R v Healey - [2008] SASC 83

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v HEALEY
[2008] SASC 83
Reasons for Decision of The Honourable Justice Anderson
2 April 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCING
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - MISCELLANEOUS MATTERS - SEX OFFENDERS INCAPABLE OF CONTROLLING SEXUAL INSTINCTS
Application by the Director of Public Prosecutions for respondent to be detained in custody until further order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) - whether respondent is capable of controlling or is unwilling to control his sexual instincts - whether such an order is appropriate - consideration of the utility of such an order to enhance the protection of public - factors relevant to the exercise of discretion.
Held: Respondent is capable of controlling his sexual instincts - respondent is unwilling to control his sexual instincts as per the definition contained in s 23 - not reasonable on evidence to order indefinite detention, having regard to long sentence of imprisonment imposed cumulatively upon previous long sentence and because treatment may be successful and further because of power of intervention by the Attorney-General - application refused.
Criminal Law (Sentencing) Act 1988 (SA) s 23; Prisoners (Interstate Transfer) Act 1982 (SA), referred to.
R v Whyte [2006] SASC 56; R v Ainsworth [2008] SASC 67, applied.
R v England (2004) 87 SASR 411; Buckley v The Queen (2006) 80 ALJR 605, considered.

R v HEALEY
[2008] SASC 83
Criminal
ANDERSON J.
Introduction

This is an application by the Director of Public Prosecutions (the DPP) for Mr Healey to be detained in custody until further order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (the Sentencing Act). It is claimed that Mr Healey is incapable of controlling, or is unwilling to control, his sexual instincts. At the time the relevant offences were committed Mr Healey was aged 18 years.
Mr Healey has pleaded guilty to two counts of aggravated serious criminal trespass in a place of residence, one count of attempted abduction of a child under 16 years, one count of abduction, one count of indecent assault, three counts of unlawful sexual intercourse with a person under 12 and one count of gross indecency. All of these offences formed part of a series of events that occurred in a suburb of Adelaide on 23 December 2002. I have today sentenced Mr Healey for these offences.
Mr Healey became a person of interest to the investigation shortly after committing these offences, but avoided being apprehended by police in the days and months following the commission of these offences. He eventually absconded interstate. The South Australian police, after discovering that Mr Healey had been imprisoned in New South Wales on similar offences, interviewed him in Parramatta police station on 14 September 2004.
The New South Wales offences consisted of taking a person without consent to obtain an advantage and three counts of sexual intercourse with a child under 10 years, which Mr Healey committed on 10 December 2003 in Byron Bay. I will from now on refer to the offences committed in Byron Bay as the “New South Wales offences” and will refer to the offences committed on 23 December 2002 as the “South Australian offences”.
Mr Healey was convicted in the District Court of South Australia, on his own pleas on eight counts in April 2006 and an amended count 2 in June 2006. Upon these guilty pleas, the DPP made this application and the matter was transferred to the Supreme Court for hearing of the application and for sentencing. I heard evidence relating to this application and heard submissions for both this matter and for sentencing in respect of the South Australian offences at the same time.
Background
In the early hours of 23 December 2002, Mr Healey unlawfully entered a residence through an unlocked window on the side of the house. The house was occupied by a family including two young girls who both became victims of Mr Healey’s criminal conduct. According to Mr Healey, prior to breaking into the residence, he had been wandering the streets committing acts of vandalism, as he claimed he often did at that time. When Mr Healey entered the house, he was armed with a knife and claims that he had the intention of committing an act of theft. For whatever reason, he took the knife out of its sheath when inside the house. He later replaced it in the sheath.
Once in the house, Mr Healey entered the girls’ bedroom and discovered the first victim, A, a girl aged 5 and the second victim, B, a girl also aged 5, who were at the time asleep in their beds. Mr Healey then woke A and tried to lead her out of the house. According to Mr Healey, this victim chose not to follow him but instead ran into her mother’s bedroom. A has said that Mr Healey used force in the attempt to abduct her.
In his interview with police Mr Healey said that his motive for attempting to abduct A and for later abducting B, was that he thought that if he took one of them away, he would be able to befriend them and would then be able to come back and visit them during the day so that his life would be less miserable.
