R 347; R v Major (1998) 70 SASR 488; R v Kelly [2000] SASC 293; R v Elliot (2004) 89 SASR 515; R v Power [2003] SASC 288; R v Elliot [2001] SASC 101, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Incapable of controlling sexual instincts;
Mental condition;
Indeterminate detention."

R v ARMFIELD
[2005] SASC 108
Criminal
GRAY J
Introduction

On 1 April 2003 Thomas John Armfield pleaded guilty in the District Court to one count of unlawfully on premises,[1] two counts of indecent assault,[2] two counts of housebreaking and entering with intent to commit an offence,[3] six counts of rape,[4] one count of aggravated serious criminal trespass in a place of residence,[5] one count of assault with intent to rape,[6] and one count of attempted aggravated serious criminal trespass in a place of residence.[7]
[1] Section 17(1) of the Summary Offences Act 1953
[2] Section 56 of the Criminal Law (Consolidation) Act 1935
[3] Section 170(2) of the Criminal Law (Consolidation) Act 1935
[4] Section 48 of the Criminal Law (Consolidation) Act 1935
[5] Section 170(2) of the Criminal Law (Consolidation) Act 1935
[6] Section 270B of the Criminal Law (Consolidation) Act 1935
[7] Section 170(2) and Section 270A of the Criminal Law (Consolidation) Act 1935
On 16 June 2003 the Crown made application to a Judge of the District Court pursuant to the Criminal Law (Sentencing) Act 1988 (SA) to have Mr Armfield remanded for sentence before the Supreme Court. Section 23 relevantly provides:
(2)Where a defendant is convicted of an offence to which this section applies by the District Court or the Magistrates Court, the court may, if of the opinion that the powers under this section should be exercised in relation to the defendant, remand the defendant in custody or on bail to appear for sentence before the Supreme Court.
(3)     The Supreme Court may, in relation to—
(a)     a defendant convicted of an offence to which this section applies by the Court; or
(b)     a defendant remanded to appear for sentence before the Court pursuant to subsection (2),
before determining sentence, direct that at least two legally qualified medical practitioners, specified by the Court, inquire into the defendant's mental condition and report to the Court as to whether the defendant is incapable of controlling his or her sexual instincts.
…
The application was granted. The matter proceeded before the Supreme Court pursuant to section 23.
As will be discussed in detail in these reasons, section 23 of the Sentencing Act provides a statutory regime for dealing with offenders alleged to be incapable of controlling their sexual instincts.
Circumstances of the Offences[8]
[8] With the consent of counsel for Mr Armfield, counsel for the Crown tendered a summary of factual allegations describing the circumstances of Mr Armfield’s offending.
The offending the subject of the charges involved a course of conduct that continued between November 1997 and January 2002. Nine victims were involved. All were strangers to Mr Armfield.
The offence of unlawfully entering premises occurred at 9.30pm on 21 November 1997. Mr Armfield entered the home of the victim while she was in the shower. The bathroom door was open. Mr Armfield put his head around the corner of the door. The victim screamed for help and grabbed for a towel. Mr Armfield backed up into a spare room next to the bathroom. The victim managed to run to a neighbour for help. The police were then called.
The offending the subject of the first indecent assault charge occurred at 8.55am on 9 March 1998. The victim was home asleep in bed. She awoke to find Mr Armfield touching her on her stomach towards her vaginal area. Shortly after the victim awoke, Mr Armfield left the premises.
The offending the subject of the first housebreaking charges occurred on 9 March 1998. During the afternoon of 9 March 1998 the victim heard noises outside and saw a male person on the opposite side of the road, who was looking directly at her. The victim went to bed at around 11.50pm. She awoke and saw Mr Armfield at the foot of her bed. She screamed and told him to leave. She thought it was the same man she had seen earlier that day. Mr Armfield ran from the flat.
This victim was also the victim of the second indecent assault occurring on 5 May 1998. Mr Armfield had arrived at the victim’s home between 11pm and 2am. She awoke to hear someone at the front door. Mr Armfield then fled but returned around 6.30am the following morning. The victim was in the shower when she saw Mr Armfield’s arm under the water. He grabbed her breast and touched her waist. He then left the premises through the bathroom window.
The offending the subject of the other housebreaking charges occurred on 26 March 1998. The victim observed Mr Armfield looking towards her lounge window and ducking his head around the wall. The victim yelled to Mr Armfield to “go away”. Mr Armfield turned and ran away.
The offending the subject of the first count of rape occurred on 7 April 1998. The victim was 22 years old at the time and lived with her three daughters aged five, three and one. Prior to the incident the subject of this rape charge, the victim made reports of various incidents involving house-break and the removal of windows and the stealing of clothes. The victim saw Mr Armfield in the proximity of her home on a number of occasions. On the night of the offending, the victim was asleep. Her two eldest children were in bed with her. She awoke to find Mr Armfield repeatedly inserting his fingers into her vagina. The two children were on either side of her. She attempted to remain calm and told Mr Armfield to stop. She begged him not to hurt her in front of the children. Mr Armfield and the victim moved out of the bedroom. Once in the kitchen, Mr Armfield squeezed the victim’s breast. He then ran off. The victim contacted the police immediately.
The offending the subject of another two of the rape charges occurred on 9 June 1998. The victim of this offending was aged 72 years. She was alone in her bed. She awoke to find Mr Armfield on top of her. He put his hand on her breast, instructed her to roll over and then inserted his fingers into her vagina. After the digital rape, Mr Armfield told the victim to get out of bed and kneel down. The victim complied. Mr Armfield made the victim perform an act of fellatio upon him. Mr Armfield did not ejaculate. He then left. The victim telephoned a friend immediately.
The offending the subject of the fourth rape charge occurred at about 6am on 12 February 2000. The 20-year-old victim lived with her young daughter. She awoke to find Mr Armfield at the side of her bed, inserting one or more of his fingers inside her vagina. The victim yelled loudly at Mr Armfield. He ran from the house.
The offending the subject of the final two rape charges occurred on 12 September 2000. The victim of this offending was 18 years old. She lived in a flat with a female friend and was intoxicated at the time. At about 2am she left her flat wearing her pyjamas and walked a short distance down the street to make a telephone call from a public telephone. She made the telephone call and hung up. Mr Armfield grabbed her from behind, put his hand over her mouth and the other around her throat and threatened to kill her if she screamed. Mr Armfield forced the victim into a nearby alleyway. He pushed the victim up against the wall, facing the wall with her feet apart. He pulled down her pants and inserted his finger into her vagina. After this act of digital rape, Mr Armfield instructed the victim to “suck me off and I’ll let you go”. He pushed the victim’s head towards the ground and forced his penis into her mouth so that she gagged. He ejaculated in her mouth. A delivery truck entered the alleyway. The truck driver stopped to see if the victim needed help. The victim replied, “No, I am just going home.” She then went home and informed her friends that she had been raped. The police were notified thereafter.
The offending the subject of the charge of aggravated serious criminal trespass in a place of residence and assault with intent to rape occurred at about 1.30am on 24 September 2001. The victim was asleep in her bedroom on the top floor of a two-storey house. Her eight-year-old daughter was asleep in the next room. The victim heard a noise and saw Mr Armfield walk up the stairs and into her bedroom. The victim sat up and asked him what he wanted. Mr Armfield told her that he had a knife and was going to kill her. The victim screamed for help.
The offending the subject of the charge of assault with intent to rape then occurred. Mr Armfield placed one hand on the victim’s shoulder and the other on her wrist and attempted to put her down onto the bed. The victim struggled and managed to bite his hand. Mr Armfield then appeared to change his mind and ran down the stairs and out of the house.
