R v England

Case [2004] SASC 20

R  v  ENGLAND

[2004] SASC 20

Criminal

BLEBY J

Background

  1. On 2 November 2001 the defendant was convicted after a trial by a jury of two offences of indecent assault, four offences of rape and five offences of burglary or break, enter and larceny. The burglary and larceny offences involved relatively small amounts of money. The offences occurred in November and December 1998. The sexual offences were offences to which s 23 of the Criminal Law (Sentencing) Act 1988 (“the Act”) applied. The defendant had previously been convicted after a trial, of one offence of robbery with violence committed in August 1992 and, upon his plea of guilty, of one offence of indecent assault and two offences of rape which occurred in September and October 1992. For those offences he was in custody between 5 October 1993 and 23 April 1998, when he was released on parole. The most recent offences were therefore committed within about six and a half months of his release on parole and whilst he was still on parole. It will be necessary to refer in due course to the nature of these offences in more detail.

  2. The trial of the 1998 offences took place in the District Court. The trial Judge was of the opinion that the powers under s 23 of the Act should be exercised in relation to the defendant, and accordingly the defendant was remanded to appear for sentence before this Court in accordance with s 23(2) of the Act.

  3. As the sentencing Judge, I made an order in terms of s 23(3) directing that at least two legally qualified medical practitioners inquire into the defendant’s mental condition and report to the Court as to whether the defendant is incapable of controlling his sexual instincts. The medical practitioners directed to make the inquiry were Dr Craig Raeside and Dr N P Nambiar.

  4. The defendant refused to be interviewed by those doctors, following which I referred certain questions to the Full Court. The Full Court ruled that for the purposes of s 23(4) of the Act both Dr Raeside and Dr Nambiar had carried out an independent personal examination of the defendant: R v England [2003] SASC 321.

  5. So far as is relevant for present purposes, s 23 of the Act 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…

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Details
AGLC
R v England [2004] SASC 20
Case
[2004] SASC 20
Decision Date

CaseChat Overview and Summary

The case of R v England involved a defendant who was convicted of an indictable offence and the court was required to determine whether the defendant could be detained at the Governor’s pleasure under the relevant legislation. The legal issues before the court were the interpretation of the statutory language and the appropriate standard of proof required for the exercise of the discretion to detain the defendant at the Governor’s pleasure. The court considered the relevant legislative provisions and case law, including the High Court’s decision in Chester v The Queen, and found that the sentencing judge must be clearly satisfied by cogent evidence that the convicted person is a constant danger to the community before the discretion could be exercised. The court also considered the context in which the word “satisfied” is used and found that the standard of proof required would depend on the nature of the proceedings, whether civil or criminal.

The court held that the statutory language required the sentencing judge to be clearly satisfied by cogent evidence before exercising the discretion to detain the defendant at the Governor’s pleasure. The court found that the standard of proof required would depend on the nature of the proceedings, whether civil or criminal. In this case, the court found that the defendant met the required standard of proof and was a constant danger to the community. The court also found that the defendant was incapable of controlling his sexual instincts and ordered his detention in custody until further order. The court sentenced the defendant to imprisonment but did not fix a non-parole period. The court’s decision was based on a careful consideration of the statutory language, relevant case law, and the facts of the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In Chester v The Queen (1988) 165 CLR 611 the High Court considered the equivalent Western Australian legislation. Section 662 of the Criminal Code (WA) provided that if a person was convicted of an indictable offence the Court “may, if it thinks fit, having regard to the antecedents, character, age, health or mental condition of the person convicted, the nature of the offence or any special circumstances of the case” direct the person’s detention at the Governor’s pleasure. That section did not set out any criteria in respect of which the Court was required to be satisfied. Nevertheless, in their joint judgment the High Court said (at 618-619):“The exercise of the power should be reserved for those very exceptional cases which do not attract the operation of s 661 of the Code or for which s 29(1) of the Mental Health Act is unlikely to be appropriate in which the sentencing judge is satisfied by acceptable evidence that the convicted person is, by reason of his antecedents, character, age, health or mental condition, the nature of the offence or any special circumstances, so likely to commit further crimes of violence (including sexual offences) that he constitutes a constant danger to the community. The stark and extraordinary nature of punishment by way of indeterminate detention, the term of which is terminable by executive, not by judicial, decision, requires that the sentencing judge be clearly satisfied by cogent evidence that the convicted person is a constant danger to the community in the sense already explained.” (Emphasis added). There the Court specified certain matters of which the Court had to be satisfied and the manner of its satisfaction before the discretion could be exercised. That may well provide some assistance in the application of s 23(5). In the United Kingdom, where the word “satisfied” is used, the degree of satisfaction takes it colour from the context in which the legislation appears. In Blyth v Blyth [1966] AC 643 a majority of the House of Lords abandoned the requirement previously set in Preston-Jones v Preston-Jones [1951] AC 391 that proof of adultery in matrimonial proceedings was to be beyond reasonable doubt, holding that the use of the word “satisfied” in s 4(2) of the Matrimonial Causes Act 1950 (UK) merely indicated where the burden of proof lay, and said nothing about the standard of proof. That was to be determined by application of the common law, and whether the proceedings were civil or criminal. As the Court of Appeal subsequently held in R v Ewing [1983] 1QB 1039 at 1046:“The majority of their Lordships decided that as a divorce suit was a civil proceeding, it was the civil standard of proof that applied, but, nevertheless, the degree of proof required to satisfy of adultery was very much higher than the degree of proof required to satisfy of the absence of condonation or connivance.” That approach was confirmed by the decision in R v Ewing itself, where the Court of Appeal had to construe s 8 of the Criminal Procedure Act 1865 (UK). The Court said (at 1046-1047)“In our judgment, the words in section 8, ‘any writing proved to the satisfaction of the judge to be genuine,’ do not say anything about the standard of proof to be used, but direct that it is the judge, and not the jury, who is to decide, and the standard of proof is governed by common law: see the passage from Lord Pearce’s speech in Blyth v Blyth [1966] AC 643, 672. It follows that when the section is applied in civil cases, the civil standard of proof is used, and when it is applied in criminal cases, the criminal standard should be used.”

Decision

Reasons for decision

For these reasons I propose to make a declaration pursuant to s 23(5) of the Act that the defendant is incapable of controlling his sexual instincts and to direct that he be detained in custody until further order. I also propose to sentence the defendant to imprisonment but not to fix a non-parole period.“JUDGMENT CITATIONSLISTED IN ORDER OF APPEARANCE IN JUDGMENT”1.S 18A and s 18B Sentencing Act 1991 (Vic); s 170 Penalties and Sentences Act 1992 (Qld); s 98 Sentencing Act 1995 (WA); s 71 Sentencing Act (NT); s 4(1) Habitual Criminals Act 1957 (NSW).

Ratio Decidendi

Legal Principle Established

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