R v Hore
[2016] SASC 21
•19 February 2016
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v HORE
[2016] SASC 21
Reasons for Decision of The Honourable Justice Nicholson
19 February 2016
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
Application by Attorney-General for an order pursuant to section 23 of the Criminal Law (Sentencing) Act 1988 (SA) that the respondent be detained in custody until further order.
Held:
1. The respondent is unwilling to control his sexual instincts within the meaning of section 23 of the Criminal Law (Sentencing) Act 1988 (SA).
2. The respondent is to be detained in custody until further order, such detention to commence after the expiry of the term of imprisonment presently being served.
Criminal Law (Sentencing) Act 1988 (SA) s 23, s 23A, s 24; Child Sex Offenders Registration Act 2006 (SA) s 44, s 66JB, s 66M, s 66N; Criminal Law Consolidation Act 1935 (SA) s 63A; Summary Procedure Act 1921 (SA) s 99AA, s 99AB, referred to.
Police v Hore [2015] SASC 150; R v Sumner [2015] SASC 177; R v England [2004] SASC 20, (2004) 87 SASR 411; R v Whyte [2006] SASC 56; R v Ainsworth [2008] SASC 67, (2008) 100 SASR 238; R v Armfield [2005] SASC 108; R v Warsap [2011] SASC 73; R v Warsap [2011] SASCFC 129, (2011) 111 SASR 232; R v Williams [2006] SASC 377, (2006) 96 SASR 226; R v Wichen [2005] SASC 323, (2005) 92 SASR 528, considered.
R v HORE
[2016] SASC 21Criminal: Application
NICHOLSON J.
Introduction
The respondent is presently serving a term of imprisonment of 16 months with a non-parole period of ten months which commenced on 10 April 2015. He pleaded guilty to three counts of failing, as a registrable offender, to comply with reporting conditions without reasonable excuse[1] and one count of possessing child pornography knowing of its pornographic nature.[2]
[1] Contrary to section 44(1) of the Child Sex Offenders Registration Act 2006 (SA).
[2] Contrary to section 63A of the Criminal Law Consolidation Act 1935 (SA). The nature of the offending, the respondent's personal circumstances and criminal antecedents are summarised in Police v Hore [2015] SASC 150.
At the time of committing these offences, the respondent had a history of sexual offending. He has committed a number of offences that fall within the definition of “relevant offence” for the purposes of section 23 of the Criminal Law (Sentencing) Act 1988. By application dated 26 June 2015,[3] the Attorney-General applied pursuant to that section for an order that the respondent be detained in custody until further order and notwithstanding that the term of imprisonment presently being served is due to expire on or about 9 August 2016.
[3] Amended by second originating application filed on 25 September 2015.
On 9 February 2016 and given the proximity of the expiration of the respondent’s non-parole period, I made the following order and indicated to the parties that my reasons for the order would be delivered shortly thereafter.
On the application of the Attorney-General dated 26 June 2015, I order pursuant to section 23(4) of the Criminal Law (Sentencing) Act 1988 that the respondent, Darryl Martin Hore, be detained in custody until further order, such detention to commence at the expiry of the term of imprisonment currently being served.
These are my reasons.
The Court has before it expert forensic psychiatric reports, from Dr Jules Begg and Dr Narain Nambiar as required by section 23(3). Both have concluded that the respondent is “unwilling” to control his sexual instincts as that term is defined in and deployed for the purposes of section 23. It is common ground that the discretion in the Court to make an order pursuant to section 23 for indefinite detention has been enlivened.
The respondent’s criminal antecedents
In 2007, the respondent was convicted following a trial of the offence of indecently assaulting a child victim. This offence was committed in December 2003 when the respondent was about 25 years old. He was sentenced to a suspended term of imprisonment for two years with a non-parole period of 15 months. Between September 2007 and March 2009 the appellant attended Owenia House[4] and undertook a course designed to limit any risk of further sexual offending.
[4] According to the SA Health website, Owenia House is a specialist statewide service committed to reducing the incidents of sexual assault in South Australia through the provision of evidence-based therapeutic and education programs for adults who have committed offences or are concerned they may sexually offend against adults or children.
