R v Halse - [2018] SASC 178

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v HALSE
[2018] SASC 178
Judgment of The Honourable Justice Stanley
30 November 2018
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
Application made by the prosecution under s 23 of the Criminal Law (Sentencing) Act 1988 (Act), now s 57 of the Sentencing Act 2017, for the respondent to be detained in custody until further order.
The respondent pleaded guilty to one count of indecent assault that occurred in 1974. The respondent was remanded in custody to appear before the Supreme Court for sentence in relation to the indecent assault offence, and to be dealt with under s 23 of the Act.
The respondent has a history of sexual offending against peripubertal boys over the period from 1961 to 2015. At the hearing of the application it was not contended that the respondent is incapable of controlling his sexual instincts. The question was whether the evidence establishes that the respondent is unwilling to control his sexual instincts within the definition of “unwilling” in s 23(1) of the Act.
Held: Application dismissed.
1. The evidence does not establish the proper foundation for the making of the order sought pursuant to s 23 of the Act, namely, satisfaction that the respondent is incapable of controlling, or unwilling to control, his sexual instincts.
Criminal Law (Sentencing) Act 1988 (SA) s 23; Sentencing Act 2017 (SA) s 57; Acts Interpretation Act 1915 (SA) s 16; Criminal Law Consolidation Act 1935 (SA) s 56, s 69(1)(b)(iii), referred to.
R v Hoare [2017] SASC 7; Attorney-General (SA) v Moyle [2018] SASC 106; R v Schuster (2008) SASR 238, discussed.

R v HALSE
[2018] SASC 178
STANLEY J:
Introduction

The Director of Public Prosecutions has brought an application seeking an order for the indefinite detention of Trevor John Halse (the respondent) pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA).
On the hearing of the application the question arose as to the applicable legislation.
Since the application was made the Criminal Law (Sentencing) Act 1988 (SA) (the 1988 Act) has been repealed by the enactment of the Sentencing Act 2017 (SA) (the 2017 Act). The 2017 Act commenced operation on 30 April this year. In Schedule 1 to the 2017 Act clause 2(1) provides that the 2017 Act applies to the sentencing of a defendant after the commencement of the 2017 Act regardless of whether the offence for which the defendant is being sentenced was committed before or after that commencement. That provision is qualified but in ways that are not material to this application.
I am satisfied that the transitional provisions in Schedule 1 to the 2017 Act do not apply. The Director’s application does not involve punishing of the respondent. The purpose of s 23 is not punitive.[1]
[1] R v Hoare [2017] SASC 7 at [64].
In Attorney-General (SA) v Moyle[2] Hinton J adverted to the issue but found it unnecessary to resolve the question of which Act applied, as the provisions of s 23 of the 1988 Act and s 57 of the 2017 Act are not materially different.[3]
[2] [2018] SASC 106.
[3] [2018] SASC 106 at [3].
For my part, I am inclined to the view that the application falls to be determined pursuant to s 23 of the 1988 Act. The application was commenced pursuant to s 23. The proceedings are preserved by the operation of s 16 of the Acts Interpretation Act 1915 (SA) notwithstanding the repeal of the 1988 Act. Section 16(1) provides:
Where an Act is repealed or amended, or where an Act or enactment expires, then, unless the contrary intention appears, the repeal, amendment or expiry does not –
…
(e)affect any investigation, legal proceedings or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty, forfeiture or punishment.
Section 16(2) provides:
Any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed and enforced, as if the repeal or amendment had not been effected or as if the expired Act or enactment had not expired (as the case may be).
Section 16(3) provides:
Any Act or enactment will, notwithstanding its repeal, amendment or expiry, continue in force for the purposes of continuing and completing any act, matter or thing commenced or in progress under that Act or enactment, if there is no substituted Act or enactment adapted to its continuance and completion.
Pursuant to s 16(4) “legal proceeding” is defined to include any proceeding pursuant to an Act whether of a judicial or administrative nature.
However, like Hinton J in Moyle, I consider it is unnecessary to determine this issue conclusively.
Pursuant to the s 23 application, the Director seeks a finding that the respondent is incapable of controlling, or unwilling to control, his sexual instincts, and an order that he be detained in custody until further order.