After the attempted abduction, Mr Healey left the house through the lounge room window but returned shortly thereafter. Upon his return he once again unlawfully entered the house through the same window, still in possession of a knife. Mr Healey then used force to lift B through the window and abduct her. Mr Healey said in an interview with police that once he had taken B outside, she became scared and distressed. Mr Healey took her to a nearby playground and then moved to the grandstand of a nearby sporting ground.
While in the grandstand Mr Healey assaulted B by kissing her and then had unlawful sexual intercourse with the victim by inserting his finger into her vagina.
Mr Healey then took B down onto the playing surface of the sporting ground where he exposed his penis to her before committing two more acts of unlawful sexual intercourse by first performing cunnilingus on B and secondly by inserting his finger into her vagina.
Mr Healey then escorted B back to the vicinity of her home address where he saw a police vehicle parked outside her house. Because of the presence of this vehicle he left B in the street and absconded from the area.
Mr Healey initially avoided being apprehended for these crimes. The exact order of what occurred next is unclear. In a document entitled “Account of ‘Delusional Beliefs’” which was written by Mr Healey and is attached to his Prison Health Service File, he states that at some stage after the commission of these crimes he went to Mount Gambier with the intention of committing suicide. Mr Healey also states in this document that while in Mount Gambier he consulted a religious organisation about his troubles and that they advised him that by moving away from Adelaide he might also leave his mental troubles behind. Mr Healey eventually left South Australia for Melbourne. It is clear from police records that this could not have occurred until late June 2003 because whilst still in Adelaide he committed further offences.
On 23 January 2003, Mr Healey was arrested in an Adelaide shopping centre for offensive behaviour, namely, that he kissed a 5 year old girl. Mr Healey was released on police bail for this charge, which included a condition that Mr Healey would not approach or associate with children under the age of 12.
On 25 January 2003, Mr Healey attended a police station requesting that his bail agreement be amended as he claimed it was preventing him from associating with his “best friends”, who included a 9 year old girl and a 10 year old girl. Mr Healey discussed his fascination with one of these girls at some length with the psychiatrists who have prepared detailed reports regarding Mr Healey’s medical conditions. According to the police apprehension report, Mr Healey was advised that under no circumstances would his bail agreement be altered.
Despite that, on 30 January 2003 Mr Healey was charged with failing to comply with his bail agreement by attending the residence and remaining in the company of one of the girls for a period of about one and a half hours. Mr Healey admitted to being in the company of the girl but said that when he attended the police station five days earlier, that he had spoken to a sergeant who had given him permission to associate with children under the age of 12, as long as it was in a family situation. Mr Healey was convicted of these two offences in the Elizabeth Magistrates Court on 13 December 2005, but received no penalty.
On 28 June 2003, whilst still in South Australia, Mr Healey was arrested for smashing a car window with a hammer and stealing the number plates from that vehicle. This is not relevant to the offences described in paragraph [2] of these reasons.
At some stage after 28 June 2003 Mr Healey moved to Melbourne. He told police that during this period he found employment, developed friendships and entered into a relationship with an adult female. However, according to Mr Healey, his mental state began to deteriorate once more when a homosexual male in Melbourne began stalking him.
New South Wales offences
Mr Healey told police that this stalking incident and the mental distress it caused him eventually led him to leave Melbourne for New South Wales. Mr Healey told a psychiatrist that he then travelled around the coast of New South Wales attempting to “groom” potential underage sexual targets. Mr Healey also said in police interviews that upon leaving Melbourne he was a “dangerous person” and made comments to the effect that he was actively seeking to have intercourse with a pre-pubescent girl. From the material before me it is apparent that Mr Healey felt that it was his “mission” to have intercourse with a pre-pubescent girl, and he felt that having failed to do so in South Australia, he was then intent on fulfilling his “mission” in New South Wales.
On 10 December 2003 Mr Healey committed the offences outlined in paragraph [4] of these reasons against a 7 year old girl in Byron Bay. In committing those offences, Mr Healey once again broke into the victim’s house in the early hours of the morning and took the victim to a nearby park. According to the Facts Sheet of the New South Wales Police Service dated 13 December 2003, once in the park, Mr Healey proceeded to have penile anal intercourse with the victim while simultaneously placing his finger in her vagina. He did this several times, even after the victim had begun to cry and said that it was causing her pain. After committing these offences, Mr Healey then led the victim to a tap and told the victim to wash her bottom. He then led her to the front gate of her home and asked her for a cuddle, which was declined. He then said to the victim “Promise that you won’t tell your mum and dad or my boss will shoot them”.
