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

1. 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

2. 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.

3. 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.

4. On 15 February 2016, a warrant was issued for Mr F’s arrest, pursuant to s 24(7)(b) of the CLSA, as the Presiding Member of the Board suspected that Mr F had failed to comply with the urine testing and the non-contact with persons under 16 conditions of his release on licence. The warrant was executed on 16 February 2016 and Mr F was taken into custody.

5. Mr F was interviewed by the Board on 22 March 2016. His release on licence was cancelled on 26 April 2016 pursuant to s 24(5) of the CLSA.

6. On 7 July 2016, Mr F made his second application for release on licence pursuant to s 24 of the CLSA. The application was supported by affidavits of Mr F’s solicitor and his two daughters. In accordance with s 24(1)(c) of the CLSA, the Court received reports from Dr Begg dated 21 September 2016, Dr Nambiar dated 22 August 2016, and the Board dated 11 October 2016. It was apparent that there was a discrepancy regarding matters that Dr Begg had reported on, matters contained in the Community Corrections Minutes to the Board, and the Board’s records. There was also a dispute between matters deposed to in Mr F’s daughters’ affidavits and matters contained in the notes made by Mr F’s Community Corrections Officer, Mr Colin Mercer. It was therefore necessary to convene a disputed facts hearing in order to determine the facts upon which further psychiatric opinion could be sought. I heard evidence from one of Mr F’s daughters, Mr Mercer, and the Presiding Member of the Board, Ms Nelson QC.

7. In my decision R v F, JM (No 2), I set out the numerous concerns recorded regarding Mr F’s supervision whilst on licence in the community.[2]  These included Mr F asking his adult daughter to order the banned pornographic film Ken Park online, failing to provide urine samples, continuing to display cognitive distortions in relation to his offending behaviour by failing to take responsibility and continuing to blame his victims as to why he offended, and attempting to contact his 15-year-old son.

   [2] [2017] SASC 94 at [24].

8. In R v F, JM (No 2), I concluded that, having heard evidence of Mr Mercer and Ms Nelson QC, that it was the individual matters detailed at [24] of my reasons that raised alarm about Mr F’s ability to comply with the intensive supervision regime he had agreed to and which cumulatively led to the cancellation of his release. I found the facts of Mr F’s supervision following his release on licence were those recorded in the notes and minutes to the Board prepared by the Community Corrections Officers supervising him and the Board’s records as detailed at [24]. They were the facts that the Court asked the psychiatrists nominated by the Director of Forensic Mental Health to have regard to when enquiring into the mental health of Mr F and reporting to the Court pursuant to s 24(1)(a) on whether he was incapable of controlling or unwilling to control his sexual instincts.

9. Thereafter, the Court received reports from Dr Brereton and Dr Nambiar pursuant to s 24(1)(a). In his report dated 17 October 2017, Dr Brereton said:

   4.3 In my opinion, there has been little change in Mr F ’s case since I wrote my previous report in April 2015, other than the increase in risk that comes with the established failure of supervision.

   …

   4.7 Mr F continues to maintain there is no risk he will reoffend. This precludes meaningful discussion about how he might manage his risk. His response to supervision has been very poor with multiple reasons for concern in a short period of time. Mr F avoids taking responsibility for these problems and it was my impression he feels aggrieved at what he perceives as unjust treatment and unnecessary restrictions. His account of events during his supervision has been inconsistent over time and is not in keeping with the Court’s finding of facts. For example, Mr F’s account to me of texting his son was clearly at odds with the letter he wrote to the Parole Board. This tendency to rationalise and excuse his behaviour after the event is also still evident in his accounts of his offending, e.g. excusing his offence because of ignorance of the age of consent, a factor he did not mention in our last interview.

   4.8 Mr F wishes to avoid further incarceration and this will help prevent recidivism (although it was not a strong enough motivation to prevent him from breaching his licence conditions). External restraints on his behaviour are eroded to an extent by the minimising perspective of family members. Unfortunately, in terms of sexual interests and cognitive distortions, there appear to be few internal inhibitions to reoffending.

