R v F, JM - [2015] SASC 99

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Criminal)
R v F, JM
[2015] SASC 99
Reasons for Decision of The Honourable Justice Bampton
7 July 2015
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
Application by Attorney-General for order pursuant to s 23 Criminal Law (Sentencing) Act 1988 (SA) that the respondent be detained in custody until further order.
Held:
1. The respondent is unwilling to control his sexual instincts within the meaning of s 23 of the Criminal Law (Sentencing) Act 1988 (SA).
2. The respondent to be detained in custody until further order.
Criminal Law (Sentencing) Act 1988 (SA) s 23, referred to.
McGarry v The Queen (2001) 207 CLR 121; R v Ainsworth (2008) 100 SASR 238; R v England (2004) 87 SASR 411; R v Stevens [2015] SASC 79; R v Whyte [2006] SASC 56, considered.

R v F, JM
[2015] SASC 99
Criminal: Application
BAMPTON J.

F, JM (Mr F) was found guilty of seven counts of unlawful sexual intercourse with a person under the age of 17 years contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) following a trial by Judge alone. He was sentenced by the District Court on 2 October 2007 to eight years’ imprisonment with a non-parole period of four years and six months. The sentence was backdated to the date he was taken into custody on 19 April 2007.
Mr F was due to be released on 18 April 2015 following completion of his sentence. However, an offence under s 48 of the CLCA is a relevant offence pursuant to s 23(1)(a) of the Criminal Law (Sentencing) Act 1988 (SA) (the CLSA). As Mr F has been convicted of a relevant offence for the purposes of s 23 of the CLSA, s 23(1)(a) prescribes that he is a person to whom s 23 of the CLSA applies.
Section 23 provides for the Attorney-General to make application to the Court to have a person serving a sentence of imprisonment detained indefinitely. The Court may pursuant to s 23(4) order that a person be detained in custody until further order if satisfied the order is appropriate. The purpose of an order pursuant to s 23(4) is to protect the public from persons who are incapable of controlling or unwilling to control their sexual instincts.
On 19 March 2015, the Attorney-General made application seeking an order pursuant to s 23(4) of the CLSA that Mr F be detained in custody until further order.
Section 23(2a) provides that the Attorney-General may make such an application “while the person remains in prison serving a sentence of imprisonment” [My emphasis]. It follows that the application must be determined before the person’s sentence expires.
The matter first came on for hearing before me on 25 March 2015 at which time I directed that two medical practitioners, to be nominated by the Clinical Director of the Forensic Mental Health Service, inquire into Mr F’s mental condition and report to the Court on whether he is incapable of controlling or unwilling to control his sexual instincts. In view of Mr F’s impending release date, the reports from the medical practitioners were sought urgently and at great expense.
I repeat the comments I made in R v Stevens regarding the lateness of the application:[1]
[1] R v Stevens [2015] SASC 79 at [8]-[13].
The Court takes a serious and extraordinary step when it orders that a person who has served his or her sentence be detained indefinitely. As such, it is imperative that applications pursuant to s 23 be initiated in a timely manner allowing for the procedure prescribed by s 23 to be undertaken in a procedurally fair manner.
Late applications impose great pressure on the already burdened Forensic Mental Health Service to provide reports in great haste. Pressure is put on those advising the Attorney‑General and those advising the person to whom s 23 applies.
Most significantly, the person who is the subject of the application must be afforded fairness in the proceedings. An order for indefinite detention is made because of a prediction of risk to the safety of the community largely based upon the opinions of psychologists and psychiatrists that a person may commit further crimes, not because he or she has. It is, therefore, essential that there be “very clear authority both of law and of fact, to deprive a person of their” most fundamental right, that of liberty, “particularly indefinitely”.
This fundamental right must, of course, be balanced against the paramount consideration of the protection of the community. The balancing of these considerations implicitly demands that applications like this be subject to careful, timely and fair assessment. It is only where there is cogent and acceptable evidence justifying the making of the order, that an order denying a person’s right to liberty will be made.
