R v England

R v ENGLAND
[2004] SASC 20
Criminal
BLEBY J
Background

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.
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.
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.
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.
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 report to the Court as to whether the defendant is incapable of controlling his or her sexual instincts.
(4)For the purposes of an inquiry under subsection (3), each medical practitioner –
(a)must carry out an independent personal examination of the defendant; and
(b)may have access to any evidence before the court by which the defendant was convicted; and
(c)may obtain the assistance of a psychologist, social worker, community corrections officer or any other person.
(5)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.
(6)The Supreme Court may exercise its powers under subsection (5) in addition to, or instead of, imposing a sentence of imprisonment for the offence.
(7)If the detention is in addition to a sentence of imprisonment, the detention will commence on the expiration of the term of imprisonment, or of all terms of imprisonment that the person is liable to serve.”
Both the medical practitioners prepared written reports following their respective inquiries. Both were called to give oral evidence. No other oral evidence was led.
Material to which the Court can properly have regard
A question arises as to the material to which the Court can properly have regard for the purpose of deciding whether to make a declaration and to give a direction under sub-section (5). This in term raises two other questions, namely whether the direction is a “sentence” for the purposes of the Act and, if not, whether there are other reasons why the Court is not bound by the rules of evidence in making the declaration.
If the direction can properly be regarded as a sentence for the purposes of the Act, then the Court is plainly not bound by the rules of evidence in making the declaration and the direction under sub-section (5). Section 6 of the Act provides:
“6.    For the purpose of determining sentence, a court –
(a)    is not bound by the rules of evidence; and
(b)    may inform itself on matters relevant to the determination as it thinks fit.”
Nowhere in s 23 is the process referred to as a “sentence”. Sub-section (6) recognises that there is a distinction between an order for detention in custody until further order and a sentence of imprisonment.
“Sentence” is defined in s 3 of the Act as follows:
“(a) the imposition of a penalty; or
(b)the decision of a court to offer a defendant an opportunity to enter into a bond; or
(c) the fixing or extending of a non-parole period; or
(d) the making of any other order or direction affecting penalty.”
The principal purpose of s 23 would appear to be for the protection of the public rather than the imposition of a penalty on the offender. Prevention underlies the section, not punishment: R v O’Shea (1997) 94 A Crim R 560 at 564. By virtue of s 23(8) it is clear that in the case of an adult, the detention will not necessarily be in a prison. It is also subject to release on licence in accordance with the provisions of s 24 of the Act.
In those circumstances, there would appear to be some difficulty in including an order for detention under s 23 in the definition of “sentence”. However, s 23 is in Part 2, Division 3 of the Act. The heading to that Division is “Division 3 – Sentences of indeterminate duration”. The only order for detention in custody until further order referred to in Division 3 is a direction under s 23. The heading to a Division of the Act forms part of the Act: s 19(2) Acts Interpretation Act 1915. A “sentence of indeterminate duration” is defined in s 3 as meaning “detention in custody until further order”. That is the phrase used in s 23(5).
In my opinion, it follows that Parliament has intended that a direction made under sub-section (5) must be regarded as a sentence of indeterminate duration. It would be strange indeed if Parliament intended that a “sentence of indeterminate duration” should not be a “sentence” for the purposes of the Act. Some word other than “sentence” would, in all probability, have been used in the phrase “sentence of indeterminate duration” if it did so intend.
However, there is an even more compelling reason why the direction should be regarded as a sentence for the purposes of the Act. Whilst it may not be the imposition of a penalty for the purposes of par (a) of the definition “sentence”, such a direction under sub-section (5) is a “direction affecting penalty” within par (d) of the definition. It affects penalty in one of two ways. It may result in no sentence of imprisonment being imposed at all: s 23(6). As will be seen, if a sentence of imprisonment is also imposed, may well have some bearing on the fixing of a non-parole period in respect of that sentence, and will come within par (c) of the definition.
I consider that a determination under sub-section (5) is therefore a “sentence” for the purposes of the Act and in particular for the purposes of s 6. If that is so, the Court is not bound by the rules of evidence and may inform itself on matters relevant to the determination as it thinks fit.
If I am wrong and a determination is not a “sentence” for the purposes of s 6 of the Act, there are other reasons why the Court, in exercising the powers under sub-section (5), is not bound by the rules of evidence. This may seem strange, given that the Court must first make a declaration which is essentially a finding of fact and a necessary pre-requisite to a direction that the defendant be detained in custody until further order. Furthermore, the finding will necessarily be conditioned by the opinion of experts based on certain underlying facts. Under normal circumstances, the opinion would have to be rejected unless the underlying facts were proved to the required standard of proof. If that were the case, the Court making the declaration would have to hear evidence in proof of the underlying facts as well as the evidence of the experts.
However, there are features of the Act which suggest that this cannot be so. In the first place, if the trial has taken place in the District Court, the judge of the Supreme Court required to sentence and to consider making the declaration will not have heard the evidence. The judge will have to rely, to the extent necessary, on a reading of the transcript of the evidence in order to reach a conclusion of fact consistent with the jury’s verdict.