Mr Healey pleaded guilty to these New South Wales offences. The sentencing judge referred to Mr Healey’s behaviour as “frightening” and “terrifying” and imposed a total sentence of 15 years with a minimum sentence of 11 years and 3 months. It was very similar behaviour to that which Mr Healey exhibited in relation to the South Australian offences. I agree with the judge’s comments.
Details of Mr Healey’s involvement in the South Australian offences became clearer during his imprisonment in New South Wales. Mr Healey’s New South Wales prison sentence has since been translated pursuant to the Prisoners (Interstate Transfer) Act 1982 (SA) so that it is treated as if it had been imposed by a South Australian court.
Section 23 of the Criminal Law (Sentencing) Act 1988 (SA)
At a hearing in the District Court on 1 June 2006, Ms Griffith for the DPP made an application for the matter to be referred to the Supreme Court pursuant to s 23(2)(b) of the Act. Section 23 states that:
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, 49, 56, 58, 59, 63, 63A, 63B, 69, 72 or 74 of the Criminal Law Consolidation Act 1935;
(b) an offence under section 23 of the Summary Offences Act 1953;
(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;
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 will direct at least 2 legally qualified medical practitioners nominated by the Court to 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)For the purpose of an inquiry under subsection (3), each medical practitioner—
(a)     must carry out an independent personal examination of the person; and
(b)     may have access to any evidence before the court by which the person was convicted; and
(c)     may obtain the assistance of a psychologist, social worker, community corrections officer or any other person.
(5)The Court may order that a person to whom this section applies be detained in custody until further order if—
(a)     the Court, after considering the medical practitioners' reports and any relevant evidence or representations that the person may desire to put to the Court, is satisfied that the order is appropriate; or
(b)     the person refuses to cooperate with an inquiry or examination under this section and the Court, after considering any relevant evidence and representations that the person may desire to put to the Court, is satisfied that the order is appropriate.
(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.
…
The court ordered that reports in accordance with s 23(3) be prepared by Dr Begg and Dr Nambiar, who are both specialist psychiatrists. They were also called to give evidence and were cross-examined.
Evidence of Dr Nambiar and Dr Begg
The reports of Dr Nambiar and Dr Begg contain similar accounts of Mr Healey’s personal and psychosexual history. They reveal that Mr Healey has a complex, devious, calculating and manipulative personality.
Both doctors said that in their interviews with Mr Healey he employed what Dr Nambiar referred to as “the defence of intellectualisation”, whereby he self-analysed his mental condition and past actions by analysing various psychiatric and psychological texts which he had read. In his report Dr Nambiar noted that upon deeper enquiry, Mr Healey’s knowledge of basic human behaviour and psychological theories was very basic.
Mr Healey told both doctors that he had a troubled childhood in which both his parents inflicted physical abuse upon him and on several occasions asked him to leave home. Dr Nambiar said that Mr Healey had an intense preoccupation with pyromania and cruelty to animals, which Dr Nambiar said were associated with delinquency and psychopathy.
Both doctors in their reports also said that Mr Healey told them that his fascination with having sexual intercourse with a pre-pubescent girl stemmed from an occasion in sex education in school where Mr Healey remembered his teacher telling the class that girls could not get pregnant prior to their first period. Dr Begg said that Mr Healey told him he immediately thought, “I have to have sex with someone just before she gets to puberty and have to do it soon”. Dr Nambiar told the court that it appeared as if Mr Healey had interpreted the teacher’s statements to mean that he therefore had to have sex with a pre-pubescent girl.
Dr Nambiar noted in his report that Mr Healey told him he had limited friends of his own age at school and that he would gravitate towards younger children both at school and in his neighbourhood. Dr Nambiar also noted in his report that Mr Healey told him he encountered young children through engaging in various placements at kindergartens and child care centres. It is relevant that later in his report Dr Nambiar refers to these placements and says that:
From the material provided to me it would appear that whilst at kindergarten and child care centres [Mr Healey’s] behaviour was interpreted as being inappropriate towards children, including physical contact and remarks that he made, for which he was disciplined and eventually asked to leave.
Items were also found by the police in Mr Healey’s unit which were indicative of a preoccupation with young children. The items included flyers advertising babysitting services and a name badge which said “Sam Healey, Babysitter”.