The provision of rehabilitative and therapeutic programs is a matter for DCS. However, it would facilitate the work of the examining medical practitioners and the determination of s 23 applications by the Court if sexual offenders serving custodial sentences were given an opportunity to participate in sexual behaviours programs at a time which optimises their therapeutic effect and with time for assessments of participation in such programs to be conducted in a timely manner. If that were done, any application which the Attorney-General might see fit to make pursuant to s 23 could be made well in advance of the expiry of the person’s sentence.
In that way, applications to the Supreme Court could be made allowing time for:
•the Court to direct pursuant to s 23(3) two medical practitioners inquire into the medical condition of the person and report to the Court on whether the person is incapable of controlling, or unwilling to control his or her sexual instincts.
•reports provided to the Court in accordance with s 23(3) to be considered by the Attorney-General and the offender and legal advice obtained.
•a hearing to be convened to hear evidence from the medical practitioners who provided the s 23(3) reports and any other evidence the parties wish to adduce.
•the Court to consider the matters it must take into consideration in determining whether to make an order for indefinite detention prescribed by s 23(5a), that is:
(a)the reports of the medical practitioners (as directed and nominated under s 23(3)) furnished to the Court;
(b)any relevant evidence or representations that the person may desire to put to the Court;
(c)any report required by the Court under s 25;
(d)any other matter that the Court thinks relevant.
Background
Mr F’s personal circumstances and history of offending
The sentencing remarks and reports, including reports prepared by the Sexual Behavioural Clinic, contained in the Book of Documents prepared on behalf of the Attorney-General set out Mr F’s personal circumstances.
Mr F is married with five daughters, one son aged 14 years, a granddaughter and a grandson. He is 63 years old.
Mr F’s history of offending dates back to 1984 when he was convicted of assault occasioning actual bodily harm against his step-daughter, who was then two years old. He was given a suspended sentence of nine months’ imprisonment. The step-daughter was taken into foster care for 18 months and later returned to the family.
1991 offending
In July 1991, Mr F committed indecent assault and one count of rape against a 12 and a half year old boy. The boy was the son of his wife’s friend who visited his home on three occasions. Mr F said during these visits he played the computer with the boy who rubbed himself along Mr F’s leg and he became aroused. On the fourth occasion, Mr F showed the boy a pornographic film and then indecently assaulted and raped him. Mr F was in custody for this offending from 17 September 1992 until he was sentenced on 3 December 1992 to two years’ imprisonment for the indecent assault and four years’ imprisonment for the rape, to be served concurrently. A non-parole period of 30 months was set and the sentence was suspended upon him entering into a good behaviour bond.
2004 offending
The seven counts of unlawful sexual intercourse with a person under the age of 17, for which Mr F was sentenced on 2 December 2007, were committed over a period of one month in January 2004. The circumstances of the offending were that Mr F seduced a 16 year old youth, who had spent time in a shelter and youth services accommodation. He was homeless and vulnerable. It was arranged that the youth would board with Mr F’s family. Mr F arranged that the youth would stay in a bedroom with him. Most of the acts of unlawful sexual intercourse, many of which had a measure of force associated with them, occurred in the bedroom. Mr F maintained that the youth had initiated the sexual conduct. The victim was an unwilling participant and found by the sentencing Judge to have been confused and frightened. The Judge noted that Mr F’s prospects of rehabilitation were not good.
The Parole Board
By reference to a letter from the Parole Board dated 20 April 2015, Mr F applied for parole in February 2011. His application was deferred in order that he undertake the Sexual Behaviour Clinic (SBC) program. He again applied for parole at the end of 2012. This application was deferred to enable the Board to obtain further information. The Board considered it was a concern that, notwithstanding participation in the SBC, Mr F had not modified his behaviour and had no insight into his offending. It was noted that his attitude was such that he would be difficult to supervise and unlikely to engage in a meaningful way if he were subjected to supervision in the community.