The offending the subject of the charge of attempted aggravated serious criminal trespass in a place of residence occurred at about 1.00am on 25 January 2002. The victim was a single mother of three children. She was asleep on the lounge. She had been released from hospital the previous day and was feeling the effects of the general anaesthetic. She awoke to see Mr Armfield pulling himself through the lounge room window. The victim shouted, “What do you think you are doing?” and walked towards him. Mr Armfield pushed himself back out of the window and ran off.
Nature of Offending
It is clear from the material before the Court that Mr Armfield’s offending was of a most serious nature. The Crown submitted that Mr Armfield’s behaviour could be described as that of a “sexual predator” who over many years took whatever opportunities he could to satisfy his sexual urges. Mr Armfield attacked women in their homes. He “stalked” women. He watched them shower and undress. He broke into their homes and assaulted and raped them. He attacked women of all ages, from teenagers to those in their seventies.
The victim impact statements received and read in Court powerfully described the gravity of Mr Armfield’s offending and the impact that his behaviour has had on his victims’ and their families’ lives. Mr Armfield violated the victims in their own homes. He physically harmed some of them.
As earlier observed, Mr Armfield digitally raped one victim in her bed where she had been sleeping with her two young children. In her victim impact statement she said:
At the time I was a single mother of three young children, two of which were present at the time I was hurt they were asleep in my bed. My eldest daughter still remembers that night as though it was only yesterday and has suffered from nightmares ever since she still sleeps with the light on and still needs someone in her room for security. I wish that I could take all of her suffering away, no matter how much reassurance she is given her fears are terrifying for her.
Not only did she witness the crime she watched me for years trying to deal with what happened. ... As before Thomas Armfield entered our lives [my children had a fun] loving happy mother and then there was nothing, I was a broken person I was a nobody I could barely look after myself let alone three young children, I suffered severe depression for a long time and there a was a time that I thought that the only way for me to get on with life was to have a lobotomy for all the memories to just be cut out of my head permanently, I was tired as I would sit up all night too scared to sleep just in case, I would just lay there listening for noises footsteps and to stop the nightmares.
Many victims have undergone substantial life style changes in an effort to regain the sense of personal security that Mr Armfield’s invasion into their lives destroyed. One victim said:
The changes I have had to make to my life are still on going to this day. Since the attack I have never been able to spend a night on my own, in my own house. This has meant the inconvenience of taking in boarders over the years to ensure there was always someone with me. On the nights the boarders weren’t there I would have to stay elsewhere or drive around until they returned home.
For a large majority of the past four years, I had to make sure I returned home in daylight to ensure I could be safely locked inside before darkness. Just walking from the car to the door at night is still something I have trouble with. I became compulsive about locking doors and windows, this alone consumed a lot of my time. As well as the doors and windows, for months after the attack I would barricade myself and my daughter in my bedroom at night, just to be able to sleep.
Uncharged Conduct
In addition to the offending outlined above, Mr Armfield was initially charged over a number of incidents of sexual assault on his stepdaughter. These charges were not pursued and their circumstances were not accepted by counsel for Mr Armfield. However, during his interview with psychologists Dr Bamboyne and Ms Yates, Mr Armfield spoke about an incident involving his stepdaughter in 2001. He said that he remembered “attacking her like any other woman” but could not recall details of the incident. Mr Armfield said that at the time he was at the point of a “nervous breakdown”. This uncharged conduct has no relevance to the sentence to be imposed. However, it is a relevant aspect of the accused’s general history when addressing the section 23 application.
Criminal Antecedents
Mr Armfield has a long history of criminal offending. His offending began in 1982 when he was a teenager and primarily involved offences of dishonesty including burglary, break and enter, illegal use of motor vehicle and shoplifting.
From around 1990 Mr Armfield’s offending behaviour became voyeuristic and of a sexual nature. This initially involved indecent behaviour. On one occasion Mr Armfield exposed himself to a 15-year-old victim at a bus stop and on another occasion Mr Armfield touched a female victim’s buttocks and exposed himself while sitting opposite her on a train. His other offences have included indecent assault and numerous counts of unlawfully on premises and damaging property.
Mr Armfield has a prior history of sexual offending and indecent behaviour. On 7 March 1989, Mr Armfield was convicted of a peep and pry offence and sentenced to three months’ hard labour. On 9 June 1992, Mr Armfield was convicted of indecent behaviour and sentenced to two months’ imprisonment suspended on his entry into an 18 month good behaviour bond. Mr Armfield was convicted of two further counts of indecent behaviour in February and March 1994. In respect of this offending, Mr Armfield was sentenced to 150 hours community service and fined $300.
In May 1994 Mr Armfield was convicted of the offence of indecent assault and a suspended term of imprisonment of nine months was imposed. In December 1994 a sentence of two years was imposed for the offence of assault occasioning actual bodily harm. In 1995, 1997, 2001 and 2002, Mr Armfield was sentenced to terms of imprisonment with some of the terms being suspended. These sentences related to offences of being unlawfully on premises and non aggravated serious criminal trespass.
Personal Antecedents
Mr Armfield was born in New South Wales, the third of five children. His parents separated when he was around twelve years of age. His two brothers are deceased: the elder died while in prison and the younger when he was nine years of age following meningitis.
Mr Armfield’s early childhood was punctuated by incidents of sexual abuse and violence. He recalls being sexually abused as a young boy by a woman he believes to have been a baby sitter, and he reported being sexually abused by his stepmother’s brother from the age of 3 to 15. Mr Armfield had a positive relationship with his father, but described his mother as an “emotional and volatile” woman who frequently physically abused him and his siblings.
Mr Armfield enjoyed his schooling but left during Year 10 after obtaining an apprenticeship with the New South Wales railways. Having only completed six months of the apprenticeship, Mr Armfield relocated to Adelaide, where his mother was living. He was able to gain employment. He worked in a factory for over a year until he was taken into custody. Since that time, Mr Armfield has had difficulty obtaining employment.

Mr Armfield met his wife when he was 20 years of age. He described the beginning of their relationship as “good”, but said that it soon became characterised by arguments and intimacy problems. Mr Armfield’s son was born in 1992. After this time, his relationship with his wife deteriorated further and sexual interactions with his wife decreased significantly.
When interviewed by psychologists Dr Bamboyne and Ms Yates, Mr Armfield stated that, as a result of the decrease in sexual interaction with his wife, he would fantasise about other women and he then began to put those fantasies into reality. He said he “went looking for it (sex)” and acknowledged his sexual offending at that time. He admitted that his offending behaviour became “addictive”.
Mr Armfield has a history of substance abuse, in particular marijuana and alcohol. He began smoking marijuana and binge-drinking at the age of 16, and would often consume the two substances together, resulting in black-outs. At the time he commenced sexually offending, Mr Armfield said that he was often intoxicated and would engage in other forms of criminal activity, such as breaking objects and urinating in public. Mr Armfield said that he would at times engage in sexual offending when intoxicated or under the influence of marijuana. Mr Armfield briefly experimented with amphetamines when he was 18 years of age.
Section 23
The Statutory Scheme
Section 23 of the Sentencing Act provides a statutory regime for dealing with offenders said to be incapable of controlling sexual instincts. As earlier observed, section 23(3) provides this Court with the power to order that at least two qualified medical practitioners inquire into a defendant’s mental condition and report to the Court as to whether the defendant is incapable of controlling his or her sexual instincts. As provided by section 23(4), such medical inquiry must be independent and may be assisted by a psychologist or a corrections officer or some other such person. Having received such reports, this Court may declare that a defendant is incapable of controlling his or her sexual instincts and ought to be detained in custody until further order. Section 23(5) provides:
If—
(a) each of the medical practitioners reports to the Supreme Court, on oath, that the defendant is incapable of controlling his or her sexual instincts; and
(b) the Court, after hearing any evidence or representations adduced or made by the defendant, is satisfied that the defendant is so incapable,
the Court may declare accordingly and direct that the defendant be detained in custody until further order.