Mr Healey also told the doctors of his relationship with a particular young girl. In his report, Dr Nambiar said that Mr Healey admitted to having sexual fantasies about this girl and said that he wrestled with the idea of having sex with her. According to Dr Nambiar, Mr Healey said that his resisting this was an example of how he was capable of controlling his sexual urges.
It was also reported by both doctors that Mr Healey had told them of how in his teens he began experiencing what Dr Nambiar referred to in his report and in evidence as fantasies involving a conspiracy of secret agents who would monitor Mr Healey’s movements and behaviour continuously and who would urge him on to commit sexual acts against young children. According to Dr Nambiar, Mr Healey told him that he began to believe that the only way to stop the conspiracy was for him to give in to his sexual urges and commit a sexual act with a pre-pubescent girl. Mr Healey also told the police this in his formal interviews on 14 September 2004 and on 23 November 2005. He said that at the time of committing the South Australian offences he believed that he was being persecuted by demons who required him to have sex with a pre-pubescent girl.

Dr Begg said that at the time of abducting the victim in this matter, Mr Healey rationalised that at some stage he was going to give in to his urges to have sex with a pre-pubescent girl and that as the victim had already been traumatised from him having abducted her, he should have intercourse with her. He rationalised that it would mean that he would not have to traumatise another child in the future.
Dr Begg said in his report that Mr Healey also told him how, on the night of 23 December 2002, he believed that there were demons in a nearby playground and that he felt he had to protect the victim from these demons. Mr Healey also refers to these demons in his interviews with police. In his evidence, Dr Begg said that he did not feel that this was a major motivating factor in the offending but he saw it as Mr Healey’s attempt to rationalise it.
Dr Begg said that Mr Healey told him that while in prison in New South Wales he swallowed a moth. Mr Healey then said he believed he had supernatural powers which caused him to realise that all of his delusional ideas were simply fantasies. Dr Begg went on to say that Mr Healey told him of how, as a result of swallowing the moth, he began writing about “God’s word” and began to believe that he was a prophet from God.
Dr Nambiar said in his report that Mr Healey told him of how, while in prison in New South Wales, he had a realisation that his ideas of a conspiracy were in fact delusions and that from that point they “miraculously” stopped. In relation to this, Dr Nambiar said that:
… the onset of this “delusion”, its course and its “miraculous remission” in 2004 (coincidentally after he had been apprehended) would suggest to me that it is not characteristic of a delusional disorder but rather an intense and complicated fantasy constructed by Mr Healey due to a severely distorted personality.
Dr Nambiar went on to say that contrary to having experienced a realisation about his offending, Mr Healey “appears to have an actual lack of insight into his use of rationalisations and justifications for his abnormal and deviant behaviours”. However, in cross examination, Dr Nambiar did accept that it was possible that the environment of prison might not permit the development or maintenance of these beliefs.
Both doctors described how Mr Healey said that he no longer fantasised about young girls. Dr Nambiar said in cross-examination that given Mr Healey’s history and profile he found it impossible to believe that this was the case, although upon questioning he said that he could not provide anything which pointed towards his view that these tendencies still existed. It is clear that Dr Nambiar did not accept the accuracy of Mr Healey’s statement.
Mr Healey told Dr Begg that through reading about psychiatry and psychology while in prison in New South Wales, he felt that he was able to begin to accept responsibility for his actions. Dr Begg said that Mr Healey also told him that as a result of this realisation he no longer fantasised about young girls and also said that he is now attracted to “a narrow personality type characterised by a mature person” and that “women do not develop this personality type until they are at least 19”.
Dr Begg said in his report that he felt that Mr Healey presented his history in a manner that made it difficult to be certain as to whether or not Mr Healey was lying. In his evidence, Dr Begg elaborated on this comment by saying that he did not think that Mr Healey was consciously lying to him but that he was presenting the information in such a way that enabled him to feel comfortable about what has happened in his life.
In cross-examination, Dr Begg agreed that it was likely that Mr Healey’s sexual fantasies about young girls may have decreased as a result of him being in the structured environment of prison. Dr Begg also said that there is a great risk when people, particularly people that have a bent towards intellectual understandings, read about a subject as they can have the false idea that they are cured.