Treatment and assessments
When first assessed at Port Augusta Prison on 9 June 2010, Mr F was assessed as being at high risk of sexual reoffending should he not receive treatment.
Mr F considered himself to be bisexual. He reported intermittent casual sexual relationships with men throughout his marriage. He said that his wife condoned this, provided that it did not impact on family life.
Pre Treatment Assessment Report 15 June 2010
The Pre-Treatment Assessment Summary dated 15 June 2010 recorded that it appeared that Mr F’s diverse sexual orientation combined with his poor impulse control contributed to his decision to offend. Mr F was considered suitable for the SBC. Mr F was involved in the SBC program from 30 August 2010 to 2 June 2011.
Post Treatment Assessment Report 26 October 2011
It is reported in the Post Treatment Assessment Report dated 26 October 2011 that, following completion of the SBC program, Mr F was assessed as being in the very high risk category for reoffending. The reasons why his risk had increased from high to very high included the “amplified knowledge of the extent and nature of his offence related behaviour as well as clinical observation through the program”.
It was recommended that if Mr F were to be released on parole that he attend the SBC maintenance program in the community to address his ongoing risk factors including empathy, emotion management, preoccupation with sex, intimacy and relationships, and general self management. It was also recommended that he be monitored through case management with regard to his hostility towards women. It was further recommended that he be referred for psychological intervention to address his:
·awareness and exploration of core beliefs,
·awareness and exploration of sexual identity,
·high risk factors such as intimacy and relationships (specifically in regards to emotional attachment to pre and post pubescent children),
·impulsive and opportunistic behaviour (specifically in regards to preoccupation with sex and sex as coping), and
·lack of understanding/recognition in regards to deviant sexual behaviour.
Individual Treatment Report dated 1 September 2014
Mr F was offered individual treatment to address his outstanding treatment needs between 14 January 2014 and 12 August 2014. He received 23 hours of individual treatment.
It was noted in the Individual Treatment Report dated 1 September 2014 that Mr F minimised his responsibility for the 2004 offending against the 16 year old and minimised the offending. He reported one act of sexual abuse rather than the seven counts for which he was convicted. He said he assumed his victim was close to 20 years old and he portrayed the abuse in a way in which suggested his victim was complicit in the offending. When he was asked about the discrepancies between his account and the account in the sentencing remarks, Mr F said the Court was wrong because the Judge dismissed the professional and forensic evidence and chose to believe the victim.
With respect to the 1991 offending, Mr F reported that he took the victim for a drive, parked in a secluded car park and masturbated him. Mr F minimised this offending by stating his victim was 13 years old while the sentencing remarks referred to him as being 12 and a half and he asserted that when he committed the offence he did not know the law applied to sexual activity with males.
The authors of the Individual Treatment Report noted that Mr F’s account of his sexual offences and criminal history, as well as the way in which he discussed his background, demonstrated that he still minimised his offending, portraying his victims as complicit in the abuse. Mr F was asked how his wife had taken his conviction and suspended sentence in 1992 and he said there had been no harsh words between them. When asked why his wife had been so accommodating about his offending, he suggested that living with him had been an easier lifestyle than with her previous partner. The authors concluded that Mr F’s responses in this discussion suggested he lacked empathy for his wife and raised questions about the quality of the communication that existed in his marriage. The authors noted Mr F described his relationship with his wife as one characterised by understanding, supportiveness and trust. In noting this, the authors also noted that the sexual offending took place in the family home and the victim of the 1991 sexual offence was the son of one of his wife’s friends. The authors pointed out that neither the presence of his wife, nor concerns for her feelings, prevented Mr F from committing sexual offences. They stated it was therefore difficult to understand what his wife’s reported continued support is based on or to view his relationship with her as reducing his risk of reoffending.
Following the individual treatment, Mr F was estimated to be at high risk of reoffending. The authors noted Mr F’s emotional identification with children, hostility towards women, impulsivity and negative emotionality had reduced. They stated that it was a concern that he had poor social support and that he listed his 14 year old son and a convicted sex offender among his significant social influences. Mr F’s “high sex drive/preoccupation” were referred to as outstanding treatment needs. It was also noted that as he had a son of teenage years, given his acknowledged sexual interest in young males, and the fact that he had twice been convicted for sexually abusing teenage boys, any contact with his son would possibly place the son at risk of being sexually abused.
