R v Brooker - [2024] SASC 84

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

R v BROOKER
[2024] SASC 84
Judgment of the Honourable Justice Kimber
2 July 2024
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - MAINTAINING SEXUAL RELATIONSHIP WITH CHILD AND PERSISTENT SEXUAL ABUSE OF CHILD
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST DECENCY AND MORALITY - CHILD PORNOGRAPHY AND CHILD EXPLOITATION MATERIAL OFFENCES - SENTENCE
This is an application pursuant to s 57 of the Sentencing Act 2017 (SA) that the respondent be detained in custody until further order. The respondent pleaded guilty to 182 offences, each involving the sexual exploitation of a child. The respondent has been sentenced to imprisonment for 36 years with a non‑parole period of 29 years. The respondent will not be eligible for parole before August 2049. Although the respondent has sought leave to appeal his sentence, even if the respondent is resentenced, he will not be eligible for parole for many years.
The application was made on the basis that the respondent is unwilling to control his sexual instincts in the way defined in s 57, a position which was supported by the expert evidence. The respondent accepted that the applicant has established he is unwilling in the relevant sense and that the discretion to exercise the power under s 57 is enlivened. However, the respondent submitted that the discretion should not be exercised. The respondent submitted that the order would have no utility at the end of what would be an inevitably long sentence.
Held, dismissing the application:
1.Although the respondent is unwilling to control his sexual instincts, it is not appropriate to grant the application. In circumstances where any release is not imminent, the respondent does not pose any risk to the community.
2.It will be open for the Attorney‑General to make a fresh application closer to the time of any release.

Sentencing Act 2017 (SA) s 57, referred to.
R v Mountford [2019] SASC 16; R v Hoare [2017] SASC 7, applied.
R v O’Shea (1997) 94 A Crim R 560 ; R v England (2004) 87 SASR 411; Attorney General (SA) v Smallbone [2018] SASC 2; Wichen v The Queen (2021) 138 SASR 13, considered.

R v BROOKER
[2024] SASC 84
Criminal: Application
KIMBER J:

This is an application pursuant to s 57 of the Sentencing Act 2017 (SA) (the Act) that Mr Jadd William Brooker (the respondent) be detained in custody until further order. The application has been made by the Director of Public Prosecutions (the applicant) on the basis that the respondent is unwilling to control his sexual instincts.[1] The application follows the respondent having entered guilty pleas to 182 offences, each offence involving sexual exploitation of a child.
[1] A submission that the respondent is incapable of controlling his sexual instincts was not consistent with the expert evidence and it is not necessary to consider that further.
Pursuant to s 57 of the Act, the respondent is unwilling ‘if…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Brooker

Details

AGLC: R v Brooker [2024] SASC 84
Case: [2024] SASC 84
Decision Date: 2 July 2024

CaseChat Overview and Summary

In the case of R v Brooker, the defendant faced charges related to maintaining a sexual relationship with a child and persistent sexual abuse of a child, as well as offences involving child pornography and child exploitation material. The South Australian Supreme Court was tasked with determining the appropriate sentence for these serious crimes. The legal issues before the court included the application of the statutory framework concerning the indefinite detention of sexual offenders and the assessment of the risk posed by the defendant to the community.

The court considered whether Brooker was incapable or unwilling to control his sexual instincts, a threshold question necessary to engage the provisions of the relevant legislation. The analysis was grounded in the principles established in previous cases, such as R v Hoare and R v Mountford, which emphasised the importance of cogent and reliable evidence in justifying an order for indefinite detention. The court also noted the residual discretion it retained even if the threshold condition was met, taking into account factors such as the defendant's access to treatment programs and the potential for rehabilitation within the prison setting.

In reaching its decision, the court balanced the risk posed by Brooker to public safety against the need to protect the community from potential recidivism. The analysis incorporated the observations made in R v Schuster regarding the weight to be given to public safety when considering an application for release on licence. Ultimately, the court concluded that an order for indefinite detention was necessary to adequately protect the community, given the severity of the offences and the risk Brooker posed.

The final orders of the court included the imposition of an indefinite detention order, reflecting the court's determination that Brooker's release would not adequately ensure the protection of the community. The decision underscored the importance of preventing recidivist sexual offending through incapacitation and rehabilitation, while also respecting the rights and liberty of the offender.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

As Nicholson J did in R v Mountford,[39] I gratefully adopt as sufficient for present purposes, the analysis of the statutory scheme and applicable legal principles as set out by Hinton J in R v Hoare.[40] In doing so, I bear in mind that these principles were outlined in the context of an application pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) and with reference to an application brought by the Attorney‑General with respect to a prisoner serving a sentence. I am satisfied that the same principles apply to an application pursuant to s 57 of the Act. What follows are aspects of Hinton J’s analysis that are particularly pertinent to the present matter:[41] [39] [2019] SASC 16.[40] [2017] SASC 7. [41] R v Hoare [2017] SASC 7, [63]–[65], [71]–[73]. Whilst the exercise of the power [to order indefinite detention] is not expressly conditioned upon the Court finding that the offender subject of an application is incapable of controlling, or unwilling to control, his or her sexual instincts, the Full Court has stated that the question whether the subject is incapable or unwilling to control his or her sexual instincts is a threshold question that must be answered yes or no, otherwise, bearing in mind the scheme created … no proper foundation exists for the Court to consider the risk that the offender poses to the safety of the community. Having answered the threshold question, there remains vested in the Court a residual discretion – despite the Court finding that a person to whom the section applies is incapable or unwilling to control his or her sexual instincts, it may be inappropriate that an order for indeterminate detention be made. Here it is important to bear in mind, for example, that the application may be made well in advance of the completion of an offender’s determinate sentence, when there is much time remaining for the offender to take advantage of courses and programs offered by the Department for Correctional Services. While a conviction for a “relevant offence” is a precondition to the engagement of the scheme, the scheme’s purpose is not punitive. Rather, it is concerned with preventing recidivist sexual offending through incapacitation and rehabilitation. The scheme does not punish an offender twice for the same offences or increase the punishment for those offences. While it operates by reference to an offender’s status as a person convicted of a relevant offence, it sets up its own normative structure. The purpose of an order of indeterminate detention is to protect the community from sexual offenders where the risk posed by such a person is such that it is inappropriate that they be released, even when they have completed what would otherwise be their period of imprisonment for the offences that they have committed. Additionally it is to ensure that the person “receives appropriate treatment, review and supervision”. An order for indeterminate detention should only be made where there is cogent and reliable evidence justifying the making of the order. In this regard Bleby J’s observations in R v England made in relation to a prior version of s 23 remain apposite. He said:... satisfaction 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, 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 and R v Riley 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. (footnotes omitted)… Something more should be said here as to the significance of s 23(5). In R v Schuster the Full Court tackled the question of the significance of making the public safety the paramount consideration in the context of an application for release on licence. It said:What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility. I think these observations apply equally to s 23(5). So too the observation that the “exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety”. The Court quoted from the judgment of the Queensland Court of Appeal in Attorney-General (Qld) v Francis as reflecting the approach to be adopted. In that case Keane and Holmes JJA and Dutney J said: The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint. Again such approach may be seen to apply equally to an application made under s 23. If the Court is satisfied that the offender is incapable or unwilling to control his or her sexual instincts, the question is whether an order for indeterminate detention is apt to ensure adequate protection of the community, having regard to the risk to the community posed by the offender. (footnotes omitted)Consideration