Both psychiatrists also commented in their reports on the extent and manner in which Mr Healey expressed his guilt in their interviews with him. Both Dr Nambiar and Dr Begg did note that Mr Healey’s plea of guilty to the offences does suggest some degree of guilt after the event. Dr Begg, in his report, described Mr Healey as exhibiting only minimal emotional experience throughout the interview. Dr Begg also said that:
I think that his ability to really appreciate what the impact of his actions had been on the victims is poor, so his expression of remorse I felt was more in keeping with his desire to impress me with himself as a person and his recovery rather than a full emotional awareness of what has transpired.
Dr Begg also commented on Mr Healey’s claim that he had experienced a major depressive disorder. Dr Begg said that based on Mr Healey’s history, he was not convinced that Mr Healey suffered a depressive disorder.
In his report, Dr Nambiar diagnosed Mr Healey with antisocial, narcissistic and borderline personality disorders and also said that psychopathy could be present. Dr Nambiar said that in relation to whether Mr Healey was incapable of controlling his sexual instincts, his ability in the past to do so had “waxed and waned”, depending on the intensity of his sexual urges and how he perceived the consequences of his actions. Dr Nambiar did not make any clear statement in his report about whether he felt that Mr Healey was incapable of controlling his sexual instincts. In his evidence he confirmed that, based upon occasions where he had done so in the past, Mr Healey was capable of controlling his sexual instincts.
In relation to willingness, Dr Nambiar said he thought that if given the opportunity to commit an offence, based on his history, it is highly likely that he would fail to exercise appropriate control.
Dr Begg diagnosed Mr Healey with paedophilia. In relation to whether Mr Healey is incapable of controlling his sexual instincts, Dr Begg said in examination-in-chief that he concluded that Mr Healey did have the necessary capacity within his mind to decide what he wanted and did not want to do.
In relation to unwillingness, he said in his addendum report that in his opinion there is a “significant risk that Mr Healey would, given an opportunity to commit similar offences, fail to exercise control of his sexual instincts”.
Both of these doctors therefore shared the view that while Mr Healey was capable of controlling his sexual instincts, he was unwilling to do so.
Evidence called by the defence
Mr Mancini for Mr Healey called Dr Westmore, a New South Wales based psychiatrist. His evidence was taken by video link. It was in response to the conclusions and opinions expressed by Dr Begg and Dr Nambiar.
As with the other two doctors, Mr Healey told Dr Westmore that he no longer has sexual fantasies about pre-pubescent children but said that he now fantasises about older women.
Mr Healey also told Dr Westmore that he felt that his sexuality was a lot less repressed than before. However, according to Dr Westmore, Mr Healey went on to say that he monitored his sexual fantasies carefully. Dr Westmore stated that he did not accept that Mr Healey had cured himself of having paedophilic sexual fantasies but he did accept that he was making an effort to control and monitor his thoughts.
Dr Westmore said that Mr Healey also told him that he refused anti-depressants which were offered to him by prison medical staff because he did not think that he was depressed. This is, of course, contrary to what he told Dr Begg.
Dr Westmore considered that Mr Healey may suffer from paedophilia. He acknowledged that Mr Healey had a very disturbed personality, but said that he was not able to make any diagnosis of a personality disorder from only having seen Mr Healey on the one occasion.
Dr Westmore came to the conclusion that at the time he examined Mr Healey, that Mr Healey was willing and able to control his sexual instincts. He went on to say that he was not able to tell if this situation may change in the future.
During the hearing I requested further information on the extent to which Mr Healey could be treated in the prison’s Sexual Behaviour Clinic. I also inquired as to when that treatment would most likely take place. The further information was sought because Dr Nambiar raised these matters in his report.
Psychological Report
As a result, I was provided with a psychological report by Ms Martin, a senior psychologist from the Rehabilitation Programs Branch of the Department for Correctional Services, regarding Mr Healey’s suitability to participate in the prison-based Sexual Behaviour Clinic.
This report was wide-ranging and contained many interesting observations and conclusions. However, because it was not a report requested by either of the psychiatrists, I treated it as background information in relation to future treatment options. I found it most useful in considering the appropriate sentence to be imposed on Mr Healey. I have referred to the report in that context in my sentencing remarks delivered today.
Ms Martin said in her report that “Mr Healey presented during interviews with a self-assured, confident and sometimes superior, grandiose and controlling manner”. She also said that Mr Healey’s level of honesty over time was viewed as “questionable” following a consideration of historical beliefs and other collateral information, and that he said that he had readily lied in his past and has been able to influence others.