In 2010, he was convicted following a trial of the offence of aggravated indecent assault (again, a child victim). The respondent was sentenced to imprisonment for two years and six months with a non-parole period of one year and three months, this time to be served. The offence had been committed in July 2007 before the passing of the sentence for the earlier indecent assault offence and before the respondent’s attendance at Owenia House but after having been charged and committed to trial for the 2003 offence.
The respondent attended a sexual behaviour clinic over a period of approximately seven months in 2011 whilst in Mt Gambier Prison. However, at the conclusion of the clinic, the facilitators remained unclear as to how far the respondent’s knowledge about his sexual offending had translated into a deeper understanding of how to modify his behaviour so as to refrain from offending in the future. The facilitators observed that, notwithstanding his attendance at the program, the respondent would have an increased risk of engaging in problematic behaviours if he failed to maintain open communication with his negative feelings and failed to refrain from deviant sexual fantasy and behaviour.
Subsequent events would appear to have demonstrated the reliability of the facilitators’ concerns. As a consequence of the respondent’s history of sexual offending as just outlined he became a “registrable offender” under the Child Sex Offenders Registration Act 2006. He became subject to various reporting obligations in accordance with Part 3 of that Act. Not long after leaving prison in 2012, the respondent engaged in behaviour that was of serious concern generally but that also involved the commission of further relevant offences. I set out below the summary of the respondent’s behaviour and further offending (for which he is presently imprisoned) contained in my judgment on appeal dealing with that offending.[5]
The respondent has a history of sexual offending which I will outline shortly. As a consequence, he is a “registrable offender” under the Child Sex Offenders Registration Act 2006. Further, the respondent became subject to various reporting obligations in accordance with Part 3 of that Act. He was released from prison on 24 May 2012 to serve a period on parole. This period on parole ended on 26 February 2013 with no adverse issues having arisen. Thereafter, the respondent went to reside in Port Pirie. He started to contact people through Facebook and internet dating sites on his computer. By this means, he came into contact with a young woman who had three small children.
In late 2013, the respondent started to cohabit with the young woman and her young children in Berri. In short, the respondent had committed three offences by way of breaching his reporting obligations. First, he changed his residential address and moved to the address in Berri without notifying the police within 14 days. Second, he used the social media internet sites, including Facebook and an internet based dating service, but failed to report or otherwise notify the police of this. Third, the respondent failed to notify the police that the house he had moved to was also to be occupied by three children aged between 4 and 12 years of age.
Each of these offences represented a serious failure by the respondent to recognise his obligations as a registered child sex offender and demonstrated a failure to appreciate their significance and their importance to the community and to the regime established in order to protect the community. However, and given the respondent’s history of child sex offending, the third offence, the failure to report the presence in the house of three small children, was a particularly serious breach of his reporting obligations.
As far as the offence of possession of child pornography is concerned, the respondent was found knowingly in possession of 481 files (images and videos) containing child pornography. There is little information before the Court as to the character or nature of this material and there was even less information before the Magistrate. Indeed it is quite unclear what, if any, information was before the Magistrate to assist him to understand the factual basis for this offence and its level of seriousness.
During the appeal, a statement by Detective Brevet Sergeant Jason O’Malley was placed before the Court by consent. According to Sergeant O’Malley, he assisted Senior Constable Manners from the Electronic Crime Branch of SAPOL to analyse and categorise the images and videos located on the respondent’s computer. The material was classified according to the nine level scale established by the United Kingdom Sentencing Advisory Panel and adopted in 2002 in the case of R v Oliver.[6] The scale is derived from the COPINE Scale and categorises child pornography according to ascending levels of seriousness from level 1 to level 9.
Of the 481 files, 372 were categorised as falling within the least serious category (level 1),[7] 87 files fell within the second least serious category (level 2)[8] and 20 files were found to fall within the more serious category (level 4).[9]
As indicated, many of the images fell to be characterised at level 1 such that the offending in this respect was very much at the low end of the scale of seriousness for this offence. However, there was an appreciable quantity of images in both the level 2 and, the significantly more serious, level 4 categories. It is said that the respondent was only in possession of the material for a relatively short period of time, perhaps only a month or so. However, this must be viewed against the background that he had not deleted the material such that it was present and available at the time the police seized and analysed the computer. As such, the limited period of possession is really a reflection of the speed with which the respondent’s offending was detected.