The 1988 Act provides for a person who has been convicted of a relevant offence to be remanded to the Supreme Court for an enquiry as to whether the powers in s 23(4) should be exercised if the Court is satisfied of the following conditions:[4]
(i)The defendant is convicted of a relevant offence; and
(ii)The Court is of the opinion that the defendant should be dealt with under s 23 or the prosecutor applies to have the defendant dealt with pursuant to s 23.
[4] Criminal Law (Sentencing) Act 1988 (SA) s 23(2).
A relevant offence is defined in s 23(1) of the 1988 Act as:
(a)An offence under s 48, 48A, 49, 50, 56, 58, 59, 63, 63A, 63B, 69 or 72 of the Criminal Law Consolidation Act 1935; or
(b)An offence under s 23 of the Summary Offences Act 1953; or
(ba)An offence against a corresponding previous enactment substantially similar to an offence referred to in either of the preceding paragraphs; or
(c)Any other offence where the evidence indicates that the defendant may be incapable of controlling, or unwilling to control, his or her sexual instincts; or
(d)An offence of failing to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse where the defendant is a registerable offender within the meaning of the Child Sex Offenders’ Registration Act 2006.
The respondent has pleaded guilty to the indecent assault of the complainant pursuant to s 69(1)(b)(iii) of the CLCA. The offending occurred in 1974.
I accept that this offence is a relevant offence pursuant to s 23(1)(ba) as this offence is an offence against a corresponding previous enactment substantially similar to an offence referred to in s 23(1)(a). The charge of indecent assault pursuant to s 69(1)(b)(iii) is substantially similar to the present offence of indecent assault pursuant to s 56 of the CLCA.
The terms of s 69(1)(b)(iii) are as follows:
Section 69(1) Subject to s 68a of this Act –
…
(b) any person who –
…
(iii) indecently assaults any male person,
shall be guilty of a misdemeanour and liable to be imprisoned for a term not exceeding seven years.
The terms of s 56 are as follows:
56(1) A person who indecently assaults another is guilty of an offence.
...
Accordingly, I am satisfied that the respondent has been convicted of a relevant offence. The Court’s jurisdiction to enquire as to whether to exercise the powers in s 23(4) is enlivened.
Section 23
Section 23 provides:
23—Offenders incapable of controlling, or unwilling to control, sexual instincts
(1) In this section—
institution means—
(a)     a prison; and
(b)     a place declared by the Governor by proclamation to be a place in which persons may be detained under this section; and
(c)     in relation to a youth, includes a training centre;
person to whom this section applies means—
(a)     a person convicted by the Supreme Court of a relevant offence; or
(b)     a person remanded by the District Court or the Magistrates Court under subsection (2) to be dealt with by the Supreme Court under this section; or
(c)     a person who is the subject of an application by the Attorney-General under subsection (2a);
relevant offence means—
(a) an offence under section 48, 48A, 49, 50, 56, 58, 59, 63, 63A, 63B, 69 or 72 of the Criminal Law Consolidation Act 1935; or
(b) an offence under section 23 of the Summary Offences Act 1953; or
(ba) an offence against a corresponding previous enactment substantially similar to an offence referred to in either of the preceding paragraphs; or
(c)     any other offence where the evidence indicates that the defendant may be incapable of controlling, or unwilling to control, his or her sexual instincts; or
(d)     an offence of failing to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse where the defendant is a registrable offender within the meaning of the Child Sex Offenders Registration Act 2006;
unwilling—a person to whom this section applies will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts.
(2) If, in proceedings before the District Court or Magistrates Court, a person is convicted of a relevant offence and—
(a)     the court is of the opinion that the defendant should be dealt with under this section; or
(b)     the prosecutor applies to have the defendant dealt with under this section,
the court will, instead of sentencing the defendant itself, remand the convicted person, in custody or on bail, to appear before the Supreme Court to be dealt with under this section.
(2a) If a person has been convicted of a relevant offence, the Attorney-General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section.
(2b) The Attorney-General may make an application under subsection (2a) in respect of a person serving a sentence of imprisonment whether or not an application to the Supreme Court to have the person dealt with under this section has previously been made (but, if a previous application has been made, a further application cannot be made more than 12 months before the person is eligible to apply for release on parole).