Ms Martin found it important that Mr Healey be monitored over time, with such monitoring involving ongoing assessments of risk. She assessed Mr Healey to have a high risk of sexual re-offending should he not receive treatment. She recommended that Mr Healey participate in the Sexual Behaviour Clinic while in prison and that he might also require additional ongoing individual intervention through the Rehabilitation Programs Branch or the Department for Correctional Services’ Psychological Services. She also said that Mr Healey’s risk and ongoing treatment needs and level of support should be reviewed towards the end of his sentence should he be considered for release.
I have therefore taken into account the assessment made by Ms Martin as to Mr Healey’s eligibility to participate in the prison’s Sexual Behaviour Clinic in considering whether I should make the order sought under s 23. As I have indicated, her overall assessment and conclusions were also particularly helpful in assisting me in the sentencing process.
Submissions by the parties
Ms Griffith for the DPP submitted that the reports and the evidence which had been put before me support the proposition that Mr Healey is at the present time unwilling to control his sexual instincts pursuant to the tests set out in s 23. She did not suggest that he was incapable of such control. Ms Griffith also submitted that while a long sentence would provide some protection to the public, it is appropriate in this situation that an order pursuant to s 23 is also made to protect the public. It was submitted that this was so because these offences are so serious that every possible step should be taken to ensure that Mr Healey is not released until the risk of these offences being repeated is close to non-existent.
In relation to Mr Healey’s eligibility for the Sexual Offenders Treatment Program, Ms Griffith submitted that whilst it was a factor to be taken into account by me it should not be a weighty factor, as there was no guarantee of the outcome of the treatment and how Mr Healey will engage with the treatment.
Ms Griffith submitted that although a s 23 order would deprive Mr Healey of his liberty for an indeterminate period of time, it does not preclude re-assessment of the order by the court in a situation where the prisoner successfully undergoes treatment. She submitted that the provisions for review and discharge of the order that are built into the Act mitigate any concerns in relation to this loss of liberty.
Section 23(2a) gives the Attorney-General the power to make an application to have Mr Healey dealt with under the section. However, it seems that because the DPP has already made this application under s 23(2)(b), the Attorney-General may not make an application more than 12 months before Mr Healey is eligible for release on parole pursuant to s 23(2b). Ms Griffith submitted that the inclusion of this provision does not detract from the clear intention of Parliament that a s 23 order can be made by the court at the time of sentencing, where appropriate.
Mr Mancini for Mr Healey submitted that the evidence put before me, and in particular the evidence of Dr Nambiar and Dr Begg, do not satisfy the test for unwillingness pursuant to s 23. Mr Mancini submitted that Dr Begg’s opinion in particular was at best highly qualified. He further submitted that the evidence of Dr Westmore should be taken to undermine the opinion of the other two doctors.
Mr Mancini submitted that as the term of imprisonment will be extensive, there is no real, practical or substantive risk of re-offending whilst Mr Healey is in prison. He submitted that the most significant aspect of protection of the public is the long sentence which I have now imposed on Mr Healey.
Mr Mancini further submitted that I should not take account of any psychological assessment. I have already indicated that I have only used the report of Ms Martin for the purpose of assisting me as to what treatment might be available to Mr Healey in prison. To that extent it has formed part of my consideration under s 23. Mr Mancini made his submissions using the report on the same basis, namely, to establish the likelihood that Mr Healey will have a sex offender treatment program available in prison.
Finally, Mr Mancini submitted that even if I find that Mr Healey is unwilling to control his sexual instincts, I should not make an order in the exercise of my discretion. He submitted that unless and until the treatment is undergone, it is premature to determine the s 23 question, as it would be unfair to Mr Healey.
Consideration of s 23
Section 23 of the Act gives the court the power to detain a prisoner for an indefinite period of time for preventative purposes to protect the public: see R v Whyte [2006] SASC 56 at par [13] per White J.
The power to detain someone for an indefinite period of time results in the deprivation of that person’s liberty. Such power should not be taken lightly and must be thoroughly considered by the court before making the order.
In relation to the specific power to detain found in s 23, in R v Whyte, White J referred to the judgment of Bleby J in R v England (2004) 87 SASR 411 at 423 and 424 where His Honour 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.
