R v Armfield

Case [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;

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AGLC
R v Armfield [2005] SASC 108
Case
[2005] SASC 108
Decision Date

CaseChat Overview and Summary

In the case of R v Armfield, the defendant was convicted of multiple sexual offences and the court was tasked with determining an appropriate sentence. The primary legal issue was whether the defendant, Armfield, should be subject to an order of indeterminate detention under section 23 of the Sentencing Act. This section allows for such detention when a person is deemed incapable of controlling their sexual instincts and poses a danger to the community. The court also considered the defendant's early guilty pleas, cooperation with authorities, and expressions of contrition and remorse. The expert evidence presented indicated that Armfield was unable to control his sexual instincts, which justified the consideration of an indeterminate detention order to protect the community.

The court balanced the significant deprivation of Armfield's liberty against the need to protect the community and facilitate his rehabilitation. The expert medical opinions supported the conclusion that Armfield required ongoing treatment and rehabilitation before being released. The court noted that such orders must be closely monitored to ensure the community's interests and the defendant's rehabilitation needs are met. The provisions of section 23(9) of the Act, which mandate regular reviews by the Parole Board, were deemed essential for this purpose. The court acknowledged the seriousness of the offences and the impact on the victims, which underscored the necessity of Armfield's continued detention and treatment.

Armfield was declared incapable of controlling his sexual instincts and ordered to be detained in custody until further order. The court emphasised the importance of monitoring the terms of this detention to ensure the community's safety and Armfield's rehabilitation. The court's decision was influenced by the defendant's guilty pleas, cooperation with authorities, and expressions of remorse. The court also considered the precedent set in a similar case in England, where a lengthy sentence and an order of indeterminate detention were imposed. These factors collectively supported the court's decision to impose an order of indeterminate detention under section 23 of the Sentencing Act.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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 411Guilty 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