(3) The Supreme Court must, before determining whether to make an order that a person to whom this section applies be detained in custody until further order, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of a person to whom this section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, his or her sexual instincts.
(4) The Supreme Court may order that a person to whom this section applies be detained in custody until further order if satisfied that the order is appropriate.
(5) The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be the safety of the community.
(5a) The Supreme Court must also take the following matters into consideration in determining whether to make an order that a person to whom this section applies be detained in custody until further order:
(a)     the reports of the medical practitioners (as directed and nominated under subsection (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 section 25;
(d)     any other matter that the Court thinks relevant.
(5b) A copy of a report furnished to the Supreme Court under subsection (5a) must be given to each party to the proceedings or to counsel for those parties.
(5c) If a person to whom this section applies refuses to cooperate with an inquiry or examination for the purposes of this section, the Supreme Court may, if satisfied that the order is appropriate, order that the person be detained in custody until further order having given—
(a)     paramount consideration to the safety of the community; and
(b)     consideration to any relevant evidence and representations that the person may desire to put to the Court.
(6) If a person to whom this section applies has not been sentenced for a relevant offence, the Supreme Court will deal with the question of sentence at the same time as it deals with the question whether an order is to be made under this section and, if the Court decides to make such an order, the order may be made in addition to, or instead of, a sentence of imprisonment.
(7) If the detention is in addition to a sentence of imprisonment, the detention will commence on the expiration of the term of imprisonment, or of all terms of imprisonment that the person is liable to serve.
(8) A person detained in custody under this section will be detained—
(a)     if the defendant is under 18 years of age—in such institution (not being a prison) as the Minister for Youth Justice from time to time directs;
(b)     in any other case—in such institution as the Minister for Correctional Services from time to time directs.
(9) The progress and circumstances of a person subject to an order under this section must be reviewed at least once in each period of 12 months—
(a)     if the person is detained in, or released on licence from, a training centre—by the Training Centre Review Board; or
(b)     in any other case—by the Parole Board,
for the purpose of making a recommendation about whether the person is—
(c) if the person is in custody—suitable for release on licence under section 24; or
(d) if the person has been authorised to be released, or has been released, on licence under section 24—suitable to be so released.
(10) The results of a review under subsection (9), including the recommendation of the relevant Board, must be embodied in a written report, a copy of which must be furnished to the person the subject of the report, the Attorney-General and—
(a)     in the case of a report of the Training Centre Review Board—to the Minister for Youth Justice;
(b)     in the case of a report of the Parole Board—to the Minister for Correctional Services.
The Court may order that a person to whom s 23 applies be detained in custody until further order if satisfied that the order is appropriate. The making of an order is conditioned on the Court obtaining reports from at least two legally qualified medical practitioners into the mental condition of the respondent and whether he is incapable of controlling, or unwilling to control, his sexual instincts.
For the purpose of determining the application the Court is not bound by the rules of evidence and may inform itself on matters relevant to the determination as it thinks fit.[5]
[5] Section 6.
In exercising the discretion to make an order, the paramount consideration is the safety of the community. Further, the Court must also take into account the following matters:
(i)the reports of the two medical practitioners;
(ii)any relevant evidence or representations that the respondent may desire to put to the Court;
(iii)any report required by the Court under s 25; and
(iv)any other matter that the Court thinks relevant.
In this matter the Court obtained reports from two forensic psychiatrists, Dr Brereton and Dr Nguyen, who interviewed and assessed the respondent. The Court did not obtain any report pursuant to s 25.
The relevant principles
The principles applicable to the statutory scheme providing for indefinite detention pursuant to s 23 were analysed in R v Hoare[6] by Hinton J who said:[7]
[6] [2017] SASC 7.
[7] [2017] SASC 7 at [63]-[73].