In the second place, under sub-section (4), the medical practitioners may have access to any evidence before the Court by which the defendant was convicted and may obtain the assistance of a psychologist, social worker, community corrections officer or any other person in forming their opinion. Much of this information will be hearsay. In many cases it will relate to history which can no longer readily be proved. In my opinion, the clear inference is that the Court may likewise rely on such information in accepting or rejecting the opinion of the medical practitioners and in making the declaration and giving the direction.
Finally, facts relevant to a declaration and direction will usually encompass most of the facts and circumstances taken into account for the purpose of sentencing in any event, evidence of which facts and circumstances will not be limited, for the purpose of sentencing, to admissible evidence.
I therefore conclude that the approach to factual questions in considering a declaration and direction under sub-section (5) will be similar to that applicable to the process of sentencing. Whenever assertions of fact are made in documentary form they may be acted on unless the prosecution or defence dispute those facts, in which case the Court will conduct a disputed facts hearing to resolve such facts as are disputed. I am fortified in that view by this Court’s decision in R v O’Shea (supra) at 566-570 where the Court decided that a similar approach should be taken to an application under s 23(11) for discharge of an order for detention and s 24 for release on licence.
In this case, there were no disputed facts identified other than an assertion as to a minor and inconsequential inaccuracy in the defendant’s antecedent record. I can therefore accept as proved those facts on which the medical practitioners have based their respective opinions. I can also act on a range of materials similar to that upon which a court would also act in determining a sentence.
Accordingly, besides the written reports of the two medical practitioners and their oral evidence, I have had regard, where necessary and appropriate, to the following additional material:
(1)The defendant’s antecedent record.
(2)In relation to the robbery with violence conviction;
(a)Police incident report;
(b)Report of prisoner tried;
(c)Sentencing remarks of His Honour Judge Hume in the District Court dated 8 October 1993.
(3)      In relation to the indecent assault and rape convictions of 1992:
(a)    Report of prisoner tried;
(b)    Signed statements of the two victims of the offences;
(c)    Police apprehension report
(d)    Report of Dr Carl Radeski dated 29 January 1994;
(e)    Pre-sentence report of Mr J Fitzsimmons dated 4 February 1994;
(f)     Sentencing remarks of Nyland J dated 29 April 1994.
(3)Order for release on parole by the Parole Board dated 21 April 1998.
(5)Report of Mr Richard Balfour, Psychologist, to the Parole Board dated 22 September 1997.
(6)Transcript of evidence taken and exhibits tendered on the trial of the defendant for the 1998 indecent assault and rape offences.
The medical opinions – summary
Dr Raeside had access to a number of earlier reports, witness statements and transcripts of proceedings relating both to the 1992 and 1998 offending. He also had access to the reports of Dr Radeski and Mr Fitzsimmons which were before the Court for the sentencing of the defendant for the 1992 sexual offences, together with the report of Mr Balfour referred to above. Dr Raeside had previously had contact with the defendant on several occasions during an admission to James Nash House some years before and on other occasions as part of his psychiatric clinic in various correctional facilities.
Notwithstanding that he was unable to interview the defendant for the purpose of his report, he expressed the opinion that the defendant was unable to control his sexual conduct, that this might change with the advantage of formal rehabilitation efforts, but that as those had not occurred, he remained unable to control his conduct at present. Dr Raeside verified his opinion by way of sworn evidence before me and reaffirmed that opinion in evidence.
For the purpose of his report Dr Nambiar had before him the reports of Dr Radeski and Mr Fitzsimmons, the sentencing remarks of Nyland J in 1994, a summary of the various offences involving the defendant and copies of witness statements in relation to the 1998 offending. As became apparent in his oral evidence, significantly, he was not provided with the report of Mr Balfour.
Dr Nambiar considered that he had been disadvantaged by the fact that he had not been able to interview the defendant. In his report, he said:
“Given the limitations of a psychiatric examination without actually speaking to the patient I can only provide an opinion based on speculation rather than a comprehensive assessment.”
Towards the end of his report he said:
“I would like to state at this point that my opinion is merely speculation based on reading a variety of factual evidence with very little clinical material, apart from one previous psychiatric report, written in 1994. Without the added dimension of personally examining Mr England myself, I have been unable to put Mr England directly under the psychiatric microscope and examine some very crucial areas of his personality that would greatly assist me in forming an opinion.
…………
I find myself constrained and limited by the fact that I did not have the opportunity to interview Mr England personally and therefore find it difficult to form an opinion with any certainty in view of the grave consequences of any such opinion.
I can only speculate on the basis of the information that I have before me that if Mr England were to be released tomorrow I would predict that he would pose a great risk to the community with the probability of sexual offending once again extremely high. I am unable with any certainty to determine whether Mr England is capable of controlling his sexual impulses, however on the face, (sic) of it the magnitude of the evidence available would suggest that he is clearly not capable of controlling his impulses.