Section 23(6) provides the Court with the option of imposing a sentence of imprisonment instead of, or in addition to, making a section 23(5) order. This subsection will be discussed in further detail later in these reasons.
Sections 23(9) and 23(10) provide for ongoing review of persons subject to a section 23(5) order. The sections relevantly provide:
(9)The progress and circumstances of a person subject to an order under this section (whether in custody or not) must be reviewed at least once in each period of six months by—
(a)     in the case of a person detained in, or released on licence from, a training centre—the Training Centre Review Board;
(b)     in any other case—the Parole Board.
(10)The results of a review under subsection (9) must be embodied in a written report, a copy of which must be furnished to the person the subject of the report and—
(a)     in the case of a report of the Training Centre Review Board—to the Minister for Family and Community Services;
(b)     in the case of a report of the Parole Board—to the Minister for Correctional Services.
Section 23(11) allows for this Court, on application from the Director of Public Prosecutions or the person subject to a section 23(5) order, to discharge the order for detention, provided certain conditions are fulfilled. Section 23(12) provides:
The Supreme Court may not discharge an order for detention under this section unless—
(a) it has first obtained and considered the report of at least two legally qualified medical practitioners each of whom has independently examined the person; and
(b) having taken into account both the interests of the person and of the community, it is of the opinion that the order for detention should be discharged.
Order for Detention - Section 23(5)
The principle rationale of section 23 is the provision of protection to the community from those offenders who are unable to control their sexual instincts. The object of the section is not to penalise the offender.[9] In addition, indeterminate sentences may provide an avenue for a sexual offender’s mental condition to be kept under review and treated to prevent a continuing danger to the community.[10]
[9] R v England (2004) 87 SASR 411
[10] Veen v R (1979) 143 CLR 458
In Veen v The Queen[11] the High Court considered the rationale behind imposing a sentence of life imprisonment on an offender found to be a serious and violent risk to the community if released. Mason J observed:[12]
The court must, in sentencing a person who has been convicted of a very serious offence involving violence, if his record and the expert evidence plainly demonstrate that there is a real likelihood of his committing that kind of offence again if he is restored to liberty, ensure by the order which it makes that he will not be released whilst that likelihood continues. If it should appear that the propensities or predilections of the person convicted are such that the imposition of life imprisonment is necessary to protect the community from violent harm, then the court should impose that penalty.
[11] (1979) 143 CLR 458
[12] Veen v R (1979) 143 CLR 458 at 468
In The Queen v Kiltie King CJ, referring to the predecessor provisions to section 23, observed:[13]
[The section], as appears from its terms, is designed to protect the community from sexual offenders who are incapable of exercising control over their sexual instincts or who, although not incapable, nevertheless ought to be detained by reason of their subnormal mental condition. It has a subsidiary purpose of providing care, supervision and control for subnormal sexual offenders in their own interests.
[13] The Queen v Kiltie (1986) 41 SASR 52 at 61
In R v England[14] the Court of Criminal Appeal considered the provisions for indeterminate detention provided in section 23 and observed:
It can be seen that the legislation provides for a regime of detention which is aptly described as preventive, that is preventive in the interests of protecting the community. At least in a case in which sentence has been passed, that is the only function. The passing of sentence means that punishment in the ordinary sense has been imposed. The detention may be seen by the defendant as punitive, but the purpose of the detention appears to be to prevent the defendant from offending again, and so to protect the community from someone who is a real risk to the community, because he or she is incapable of controlling his or her sexual instincts.
[14] R v England [2004] SASC 254 at [35]
An order for detention pursuant to section 23(5) is a matter for the discretion of the Court. In R v O’Shea[15] the Court of Criminal Appeal considered the making of an order pursuant to section 77a of the Criminal Law (Consolidation) Act 1965 (SA), which provided a similar statutory regime to that provided by section 23 of the Sentencing Act. Wells J, with whom Walters and Matheson JJ agreed, observed:[16]
It is important to observe that the legislature did not, without more, confer a discretion; sub-s (3) [of section 77a of the Criminal Law Consolidation Act] serves expressly to remind the sentencing judge that he has three choices - to sentence the prisoner to a determinate sentence; to make an order directing him to be detained under the section; or to make such an order, and to impose a determinate sentence as well.
[15] R v O’Shea (1982) 31 SASR 129
[16] R v O’Shea (1982) 31 SASR 129 at 140
When the discretion is enlivened, a number of discrete steps must be taken before making an order pursuant to section 23(5). In England Bleby J commented:[17]
…[S]atisfaction as to the inability of a person to control their sexual instincts is a matter of assessing the opinions to that effect, their strengths and their weaknesses, to a point where the Court can be satisfied that the incapacity is present. In doing so, 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. To borrow the words of Dixon J in Briginshaw v Briginshaw (above), the necessary degree of satisfaction cannot be produced “by inexact proofs, indefinite testimony or indirect inferences”. It will require cogent and acceptable evidence in order to justify the making of the declaration and the giving of the direction. But even then, there is a residual discretion conferred by the use of the word “may” in the subsection. In that respect it may also be appropriate to consider, as in the case of R v Fahey (above) and R v Riley (above) whether, if a sentence is also imposed, the defendant is likely, at the end of the custodial period, to resume similar sexual activities. This will, in turn, require 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 prison setting or in some other institution contemplated by the section.
In summary, the process that I perceive to be required by s 23(5) of the Act is first, the expression on oath of the opinion required by para (a) by two medical practitioners. If one or both of them do not express such an opinion or do not do so on oath, that is the end of the matter.
Secondly, the Court will need to assess the strength of those opinions, taking into account a number of factors relevant to the assessment of expert evidence. That will include identifying the relevant primary facts surrounding the proven offending on which the medical practitioners have based their opinions, and ensuring that they are established to the Court’s satisfaction beyond reasonable doubt.
Thirdly, the Court will then have to be satisfied in a manner that I have described that the incapability exists
Finally, the Court must exercise its residual discretion as to the making of the declaration and granting of the directions.
[17] R v England (2004) 87 SASR 411 at [56] – [60]
When making an order for detention pursuant to section 23, it must be kept in mind that such an order results in the indeterminate detention of a person’s liberty. This consideration must be weighed against the clear public interest in the protection of the community from persons who are unable to control their sexual instincts. The legitimacy of orders of indeterminate detention was recently discussed by the High Court in Fardon v Attorney-General of State of Queensland where Gleeson CJ observed:[18]
As was pointed out in Engert, people suffering from mental disorders frequently come into collision with the criminal justice system, and discretionary sentencing decisions must take into account a number of sometimes competing considerations, including the protection of society. The law is a normative science, and many of its rules and principles are based upon assumptions about volition that would not necessarily be accepted as accurate by psychiatrists. In United States v Chandler, Chief Judge Haynsworth said:
"The criminal law exists for the protection of society. Without undue harm to the interests of the society it protects, it can exclude from its moral judgments those whose powers of intellect or will are so far impaired that they have no substantial control of their conduct. It can afford, too, elimination of the last vestiges of the notion of punishment for punishment's sake and a further implementation of the principles of rehabilitation, deterrence and, wherever necessary, the ultimate isolation from society of those individuals who have no capacity for the adjustments necessary to conform their conduct as active members of a free society to the requirements of the law. The law may not serve its purpose, however, should it embrace the doctrines of determinism. Should the law extend its rule of immunity from its sanctions to all those persons for whose deviant conduct there may be some psychiatric explanation, the processes of the law would break down and society would be forced to find other substitutes for its protection. The law must proceed upon the assumption that man, generally, has a qualified freedom of will, and that any individual who has a substantial capacity for choice should be subject to its sanctions. At least, we must proceed upon that assumption until there have been devised more symmetrical solutions to the many faceted problems of society's treatment of persons charged with commission of crimes."