Whilst the exercise of the power contained in s 23(4) is not expressly conditioned upon the Court finding that the offender subject of an application is incapable of controlling, or unwilling to control, his or her sexual instincts, the Full Court has stated that the question whether the subject is incapable or unwilling to control his or her sexual instincts is a threshold question that must be answered yes or no, otherwise, bearing in mind the scheme created by Part 2 Division 3 of the Sentencing Act, no proper foundation exists for the Court to consider the risk that the offender poses to the safety of the community. Having answered the threshold question, there remains vested in the Court a residual discretion – despite the Court finding that a person to whom the section applies is incapable or unwilling to control his or her sexual instincts, it may be inappropriate that an order for indeterminate detention be made. Here it is important to bear in mind, for example, that the application may be made well in advance of the completion of an offender’s determinate sentence, when there is much time remaining for the offender to take advantage of courses and programs offered by the Department for Correctional Services.
While a conviction for a “relevant offence” is a precondition to the engagement of the scheme, the scheme’s purpose is not punitive. Rather, it is concerned with preventing recidivist sexual offending through incapacitation and rehabilitation. The scheme does not punish an offender twice for the same offences or increase the punishment for those offences. While it operates by reference to an offender’s status as a person convicted of a relevant offence, it sets up its own normative structure. The purpose of an order of indeterminate detention is to protect the community from sexual offenders where the risk posed by such a person is such that it is inappropriate that they be released, even when they have completed what would otherwise be their period of imprisonment for the offences that they have committed. Additionally it is to ensure that the person “receives appropriate treatment, review and supervision”.
An order for indeterminate detention should only be made where there is cogent and reliable evidence justifying the making of the order. In this regard Bleby J’s observations in R v England made in relation to a prior version of s 23 remain apposite. He said:
... satisfaction as to the inability of a person to control their sexual instincts is a matter of assessing the opinions to that effect, their strengths and their weaknesses, to a point where the court can be satisfied that the incapacity is present. In doing so, the court will need to take account of the seriousness of the declaration it is asked to make and the gravity of the consequences of giving the direction. To borrow the words of Dixon J in Briginshaw v Briginshaw, the necessary degree of satisfaction cannot be produced “by inexact proofs, indefinite testimony or indirect inferences”. It will require cogent and acceptable evidence in order to justify the making of the declaration and the giving of the direction. But even then, there is a residual discretion conferred by the use of the word “may” in the subsection. In that respect it may also be appropriate to consider, as in the case of R v Fahey and R v Riley whether, if a sentence is also imposed, the defendant is likely, at the end of the custodial period, to resume similar sexual activities. This will, in turn, require consideration, among other things, of the defendant’s access to and the likely effect of various regimes of treatment, and whether they can be effected in the prison setting or in some other institution contemplated by the section.
(Footnotes omitted.)
What amounts to an incapacity to control one’s sexual instincts is not defined. King CJ considered what amounted to incapacity in R v Kiltie in the context of discussing a progenitor of s 23. He said:
… The incapacity referred to in the section is an incapacity to exercise control resulting from innate mental characteristics. It is not that temporary incapacity to exercise self-control which results from the paralysis of will power caused by the ingestion of alcoholic liquor or drugs. Nor is it a strong inclination towards sexual offending resulting from deprivation of the means of satisfying sexual desire unless there is, in addition, an innate incapacity to control that inclination.
Unwilling is defined in s 23(1) as follows:
unwilling – a person to whom this section applies will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts.
In R v Whyte White J recorded that the two forensic psychiatrists who provided reports in that matter “…recognised that the statutory definition of the word “unwilling” required consideration of matters going beyond an assessment of his present state of mind”. White J added:
In my opinion, the definition is to be applied in the following way: the Court must assess the risk that the offender would, given the opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts. That assessment is to take account of all factors bearing on that risk. The Court’s assessment of the person’s state of mind will usually be very relevant to the assessment of the risk, but it is not the only matter to be considered. The opinions of the medical practitioners who have examined the offender and reported to the Court on the offender’s mental condition will be relevant to the assessment of the offender’s state of mind, but the opinions which those practitioners are able to express based on their field of expertise will not ordinarily encompass all the matters relevant to the Court’s assessment. That is to say, it will be necessary in some cases for the court to consider a range of factors which are not particularly within the field of expertise of, say, a forensic psychiatrist.