   4.9 Taking both of my assessments into account, I remain of the opinion that Mr F  represents a high risk of reoffending. As before, in my opinion, his risk is not that he would take active steps to seek out or groom potential victims, but rather, there is a substantial risk he would reoffend in similar circumstances. I regard his risk as opportunistic.

   Dr Brereton concluded:

   5.1 … There is no reason to believe Mr F is incapable of controlling his sexual instincts. However, in my opinion, there is a significant risk that if Mr F  were given an opportunity to reoffend then he would fail to exercise appropriate control of his sexual instincts. Therefore, within the meaning of the Act, Mr F could be considered as unwilling to control his sexual instincts.

10. At a further hearing on 9 May 2018, Dr Brereton gave evidence reiterating his opinion that Mr F was not incapable but unwilling, within the meaning of the CLSA, to control his sexual instincts. He explained:

    A.That given the opportunity to, … there is a significant risk that he would if given an opportunity to commit [a relevant] act fail to exercise appropriate control of his sexual instincts.

    …

    Q.This is right, I think, that the fact that we now see what essentially is his established failure whilst under supervision in the community, that actually increases his risk of re-offending, doesn’t it.

    A.It does.  So if you’re looking at amassing a number of risk factors that point towards risk of reoffending, failure to comply with supervision is a significant factor. Even if you don’t analyse the specifics of what happened, it’s still a significant factor.

11. Dr Brereton was asked about Mr F’s attempt to obtain the pornographic video Ken Park.  Dr Brereton agreed that “it did fly in the face of what Mr F” had said to the reporting experts to the effect that he was no longer able to be aroused, does not have thoughts or fantasies in relation to children, and does not attempt to masturbate.  Dr Brereton commented:

    … I don’t think any of us would believe that anyway.  That is one of the things we’ve all flagged as a pointed risk so I don’t think that tells us anything new about his risk.  I think we’ve always been concerned about one of the major problems is his lack of understanding, lack of willingness to confront what are his sexual arousal patterns and therefore address them to do anything about that. That’s fundamental to the risk we’ve been talking about right from the start.

12. Finally, in relation to the risk to the community and whether he would support Mr F’s release on licence into the community, Dr Brereton said:

    I would say that I think it’s reasonable to try to manage him in the community again but I think there are a lot of reasons to have grave reservations about it. I think it is reasonable given the pattern of his offending in the past, given he is not a particularly sophisticated offender, that I think external controls can be quite effective, that we might see an improvement in his response to supervision if he has another go, I think those are reasons why it would be reasonable to consider it but we can’t deny that he has made no progress with the sex offender treatment, that he resisted the conditions of his supervision when he was in the community really didn’t last very long and that his ability to manage his own risk is absolutely minimal. I think it’s a difficult question. I am sitting on the fence perhaps leaning slightly towards it’s reasonable to see if we can manage this risk again in the community.

13. Dr Nambiar provided two reports dated 22 August 2016 and 23 August 2017.  In his report dated 22 August 2016, Dr Nambiar concluded that he saw “no reason to suggest that he would be incapable of controlling his sexual instincts”.  However, in relation to willingness to control his sexual instincts, Dr Nambiar said that there were a number of factors to consider:

    •Mr F has a significant history of sexual offending with deviant, cognitive distortions and an engagement in a variety of sexual activities from a very young age.

    •There is a history of non-sexual offending at an early age.

    •There is a significant history of minimisation of his offending and in fact a propensity to blame the victim as being complicit in his offending.

    •I note that Mr F challenged his convictions in the past and despite now acknowledging his offences, he appears to still minimise his responsibility in the context of being the perpetrator of and exploiter of his young victims.

    •Despite numerous sessions of treatment over a number of years in custody and in the community, Mr F continues to show a failure to acknowledge the seriousness of his offending and externalising the blame onto his victims.