The way in which the criminal justice system should respond to the case of the prisoner who represents a serious danger to the community upon release is an almost intractable problem. No doubt, predictions of future danger may be unreliable, but, as the case of Veen shows, they may also be right. Common law sentencing principles, and some legislative regimes, permit or require such predictions at the time of sentencing, which will often be many years before possible release. If, as a matter of policy, the unreliability of such predictions is a significant factor, it is not necessarily surprising to find a legislature attempting to postpone the time for prediction until closer to the point of release.
[18] (2004) 210 ALR 50 at [11]-[12]
The Expert Evidence
As earlier observed, before an order for detention under section 23(5) can be made the Court must be satisfied that, in the opinion of at least two qualified medical practitioners, the defendant is incapable of controlling his or her sexual instincts.
The Court of Criminal Appeal recently discussed this requirement in England:[19]
The provision is clear. Each practitioner must report on oath that the defendant is incapable of controlling his sexual instincts. The requirement is not purely one of form. It is not sufficient for the medical practitioner to mouth those words. The judge must be satisfied, having heard the evidence, that the medical practitioner is of the relevant opinion. For example, if the medical practitioner were to resile from the opinion under cross examination, the basis for the making of an order would have gone. Sometimes it may be difficult to decide if the medical practitioner has adhered to the required opinion. But here, each medical practitioner expressed the required opinion and adhered to it. That is all that is required for the purposes of s 23(5)(a).
There is nothing in the section to suggest that each opinion considered in isolation must be sufficiently persuasive to support a finding of incapacity. Such an approach to a finding of fact would be most unusual. For all sorts of reasons one witness might express a firmer or more convincing opinion than the other. Usually findings of fact are made on all of the relevant material, having regard to its combined force. As long as the threshold requirement of two opinions as to incapacity is met, there is no reason why the judge should not be left to assess the evidence as a whole, paying due regard to any weaknesses in the evidence of either witness, and then to decide whether or not the judge is satisfied that the defendant is incapable of controlling his sexual instincts.
[19] R v England [2004] SASC 254 at [22] – [23]
In the present case, two qualified medical practitioners, Drs O’Brien and Raeside, provided reports. Both gave evidence and were cross examined. A joint report was also received from psychologists Dr Bamboyne and Ms Yates. Additional material was before the Court in relation to Mr Armfield’s past medical history and criminal antecedents.
In his report of 12 October 2004, Dr O’Brien expressed the opinion that Mr Armfield’s mental condition rendered him unable to control his sexual instincts. This opinion accorded with his earlier report of 18 February 2004 where he concluded:
Presently, … , Mr Armfield remains at risk of committing further sexual offences and his repeated offending would suggest that at the present time he is incapable of controlling his sexual instincts.
This opinion was confirmed when Dr O’Brien gave the following oral evidence:
Q.Having conducted an examination of Mr Armfield’s mental condition and having had access to the material that is referred to in your report and having consulted the people that you did, did you come to a view as to whether or not [Mr Armfield] is incapable of controlling his sexual instincts?
A.    Yes, I did come to a view.
Q.    What is that view?
A.    I came to the view that he was incapable of controlling his sexual instincts.
Q.Would you be able to explain to his Honour the basis upon which your formed your opinion …?
A.Certainly the opinion was derived, really, from two positions. One was my personal examinations of Mr Armfield. The second was my review of his past sexual criminal behaviour, and then linking my examination and his past criminal behaviour with the current offences and also with previous therapeutic opportunities presented to him. So it was a mixture of all of those individual factors bringing it together to adjudicate, in my own mind, his capacity to control.
Dr O’Brien emphasised this conclusion during cross examination:
Q.[I]s it your view that Mr Armfield is, by reason of the mental condition you have described, incapable of controlling his sexual instincts, that falls short of mental impairment within the meaning of s.269C?
A.... all I can say is that in this particular instance, on the basis of my examinations and the collateral information I’ve been provided with, my understanding of s. 23, I believe that he is incapable and it is not merely a matter of unwillingness, although there may well be a component of unwillingness in addition to incapacity.
In his 26 November 2003 report, Dr Raeside summarised a number of indicators that led to his conclusion that Mr Armfield was unable to control his sexual instincts. These indicators can be summarised as follows:
-persistence: Mr Armfield stated that if he was “interrupted” (for example, if his victim woke up or yelled at him), he would often leave the scene. However, on other occasions Mr Armfield would return to the house of a victim and engage in repeated and escalating offending behaviour.
-planning: in some cases, Mr Armfield’s offending behaviour involved a degree of planning. However, in most instances Mr Armfield’s offending is best described as opportunistic;
-pattern of conduct: Mr Armfield’s behaviour progressed from voyeuristic conduct to entering victims’ homes and later to physical assault and rape;
-threats and coercion: often no threats and coercion were necessary in Mr Armfield’s offending, particularly in relation to his voyeuristic behaviour. However, there were instances when he used threats and coercion either overtly or as a result of the situation (for example, when one victim was fearful for the safety of her children).
-shifting responsibility: Mr Armfield appeared to blame his earlier sexual abuse and marital problems for his offending. However, he has made full and frank admission about his conduct. He has not blamed his victims for his offending and he has displayed some level of insight into understanding and addressing his behaviour.
-psychiatric disorder: there is no clear indication of any underlying psychiatric disorder other than a personality disorder and paraphilia.
-concurrent intoxication: although there is some suggestion from Mr Armfield’s history that alcohol may have been a factor in his offending, there is minimal suggestion that alcohol was a prominent factor.
-relationship with his wife: Mr Armfield’s troubled relationship with his wife plus his physically and emotionally abusive childhood have contributed to his negative disposition towards women.
-empathy and victim awareness: although Mr Armfield apologised to his victims for his offending and has displayed some degree of empathy, he continued to engage in his behaviour, despite having a knowledge of the consequences of it. This suggests a degree of inability to control his behaviour.

Dr Raeside concluded that there was considerable evidence to support the opinion that Mr Armfield had a “substantial inability to control his sexual instincts”. Dr Raeside confirmed this view during his oral evidence:
Q.Having conducted an examination of Mr Armfield and having the opportunity to refer to all the material that is referred to in your report, have you come to a view as to whether or not Mr Armfield is incapable of controlling his sexual instincts?
A.    Yes, I came to an opinion then.
Q.    What is your opinion?
A.I believe, on the basis of the material that I saw and my involvement with Mr Armfield, that he is incapable of controlling sexual instincts.
Q.    Would you outline to his Honour how you came to that conclusion?
A.Yes. Apart from, obviously, the extensive prior history of offending, I don’t consider just the fact he has committed similar offences many times is the sole basis to come to that opinion. I looked at other factors and aspects to do with the offending.   … One of the areas that is somewhat complicated in this area is that of whether the court considers it total inability to control conduct, or substantial inability or any variation thereof, and I have indicated in my report that I am of the opinion in assessing these people, when looking at other aspects which show they were unable to control, to some degree. And, …. I have outlined under each of those 10 areas that there are a number of factors in Mr Armfield’s personal history as well as his offence history that would suggest that he had, he recognised himself he had, considerable difficulty controlling his conduct and in many cases was unable to do so and despite, as he put it, his head telling him not to, he carried out a number of offences, seemingly incapable of controlling himself. However, he also reported some instances in which he did – was deterred, such as by someone seeing him or other factors which caused him to leave the scene. So I would not suggest he had a total inability to control and that every moment of the day he was continually offending, but there was a substantial number of times in which he was unable to desist.
In his 26 November 2003 report, Dr Raeside also diagnosed Mr Armfield with paraphilia and a personality disorder.
Level of Risk to the Community
Drs O’Brien and Raeside and psychologists Dr Bamboyne and Ms Yates concluded that Mr Armfield posed a high risk to the community of re-offending. They provided detailed documentary and oral evidence to the Court outlining the reasons for this conclusion.