The authors recommended that, upon release, Mr F be encouraged to join a seniors’ club in order to broaden his social support network; that he initiate and maintain contact with a psychologist to assist him with his anxiety; that he not share accommodation with his teenage son; and that, should he be allowed to live with his son, Families SA should be advised and Mr F’s wife and adult family members be encouraged to obtain guidance from Owenia House regarding how they could provide a protective environment for children.
In conclusion, the authors said that Mr F was able to identify very few risk factors in relation to his sexual offending, that he tended to place responsibility for his sexual offending externally, and he was reticent to accept responsibility for much of his offending behaviour. It was reported that his high risk profile indicated ongoing areas of risk in relation to self management and his repeated offending of a similar nature, suggesting a failure to modify his behaviour even following legal sanctions. There remained a strong uncertainty regarding Mr F’s willingness to control his sexual instincts.
The two medical practitioners directed to enquire into Mr F’s medical condition pursuant to s 23(3) of the CLSA
The Court received reports from the psychiatrists, Dr Jules Begg and Dr William Brereton, who were directed to enquire into Mr F’s medical condition pursuant to s 23(3) of the CLSA. Dr Begg and Dr Brereton gave evidence on 18 June 2015.
Dr Begg
In his opinion dated 30 March 2015, Dr Begg concluded that Mr F had a willingness to control his sexual instincts now that he was older, had participated with reasonable success in the SBC program, and that he would return to a supportive home environment. He noted that whilst there may have been some minimisation of the offending by Mr F’s wife, on balance he considered it beneficial for Mr F to return to a supportive relationship. He noted Mr F’s poor ability to recognise the aggressive component of his personality as consistent with his passive aggressive interactional style.
It was Dr Begg’s opinion, having interviewed Mr F, that his sexual interest in general had reduced and that he no longer had interest in minors, that he did not fantasise about minors and he recognised that this had caused him significant problems in the past. Dr Begg considered that combined with his age related reduction in sexual drive, Mr F had enabled himself not to have fantasies. It was Dr Begg’s opinion that the strategies that Mr F believed he would implement would result in Mr F doing the right thing. For example if he were faced with a situation where, from his perspective, a young person was initiating sexual interaction he would turn to his wife for support and simply remove himself from the situation. Mr F told Dr Begg that he would not be alone with a 14 year old because he knows that might get him into trouble. On balance, Dr Begg concluded that he would not offend in that circumstance.
Dr Begg said in respect of Mr F’s offending against the 16 year old boy that Mr F reported that he saw the boy’s erection as an invitation to participate in sexual activity with him. He said that Mr F’s perception of what occurred was at odds with the 2007 sentencing remarks and in that respect Mr F demonstrated a reduction in his ability to take full responsibility for all that transpired. Dr Begg suggested that it was his personality type that caused him to do this, in that he saw other people as being responsible. He considered he had, through therapy, shown some signs that he has been able to show more empathy for the victims.
Dr Begg considered that there were a number of factors that led him to think that Mr F would now: (a) not get into that situation and (b) if he was, have enough internalised ability or self-control to make a decision not to participate.
Dr Begg considered that despite the fact that Mr F minimises his offending with respect to his victims and that his wife appears also to minimise the offending, the best place for him to be was in his home environment. Dr Begg accepted that Mr F’s wife had minimised his behaviour, but Mr F had described her as a fairly strong person. Dr Begg did concede in cross-examination that Mr F’s wife was not the ideal person to regulate Mr F’s behaviour. It was put to Dr Begg that there is an argument that she had enabled the behaviour because of her tolerance. Dr Begg’s response was that there needed to be a balance between the stress Mr F would endure living alone and not being distracted by another person and the benefits in living with his family.