The possession offence is a serious one and significantly more so because the respondent committed the offence whilst a registered sex offender and with a prior record of child sex offences. That is not to say that when sentencing for the possession offence the respondent is to be punished again for his earlier offending. Rather, and provided that any sentence imposed for the possession offence is within the appropriate range for the offence, the scope for leniency within that range, ordinarily, is limited. I say ordinarily because the matter has come before this Court by way of a prosecution appeal and, as will be explained, I am satisfied that a more lenient approach than otherwise might have been taken is appropriate.
[5] Police v Hore [2015] SASC 150 at [5]-[12].
[6] [2002] EWCA Crim 2766; [2003] 1 Cr App R 28.
[7] Depictions of children with no sexual activity – nudity, surreptitious images showing underwear, nakedness, sexually suggestive posing, explicit emphasis on genital areas.
[8] Non-penetrative sexual activity between children or solo masturbation by a child.
[9] Penetrative sexual activity between children or between children and adults – including, but not limited to, intercourse, cunnilingus and fellatio.
The law
The relevant law has recently been summarised by me in the following terms.[10]
[10] R v Sumner [2015] SASC 177 at [31]-[41].
The fundamental purpose of an order for indefinite detention pursuant to section 23 is to assist with protecting the public from persons who are incapable of controlling, or unwilling to control, their sexual instincts;[11] it is not a sentence and is not imposed in order to punish the person subject to the order.[12] It will be convenient to set out at this stage the whole of section 23.
[11] Section 23(5) of the Sentencing Act provides that this is the paramount consideration when determining whether to make an order for indefinite detention.
[12] R v England [2004] SASC 20; (2004) 87 SASR 411 at [11], R v Whyte [2006] SASC 56 at [13].
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 Family and Community Services from 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 Family and Community Services;
(b)in the case of a report of the Parole Board—to the Minister for Correctional Services.
In R v Whyte,[13] White J discussed, in detail, the notion of “unwilling” in the context of determining whether an order under section 23 is necessary.[14] His Honour observed: [15]
[13] [2006] SASC 56.
[14] Previously, a person would be subject to indefinite detention pursuant to an order made under section 23 only in circumstances where the person was “incapable of controlling” their sexual instincts. Following an amendment to s 23 in 2005, an order for indefinite detention may be made in circumstances where the person is “unwilling to control” their sexual instincts.
[15] R v Whyte [2006] SASC 56 at [23].
The statutory definition is in the nature of a deeming provision, ie, requiring the Court to presume that an offender is unwilling to control his or her sexual instincts if there is a significant risk that he or she would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of those instincts.
His Honour continued:[16]
[16] R v Whyte [2006] SASC 56 at [25].
The assessment is not, however, to be confined to the risk that a relevant offence may be committed. The risk to be assessed is the risk that the offender will fail to exercise appropriate control of his or her sexual instincts, not that he or she will commit a relevant offence. The definition is not to be construed as though it referred to the risk that, given an opportunity to commit a relevant offence, the offender would do so. In most cases, failure to exercise appropriate control of sexual instincts would be evident if a person attempted to commit a relevant offence,[17] or who aided, abetted, counselled or procured the commission of such an offence.[18]
[17] Criminal Law Consolidation Act 1935 s 270A.
[18] Criminal Law Consolidation Act 1935 s 267.
White J also identified factors the Court should consider when assessing the relevant risk and the level of risk that would support an order for indefinite detention.[19]
[19] R v Whyte [2006] SASC 56 at [29]-[30].
[T]he 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.
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”.[20] Put more colloquially, the Court must be satisfied that there is a “good chance” that the risk will eventuate.[21] 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.
[20] Cf the concept of “unacceptable risk” which appeared in the Queensland legislation considered in Fardon v Attorney-General (Qld) [2004] HCA 46.
[21] Boughey v The Queen (1986) 161 CLR 10 at 22 per Mason, Wilson and Deane JJ.
The Court directed that two psychiatrists inquire into the mental condition of the defendant and to report on whether he is incapable of controlling, or unwilling to control, his sexual instincts.[22] In addition, the Court had available to it a forensic psychologist report addressing the question whether or not the defendant is unwilling to control his sexual instincts, as defined in section 23.