As earlier observed counsel for the Crown tendered a joint report by psychologists Dr Bamboyne and Ms Yates dated 12 November 2004. Dr Bamboyne and Ms Yates interviewed Mr Armfield for the purposes of compiling the report. Mr Armfield was cooperative with this process. This report detailed the risk that Mr Armfield poses to the community as a sexual offender.
When asked about his offending behaviour, Mr Armfield said that most of his sexual offending began with voyeuristic activities. He said that he did not plan to enter homes and physically assault women, but rather that he took the opportunity if it presented itself. Mr Armfield stated that he was more likely to engage in offending behaviour if he had had an argument with his wife. Often, after an argument with his wife, Mr Armfield would fantasise about other women, and once these deviant sexual fantasies were triggered, he would sometimes attempt to turn them into a reality. Dr Bamboyne and Ms Yates reported:
… [O]nce the deviant sexual fantasies were triggered, he behaved as transported by the desire to satisfy these sexual urges. In addition to thinking about the “possibility”, Mr Armfield reported feeling “adrenaline, excitement and power” and believed that he became addicted to his voyeuristic activities and to the possibility of entering someone’s house to obtain sexual gratification. He said that if there was an increased risk of getting caught, it increased his interest, as well as his sexual arousal. He indicated that he would masturbate during the offending, but that it was often sporadic.
…
His offending, whilst appearing to be opportunistic is lacking active planning or premeditation, but involved passive planning. Passive planning involves the making of irrelevant decisions … . That is, seeming trivial decisions (ie get out of the house to calm down, or use marijuana to calm down), that appear reasonable and unrelated to the addictive pattern of behaviour (ie sexual offending), but collectively help set-up a high risk situation for re-offending. The individual many [sic] not be fully aware of the motives behind these decisions (ie to indulge in the prohibited behaviour), as those irrelevant decisions function to avoid self-criticism and social disapproval, and provide an excuse for lapsing or relapsing into behaviour. Once in a high-risk situation, recognised prior positive experiences may cause the individual to anticipate a number of pleasurable positive effects, which discount any negative consequences, increasing their risk of engaging in that behaviour.
In their report, Dr Bamboyne and Ms Yates assessed Mr Armfied as being in the “high risk” category of sexual offenders:
Mr Armfield’s score suggests that he is someone who is more likely to partake in violent offending behaviour, than other offenders are. Mr Armfield’s score, whilst high, did not meet the diagnostic cut-off for psychopathy.
Dr Bamboyne and Ms Yates employed various assessment tools to determine the degree of risk Mr Armfield posed to the community.[20] The assessment processes considered both static and dynamic features of Mr Armfield’s conduct, prospects for rehabilitation and risk of re-offending. The assessment process allowed Dr Bamboyne and Ms Yates to draw the following conclusions:
-Mr Armfield’s background of sexual offending and the fact that his victims of the present offending were strangers to him contributed the conclusion that he was in the “high risk” category of sexual offenders. This indicates that Mr Armfield represents a high risk of re-offending for sexual offences.
-Mr Armfield experiences deficits in his verbal and interpersonal style and displays a tendency to lie and manipulate others to achieve his goals. His conduct reflects an impulsive, irresponsible, unstable and antisocial lifestyle, with a history of poor behavioural controls including criminal versatility. Mr Armfield’s irresponsibility is also reflected in his financial dealings, his relationships with family and friends, and his lack of realistic long-term goals.
-Mr Armfield has a number of dynamic factors, such as deviant sexual arousal, mental health issues and lack of appropriate recreational and pro-social activities, which with appropriate intervention could be addressed to enable a reduction in his risk of re-offending.
-Mr Armfield’s responses to assessment tools indicated sexual deviation, victim of child abuse, mental illness, substance abuse problems, employment problems, past non-sexual violent offences, past non-violent offences and past supervision failures. Dr Bamboyne and Ms Yates observed that the nature of Mr Armfield’s offending involved high-density sexual offences, multiple sex offence types, physical harm to victims in sex offences and escalation in frequency and severity of sex offences.
-Although Mr Armfield did not deny the offences, he displayed some tendency to minimise his offences, and he attributed the escalation in offending to external factors such as arguments with his wife or increasing drug use.
-Mr Armfield did not appear to have given much thought to his future plans. However, he did not demonstrate a negative attitude towards professional intervention.
[20] The assessment tools used included Static 99, a psychological assessment tool that measures a sexual offender’s risk of re-offending; PCL-R, a scale that assesses psychopathy of males within a forensic population and provides information relating to the risk of re-offending for violent offending; LSI-R, designed to measure static risk factors and identify dynamic areas of risk and need relating to an individual’s behaviour; and SVR-20, an assessment tool considers 20 factors identified as associate with general recidivistic violence or sexual violence in sexual offends.
After assessing Mr Armfield in the category of “high risk” offenders, Dr Bamboyne and Ms Yates concluded:
In more recent times, Mr Armfield’s sexual offending has escalated in frequency and severity. That is, he has committed frequent sexual offences when at risk to do so against varied aged victims, and those acts are more likely to involve contact with the victim. …
Mr Armfield’s pattern of offending is variable, consisting of different triggers and dis-inhibitors. The aim of his offending is to provide sexual gratification. This makes him a highly dangerous sexual offender, opportunistic-type.
Mr Armfield’s actuarial assessment indicated that he is at high risk of re-offending, particularly in a sexually violent manner. The assessment tools highlighted several criminogenic needs (dynamic risk factors related to his offending behaviour that require targeted intervention to reduce his high risk of re-offending), including deviant sexual arousal, substance abuse, intimacy problems, interpersonal difficulties, mental health issues, minimisation of some aspects of his offending, and lack of appropriate recreational and pro-social leisure activities. Non-criminogenic needs also identified (factors not directly related to his offending, but nonetheless treatment targets), include employment problems and poor problem-solving and coping skills.
…
On a more positive note, Mr Armfield exhibited during our interview a significant degree of insight into his sexual offending behaviour and appeared to be aware of how dangerous his behaviour had become prior to his arrest. He also expressed empathy for his victims. Despite evidence of Antisocial Personality Disorder traits, Mr Armfield is highly motivated to actively engage in treatment, which may make treatment targets easier to achieve. Previous interventions for his sexual offending may have not been successful in the past, as they may not have focused on specific assessed dynamic risk factors associated with his sexual offending.
The conclusions of Dr Bamboyne and Ms Yates were consistent with the evidence of Drs O’Brien and Raeside.
Mental Condition
As earlier observed, section 23(3) requires the Court to direct at least two qualified medical practitioners to inquire into the defendant’s “mental condition” before making a declaration regarding the defendant’s ability to control his or her sexual instincts.
In Kiltie[21] the Court of Criminal Appeal considered the provisions of section 77a of the Criminal Law (Consolidation) Act, the predecessor provisions to those now contained in section 23 of the Sentencing Act. In Kiltie the Court was asked to consider whether the expression “medical condition” within section 77a, and now contained in section 23(3), connotes the existence of a psychiatric illness. King CJ observed:[22]
The expression “mental condition” may be used in more than one sense. It may be used in the sense of a morbid condition of the mind or of a condition of the mind which amounts to mental illness. It may mean no more than “state of mind”. In the present context, it means, as it seems to me, the conditions of the offender’s mind as regards capacity to control his sexual instincts or, put another way, his mental capacity to control his sexual instincts. I do not find anything in the section which would limit the meaning of the expression of to a condition amounting to psychiatric illness capable of diagnosis as such.