…………
It would seem to me very unfortunate that in addition to there not being specific service to assist offenders like Mr England in prison, or provide any rehabilitation in regard to their sexual offending, that added to this problem I am being asked to provide an opinion without even meeting Mr England.”
Notwithstanding the reservations expressed in his report, Dr Nambiar expressed the firm opinion in his oral evidence that the defendant was incapable of controlling his sexual instincts and did so without the reservations which had been expressed in his report. Not surprisingly, given the reservations expressed in the report, the basis of Dr Nambiar’s opinion was attacked by Mr Boylan QC, counsel for the defendant. Nevertheless, Dr Nambiar was not persuaded to qualify the opinion he expressed in oral evidence.
It will be necessary to refer in more detail to the evidence of both of Dr Nambiar and of Dr Raeside. However, the attack on Dr Nambiar’s opinion and, to a lesser extent, on that of Dr Raeside, raise the question of the standard of proof applicable under s 23(5)(b) of the Act. It was Mr Boylan’s contention that I had to be satisfied beyond reasonable doubt that the defendant was incapable of controlling his sexual instincts before I could make the declaration. Ms Chapman, for the Director of Public Prosecutions, contended that the relevant standard was on the balance of probabilities, the court needing to be satisfied that “there is acceptable and cogent evidence” that the defendant is incapable of controlling his sexual instincts.
Standard of Proof
As far as I am aware the question of the standard of proof under s 23(5) has not been addressed in this Court. Equivalent legislation in some other States and Territories[1] is more specific, but does not require proof beyond reasonable doubt. The fact that legislation of no other State or Territory may require proof of a relevant fact beyond reasonable doubt does not mean that s 23(5) of this Act, properly construed, does not or should not require proof beyond reasonable doubt.
[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).
I am also wary of construing the Act by reference to decisions in other jurisdictions where the criteria for making a determination of this nature vary. Ms Chapman relied on R v Riley [1973] 2 NSWLR 107 in support of her argument that “satisfied” did not mean proof beyond reasonable doubt. Section 4(1) of the Habitual Criminals Act 1957 (NSW) provided:
“When any person of or above the age of twenty-five years is convicted on indictment and he has on at least two occasions previously served separate terms of imprisonment as a consequence of his convictions of indictable offences, … then if the judge before whom such person is so convicted is satisfied that it is expedient with a view to such person’s reformation or the prevention of crime that such person should be detained in prison for a substantial time, the judge may, in addition to passing sentence upon such person for the offence of which he is so convicted, pronounce him to be a habitual criminal and shall thereupon pass a further sentence upon him in accordance with the provisions of section six of this Act.”
The Court of Criminal Appeal considered (at 112) that this was a power “not to be exercised lightly”. The Court continued:
“It has been held in Victoria that it was a discretionary power that ought not to be exercised unless it can be predicted with reasonable confidence that at the expiration of any term of imprisonment appropriate by current standards to the offences for which they are being sentenced, they will resume their criminal activities; R v Fahey [1954] VLR 460.”
It was held that those principles were applicable to the New South Wales Act.
The decision in R v Riley is not surprising, given the text of the legislation. The question as to whether a court is satisfied that it is “expedient with a view to such person’s reformation or the prevention of crime” that certain action should be taken does not readily lend itself to proof beyond reasonable doubt. The question in this State concerns satisfaction as to an existing state of affairs.

The Victorian legislation the subject of consideration in R v Fahey was different again. Section 514(1) of the Crimes Act 1928 (Vic) provided that where a person apparently of the age of 17 years or more had previously been convicted on at least two occasions of any indictable offence or offences, the Court “may declare that he is an habitual criminal and direct as part of his sentence that on the expiration of the term of imprisonment then imposed upon him he be detained during the Governor’s pleasure in a reformatory prison”. The exercise of the discretion was not dependent upon any particular finding other than the person’s apparent age and convictions on at least two previous occasions of indictable offences. The approach of the Victorian Court under that Act, while possibly relevant to the situation in New South Wales considered in R v Riley, could have little relevance to the required degree of satisfaction in South Australia, even if it may have some relevance to the exercise of the discretion once the Court is satisfied as to the pre-condition.
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.”
However, it must be remembered that the decision in question in that case was a decision on a matter having an effect on the ultimate finding of guilt or innocence. The question in this case does not, but it is a process affecting sentence, as I have held.
Australian courts had much earlier grappled with the problem of the standard of proof required in matrimonial proceedings in order to be “satisfied” that a ground of adultery was made out. In the well known case of Briginshaw v Briginshaw (1938) 60 CLR 336 the Court was concerned with s 80 of the Marriage Act 1928 (Vic) which provided that it was the duty of the Court “to satisfy itself, so far as it reasonably can, as to the facts alleged” upon a petition for dissolution of marriage. As Rich J pointed out, at 350, that phrase “obviously reflects the influence of the common expression ‘reasonable satisfaction’ ”.
