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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v F, JM

Details

AGLC: R v F, JM [2015] SASC 99
Case: [2015] SASC 99
Decision Date: 7 July 2015

CaseChat Overview and Summary

The case of R v F, JM involved an application by the Attorney-General for an indefinite detention order against Mr F, who had completed his sentence. The legal issue before the court was whether Mr F should be detained indefinitely under section 23 of the Criminal Law (Sentences) Act 1988 (SA). This section allows for the detention of individuals who have completed their sentence if they are deemed incapable of controlling or unwilling to control their sexual instincts, posing a risk to the community.

The court considered the medical reports and evidence presented, particularly focusing on Mr F's ability to control his sexual instincts and the risk he posed to the community. Dr Brereton and Dr Begg provided expert opinions that influenced the court's decision. The court noted that an order for indefinite detention required "very clear authority both of law and of fact" and that the decision should be made in a timely manner to ensure procedural fairness. The court also emphasised that while the primary purpose of such an order is community protection, it also serves to ensure the person receives appropriate treatment and supervision.

The court concluded that the evidence supported the indefinite detention order. It found that Mr F remained a risk to the community due to his inability to control his sexual instincts and the potential for reoffending. The court confirmed the earlier order for Mr F's detention in custody until further order, taking into account the medical reports, submissions from both parties, and the risk assessment. The court did not find it necessary to reconsider the detention order after hearing further evidence from the medical practitioners. The final orders remained consistent with the initial decision, affirming Mr F's continued detention under the authority of section 23 of the CLSA.

Orders

Orders of the court

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Background

Background to the litigation

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.BackgroundMr F’s personal circumstances and history of offending

Evidence

Evidence Before The Court

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Decision

Reasons for decision

BAMPTON J

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.

Ratio Decidendi

Legal Principle Established

Established by: BAMPTON J

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