Once an application has been made under s 23(2)(b) then s 23(3) requires that the court direct at least two medically trained practitioners to “inquire into the mental condition” of the person and report to the court on whether that person is incapable of controlling, or unwilling to control, his or her sexual instincts. There is considerable authority dealing with the concept of whether someone is incapable of controlling their sexual instincts. However, in the case of Mr Healey this is not in my view an issue. Dr Nambiar in his report touched on the issue of incapacity, but did not make a definitive statement in this respect. Both Dr Begg and Dr Westmore found that Mr Healey was capable of controlling his sexual instincts. It is my view that there is insufficient evidence to allow me to make a finding that Mr Healey is incapable of controlling his sexual instincts, and Ms Griffith did not urge that course.
I make this finding on an assessment of all the materials placed before me, including medical reports, the evidence given by these psychiatrists and my own observations of Mr Healey, together with the long statements he has made.
What is primarily at issue here is whether Mr Healey is unwilling to control his sexual instincts. There is considerably less authority on this concept of willingness, as it was only incorporated into the section as a result of the 2005 amendments.
According to s 23(1) a person is regarded as unwilling to control their sexual instincts when “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”. This is by no means a simple concept.
In R v Whyte, White J discusses the concept of unwillingness at some length in par [18]-[30]. His Honour then outlines at [29]-[30] what he considered was the proper application of the definition of “unwilling” from the Act:
... 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.
Before a Court concludes that a person is unwilling in the defined sense, it must be satisfied that the risk of failure to exercise appropriate control is “significant”. In context, the word “significant” has the meaning of “substantial”. Put more colloquially, the Court must be satisfied that there is a “good chance” that the risk will eventuate. The mere possibility of a failure to exercise appropriate control of sexual instincts will not be sufficient. But on the other hand the Court does not have to predict that the offender will fail to exercise appropriate control, or even consider it probable that he will fail to exercise such control. (footnotes omitted)
With respect, I agree with and adopt those statements.
The application of s 23 was recently reviewed by the Court of Criminal Appeal in R v Ainsworth [2008] SASC 67. From the point of view of how s 23 should be applied in this case, I note the following from the reasons of White J. Doyle CJ agreed with those reasons.
1.Because Mr Healey has not been sentenced, the question of any order under s 23 is to be considered at the same time as the court considers the question of sentence. An order for indefinite detention may be in addition to, or instead of, a sentence of imprisonment: per White J at [25] and Layton J at [105].
2.An order of indefinite detention can be made after the offender has been sentenced but only on the application of the Attorney-General made whilst the offender remains in prison: per White J at [26] and Layton J at [115].
3.Section 23(5) contains no express requirement that at least two court-ordered medical practitioners must consider that the offender lacks the requisite capacity or willingness. The section does not make the content of the expert opinions either a necessary or sufficient condition for the making of an order. The court must obtain the opinions and have due regard to them. The words of the section do not indicate that the court must first be satisfied that two medical practitioners consider that the offender lacks the requisite capacity or willingness to control his or her sexual instincts: per White J at [41].
4.The purpose of an order for indefinite detention is principally protective, that is, to protect the public from conduct of a particular kind by the offender: per White J at [56] and Layton J at [142].
5.A judge should only make an order upon cogent evidence and with a clear appreciation of the exceptional nature of the course being taken: per White J at [56].
6.After deciding the appropriate penalty, which in this case is a sentence of imprisonment for 13 years with a non-parole period of 10 years to be added to an existing sentence of 15 years with a non-parole period of 11 years and 3 months, the utility of any order for indefinite detention needs to be considered: per White J at [78] and Layton J at [140].
Conclusions

I have indicated that I do not find that Mr Healey is incapable of controlling his sexual instincts. In relation to whether Mr Healey is willing to control his sexual instincts, I have given consideration to the opinions of Dr Nambiar and Dr Begg, the opposing view of Dr Westmore and also the statements made by Mr Healey, which I have referred to earlier, to the effect that he is willing to control his sexual instincts.
I have concerns about the accuracy of Mr Healey’s statements and his frankness in his interviews with the psychiatrists generally.