Dixon J referred (at 360) to the evolution of the different criminal and civil standards of proof, citing academic writings on the law of evidence and the requirement of the criminal standard as being essential “to a verdict of condemnation”, contrasted with a more flexible approach for civil requirements. He continued (at 361-362):
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to be reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
In Edwards v Edwards and Elsegood [1947] SASR 258 this Court confirmed that the Briginshaw standard applied to proof of adultery under the Matrimonial Causes Act 1928-1941 (SA) where the court had to be “satisfied as to the existence of any ground” before divorce. Speaking on behalf of the Full Court Ligertwood J said, at 271, that the relevant standard in civil cases “is satisfaction with the preponderance of probability arrived at by due caution in the light of the seriousness of the charge and the presumption of innocence”.
Section 23(5) of the Act forms a part of the criminal law of this State in a statute concerned with criminal sentencing. Does that mean that because the section is included in the armoury of the criminal law, the criminal standard of proof must necessarily apply?
Parliament, in this case, has not specified that the satisfaction is to be beyond reasonable doubt. Latham CJ in Briginshaw v Briginshaw (supra) at 346 considered that it could be assumed that the legislature was aware of the difference between the civil standard of proof and the criminal standard of proof. Therefore, if it intended the criminal standard to be applied in s 23(5) it might have said so. The matter about which the Court has to be satisfied in this case, whilst appearing in a criminal statute as part of the criminal law, does not go to the guilt or innocence of the defendant.
In Police v Beck (2001) 79 SASR 98, Martin J considered the standard of proof under s 26(1) of the Criminal Law (Forensic Procedures) Act 1998 (SA). There the Court can make a relevant order for the carrying out of a “forensic procedure” if the Court is “satisfied” of the matters identified in sub-section (1). As Martin J pointed out, at 105:
“Generally speaking, in the absence of specific legislative direction, the criminal standard is not applied to other circumstances. For example, the prosecution is required to prove that admissions by accused persons were made voluntarily, but the standard of proof is proof on the balance of probabilities. I acknowledge that the procedures under the Act are connected with criminal investigations and prosecutions. However, those procedures are not immediately connected in the relevant sense with proof of guilt or indispensable facts. They are concerned with the obtaining of evidence relevant to the guilt or innocence of suspected persons. Significantly, they are also concerned with the gathering of material from which DNA profiles and a database of those profiles can be established as an aid in ongoing and future investigations.”
Martin J concluded that unless the legislature specifically stated that satisfaction beyond reasonable doubt was required in circumstances such as those under consideration, the legislature was not to be taken to have intended that the Court should apply the criminal standard of proof. This was so notwithstanding that such material might be used for the purpose of proving guilt of a criminal offence at some time in the future. The point is that mere association with some aspect of the criminal law does not justify a conclusion that satisfaction in every case is to be beyond reasonable doubt.
In sentencing a convicted person after a trial by jury, the sentencing Judge is required to act upon a version of the facts established to his satisfaction beyond reasonable doubt by the evidence and which is not inconsistent with the verdict of the jury: R v Stehbens (1976) 14 SASR 240 at 245: R v Martin (1983) 32 SASR 419 per Mitchell J at 440. In R v Sethbens, at 245, the Full Court approved the following passage from the judgment of Bray CJ in R v Thompson (1975) 11 SASR 217 at 221:
“Is the judge in sentencing still bound to act on the view of the facts most favourable to the accused and consistent with the jury’s verdict? Or can he act on the version which he himself is satisfied beyond reasonable doubt to be true, provided that it is not inconsistent with the jury’s verdict? … (W)hen the view of the jury of the particular factual issue in question for the purpose of sentencing is unknown, and the judge is prepared to make a finding on it beyond reasonable doubt based on his own opinion of the sworn evidence before him, I am inclined to think that he is at liberty to act upon it.”
Of that dictum the court in R v Stehbens said, at 245:
“We respectfully agree with the proposition, limited as it is to a sentence upon a jury’s verdict. His Honour’s views find support in Reg v Kane [1974] VR 759 at p 762 where the Court said:
‘If the learned Judge, as may well have been the case, regarded it as his duty to take the view of the facts most favourable to the prisoner, it would deny his freedom to form his own view of the facts within the limits of the conviction, and it would be a wrong approach.’
This does not mean, of course, that a judge is free to form his own opinion of the facts without regard to the general principles of proof in criminal cases. The judge must give the prisoner the benefit of any reasonable doubt when forming his view of the facts for the purpose of sentencing the prisoner, consistent with the verdict of the jury.”
The High Court has recently confirmed that a judge is not obliged to act on that version of the facts which is most favourable to the offender, provided that the facts found are not inconsistent with the jury’s verdict: Cheung v The Queen (2001) 209 CLR 1.
However, while the Court in R v Stehbens stated quite clearly that the sentencing Judge must be satisfied beyond reasonable doubt as to the relevant version of the facts for the purpose of sentencing, it is equally clear that the Court was there referring to the facts led in evidence on the trial before the jury. Therefore, to the extent that the facts concerning the particular circumstances of, for example, the present defendant’s 1998 offences are material to the formation of the opinion that the defendant is unable to control his sexual instincts, the sentencing Judge must be satisfied beyond reasonable doubt as to those facts. However, the question whether the defendant is unable to control his sexual instincts is not a question relevant to the guilt or innocence of the defendant. It can only arise for consideration after conviction. It does not necessarily follow that satisfaction as to that question must be beyond reasonable doubt.