[22] As required by section 23(3) of the Sentencing Act.
The paramount consideration when determining whether an order for indefinite detention is appropriate is the safety of the community.[23] In addition to this consideration, subsection (5a) requires me to consider the abovementioned reports, any evidence and representations put to the Court on behalf of the defendant and any other relevant matter.
An issue arising under section 23 concerns the basis upon which any assumptions of fact, upon which the medical practitioners have based their opinion as to the defendant’s unwillingness, must be established. Bleby J in R v England said this.[24]
[T]he Court will need to assess the strength of [the medical practitioners’] opinions, taking into account a number of factors relevant to the assessment of expert evidence. That will include identifying the relevant primary facts surrounding the proven offending on which medical practitioners have based their opinions, and ensuring that they are established to the court’s satisfaction beyond reasonable doubt.
Ultimately, the question of whether or not an offender is unwilling, as defined, is a matter for the Court. An opinion to that effect by any or all of the medical practitioners who provide a report is neither a necessary nor a sufficient requirement, although the Court must “have regard” to their opinions.[25]
If I were to conclude that the defendant is unwilling, in the relevant sense, I still must then consider whether I should exercise the discretion to make an order pursuant to section 23(4).[26] I must engage in an exercise of balancing the interest of the community to be protected against the significant deprivation of liberty that would result from an order for indefinite detention.[27]
An important consideration is the possibility for an offender to be rehabilitated and where and how that might best be achieved. For example, in R v Warsap,[28] Vanstone J determined that, although section 23 was enlivened due to the offender being unwilling to control his sexual instincts, a countervailing consideration was that the offender was to be sentenced to a long term of imprisonment, in any event, with the inherent possibility of rehabilitation. Counsel for the offender in Warsap had submitted that the offender could participate in intervention programs while serving his sentence and, subsequently, the Parole Board could fix restrictive conditions of parole. Her Honour declined to make an order for indefinite detention. The offender was sentenced to imprisonment for 13 years with a non-parole period of nine years. Her Honour was satisfied that the offender had a capacity to control his sexual instincts that could be enhanced by participation in custodial intervention programs.
In addition to deciding whether or not to make an order for indefinite detention, it is necessary for me to deal with the question of sentence. The defendant has not yet been sentenced for the most recent offending. If I were to conclude that an order for indefinite detention is appropriate, I would have a discretion whether or not to sentence for that offending.[29] Any order for indefinite detention would commence at the expiration of any sentence also ordered.[30]
Should an order for indefinite detention be made, the Sentencing Act provides for an offender, in prescribed circumstances, to apply to have the order discharged or to be released on licence.[31]
[23] Section 23(5) of the Sentencing Act.
[24] R v England (2004) 87 SASR 411 at [58].
[25] R v Ainsworth [2008] SASC 67; (2008) 100 SASR 238 at [41].
[26] [2006] SASC 56 at [15]; R v England (2004) 87 SASR 411 at [56], [60].
[27] R v Armfield [2005] SASC 108 at [67].
[28] [2011] SASC 73. The sentence in this matter was appealed to the Court of Criminal Appeal; the appeal was dismissed, see R v Warsap [2011] SASCFC 129; (2011) 111 SASR 232.
[29] Section 23(6) of the Sentencing Act.
[30] Section 23(7) of the Sentencing Act.
[31] Sections 23(9), 23A and 24 of the Sentencing Act.
The expert and other evidence
Section 23(3) of the Criminal Law (Sentencing) Act 1988 provides that a court, before determining whether to make an order pursuant to section 23(4) for indefinite detention, must have available and have regard to the reports of at least two legally qualified medical practitioners who have enquired into the mental condition of the respondent. Each such medical practitioner is to report, inter alia, on whether or not the respondent is incapable of controlling or unwilling to control his sexual instincts. The Court has before it a report by Dr Jules Begg dated 5 August 2015 and a report by Dr Narain Nambiar dated 14 September 2015. Each is a well qualified and highly experienced forensic psychiatrist. Each also gave oral evidence explaining and in support of the conclusions reached in his report. The opinions expressed by Dr Begg and Dr Nambiar were not in any relevant respect challenged.