Dr Begg was referred to the SBC program Individual Treatment Report, in particular, the reference to the concern that Mr F’s high sex drive/preoccupation was an outstanding treatment need. Dr Begg was asked whether this was at odds with his opinion that Mr F’s sex drive had diminished. Dr Begg said:
Yes, what can I say? Yes, he told me that his sex drive had reduced. If they are saying that his sex drive is still high and that there’s a preoccupation with adolescent fantasies, then that does obviously significantly increase the risk. I thought that I had read that report carefully. I’d certainly seen the high risk element of it, but not that the sexual drive was as high.
Dr Brereton
In his report dated 7 April 2015 Dr Brereton stated that there is no reason to believe that Mr F is incapable of controlling his sexual instincts. However, he considered there is a significant risk that if Mr F were given an opportunity to reoffend, he would fail to exercise appropriate control of his sexual instincts and, therefore, he could be considered as being unwilling to control his sexual instincts. In particular, Dr Brereton said he agrees with the SBC assessment that Mr F is at high risk of reoffending. He said that his risk is not that he would take active steps to seek out or groom potential victims, rather that there is a substantial risk he would reoffend in circumstances similar to the circumstances of the 1991 and 2004 offending. For example, a vulnerable friend of his 14 year old son may visit the house and, given the opportunity to offend, Mr F would not be inhibited by internal controls (such as empathy and understanding of harm) or external controls (such as the judgement of his wife and family).
Dr Brereton expressed the concern that between Mr F completing the SBC program in August last year and his assessment of him in April this year, that he had lost some gains from the program. He considered that without maintenance treatment and therapy at Owenia House in the community upon his release he would slip back further.
Dr Brereton said that he found Mr F’s assertion that he now has a sexual interest in predominantly males and females in their twenties unconvincing. It was Dr Brereton’s opinion that Mr F would still have an interest in adolescent boys.
Dr Brereton was asked whether he agreed with Dr Begg’s assessment that Mr F’s fantasising about adolescent boys had reduced. Dr Brereton said that one of the difficulties in his assessment was that he could not obtain a history from Mr F that he thought was truthful about what his sexual fantasies have been and remain. He said that this is one of the things that causes him to believe that his risk of sexual offending is reasonably high because he did not find it possible to have a clear discussion with him about his sexual preferences, what his fantasies might be, and what he might practically do to address those things. Dr Brereton’s opinion is that Mr F has very few internal inhibitions in terms of sexually offending against children. He noted that the attitude of his family seems to have been to tolerate his behaviour and he said while there had been some improvement in terms of victim empathy, the improvements have not been sufficient for him or the SBC to think that his risk is anything less than high.
Dr Brereton noted that Mrs F had, by any objective standard, been a remarkably tolerant partner over the years with respect to Mr F’s sexual behaviours. He said he specifically asked Mr F about his wife’s attitude to his illegal sexual behaviour. Mr F said he and his wife had rarely mentioned it, and that these incidents had no impact on their relationship other than the separation caused by imprisonment. Dr Brereton said it was remarkable the extent to which Mr F’s offending has not caused concern to his family
Whilst Dr Brereton acknowledged that he did not know about Mr F’s wife’s willingness to be a protective mechanism against further offending, he said that her capacity to do so was gravely in doubt. He agreed with the SBC recommendation that she attend Owenia House to obtain assistance in how to manage the situation. He cited his experience in the United Kingdom where there was a specific program for partners of sexual offenders.
Dr Brereton considered that Mr F would be at substantial risk of reoffending if he were placed in a home with an adolescent boy with no adult present. If that adolescent boy had an erection there is a substantial risk that Mr F would perceive that arousal as an invitation.
Dr Brereton thought that Mr F exhibited some problems in terms of empathy, understanding consequences of his behaviour and understanding its wrongfulness beyond anything other than the fact that it is just illegal. Hence, his opinion is that he would continue to lose the gains he had made at the conclusion of the individual SBC program.
