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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Healey

Details

AGLC: R v Healey [2008] SASC 83
Case: [2008] SASC 83
Decision Date: 2 April 2008

CaseChat Overview and Summary

The case of R v Healey was heard in the Supreme Court of South Australia, where the respondent, Mr Healey, had been convicted of multiple sexual offences against two young girls. The Director of Public Prosecutions sought an application under section 23 of the Criminal Law (Sentencing) Act 1988 (SA) for Mr Healey to be detained indefinitely to protect the public. The central legal issues were whether Mr Healey was capable of controlling or was unwilling to control his sexual instincts and if an indefinite detention order was appropriate.

The court examined the evidence provided by two psychiatrists, Dr Nambiar and Dr Begg, who concluded that Mr Healey was capable of controlling his sexual instincts but was unwilling to do so. The court also considered the submissions from both sides regarding the utility of an indefinite detention order. The court found that Mr Healey was manipulative and had a tendency to disrupt proceedings, which led to doubts about his willingness to control his sexual instincts. However, the court noted that the long prison sentence imposed, combined with the possibility of successful treatment and the power of intervention by the Attorney-General, made it unreasonable to order indefinite detention. Consequently, the application was refused.

The court's decision was based on the evidence presented, the nature of the offences, and the potential for treatment and intervention. The court exercised its discretion and concluded that an indefinite detention order was not warranted in this case. The final orders reflected the court's decision not to impose an indefinite detention order on Mr Healey.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

ANDERSON J

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.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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.