…
It follows from what I have said that the expression “mental condition” used in the section is not restricted to a condition which can be described as a psychiatric illness capable of diagnosis. It is to be remembered, of course, that what is in question is not unwillingness to exercise self-control, nor a high degree of sexual drive, nor a high degree of temptation resulting from innate characteristics or external circumstances, nor special susceptibility to such temptation; what is in question is true incapacity to exercise the necessary degree of self-control over the sexual instincts. It may be difficult for a medical practitioner to arrive at the conclusion that there is true incapacity where there is no psychiatric illness capable of diagnosis; but that is a medical, not a legal problem.
[21] R v Kiltie ( (1985) 41 SASR 52.
[22] R v Kilte (1985) 41 SASR 52 at 61-62
In the present case, Drs O’Brien and Raeside were questioned as to whether they considered Mr Armfield to be suffering from a mental incapacity or psychiatric disorder.
During interviews, Mr Armfield described the presence of “manic episodes” prior to his arrest. He stated that he would have cyclic “up” and “down” episodes and that this was reflected in his sexual offending. During the “up” phases he would offend more. In his 26 November 2003 report Dr Raeside concluded that Mr Armfield’s symptoms did not appear consistent with a true manic episode.
Mr Armfield reported one previous suicide attempt in 2002, when he attempted to overdose on prescription medication prior to his arrest for the current charges. Another incident of self-harm occurred in 1991, when Mr Armfield was in custody in the Adelaide Remand Centre.
The medical evidence before the Court indicated that Mr Armfield was diagnosed with temporal lobe epilepsy when he was thirty years of age. However, when interviewed in 2004 by Dr Bamboyne and Ms Yates, he claimed that he was not aware of any epileptic-like symptoms. At the time of this interview Mr Armfield was taking anticonvulsant medication. He was also taking “mood stabiliser” medication and claimed that he tended to become aggressive with out it.
Dr Raeside diagnosed Mr Armfield with paraphilia and a personality disorder, but stated that there was no clear indication that he was suffering from any psychiatric disorder.
In his report of 12 October 2004, Dr O’Brien diagnosed Mr Armfield with paraphilia. He explained that this condition means a deviation in the area to which an individual is attracted to another. Paraphilia includes exhibitionism, fetishism, voyeurism and paedophilia. Dr O’Brien further described Mr Armfield as displaying traits of a mixed personality disorder with borderline antisocial features.
Dr O’Brien explained that in his opinion, from a medical perspective, neither a personality disorder nor paraphilia constituted a “mental illness”. Dr Raeside reached a similar view. Both doctors expressed the view that Mr Armfield’s mental “condition” – the personality disorder and the paraphilia – did not constitute a psychiatric illness. However, as observed in Kiltie, evidence of psychiatric illness is not a pre-requisite to a finding that a defendant is unable to control his or her sexual instincts.
The conclusions of Drs O’Brien and Raeside, coupled with the previous medical and psychological evidence before the Court, suggest that Mr Armfield’s condition does not place him within the scope of section 269C of the Criminal Law Consolidation Act’s definition of “mental incompetence”.[23]
[23] Section 269C of the Criminal Law (Consolidation) Act 1935 (SA) provides:
Conclusion on Section 23 Application
In the present case, the discretion conferred by section 23 of the Sentencing Act is enlivened. Reports have been received from two qualified medical practitioners. This evidence leads to the conclusion that Mr Armfield is unable to control his sexual instincts. I am satisfied beyond a reasonable doubt that Mr Armfield is unable to control his sexual instincts. Additional medical and psychological evidence has been adduced. Until effective treatment is undertaken or some change occurs in Mr Armfield’s mental condition, he is not fit to be released into the community.
When considering the making of an order for indeterminate detention pursuant to section 23(5), the Court must engage in a most serious balancing exercise. The interests of the community to be protected from sexual offending and the need for Mr Armfield to be rehabilitated before re-entering the community must be weighed against the significant deprivation of liberty that results from an order of indeterminate detention.
Counsel for Mr Armfield indicated that the accused did not oppose an order pursuant to section 23. Apparently, Mr Armfield was of the view that such an order might assist him in becoming a candidate for an appropriate rehabilitation program.
It is appropriate to make an order pursuant to section 23(5) of the Act. Mr Armfield is declared to be incapable of controlling his sexual instincts and is to be detained in custody until further order.
Indeterminate Detention
These concerns also give rise to the need for the Court to monitor the terms of the indeterminate detention, in order to be satisfied that the interests of the community and the need for Mr Armfield to receive treatment are being met.
The provisions of section 23 emphasise the need for such monitoring. Section 23(9) of the Act requires the progress and circumstances of a person subject to a section 23(5) order to be reviewed at least every six months by the Parole Board. In the present case, it is anticipated that such reviews will monitor Mr Armfield’s rehabilitation and assist in making him a “priority” for any available sexual offender treatment programs.
Mr Armfield’s prospects for rehabilitation are of concern to both the community and Mr Armfield. Both counsel recognised this. The victim impact statements serve as a powerful reminder of the community interest in Mr Armfield’s successful rehabilitation. Many of the victims expressed concern regarding Mr Armfield’s future - for example, one victim said:
This is a man with serious and dangerous issues that need to be addressed. I am hoping the legal system won’t fail the victims that this man has created. Hopefully justice will served in a way that will allow us as victims to become survivors.
I agree that Mr Armfield needs some intensive treatments for his problem. All I want from him now, is for him to show remorse and regret for what he has forced upon myself and my family.
The appropriateness of the order for indeterminate detention may be re-considered by the Court upon the application of either the Director of Public Prosecutions or the person subject to the order. Section 23(11) provides:
Subject to this Act, a person will not be released from detention under this section until the Supreme Court, on application by the Director of Public Prosecutions or the person, discharges the order for detention.
In R v O’Shea (No 2)[24] the Court considered discharging an order made pursuant to the predecessor provisions contained in section 77a. The legislative provision providing for the discharge of the order was in terms similar to the current section 23(11). It was held that when considering whether to discharge an order of indeterminate detention, the Court is not making a fresh determination as to whether the applicant should be detained. Rather, the Court is exercising discretion as to whether, taking into account the interests of the applicant and the community, the order should be discharged. Doyle CJ observed:[25]
Clearly enough, the court would consider the risk of further offending by the person. The greater the risk, the less likely the court would be to discharge the order. If the court is in fact satisfied that the person is capable of controlling his or her sexual instincts, one would expect the order to be discharged as of course. But, in my opinion, it is not essential that the court be so satisfied before it can discharge the order. Even though the court is not affirmatively satisfied that the person is capable of controlling his or her sexual instincts, the court might conclude that the risk of further offending was sufficiently slight for it, having considered the interests of the person and of the community, to discharge the order for detention.
[24] (1997) 193 LSJS 286
[25] (1997) 193 LSJS 286 at 290

In O’Shea v DPP[26], Perry J observed:
The exercise of the discretion to order discharge from detention essentially involves a balancing out of the interests of the detainee on the one had, and of the community on the other. I have to accept that it is most unusual to contemplate a discharge of the detention order while there remains a substantial risk of reoffending.
…
The decision of the Full Court makes it clear that recognition of the interests of the community does not mean that a person who poses a risk to the community must be detained indefinitely until the risk is removed. The community may also have a legitimate interest in ensuring that persons are not incarcerated for the term of their natural life simply because they happen to be unfortunate enough not to be able to overcome a condition which poses some risk to the community, that detention being far beyond whatever they may have deserved by way of penalty for the crime that has brought them under attention.
In the present case, the Court may be in the position to re-consider the section 23 order after Mr Armfield has had the opportunity to participate in sexual offender treatment programs.
[26] O’Shea v DPP (1998) 71 SASR 109 at 138
Prospects for Rehabilitation
Counsel for the Crown called David Alan Thompson to provide the Court with evidence relating to a possible sexual offenders treatment program designed to be available to a particular category of prison inmates. Mr Thompson is employed by the Department for Correctional Services as the Program Manager of the Rehabilitations Programs Branch. He described the proposed program and the branch as “brand new”. At the time of giving evidence, he had held the position of Program Manager for three months.