Dr Brereton considered Mr F requires ongoing therapy to maintain the gains he made during the SBC program. He hopes that there would be further gains over time with ongoing therapy. Dr Brereton said that the risk of Mr F reoffending would be less the more that could be done in terms of monitoring and supervision upon his release into the community.
He said that if Mr F were returned to the family unit, there would be a significant risk that if the opportunity were to present itself he would not exercise self-control. He said it was a concern that there was now a 14 year old child living in the family home. It was of particular concern as regards peri pubertal boys compounded by the fact Mr F’s wife appears not to have been able to regulate his behaviour by implicitly condoning it.
Dr Brereton agreed with the conclusion of the authors of the individual treatment report that if Mr F were released on licence he should not live with his teenage son. He further agreed that consideration should be given to him living separately from his family until his son was older. He agreed that grandchildren were at risk too. He suggested that any contact with his son be supervised. He agreed that, whilst living on his own might create a level of stress for Mr F compared to the opportunities for reoffending that might arise in his family home, he is less likely to offend living on his own. He said that ideally, if his wife was able to obtain assistance from Owenia House and there could be an assessment of the family’s attitudes and it was determined that the family would be a positive support, it might be preferable that he return to live with his family. However, Dr Brereton considered that situation is a long way off. He agreed the ideal is to place him back into his family unit, but that family unit needs to be a positive environment.
Conclusion
An order for indefinite detention is premised on the court being satisfied that the person is incapable of controlling or unwilling to control his or her sexual instincts. Section 23(5a) stipulates that the Court must consider the medical practitioners’ reports provided in compliance with a direction pursuant to s 23(3), in addition to any relevant evidence and representations that the person may wish to put, before being satisfied that it is appropriate to make the order sought.
In determining whether to take the serious and extraordinary step and order a person who has served his or her sentence be detained indefinitely,[2] it is to be borne in mind that an order for indefinite detention is not a sentence and it is not imposed for punishment of the person.[3] It also to be borne in mind that whilst the primary purpose of a s 23 order is the protection of the community, “another purpose is to ensure that” the person “receives appropriate treatment, review and supervision”.[4]
[2]    McGarry v The Queen (2001) 207 CLR 121, [59] (Kirby J).
[3]    R v England (2004) 87 SASR 411, [11]; R v Whyte [2006] SASC 56, [13].
[4]    R v Ainsworth (2008) 100 SASR 238, [81] (White J, Doyle CJ agreeing).
On 10 April 2015, I ordered that Mr F be detained in custody until further order pursuant to s 23(4) of the CLSA, such detention to commence at the expiry of his term of imprisonment. I did so taking into consideration the reports of Dr Brereton and Dr Begg, the Book of Documents and submissions made on behalf of Mr F and the Attorney-General. Mr F opposed the making of the order and requested Dr Brereton and Dr Begg attend to give evidence on the application.
Upon the making of the order Mr F sought an order that he be released on licence pursuant to s 24 of the CLSA. The matter was adjourned to hear evidence from Dr Brereton and Dr Begg.
On 18 June 2015, having heard Dr Brereton’s and Dr Begg’s oral evidence, I confirmed that there was no need to reconsider the order I made on 10 April 2015.
I said I preferred Dr Brereton’s evidence where it differs from Dr Begg’s regarding Mr F’s mental condition. Dr Begg conceded he had not noted the reference in the Post Treatment Report to the concern that Mr F’s “high sex drive/preoccupations” were outstanding needs. In particular, I am satisfied having heard Dr Brereton’s evidence and having regard to the Post Treatment Report that if given the opportunity to reoffend Mr F would fail to exercise appropriate control of his sexual instincts. He is, therefore, unwilling to control his sexual instincts.
I am satisfied, bearing in mind the need to protect the community and the need to ensure that Mr F receives appropriate treatment, review and supervision, and the deprivation of liberty brought about by a s 23 order, that an order should be made that Mr F be detained until further order.
Mr F’s application for release on licence pursuant to s 24 of the CLSA is adjourned to 4 August 2015.