In R v Schuster the Full Court observed:
…more importantly it was necessary for the medical practitioners and the judge to consider the circumstances in which and degree to which Mr Schuster is unable or unwilling to control his sexual instincts. A detailed consideration of these matters was necessary in order to assess the nature and extent of the risk to public safety presented by Mr Schuster. For example, the risk profile of a person with a desire or inclination to offend in an opportunistic or impulsive way would raise different considerations to those in the case of a person whose modus operandi has been, or is likely to be, one involving a longer term grooming of potential victims.
Whilst these observations were made in the context of an appeal against an application for release on licence under s 24 of the Sentencing Act they are, in my view, equally applicable to an application made under s 23.
Something more should be said here as to the significance of s 23(5). In R v Schuster the Full Court tackled the question of the significance of making the public safety the paramount consideration in the context of an application for release on licence. It said:
What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility.
I think these observations apply equally to s 23(5). So too the observation that the “exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety”. The Court quoted from the judgment of the Queensland Court of Appeal in Attorney-General (Qld) v Francis as reflecting the approach to be adopted. In that case Keane and Holmes JJA and Dutney J said:
The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.
Again such approach may be seen to apply equally to an application made under s 23. If the Court is satisfied that the offender is incapable or unwilling to control his or her sexual instincts, the question is whether an order for indeterminate detention is apt to ensure adequate protection of the community, having regard to the risk to the community posed by the offender.
(Footnotes omitted.)

As Hinton J explains in Hoare, the Court of Criminal Appeal in R v Schuster[8] held that before the Court can make an order for indefinite detention the Court must be satisfied that the respondent is incapable of, or unwilling to control his sexual instincts. Satisfaction of either or both questions is a threshold issue. Unless the Court is satisfied that the person against whom the order is sought is incapable of or unwilling to control his or her sexual instincts, no proper foundation exists for the Court to make an order for indefinite detention.
[8] [2016] SASCFC 86 at [97], (2016) 125 SASR 388 at 409.
In this case the respondent submits that the evidence does not establish that the threshold has been met.
On that basis I turn to a consideration of the medical evidence and the factual basis for the opinions of the two psychiatrists from whom reports were obtained and who gave evidence before me.
The facts
The respondent was born on 5 January 1942. Accordingly, he is now 76 years of age. He has a history of sexual offending against peripubertal boys over the period from 1961 to 2015. All of those offences except the last occurred between 1961 and 1983. The last occurred in 2015. In addition, the respondent committed a sexual assault against a 21-year old man in 2016. Those last two offences occurred in Queensland. The earlier offending occurred in South Australia. The earlier offending occurred against a background of the respondent owning and conducting his own business in which he would employ boys. In addition, he volunteered as a scout master. He utilised both circumstances to facilitate his offending. To some degree it involved grooming. The later offending occurred in Queensland after an interval of more than 30 years, and can be characterised as more opportunistic. There is no evidence of any further offending. Overwhelmingly, the nature of the offending involved the respondent fondling or masturbating the genitals of his victims either through or under their clothing. Sometimes this occurred while the victim was particularly vulnerable because he was asleep or unconscious.
When charged in relation to his offending the respondent always pleaded guilty.
The victims ranged in age from 12 or 13 years to 15 years of age, except for the last victim.
The evidence suggests that the use of force in the offending was minimal or limited.
Psychiatric evidence
Dr Nguyen gave evidence that in assessing the respondent’s risk of committing further sexual offences he used a combination of actuarial risk assessment (the Static-99) and a structured professional judgment tool (the risk of sexual violence protocol or RSVP). The actuarial risk assessment resulted in a moderate to high risk assessment for sexual reoffending. The RSVP tool considers both static and dynamic factors. Those factors are encompassed within five domains. They are sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. Dr Nguyen considers that there is a presence of a chronicity of sexual violence in the respondent’s case. Dr Nguyen considers that the respondent demonstrated the presence of minimisation and denial of sexual violence in his reports of his past offending. He said that the respondent disputed some of the allegations and minimised the extent of his conduct compared to what was alleged. While the respondent expressed attitudes that did not support or condone sexual violence, he did convey that he had problems with self-awareness and demonstrated an inability to appreciate the factors and processes that placed him at risk of committing sexual violence. Dr Nguyen considers there is limited evidence to suggest that the respondent suffers any mental disorder. On the other hand, he has a long history of problems with forming intimate relationships. Nonetheless, he considers the respondent had a good employment history and no history of non-sexual criminality. Dr Nguyen notes there is some evidence of the respondent reoffending while under supervision or investigation for prior offences. This makes it more likely that he would fail to comply with supervision requirements in the future.