I am of the opinion that Mr Healey is manipulative. From my observations of him in court, he has a tendency to disrupt, often attempting to interrupt his counsel or myself in his attempt to have an input in the proceedings and his say in the outcome. I have indicated that I agree with Ms Martin’s summary of Mr Healey’s general character because it accords with my own observations. Both Dr Begg and Dr Nambiar said that Mr Healey used intellectualisation, with Dr Begg in particular saying that he felt that Mr Healey on several occasions repeated his ideas and theories until such time as Dr Begg took note. I also feel that Mr Healey was manipulative in his discussions with police. I likewise point to the content of the letters that he sent to the police and also to Perry J who was previously dealing with this matter. The letter to Perry J is dated April 2007 and is an obvious attempt to curry favour prior to sentence.
In my sentencing remarks of today I have also referred to what I regard as a misguided attempt to attract my sympathy by writing a totally inappropriate letter to the court apologising to the victim. I said that the letter was manipulative, offensive and patronising. I noted it was an example of the superior, grandiose and controlling manner spoken of by Ms Martin and I said that the letter indicated how Mr Healey had not fully understood the consequences of his crimes.
Mr Healey’s persistent claims that he has cured himself through having had a realisation and having undertaken psychological and psychiatric research of his own accord whilst in prison do not ring true. The balance of medical opinion weighs against him on this aspect.
Mr Healey continues to talk in a manner which places blame for his acts on others. Dr Begg mentioned this in his report where he found it relevant that Mr Healey was projecting the blame and the grief from his actions onto others. It is also evident from some of Mr Healey’s comments to police that he placed blame on medical services by stating on several occasions that he would not have committed the offences had he been provided with remedial help in the past.
I rely on the opinions of Dr Nambiar and Dr Begg, together with my own assessment of Mr Healey, in finding that he is unwilling to control his sexual instincts as per the definition contained in s 23.
The discretion, as Mr Mancini submitted, requires one final step before I can make an order in terms of s 23. Pursuant to s 23(5), I have the power to detain Mr Healey in custody until further order if, upon considering the evidence before me, I am satisfied that such an order is appropriate. A finding of either incapability or unwillingness is not the only determinant of whether it is appropriate to make an order under s 23. If this had been the case, Parliament would have expressly stated that an order is to be made upon the court being satisfied that the prisoner is either unwilling or incapable of controlling their sexual instincts.
I have serious concerns about the appropriateness of such an order in this case, even though I have found that Mr Healey is unwilling to control his sexual instincts. Mr Healey is currently imprisoned for the New South Wales offences until 2015. The non-parole period is now extended to 2025 by reason of today’s sentencing for the South Australian offences.
Each of the medical experts who have been consulted in this matter has expressed the view that Mr Healey’s willingness to control his sexual instincts could be considerably improved with the continued support provided by the structured environment of prison and through his involvement in the Sexual Offenders Treatment Program.
Mr Healey’s lengthy sentence of imprisonment makes it highly unlikely that an opportunity to commit a relevant sexual offence will arise for an extremely long time. I feel that this is a relevant factor, considering that the protection of the community is the principle reason for making an order pursuant to s 23.
From R v Ainsworth it is clear that having decided the appropriate sentence for Mr Healey, I have to consider the utility of an order for indefinite detention. The community is protected by the sentence imposed. I cannot see how in these circumstances the order sought could further enhance the protection of the public. Such an order would only have effect in 2025 at the earliest, if Mr Healey were released at that time.
In R v Ainsworth, the court emphasised a passage from Buckley v The Queen (2006) 80 ALJR 605 at 607, a portion of which I now set out.
In the first place, where a judge, sentencing a dangerous offender, is deciding whether the protection of society requires an indefinite sentence, the protective effect of a finite sentence, fixed according to ordinary sentencing principles, including the need to protect the public, is a matter to be weighed carefully. An indefinite sentence is not merely another sentencing option. Much less is it a default option. It is exceptional, and the necessity for its application is to be considered in the light of the protective effect of a finite sentence. Second, the available finite sentence sets the time frame by reference to which the temporal issues earlier mentioned are to be examined. (footnotes omitted)
I consider that the power vested in the Attorney-General to make an application under s 23(2a), as discussed earlier, allows for the possibility that if Mr Healey has undergone treatment and if, when he is nearing the end of his non-parole period, there are still concerns over his willingness to control his sexual instincts, then the Attorney-General may make an application within the time specified in s 23(2b).
I am therefore of the view that it would not be reasonable for me to order indefinite detention. I have taken account of the evidence before me, the sentence of imprisonment imposed today cumulatively upon an existing sentence, the possibility that treatment may be successful, and the power of the Attorney-General to intervene. I therefore refuse the application.