R v Halse

Case [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

  1. 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).

  2. On the hearing of the application the question arose as to the applicable legislation. 

  3. Since the application was made the Criminal Law (Sentencing) Act 1988 (SA) (the 1988 Act) has been repealed by the enactment of the Sentencing Act 2017 (SA) (the 2017 Act).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.

  4. 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]

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AGLC
R v Halse [2018] SASC 178
Case
[2018] SASC 178
Decision Date

CaseChat Overview and Summary

In the case of R v Halse, the respondent, aged 76, faced sentencing for a history of sexual offending against peripubertal boys spanning from 1961 to 2015, with the majority of offences occurring between 1961 and 1983. Additionally, he committed a sexual assault against a 21-year-old man in 2016. The court had to determine whether the respondent qualified as a dangerous sexual offender under the relevant legislation, and if so, what post-custodial orders should be imposed.

The primary legal issue before the court was whether the respondent met the criteria to be classified as a dangerous sexual offender, specifically if he was unwilling to control his sexual instincts within the meaning of the Act. This determination hinged on the psychiatric evidence provided by two experts, Dr Nguyen and Dr Brereton. Dr Nguyen assessed the respondent as a moderate to high risk for sexual reoffending and opined that he was unwilling to control his sexual instincts. Conversely, Dr Brereton believed the respondent was willing to consider and accept the risks of harm involved in his behaviour and appeared genuinely apologetic.

The court, after considering the conflicting psychiatric evidence, found that Dr Brereton's assessment was more persuasive. Dr Brereton's opinion that the respondent appeared genuinely apologetic and willing to accept assistance to manage his risk in the community weighed in favour of the respondent's willingness to control his sexual instincts. Consequently, the court concluded that the respondent did not meet the threshold for being classified as a dangerous sexual offender. Therefore, the application was dismissed, and the court did not impose any post-custodial orders based on the dangerous sexual offender classification.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

The threshold question being answered in the negative, it follows that the application must be dismissed.Conclusion I would dismiss the application.

Ratio Decidendi

Legal Principle Established

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