Is the matter to be established under s 23(5) equivalent to a matter of aggravation which also requires proof beyond reasonable doubt: Anderson v The Queen (1993) 177 CLR 520 ? A finding under s 23(5) of the Act may result in what I have held to be a sentence for the purposes of the Act which involves a longer period of incarceration than would otherwise be the case.
In some cases it may be that the opinion as to inability to control sexual instincts depends upon certain aggravating features of the offence. As in any sentencing exercise, those features will have to be established to the satisfaction of the sentencing Judge beyond reasonable doubt if the opinion is to carry any weight. However, the formation of the opinion on the question whether the person is incapable of controlling sexual instincts cannot itself be reasonably regarded as a matter of aggravation in the offending. Therefore, I do not consider that the approach to matters of aggravation is relevant to this determination save as to the finding of any relevant primary facts which might constitute aggravation.
It is important to bear in mind precisely what it is that the Court is called upon to be satisfied about. It is that the particular person is incapable of controlling his or her sexual instincts. That is not a readily observable fact. It is not something that can readily be inferred by a finder of fact from other primary facts. It depends upon the formation and acceptance of an opinion which in turn depends, not only on the establishment of ascertainable facts, but on expert interpretation of the significance of those facts and of the weight be to given to them. It is not a process which is amenable to satisfaction beyond reasonable doubt. Rather, it is a process more akin to that described by Dixon J in Briginshaw v Briginshaw in the passage quoted above.
The position is not unlike the situation presented to Cox J in Tepper v Kelly (1987) 45 SASR 340. That concerned a charge of unlawful possession that required proof of the possession of property which was “reasonably suspected of having been stolen or obtained by unlawful means”. A magistrate had held that the prosecution was required to prove beyond reasonable doubt that the suspicion was reasonably held. Cox J considered that it was not appropriate to speak of the reasonableness of the suspicion being established beyond reasonable doubt. His Honour said, at 343:
“Factual elements – most important, the possession and the suspicion – have to be established beyond reasonable doubt. However, it is not appropriate, in my view, to speak of the reasonableness of the suspicion being established beyond reasonable doubt.”
At 345, Cox J gave some other examples in the criminal law where a judgment was required to be formed which was not amenable to proof beyond reasonable doubt. He described the process in that case as being “simply a matter of the Tribunal of fact assessing, if it can, the quality of the suspicion – whether it can properly be characterised in its judgment, as a reasonable suspicion”. Those views were approved by the Full Court on appeal: Tepper v Kelly (1988) 47 SASR 271.
Similarly, in relation to s 23(5) of the Act, 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 (supra), 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 sub-section. In that respect it may also be appropriate to consider, as in the case of R v Fahey (supra) and R v Riley (supra) 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 par (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.
That is the course which I propose to follow in this case.
The expression of the opinions
As I have already mentioned, both medical practitioners expressed the opinion on oath that the defendant was incapable of controlling his sexual instincts. The first hurdle is therefore overcome. It remains to assess the strength of those opinions, but in order to do so it is necessary first to state the relevant facts surrounding the defendant’s offending.
The circumstances of the offences
It is necessary to go into some detail of the circumstances because of the number of common and other features of the offending on which the medical practitioners relied in order to reach their conclusions. I deal first with the sexual offences for which the defendant was sentenced on 29 April 1994.
The first one occurred on 12 September 1992. It occurred in the ladies toilet attached to a city nightclub. The defendant jumped over the cubicle wall into a cubicle occupied by the victim. He ripped the zip away from her pants, grabbed her body suit, ripped her stockings, opened her legs, got himself between her legs and tried to hold her hands down, but left hastily when disturbed by another person coming into the toilets. That was the indecent assault.

The two rape offences occurred on 15 October 1992. The defendant broke into the victim’s home in the early hours of the morning. The victim was a stranger to the defendant, although they lived in close proximity. Two other women were in the house at the time. The victim was asleep in bed. She woke to feel the defendant’s gloved hand over her mouth. The defendant said, “It’s alright, I’m not going to hurt you, I just want to finger you, alright?” His voice sounded calm but excited. He discouraged her from resisting or from screaming by saying that he had a knife. He then proceeded to rape the victim digitally and then with his penis. He then quickly left.
He was asked about the details of that offence by Mr Balfour for the purposes of his report to the Parole Board in September 1997, some five years after the offences. He told Mr Balfour that these offences were committed whilst he was intoxicated and that he had no memory of the offences. His only reason for pleading guilty was because of DNA evidence which clearly implicated him. Notwithstanding that, Mr Balfour expressed some reservations about this explanation. The defendant gave an ambivalent response to questions directed to whether he had ever seen the victim before, bearing in mind that they lived close to each other. Mr Balfour expressed the belief that “Mr England shows limited insight into the reasons for his offending behaviour, or, alternatively, he has chosen not to disclose further information”.