Mr Thompson informed the Court that the Department for Correctional Services has recently employed specialist staff to develop and implement a sex offender program. The branch includes five psychologists and a number of social workers with training in psychology. Until the development of this program, no program existed in South Australia for the treatment of sexual offenders.
In the development of the program, the Department has drawn from a specialist program from Correctional Services of Canada. The Canadian program has been operational for 15 years and has been subject to independent review and extensive evaluation.
The South Australian program is for offenders who are assessed as “moderate risk”. The program consists of a number of modules designed to run in five sessions per week for a period of some 20 weeks. The modules cover topic areas such as offender self-management, cognitive distortion, empathy and victim awareness, intimacy, relationships and social functioning, emotional management and deviant sexual fantasy. The program is designed to provide therapy for those convicted of sexual offending against children and adults.
Mr Thompson informed the Court that a pilot program is to commence in the near future at the Yatala Labour Prison, with a second program anticipated to start soon afterwards at the Adelaide Remand Centre.
The pilot program is directed towards inmates at the end of their sentence, due to the limited number of placements available. In other words, it is the impending release date that currently activates acceptance into the program. However, Mr Thompson said that it is anticipated that as the program gains maturity it will be able to deliver therapy to a broader range of offenders.
As earlier observed, the program is targeted at “moderate risk” offenders. Mr Thompson explained that “moderate risk” offenders include persons involved in offending behaviour that can be described as “quite serious and quite frequent”. Psychologists within the Department undertake assessment of sexual offenders into high or moderate risk categories using assessment tools developed locally and drawn from the Canadian program.
Mr Thompson said that, on his understanding, Mr Armfield would not be described as within the “moderate risk” category of offenders. He said that Mr Armfield would require a program directed at high risk offenders. However, Mr Thompson explained that it was the intention of the Rehabilitation Branch to move to a high risk program within the next twelve months or so. Should a high risk program be developed, it was Mr Thompson’s opinion that Mr Armfield would be a priority candidate. He said that the likelihood of Mr Armfield being accepted into such a program would be increased if he was subject to a section 23 order.
From the evidence provided by Mr Thompson, there appears to be some prospects, in the not too distant future, of the offer of treatment for Mr Armfield in the form of a program designed for high risk sexual offenders. Should such treatment occur, this may give rise to an appropriate basis for an application to be lodged under section 23(11) of the Act.
Sentence
In addition to making an order for indeterminate detention pursuant to section 23(5), section 23(6) of the Act provides the Court with the power to sentence the accused. Section 23(6) provides:
The Supreme Court may exercise its powers under subsection (5) in addition to, or instead of, imposing a sentence of imprisonment for the offence.
In the present case there is a clear public interest in Mr Armfield being sentenced. His offending is serious and long-standing. Counsel for Mr Armfield acknowledged that the Court has to approach this matter on the basis that the lives of innocent people have been devastated.
Not only is sentencing Mr Armfield in the interests of the community at large, the sentencing process is also of importance to the victims of Mr Armfield’s offending. Sentencing Mr Armfield may provide some much-needed “closure” to some victims. One victim said:
I understand that the accused has a history of his type of offence. This arouses feelings of anger and distress - not only for myself but other victims. It is for this reason only that I have agreed to relive (once again) this situation, my fear and vulnerability - so that justice can be done - which offers me closure.
Although there is no tariff in relation to appropriate sentences to be set for this type of offending, and although each case turns on its particular circumstances, previous cases can provide the Court with some guidance. Mr Armfield’s offending falls within the more serious category of serial sexual offending.
Counsel for the Crown drew attention to the sentence imposed in England. [27] In England the defendant’s offending occurred over two months and involved five separate episodes. The defendant was convicted by jury verdict. When sentencing, the judge applied the principle of totality and arrived at a head sentence of 23 years’ imprisonment and declined to fix a non parole period. In arriving at that head sentence the judge made an allowance for a period of five years spent in custody pending sentence. The judge made an order for indeterminate detention pursuant to section 23(5).
[27] (2004) 87 SASR 411
Guilty Pleas, Co-operation, Contrition and Remorse
Regard must be had both to Mr Armfield’s pleas of guilty and to his cooperation with the investigating authorities in relation to this matter. Following his offending in early 2002, Mr Armfield handed himself into the police. Since that time he has cooperated with the investigating authorities and has been frank with the experts to whom he has spoken. He pleaded guilty to the charges at the earliest opportunity. It is material matter that Mr Armfield’s guilty pleas have saved his victims the ordeal of recounting their traumatic experiences in Court. One victim expressed a sense of relief that she was not required to give evidence in Court:
… [T]o Mr Armfield as much as I will never understand why you did this to me thankyou for pleading guilty so that I did not have to relive this over and over again.
In addition to his early pleas of guilty and his cooperation with the authorities, Mr Armfield has expressed contrition and remorse for his offending behaviour. Dr Bamboyne and Ms Yates reported:
When asked who was to blame for his offending, Mr Armfield stated that he was, and that “other things” such as his own sexual abuse, marital problems and substance abuse contributed, but were not to blame. He stated he felt remorse for his victims as he “knows how they feel … they did nothing to ask for this”. He indicated that he handed himself into the police to stop further offences occurring and to figure out why this behaviour was happening.
Mr Armfield has also expressed a willingness to seek treatment and a desire to be rehabilitated while in custody.
As observed by the Court of Criminal Appeal in R v Simpson,[28] volunteered confessions of offences of which the police would not otherwise have been aware may be a mitigatory factor to be taken into account when sentencing.[29] Section 10(h) of the Sentencing Act provides:
A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:
…
the degree to which the defendant has co-operated in the investigation of the offence;
[28] (2004) 89 SASR 515
[29] see also R v Ryan (2001) ALR 193
This section enables the Court to consider the degree to which a defendant cooperated with police when sentencing. However, the sentence to be imposed remains at the discretion of the Court. Both the value of the information and the fact of whether the investigators would have been able to attain such information from other sources are relevant in assessing the amount of discount.[30]
[30]R v Malvaso (1989) 168 CLR 227, R v Golding (1980) 24 SASR 161 at 172 – seel also R v Proom (2003) 85 SASR 120 at 137
Mr Armfield’s guilty pleas, cooperation and frankness with the authorities and experts have assisted police investigations, avoided a lengthy and arduous trial and have indicted a level of contrition and remorse. Although the amount of the reduction, if any, remains at the discretion of the sentencing authority, it has been observed in Walter[31] that where the offender would not have been prosecuted but for having voluntarily approached the police and confessed to a crime, a reduction of the penalty by one third may be appropriate.
[31] (1994) 178 LSJS 271
Section 18A
As Mr Armfield’s offending involved 14 separate counts, it is necessary to consider the approach to be taken to sentencing. Section 18A of the Sentencing Act provides sentencing authorities with a discretion[32] to impose the one sentence for multiple offences:
If a person is found guilty by a court of a number of offences, the court may sentence the person to the one penalty for all or some of those offences, but the sentence cannot exceed the total of the maximum penalties that could be imposed in respect of each of the offences to which the sentence relates.
[32] Skrjanc v R (1994) 71 A Crim R 347
When imposing the one sentence pursuant to section 18A, a sentencing authority may consider what would be appropriate separate sentences for each offence, as well as whether they should be concurrent or cumulative and finally whether the totality principle should be applied.[33] However, in Symonds Doyle CJ observed that other approaches may be taken:[34]
In Major the Court was not stating a process that must be followed in the sense that failure to follow it is itself an error of law in the sentencing process. The Court did no more than remind sentencing judges of the need to relate a single sentence imposed under s18A of the Criminal Law (Sentencing) Act 1988 (SA) to the sentence that would have been imposed if the power conferred by s18A were not available. What was said in Major was intended to guide sentencing judges in the exercise of the power conferred by s18A, but not to impose upon them a rigid formula that must be followed.