    •Despite the limitations placed on him when he was released on licence into the community in November of last year, the frustration with which he found himself living in fairly close proximity to his family, led him to still attempt to make contact with his underage son and he now provides various rationalisations to justify his behaviour.

    •Clearly Mr F continues to have a sexual orientation directed at young boys at the pre-pubertal/pubertal age but also adds that he has an interest in slightly older children of either gender.

    •Despite Mr F claiming that he is sexually attracted to adult males or females, I find this rather unconvincing given the comments he made during his individualised therapy.

    •Despite the fact that Mr F claims that he has low self-esteem and does not have the confidence to approach someone in order to start a relationship, he seems quite openly receptive to anyone who might approach him which I suspect would include children who are under age.

    •His most recent breaches suggest he continues to ignore rules even when under supervision. 

14. Dr Nambiar concluded his report by saying that without the conditions that were put in place when Mr F was released on licence in November 2015, he believed that Mr F would still be unwilling to control his sexual impulses, “given the fact that he has well entrenched, chronic distortions and what appears to be a general disregard for regulations placed on him”.

15. Dr Nambiar also gave evidence on 9 May 2018 and was asked whether Mr F’s failure to comply whilst on supervision when he was released in 2015 increases his risk of offending.  Dr Nambiar said:

    That is because, when you assess risk initially when someone is in custody, in a sense, that’s in a vacuum, they’re not actually in the real world. So the first step is to test how they go in the real world with a lot of checks and balances around him and clearly in that short space of time in the real world Mr F demonstrated how much he had or hadn’t learnt whilst he was in custody about what he should and shouldn’t do when he’s in the community.

16. Dr Nambiar was asked whether he considered Mr F’s attempt to access the banned film Ken Park a risk factor.  Dr Nambiar said:

    A.Yes, that is a very significant risk.

    Q.Why in your mind with respect to that pornographic video is it a significant risk.

    A.Two things, one is again discarding what he has been told not to do, and my understanding is that he would have understood what the conditions were, and certainly given the fact that he had been involved in the therapy whilst in prison that those sorts of things would have been talked about, the different types of offending that occur, how it relates to I guess his sexual preoccupation but, secondly, there are forms of non-contact offending and contact offending. Clearly watching pornography is non-contact offending but it does then set up a pattern which can then lead to contact offending.

17. The Court also received a report from the Board dated 14 June 2018 wherein the Presiding Member concluded:

    Mr F has a significant history of sexual offending.  He has challenged his convictions and still minimises and justifies his behaviour.  Notwithstanding many hours of treatment, over a number of years, Mr F continues to externalise the blame for any conduct on his part onto his victim(s) and fails to acknowledge the seriousness of his offending.

    On his past release, he was within a very short period of time, non-compliant.  He has not adhered to conditions of licence in the recent past, and there is nothing in his behaviour since that would support a view that he would be compliant if he were to be released again.  Given his poor response to supervision, the fact that he is still at High Risk of re-offending and has been unresponsive to various attempts to address his sexual offending behaviour, the Parole Board does not support Mr F’s release on licence at the present time.

18. In compliance with s 24(1c)(d) of the CLSA, the Court also obtained an estimate of the cost of supervising Mr F if he were to be released into the community on licence under electronic monitoring conditions. Those costs total an estimated $25,550. The cost to the community of keeping Mr F in custody is calculated to be $71,339.25.

19. The Court also received a report from the Manager of Rehabilitation Programs Branch, Dr Clark Sim, dated 29 January 2018 who reported that:

    Mr F has already received a significant number of hours of treatment from the [Rehabilitation Programs Branch] in both a group and individual format.  Considering his apparent lack of progress, continued negative attitude and low motivation in respect to further treatment of this nature, it is unlikely that further intervention from this Unit would be of much benefit.  Instead it is recommended that Mr F be provided with further case management support to aid any potential release into the community.