The victim’s statement signed on 19 January 1993 indicated that the rape was planned and deliberate, and that the defendant was not in fact affected by alcohol or poorly co-ordinated. Although the defendant often abused alcohol at that time, there was no suggestion to Dr Radeski, who saw him for the purposes of sentencing, or in the pre-sentence report that alcohol played a part in this offence. It was not suggested to the sentencing Judge that alcohol played a part.
The 1998 offences involved five episodes of either rape or indecent assault, each accompanied by burglary or (on one occasion) break, enter and larceny. The first of the 1998 offences was of indecent assault and burglary. The 28 year old victim was in bed in her home. Two other females were in the house. She was awoken in the early hours of the morning by the defendant touching her underneath her clothes in her vaginal area. His hand was under the quilt and inside her track suit pants. When the victim screamed the defendant left. The handbag of one of the other victims had been disturbed and some keys and $10 had been taken. Entry to the house was gained through an unlocked laundry door.
On 26 November 1998 the defendant committed two offences of rape and one of burglary. The 21 year old victim was at home with her mother. In the early hours of the morning the victim was disturbed by her dog barking. She got up and locked the dog in the kitchen and went back to bed. She then heard the dog barking outside. The defendant had entered through a lounge room window. He opened the victim’s bedroom door slightly. The victim enquired whether that was her mother. There was no response. She got out of bed and walked towards the door saying, “Do I know you?” The defendant said, “Yes, yes you do, just go back to bed”. There was a further attempt at reassuring the victim, a demand for some money, accompanied by the statement that he had a gun. The victim passed her purse through the door and went back to bed. The defendant then entered the room and slid his hand under the quilt, moving his hand up and down the victim’s right thigh.
He then went out of the room and told the victim to put the light on and get up on the bed. She obeyed while he was outside the door looking through the gap. He told her to remove her top, which she did, and then to take her dress off totally, followed by her knickers. She told the defendant that she was having a period and put her dress back on. The victim was visibly upset, but the defendant came into the bedroom, told the victim to turn to the wall and proceeded to rape her by putting one finger inside her vagina. The victim heard him lick his finger. He then put two fingers in her vagina, moving them up and down. During this there were conversations as to whether or not he was hurting her. She began crying and, on command, gave the defendant a hug and could then smell alcohol on his breath.
The defendant then asked the victim if her mother had any money. She said, “No”, to which he said, “Well go and ask her”. She then went to her mother’s bedroom with the defendant behind her. She spoke to her mother in Polish, whereupon her mother grabbed the telephone and the defendant disappeared.
The next episode was committed on 15 December 1998. It comprised one offence of rape and one of burglary. This also occurred in the early hours of the morning in the 18 year old victim’s home, which was also occupied by her parents, three sisters and a brother. The victim was awoken by the defendant putting his hand over her mouth, telling her to be quiet. He got onto the bed next to her, told her take her top off and then pulled down one strap of her bra exposing her left breast. He put a towel over her eyes. Someone walked passed her bedroom. He put his hand over her mouth and persisted, telling her not to scream, but enquiring who else was in the house. He told her to take her pants off but that he did not intend to have penile intercourse. He then felt her exposed bottom and vaginal area and fondled her breasts, engaging her in conversation and questioning her whether she had had sex with her boyfriend because he had seen them the night before. He then digitally raped her, fondled her breasts, asking her to produce an orgasm for him, which she declined. He put her hand on his clothed but erect penis and tried to kiss her. He inserted his finger into her vagina again and then asked to engage in cunnilingus and then penile intercourse. She declined and he continued to touch her around her legs, vagina and breasts. He left after covering her head with the quilt and telling her not to look up, scream or tell anyone about what had happened. He returned a few seconds later for his cigarette packet. He had also taken items from the victim’s wallet.
The victim of the next episode committed on 26 December 1988 was the same victim of the offence of 7 November 1998. This was one further episode of rape and burglary. Again, the victim was at home, this time alone and was woken in bed by the defendant’s hand covering her mouth, he assuring her that it was “okay”, telling her to be quiet and not to worry. He told her to go into the kitchen where she sat at the dining table and he began massaging her shoulders. She told him not to, but he continued, threatening her that he had a knife. There was further somewhat bizarre conversation and the defendant slipped his hands down towards her breasts under her t-shirt trying to fondle her, but she pushed him away. He asked her to go into the bedroom but she refused. He told her to go into the lounge, which she did, where she sat or knelt on the floor. He pushed her in the back so she was lying on her stomach and then put his hand down the front of her tracksuit pants and digitally raped her. He got up and said he was going to another room for a cigarette and disappeared. Money was taken from her purse.
The final episode occurred on 29 December 1998. This involved indecent assault and break, enter and larceny. The female victim, aged 16, was living with her boyfriend. She was in bed with her boyfriend and was awoken early in the morning by the defendant sliding his hand up her left leg under the quilt. He beckoned her to be quiet, but she slapped him on the face. Her boyfriend woke up and grabbed the defendant by the shirt as he was running towards the door. He closed the door and stood behind it, telling the boyfriend to move away saying “I’ve got a guy out here that’s got a gun and he’s not scared to us it”.