Overall, Dr Nguyen considers that the respondent is at risk of committing further contact sex offences with young males. He thinks that it is likely that such offending would be in the medium to long term, and that the risk is chronic and continuing due to the respondent’s lack of awareness.
Dr Nguyen is of the opinion of that the respondent is capable of controlling his sexual instincts. However, he is of the opinion that there is a significant risk that the respondent would fail to exercise appropriate control over his sexual instincts if given an opportunity in the future to further offend. On this basis he considers that the respondent is unwilling to control his sexual instincts within the meaning of the Act, i.e. there is significant risk that the respondent would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts.
Dr Nguyen considers that further detention of the respondent is appropriate given the paramount consideration is the safety of the community.
Dr Brereton considers there is no evidence that the respondent suffers from a psychiatric illness. While during the course of the interview and assessment the respondent made comments that externalised blame for his offending, he did not emphasise these cognitive distortions or relate his offending history in a markedly tendentious manner. When confronted, the respondent appeared to readily accept there are other ways of viewing his behaviour even when this increases perceptions of his culpability. The respondent had difficulty articulating the potential detrimental effects of his offending and pointed out that, with one exception, his victims did not report enduring adverse effects. However, Dr Brereton is of the opinion that the respondent is willing to consider and accept the risks of harm involved in his behaviour and appears genuinely apologetic. When the potential detrimental effects of his offending were raised with him, he appeared subdued and emotionally empathetic. Although the respondent could not give a good account of how he might manage his risk in the community he accepts the need to do so and appears willing to accept any assistance available.
Dr Brereton undertook a clinical assessment of the risk of the respondent’s sexual recidivism by considering four broad areas of functioning: namely, sexual interests and arousal patterns; distorted attitudes generally and thought processes associated with sexual behaviour (particularly distorted patterns of thinking linked to offending, often referred to as “cognitive distortions”); relational style and emotional regulation; and self-management, problem solving and life management skills, including anti-social behaviour.
Dr Brereton considers that the respondent has a sexual attraction towards peripubertal boys. This may have influenced the nature of his offending i.e. he has performed sexual acts on others but does not appear to have sought reciprocation. There is no reason in his opinion to believe that the respondent has sexual interests such as violence or rape, and he does not appear to use sex as a way of emotional coping. Dr Brereton considers that the respondent’s cognitive distortions are on the milder end of the spectrum and do not appear to be rigidly held. He does not regard children as sexual and child sex as harmless; he is not angry or entitled with regard to sex; he does not view the world as a violent, hostile environment. This is relevant because these are all factors that would increase an assessment of his risk.
Dr Brereton notes that the respondent has significant difficulties in forming an enduring intimate relationship. He is vulnerable to loneliness. Dr Brereton suspects this difficulty with adults forms part of the reason he has offended against minors and that he may find a sexual approach towards a minor less intimidating and challenging that he might find in an approach to an adult. However, the respondent does not have a style of relating to others that is callous, lacking in empathy or angry and suspicious. His emotional regulation over the years has been good. He has not resorted to maladaptive coping techniques such as substance abuse. The respondent’s history in regard to self-management, problem solving and life management skills is positive. Aside from his sexual offending Dr Brereton considers there is no pattern of offending or other antisocial behaviour at any stage in his life. The respondent described a constructive approach to managing stress and problem solving. With prompting in the past he has sought assistance in the form of therapy and appeared to engage well and benefit, including some development of social skills. There seems to have been a period of many years during which the respondent did not offend, demonstrating a degree of willingness to exert some control over his sexual behaviour. However, it is concerning that the respondent once resorted to reoffending despite being under a good behaviour bond and subject to supervision.
