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 99Criminal: 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…
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CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Established by: BAMPTON J
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