20. Dr Sim concluded that if Mr F was released into the community, he should be referred to a suitably experienced community psychologist in order to develop further insight and address outstanding risks around sexual offending and develop further strategies to attend to conditions. 

21. Mr F’s counsel tendered a letter from a psychologist, Kerrie Beltrame, dated 13 April 2018.  Ms Beltrame, who works at Owenia House in sexual offender treatment programs and in private practice, confirmed that she would be able to provide psychological counselling to Mr F under a mental health care plan, should he be released into the community on licence.

    Sentencing (Release on Licence) Amendment Act 2018 (SA)

22. The Attorney-General’s originating application for indefinite detention, Mr F’s application for release on licence, the order for release on licence, the revocation of that release, and Mr F’s second application for release on licence were all made under the CLSA, which was repealed by the Sentencing Act on 30 April 2018.

23. On 25 June 2018, the Sentencing (Release on Licence) Amendment Act 2018 (SA) amended the Sentencing Act. Part 3 of Schedule 1 to the Sentencing Act was amended to include the following transitional provision:

    (2) Section 59 of this Act as in force immediately after the commencement of Part 2 of the Sentencing (Release on Licence) Amendment Act 2018 applies to the following applications:

    …

    (c) an application under section 24 of the repealed Act for the release on licence from an order for detention under section 23 of the repealed Act where the application was made but not finalised before that commencement.

    Accordingly, Mr F’s application made under s 24 of the repealed CLSA but not finalised before the commencement of Part 2 of the Sentencing (Release on Licence) Amendment Act 2018 must be determined in accordance with s 59 of the Sentencing Act.

24. Section 59 of the Sentencing Act provides that the Supreme Court may, on application, authorise the release on licence of a person detained in custody under Division 5 of the Sentencing Act. However, s 59(1a) provides:

    (1a)A person detained in custody under this Division cannot be released on licence unless the person satisfies the Supreme Court that—

    (a)     the person is both capable of controlling and willing to control the person’s sexual instincts; or

    (b)     the person no longer presents an appreciable risk to the safety of the community (whether as individuals or in general) due to the person’s advanced age or permanent infirmity.

    Mr F’s submissions

1. Mr Williams, counsel for Mr F, informed the Court that he was instructed to make the following comments bearing in mind the import of the transitional provisions relating to the Sentencing (Release on Licence) Amendment Act 2018.  Mr Williams said that Mr F understood the changes to the law that have occurred in the period since he made his application, but wished to continue with the application and have the Court determine it.  However, there were some matters that Mr F wanted the Court to be reminded of.  Mr Williams pointed out that Mr F was sentenced to a head sentence of eight years’ imprisonment with a non-parole period of four years, backdated to 19 April 2007.  He was released on licence on 2 November 2015, having served a total of eight years, six months and 14 days in custody.  Mr F was taken into custody pursuant to the warrant issued on 16 February 2016 by the Board.  His release on licence was revoked on 21 April 2016.  As at 17 September 2018, Mr F had spent a further period of two years, seven months and one day in custody since he was taken into custody on 16 February 2016. 

2. Mr Williams said that Mr F has not been offered or undertaken any rehabilitation programs that would prepare him for release into the community since he was taken into custody on 16 February 2016.  I was informed that, while he was on release in the community, Mr F had counselling from an OARS psychologist, Mr Touman, and on the day of his arrest on 16 February 2016 was scheduled to attend his first appointment with a forensic psychologist for counselling.  It was suggested that both those factors indicate that Mr F was indeed willing to control his sexual instincts and take positive steps towards achieving that.  I was also informed that Mr F wrote to Dr Sim enquiring what rehabilitation could be offered to him.  After some considerable time, Mr F received a letter from the Rehabilitation Programs Branch advising that someone would meet with him in the near future to formulate a plan.  Mr F reports that he has not heard further from the Rehabilitation Programs Branch.  Mr F has been informed by his case manager coordinator that he has done all the programs that are available to him in custody.

3. 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

4. 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.

5. 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.