In summary, Dr Brereton considers the respondent is not a high risk of reoffending but would be better considered as a moderate risk, taking into account both the likelihood and nature of the risk involved. While he considers it is a concern that the respondent has offended several times over an number of years and his most recent offence against boys was the most serious involving picking up a stranger, plying him with alcohol and fellating him while he was unconscious, nonetheless, it appears that there was a period of over 30 years during which he refrained from offending. In addition, he does not have an extensive risk profile. While the respondent’s offending has great potential to cause harm, his offending lacks features that would place it at the severe end of the spectrum of offending. Moreover, the respondent appears to desist when his victims resist. Furthermore, Dr Brereton considers that the respondent is likely to benefit from therapeutic treatment. He appears remorseful and to have a capacity for empathy and a willingness to reflect on his own thinking about offending.
Dr Brereton is of the opinion that there is no reason to consider the respondent is incapable of controlling his sexual instincts. Further, he believes the respondent can be considered as willing to control his sexual instincts. He has demonstrated both a capacity and willingness to refrain from offending over a sustained period of many years. Dr Brereton believes the respondent would be amenable to therapy to help reduce his risk and he believes that, if the respondent was in the community, he would be likely to make efforts to avoid the risk of reoffending, for example, by avoiding the company of boys. Having regard to the definition of unwillingness in the Act, Dr Brereton said that he considers that if the respondent were given the opportunity to commit a relevant offence he would be very tempted to take advantage of the situation. While he would make an effort to exercise appropriate control there is a clear risk that he may fail to do so.
Dr Brereton is of the opinion that the question of whether the respondent should be regarded as unwilling to control his sexual instincts within the meaning of the Act is a difficult and finely balanced decision. Ultimately, he considers that the risk that the respondent would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts, is not significant so as to require an indeterminate order for detention. On that basis he considers the respondent is willing to control his sexual instincts.
Accordingly, it can be seen that while both Dr Nugyen and Dr Brereton consider that the respondent is capable of controlling his sexual instincts, they have different opinions as to whether he is willing to do so within the meaning of the Act.
It is not a condition precedent to making an order pursuant to s 23 that two medical practitioners have expressed the opinion the person is incapable of controlling or unwilling to control his or her sexual instincts.[9] Nonetheless, in forming the view of whether the threshold question has been established, the Court must place substantial reliance upon the evidence of the two medical practitioners who have enquired into the mental condition of the respondent and reported on whether he is incapable of controlling or unwilling to control his sexual instincts.
[9] R v Ainsworth [2008] SASC 67, (2008) 100 SASR 238 at [35]-[41].
I have no difficulty in concluding that the evidence before me does not establish that the respondent is incapable of controlling his sexual instincts. Both Dr Nguyen and Dr Brereton were of this opinion. The more difficult question is whether the evidence establishes that the respondent is unwilling to control his sexual instincts within the definition of “unwilling” in s 23(1), namely:
A person to whom this section applies will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts.
Each of the psychiatrists who gave evidence before me are highly qualified forensic psychiatrists and gave considered reasons for their conclusions. In the end I have preferred the evidence of Dr Brereton who has considerably greater experience in undertaking assessments of this kind. I found his evidence impressive and his reasoning dispassionate and persuasive. It was based on his clinical assessment of the respondent. While his opinion as to whether the respondent is unwilling to control his sexual instincts is, as he acknowledges, “finally balanced and difficult”, the state of the evidence does not in my view establish the proper foundation for the making of the order sought pursuant to s 23, namely, satisfaction that the respondent is incapable of, or unwilling to control his sexual instincts. Given the gravity of the consequences for the respondent of making an order for indefinite detention, the Court will only make an order where it is satisfied that cogent and acceptable evidence justifies doing so. Given my acceptance of Dr Brereton’s opinion, the evidence lacks the cogency to answer the threshold question in the affirmative. Even if I had not formed a preference for the opinion of Dr Brereton, and the psychiatric evidence was finely balanced, the requisite level of satisfaction for a finding that the respondent is incapable of, or unwilling to control his sexual instincts could not be established. Accordingly, the foundation does not exist to consider whether the risk the respondent poses to the community justifies making of the order sought.
The threshold question being answered in the negative, it follows that the application must be dismissed.
Conclusion
I would dismiss the application.