The victim and her boyfriend were sitting on the bed. Through a gap in the door the defendant told them to do what he said and they would not get hurt. He told the victim to take her clothes off, which she did. He told the couple to have sex. They refused. He told them to stand against a wall. They were both naked and did as he directed. He told them to have sex “doggy style” but they refused. He told the victim to spread her legs, which she did, and to play with herself, which she refused. During all this time he kept on telling them to do as he said, and no one would get hurt. During the course of this episode the defendant ejaculated onto a white shirt he had taken off the clothes line. He eventually left, telling the victims not to ring the police or he would hunt them down and kill them.
The medical evidence – Dr Nambiar
I have already referred to the reservations of Dr Nambiar and the qualified nature of his opinion as expressed in his report, based on his inability to interview the defendant. At the time of giving his oral evidence, Dr Nambiar had still not had an opportunity of interviewing the defendant. Nevertheless, he sought to down play the significance of that fact by saying that, in retrospect, the word “speculation” was the wrong word to use. He felt uncomfortable about providing an opinion without an interview, but not uncomfortable about the opinion. He felt uncomfortable that he was being denied access to his usual professional standard of having all available information before him. His discomfort was also explained as being based on a concern that, as a matter of law as he then understood it, he was required to conduct a face to face interview.
The statement in his report that he found it “difficult to form an opinion with any certainty” was explained by him as his preferring to have the opportunity to interview the defendant as well as having additional information before providing the opinion.
I found Dr Nambiar’s attempt at justification for some of the terms used in his report to be unsatisfactory and not entirely consistent with what I accept are his high professional standards. In the end, it was his evidence that the additional information which he could have obtained from the defendant could only have gone to assist the Court in being advised about possible treatment options, a matter which he acknowledged was not part of his brief. It may well be the case that a personal interview is necessary in order to access the effectiveness of possible treatment options. That was a fact confirmed by Dr Raeside’s evidence. However, it does not adequately explain Dr Nambiar’s use of plain English words expressing his difficulty in forming an opinion as to the defendant’s ability to control his sexual instincts, that difficulty being caused by his inability to interview the defendant.
Leaving aside that rather unsatisfactory attempt to justify his present opinion over the reservations expressed in the letter, it was also Dr Nambiar’s evidence that, at the time of writing his report, he had not had the opportunity to see Mr Balfour’s report. He had seen it before giving evidence, and that assisted in confirming his opinion. Mr Balfour’s report was extremely comprehensive, covering the results of psychological testing and a comprehensive review of the defendant’s history relating to his family, his education, his occupations, his recreation, his inter-personal relationships, his physical development, his health, his finances, his involvement with the law and with drugs and alcohol, his mental and psycho-sexual development. It included the defendant’s account of the 1992 rape offences and Mr Balfour’s clinical opinions and recommendations.
Dr Nambiar’s final opinion was based on the filling of the substantial information gap by the report of Mr Balfour, the increasing frequency of the sexual attacks, the apparently planned events and the defendant’s apparent lack of awareness that he was stepping beyond the issue of consent. In relation to the latter point he explained that whilst realising that in fact the victims were not consenting, the defendant failed to understand the significance of that, that conclusion being based not on some intellectual impairment but on the nature of the offending. What he regarded as important was the pattern and continuance of the defendant fulfilling his urges in a way that was inappropriate.
To the extent that Dr Nambiar’s tentative opinion was strengthened by the additional information with which he was provided, there is some justification for accepting his opinion. Nevertheless, there are unsatisfactory features of his evidence to which I have referred which still cast some doubt on the strength of his conclusion and the weight that can be given to it.
Dr Raeside
I have already referred to the conclusion of Dr Raeside expressed in his written report. Dr Raeside confirmed that opinion in oral evidence. He considered that, unlike some types of psychiatric assessment, an accurate assessment for the purposes of s 23 of the Act did not necessarily require a face to face interview. He contrasted that assessment with other forms of assessment which did, such as a current psychiatric assessment, and with a situation in which an interview would be of substantial assistance, such as in assessing a person’s mental competence to commit a crime at a particular time.
In his opinion, a psychiatric illness was not a necessary indication of inability to control sexual instincts. That may have a bearing, but in this case there was no suggestion of any psychiatric illness.
Dr Raeside listed the important features which led to his conclusion. They included the number of offences, the fact that the defendant was not easily deterred by the presence of other people in the house or even by the victim’s boyfriend being in bed with her at the time. He referred to the defendant’s persistence despite obstacles, the fact that he had not been deterred by imprisonment or by the obvious presence of others being awake and conscious, despite the risks to him of detection. The offences were prolonged episodes, involving substantial conversation with his victims, despite the increased risk of detection or apprehension created by that. That, together with a repeated offence on the same victim indicated lack of concern for the victims.
There was also the pattern of his conduct and its compulsive quality, and the apparent difficulty in controlling his urges in order to interrupt the pattern.