In some cases the only safe course to follow will be to approach the sentencing process initially as one would do so if the powers conferred by s18A were not available. The power conferred by s18A will then be used to express the sentence as a single sentence, rather than as a number of separate sentences with orders as to concurrence and accumulation as may be appropriate. But there will be other cases when this approach is not necessary, and it is appropriate and convenient to go directly to the single sentence to be imposed. The approach outlined in Major may be unnecessary because the case is so straightforward that the separate consideration of the individual sentences is an unnecessary elaboration. The approach outlined in Major may be unnecessary because the totality principle will so obviously operate to reduce the otherwise appropriate sentence that it becomes pointless to consider and to assemble the individual sentences that would otherwise be imposed. There may be other situations when it will be unnecessary to follow the approach outlined in Major. Subject to that, however, I adhere to what I said in Major and to the desirability, as a general rule, of relating a single sentence to be imposed to the individual sentences that would otherwise be imposed.
[33] R v Major (1998) 70 SASR 488; R v Kelly [2000] SASC 293
[34] [1999] SASC 217 at [21]
As observed in Simpson,[35] in some cases, separately considering the appropriate sentence for each offence can create an “air of unreality”, particularly when numerous offences are involved. In Simpson, the Court referred to the comments in R v Power[36] and in R v Elliot[37] and observed:
Where criminal conduct cannot be sensibly considered in isolation, it is appropriate to consider the total criminality and culpability of the offending when arriving at a single sentence.
[35] (2004) 89 SASR 515
[36] [2003] SASC 288 at [18]-[19]
[37] [2001] SASC 101
Given the nature of Mr Armfield’s offending, it is appropriate to consider his conduct as an ongoing course of conduct and to arrive at an appropriate single sentence. To consider each occasion of Mr Armfield’s offending in isolation would not only give rise to an “air of unreality” but would risk overlooking the serial nature of his offending and the manner in which it progressed from voyeuristic activities to physical harm.
Fixing of Non Parole Period
Counsel for the Crown submitted that Mr Armfield has a history of serious serial sexual offending. Counsel further submitted that Mr Armfield’s previous convictions and related penalties apparently had no personal deterrent effect. Counsel noted that Mr Armfield was on parole at the time of a number of the instances of offending and had breached two bonds which related to offences of a sexual nature. Counsel said that, in addition to an order pursuant to section 23, the Court should sentence Mr Armfield but decline to fix a non parole period.
Counsel for Mr Armfield agreed that it was appropriate to sentence Mr Armfield in addition to making an order for indeterminate detention. However, counsel expressed concern at the suggestion that the Court should decline to fix a non parole period. Mr Armfield’s prospects of rehabilitation would be compromised.
Counsel for Mr Armfield submitted that eligibility for the programs currently being developed for treatment for sexual offenders was determined at least in part by a release date. Further, counsel said that the current programs are only likely to be available at Yatala Labour Prison and the Adelaide Remand Centre. Counsel submitted that, should Mr Armfield be subject to an order for indeterminate detention and sentenced with no non parole period fixed, he was likely to reside at a prison that did not offer the appropriate rehabilitation programs and was less conducive to Mr Armfield’s overall rehabilitation. Counsel emphasised that Mr Armfield’s opportunity to partake in activities such as work would be limited by a lack of non parole period.
Counsel for the Crown submitted that these were matters 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.
It appears to be contrary to the rationale behind section 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. The cases referred to by the Crown support the submission that where an order for indeterminate detention has been made on the basis that the defendant is incapable of controlling his sexual instincts, and where there is uncertainty as to his or her ability to do so in the future, it is inappropriate and against the interests of the community to fix a non parole period.
In the circumstances of the present case it is not appropriate to fix a non parole period. However, it is important for the authorities to follow through with Mr Thompson’s recommendation that Mr Armfield be considered a priority for sexual offender programs for high risk offenders. If that does occur and he is able to control his sexual instincts, it would be appropriate to consider the fixing of a non parole period.
Breaches of Bond
It is also necessary to take into account the fact that Mr Armfield’s offending involved two breaches of suspended sentence bonds. Mr Armfield acknowledged these breaches of bond. On 19 December 1997, a magistrate imposed a bond to be of good behaviour and under the supervision of a correctional services officer for 12 months in relation to a charge of unlawfully on premises. On 30 October 2001, a magistrate imposed a second bond to be of good behaviour for 12 months in relation to a charge of non-aggravated serious criminal trespass in a place of residence. It is appropriate to revoke the orders for suspension with respect to those sentences.
Conclusion on Sentence
Mr Armfield’s offending is of a very grave nature. The offending involved nine victims, all of whom were strangers to Mr Armfield. He violated the victims in their own home, a place where all persons are entitled to be able to feel safe and free from harm. The offending varied in gravity from watching women undress inside their homes through to acts of rape. A number of the incidents involved aggravating circumstances such as threats of death or violence to the victims themselves or their dependant children. It is necessary for the sentence imposed to reflect the gravity of the offending. There is a clear need for Mr Armfield’s sentence to address the need for personal and general deterrence and to reflect the need to protect the community from such serial sexual offending.
In the circumstances, a sentence of imprisonment of 27 years is an appropriate starting-point. Mr Armfield’s early guilty pleas, expressions of contrition and remorse, cooperation with the investigating authorities as well as his willingness to seek treatment allow for a reduction of approximately one third. He would not have been charged with any of the crimes without his coming forward and volunteering his offending. The sentence imposed must also reflect the principle of totality.
Mr Armfield has been in custody since 5 March 2002, a period of three years and 19 days. This period spent in custody must be deducted from the otherwise head sentence. I impose a head sentence of 15 years. It is not appropriate to fix a non parole period at this time.
As earlier observed, as a result of the breaches of bond, the suspended sentences are revoked. Those suspended sentences were for terms of imprisonment of three and six months respectively. These terms are to be served cumulatively on the sentence of 15 years. This leads to a total period of 15 years and nine months.
Mr Armfield has the balance of the term of imprisonment imposed on 3 April 1996 to serve. This has arisen as a result of his breach of parole. The period to be served is one year seven months and 26 days. Mr Armfield commenced serving this period on 24 March 2005.[38]
[38] Section 31(2) of the Criminal Law (Sentencing) Act 1988 (SA); Section 75 Correctional Services Act 1982 (SA); Rowe v Police [2003] SASC 160; R v Davey [2004] SASC 339

The further term of 15 years and nine months is to commence on the expiration of the term to be served in respect of the 3 April 1996 offending.
The orders of the Court are as follows:
-    Thomas John Armfield is sentenced to the one term of imprisonment of 15 years with respect to the offences to which he has pleaded guilty. This period takes account of the time spent in custody from 5 March 2002 to 24 March 2005.
-    The orders of suspension made on 19 December 1997 and 30 October 2001 are revoked. Mr Armfield is liable to serve the respective terms of imprisonment, three and six months respectively. These periods are to be served cumulatively on the sentence of 15 years, making a total sentence of 15 years and nine months.
-    Mr Armfield has the balance of the term of imprisonment imposed on 3 April 1996 still to serve. That period is one year seven months and 26 days. That term is to be served from 24 March 2005.
-    The term of 15 years and nine months imprisonment is to commence on the expiration of the term of one year seven months and 26 days.
- Pursuant to section 23(5) of the Criminal Law (Sentencing) Act 1988 (SA), I declare that I am satisfied that Thomas John Armfield is incapable of controlling his sexual instincts. I direct that he be detained in custody until further order. This order takes effect on the expiration of the sentence of 15 years and nine months.

A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—
(a) does not know the nature and quality of the conduct; or
(b) does not know that the conduct is wrong; or
(c) is unable to control the conduct.