In addition, the Court has before it an affidavit of Mr Clark Douglas Sim affirmed on 24 June 2015, two reports by Mr Sim, dated 22 October 2015 and 10 November 2015 respectively, and a note summarising information obtained by counsel for the respondent during a face-to-face attendance on Mr Richard Balfour, a clinical psychologist. Counsel’s attendance on Mr Balfour occurred on 1 December 2015 and the note summarising the discussion was provided to the Court during submissions on 7 December 2015 with the consent of the applicant.
Mr Sim is a clinical psychologist employed as Acting Manager, Assessment and Sentence Planning in the Department for Correctional Services. Mr Sim affirmed his affidavit in support of the application by the Attorney-General. In general terms, the affidavit discloses materials that describe the respondent’s interactions over the years with the Department for Correctional Services. Exhibited to the affidavit are the following documents.
(i)Offender history summary;
(ii)Sentencing Remarks, his Honour Judge Lovell, 25 September 2007;
(iii)Reasons for Verdict, his Honour Judge Barrett, 28 May 2010;
(iv)Sentencing Remarks, his Honour Judge Barrett, 27 August 2010;
(v)Judgment of the Court of Criminal Appeal, 28 November 2010;
(vi)Remarks on Penalty, Magistrate Metanomski, 10 April 2015;
(vii)Report of Richard Balfour, Psychologist, 11 September 2007;
(viii)Report of Richard Balfour, Psychologist, 2 August 2010;
(ix)Minute, Susan Lewis, DCS Senior Psychologist, 18 October 2010;
(x)Assessment Report, Emma Roesch, DCS Psychologist, 19 October 2010;
(xi)Psychological report, Lee McDonald, 7 June 2011;
(xii)SBC[32] post-treatment report, Katherine Short, 27 January 2012;
(xiii)Pre-sentence report, Darren Lovegrave, Court Report Writer, 9 April 2015;
(xiv)Minute, Ben Stewart and Clark Sim, Psychologists, 20 April 2015;
(xv)Assessment Report, Emily Walker, 25 May 2015.
[32] Sexual Behaviour Clinic, Department of Correctional Services.
In addition, Mr Sim in his two reports addressed the question of the respondent’s responsiveness to previous treatment programs. Mr Sim also addressed questions concerning the availability, nature and time frames involved with the delivery, of various treatment and counselling options that would or might become available to the respondent were he to remain in custody as compared with those that might become available to the respondent were he to be released on parole at some stage prior to August of this year or released unconditionally at the expiration of his sentence in August of this year.
On the basis of the evidence before me I am satisfied that the respondent is to be regarded as unwilling to control his sexual instincts (as defined) and that the discretion to make an order that he be detained in custody until further order has been enlivened. As already indicated, that the discretion to make an order for indefinite detention has been enlivened is not challenged by the respondent. I heard submissions on three separate occasions and they were mainly directed to the issue of whether or not the discretion ought to be so exercised and, in particular, whether or not the necessary rehabilitation of the respondent would be better achieved and, ultimately, the community sufficiently protected by refraining from making the order in circumstances where rehabilitation programs could be made available in the community at Owenia House and provided that other protective measures were put in place.
The opinions of Dr Begg and Dr Nambiar
Dr Nambiar expressed his opinions in terms stronger than those employed by Dr Begg but, essentially, the views expressed by each were consistent. According to Dr Nambiar, key issues relevant to the risk presented by the appellant included the following.
The respondent’s deviant behaviour typically has occurred in a covert manner which has enabled him, and no doubt has been intended by him, to avoid detection. This has been a pattern throughout his offending history. Further, the respondent has continued to deny or minimise the nature or seriousness of his offending and even after having been convicted.
The respondent has “developed a pattern of offending behaviour that involves befriending the parents of potential victims, gaining their trust and then exploiting their children”. Notwithstanding treatment undertaken in the community following the respondent’s first conviction and further intense therapy during his incarceration after his second conviction, the respondent has offended again. The respondent has from time to time stated that he has an understanding of the wrongfulness of his behaviour but his actions contradict this and any such professed understanding is at best superficial.