There was the planning for his offences, selecting times and locations that would facilitate the commission of the offences. In one sense that might suggest an ability to control, but in Dr Raeside’s view it also indicated an inability to control the ultimate goal of sexual satisfaction rather than an ability to control that instinct for a shorter period of time. He likened it to the inability of a compulsive gambler to control the gambling urge whilst still being able to control and plan the particular episodes and locations.
Dr Raeside also relied on the escalating use of threats, not at the outset of an episode but during the course of it, as a method of coercion in order to achieve his goal. He referred to the purposeful nature of the behaviour and that, on least on some occasions, he was apparently not affected by alcohol, which might be a less inhibiting factor. He was there referring to one of the 1998 episodes where the victim smelt alcohol on his breath and to the description of the earlier offending given by Mr Balfour, in respect of which Mr Balfour seems to have been misled. However, he considered that, even if intoxication did play a part in some offences, the behaviour appeared to be purposeful.
There was no evidence of any psychiatric problem or personality disorder which would explain the offending. Rather there was an attempt to shift responsibility by blaming poor relationships with his mother and alcohol for his behaviour.
There was evidence, in Dr Raeside’s view, of some evolution of the offending. The earlier offending was more disorganised and impulsive, the later offending having settled into a consistent pattern. He did not place any significance on any change from penile to digital rape so far as the defendant’s ability to control was concerned, as both would provide sexual gratification.
The strength of Dr Raeside’s opinion was not diminished in cross-examination. Indeed, he considered that his opinion in this case was “more clear-cut than most”. When asked to describe, if he could, the strength of his opinion, he said that he always hesitated to give a percentage figure, “but if you are asking me directly, I would say I would put it above 80%”.
I found Dr Raeside’s evidence convincing. The basis of his opinion was clearly stated and was adequately supported by evidence of the primary facts on which he relied. I accept his opinion.
Conclusion
Deprivation of liberty in the manner contemplated by s 23 of the Act is a very serious matter. A declaration and a direction under sub-section (5) cannot be made and given lightly. If made, the period of detention is indeterminate. In this case, there is cogent and acceptable evidence in the form of Dr Raeside’s opinion which causes me to be satisfied in the sense previously discussed that the defendant is incapable of controlling his sexual impulses. While I have some reservations about the opinion expressed by Dr Nambiar, and while I may have hesitated to be so satisfied if Dr Nambiar’s evidence were the only evidence before me, his evidence does not detract from that of Dr Raeisde, and indeed provides some support for it.
The question whether the declaration should be made and the direction given needs to be considered in association with whether a sentence of imprisonment should be imposed. In my opinion it should. The defendant is not shown to be suffering an illness or identifiable mental incapacity which might explain the offending and justify an order for detention alone. The offences call for punitive as well as preventive measures. The element of general deterrence is also important. I therefore propose to sentence the defendant in the usual way for these offences. That will, at the same time, ensure a minimum period of detention and therefore of protection of the public.
However, the sentence imposed is likely to be substantial. It will be increased by the application of s 75, Correctional Services Act 1982 because the offences were committed near the commencement of a substantial period of parole.
Given the likely length of the sentence, it is almost impossible to tell whether the defendant is likely to resume similar sexual activities upon his release from prison. The availability of treatment in the prison system is a matter of some uncertainty. Hitherto, effective treatment for sexual offenders whilst in prison has been non-existent. There are indications that that is about to change. During the defendant’s incarceration there may well be developed new and better methods of treatment. It is in the area of the defendant’s likely response to various methods of treatment that both doctors felt disadvantaged by not having been able to interview the defendant. Whether the defendant would respond to such treatment, if it is available, cannot, therefore, be known at this stage. Even if it could, it would be almost impossible to predict, with any accuracy, what the position might be at the end of a very long period of imprisonment.
However, I do not consider that the likely length of sentence is a reason for not making the declaration and giving the direction. I consider that it would be in the interest of the defendant and for the protection of the public that they should be made and given. It will ensure that the defendant can only be released after proper judicial inquiry. The detention required by such a direction can only take effect at the “expiration of the term of imprisonment … that the person is liable to serve”: s 23(7). If, by access to treatment during his imprisonment or for any other reason circumstances have changed at the time when the period of detention takes effect, there are means in the Act whereby the order may be discharged or release on licence may be permitted. It does not follow that the period of detention so directed will necessarily extend any period of incarceration. On the other hand, it may do. That will depend on circumstances prevailing at the time and which cannot presently be foreseen.

There may be a question whether the period of detention commences upon what would otherwise have been release on parole or whether it only commences upon expiry of a head sentence. I have heard insufficient argument to determine that, and in the circumstances, it is not necessary to do so now. Given the uncertainty of the defendant’s prognosis to which I have referred and some uncertainty as to the relationship of a period of detention under s 23 to a period of parole, I do not intend to fix a non-parole period at this stage. Mr Boylan QC asked me not to fix a non-parole period. Whether a non-parole period should be set at a later time will depend on circumstances prevailing at that time.
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 CITATIONS
LISTED 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).

[2004] SASC 20

22 January 2004