R v F, JM (No 3) - [2018] SASC 150

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v F, JM (No 3)
[2018] SASC 150
Reasons for Decision of The Honourable Justice Bampton
17 September 2018
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
Applicant is detained in custody until further order pursuant to 23 of the Criminal Law (Sentencing) Act 1988 (SA) – application for release on licence made pursuant to s 24 of the Criminal Law (Sentencing) Act 1988 – application made but not finalised before commencement of Part 2 of the Sentencing (Release on Licence) Amendment Act 2018 (SA).
Held:
1. Pursuant to Sch 1 Pt 3 of the Sentencing Act 2017 (SA), the application for release under s 24 of the Criminal Law (Sentencing) Act 1988 must be determined in accordance with s 59 of the Sentencing Act 2017.
2. The applicant has not in accordance with s 59(1a)(a) of the Sentencing Act 2017 satisfied the Court that he is both capable of controlling and willing to control his sexual instincts.
3. Application dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 23, s 24; Sentencing (Release on Licence) Amendment Act 2018 (SA) Pt 2; Sentencing Act 2017 (SA) s 59, Sch 1 Pt 3, referred to.
R v F, JM [2015] SASC 99; R v F, JM (No 2) [2017] SASC 94, discussed.

R v F, JM (No 3)
[2018] SASC 150
Criminal: Application for release on licence

BAMPTON J: On 17 September 2018, I dismissed Mr F’s application for release on licence recording that Mr F had not, pursuant to s 59(1a)(a) of the Sentencing Act 2017 (SA) (“the Sentencing Act”), satisfied the Court that he is both capable of controlling and willing to control his sexual instincts.
Background
On 10 April 2015, I ordered that Mr F be detained in custody until further order pursuant to s 23(4) of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”) (“the Order”). Mr F’s indefinite detention commenced on the expiration of his imprisonment on 18 April 2015. My reasons for making the Order are set out in R v F, JM.[1]
[1] [2015] SASC 99.
Upon the making of the Order, Mr F made an application for release on licence pursuant to s 24 of the CLSA. He was released on licence pursuant to s 24 of the CLSA on 2 November 2015 at which time he signed the order for release on licence acknowledging that the conditions of his release had been explained to him and he fully understood them. Those conditions provided that he would be supervised by the Parole Board (“the Board”) and be subject to an intensive supervision regime coordinated by the Intensive Compliance Unit (“ICU”) of the Department for Correctional Services. That regime required that he be subject to electronic monitoring and comply with the directions of the ICU officer under whose supervision he was placed.
On 15…

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.

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Details

Case: [2018] SASC 150
Decision Date: 17 September 2018

CaseChat Overview and Summary

The case of R v F, JM (No 3) involved an application for the release on licence of Mr F, who was detained in custody under the Criminal Law (Sentencing) Act 1988 (SA). Mr F sought his release on licence as per section 24 of the same Act, but the application was made before the commencement of Part 2 of the Sentencing (Release on Licence) Amendment Act 2018 (SA). Mr F argued that the removal of the Court's discretion to grant a release on licence where there is no rehabilitation offered amounted to arbitrary detention and a breach of his human rights.

The legal issues before the court involved interpreting the requirements under section 59 of the Sentencing Act for a release on licence and assessing whether Mr F satisfied those requirements. Specifically, the court had to determine if Mr F was capable of and willing to control his sexual instincts and whether he no longer presented an appreciable risk to the safety of the community. This interpretation was crucial given the recent amendments to the Act that removed the Court's discretion in certain circumstances.

The court found that the reports and evidence presented by Dr Brereton, Dr Nambiar, and Dr Sim indicated that Mr F remained unwilling to control his sexual instincts. Dr Sim's report highlighted Mr F's negative attitude and low motivation despite extensive treatment. Although Ms Beltrame expressed a willingness to work with Mr F, she had not met him, which the court deemed insufficient to satisfy the requirements of section 59(1a) of the Sentencing Act. Consequently, Mr F did not meet the criteria for release on licence under the amended Act, and his application was dismissed. The court's reasoning was grounded in the assessments that Mr F had not demonstrated the necessary willingness and capability to control his sexual instincts, thereby precluding the Court from exercising its discretion to order his release.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr F asked that it be noted that the amendments to the Sentencing Act to remove the Court’s discretion to grant a release on licence in circumstances where there is no rehabilitation offered amounts to arbitrary detention in breach of his human rights and accordingly he maintains his application for release on licence.Conclusion As detailed above, the reports and evidence of Dr Brereton and Dr Nambiar unequivocally establish that Mr F remains unwilling to control his sexual instincts. The Board does not support his release. Further, Dr Sim reports that Mr F has received many hours of group and individual treatment but has not progressed, and has a negative attitude and low motivation. The letter from Ms Beltrame may indicate that Mr F is prepared to undergo further sexual offender treatment in the community. However, Ms Beltrame has not met with Mr F and the fact of her preparedness to work with Mr F is not sufficient to satisfy s 59(1a) of the Sentencing Act. As Mr F has not, in accordance with s 59(1a) of the Sentencing Act, satisfied the Court that he is both capable of controlling and willing to control his sexual instincts or that no longer presents an appreciable risk to the safety of the community, the discretion to order his release on licence pursuant to s 59 of the Sentencing Act has not been enlivened. Accordingly, Mr F’s second application for release filed on 7 July 2016 was dismissed.

Ratio Decidendi

Legal Principle Established

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