Dr Nambiar in his report observed as follows.[33]
It is important to note that [the respondent] demonstrated a number of deviant behaviours that occurred in a covert manner in order to avoid detection. This is the theme that continues throughout his offending history including the most recent offences. With the advent of the internet his ability to pursue relationships e.g. through dating websites and view paedophilic porn was far more readily available than had been prior to this. However another strong theme that has been borne out of the various reports prepared and the histories taken by his therapist and that of myself, is that he continued to deny or minimise his offending even after he had been convicted. Having participated in therapeutic programs both in custody and in the community, it would appear that [the respondent] has learnt to recite the various phrases derived from cognitive reframing e.g. “children are not objects”, but his behaviours appear to contradict that. Further to this despite [the respondent] telling Mr Balfour in 2010 that you “don’t get involved with people who have kids”, that is exactly what he did in 2013 when he went into a relationship and kept the fact that his then partner had young children from the authorities.
It is documented that [the respondent] fails to comply with supervision and Bail agreements. I note the fact that his most recent offences included Failing to Comply with Conditions. It is extremely concerning that during 2007 when he was seeing Mr Balfour that he was already in the process of preparing to offend again.
It is relevant to note that therapists that assessed him for the Sexual Behaviour programs have consistently rated his risk of offending as moderate to high or even extremely high in his most recent assessment. It has been noted that his deviant fantasies have proven to be a barrier to treatment and that despite his inadequacies on an interpersonal level; it would appear that he pursues relationships in order to use them as vehicles to access his young victims.
. . . .
Finally it would appear that [the respondent’s] insight into the seriousness of his offending is incomplete. Although on one level he describes feeling sick at the thought of the nature of his offences, the fact that he was convicted for viewing images on a computer of children less than 5 years old and commenting that the images were “not so bad” would suggest that he continues to hold a fairly distorted concept of what is acceptable and what is not.
[33] Report dated 14 September 2015, p10-11.
Dr Nambiar attended to the definition of the term “unwilling” as set out in section 23(1) (extracted earlier) and expressed the opinion that the pre-condition for the exercise of the power conferred by section 23 to order indefinite detention, namely, that the respondent was unwilling to control his sexual instincts, was satisfied. Dr Nambiar concluded as follows.[34]
[With reference to the most recent offending, the respondent] purposely failed to notify authorities of his movements and more concerning was the fact that he placed himself in an environment where he was in the company of children thereby rapidly escalating their risk. He did this knowingly and without any reasonable excuse. I have no doubt that this deceitful behaviour and the covert behaviour that followed (accessing the internet without permission and without the knowledge of his partner) would suggest to me that [the respondent] is highly likely to offend again.
[34] Report dated 14 September 2015, p12.
Dr Begg also was of the opinion that the respondent has not become fully aware of the manner by which he objectifies children. According to Dr Begg, the respondent still objectifies people in relationships at an emotional level and the respondent’s problems derive from his personality development and in particular a failure to develop his own sense of identity and to appreciate that people are different from himself. Whilst the respondent may have some understanding of these matters at an intellectual level as a result of treatment received to this point, his actions demonstrate a lack of understanding why the reporting requirements are important, the harm that child pornography causes to its victims and the risk the respondent poses for further offending against children as a result of his accessing child pornography.
Dr Begg placed emphasis on the respondent’s covert and deceptive behaviours, his refusal to acknowledge and observe his reporting obligations and his demonstrated capacities to manipulate the system put in place to protect the public. Dr Begg also was firmly of the view that the respondent was unwilling (as defined) to control his sexual instincts. Dr Begg concluded in these terms.[35]
[The respondent] therefore does not appreciate the uniqueness of people, particularly of children. He has benefited from the sexual behaviour clinic in coming to an understanding at an intellectual level of these aspects of his relationships. However, his actions in failing to follow up his reported communications to the sex offender monitoring organisation and his withholding of advice that he was living with another woman, indicates a propensity to disregard his obligations, in effect manipulating the system for his own benefit. This indicates a failure to appreciate the importance of the reasons behind such reporting requirements, such I presume are designed to not only monitor offenders, but also ensure they are not placing themselves in risky situations. His accessing of child pornography indicates a failure to appreciate the harm such activity has towards the children involved, and also the risk that it places him in by exciting his sexual desires towards children, such risk leading to the possibility of offending against children.
His actions demonstrate persistence of paedophilia, a sexual interest directed towards young children.
In conclusion I formed the opinion that he is capable of controlling his sexual instinct, but is unwilling to control his sexual instinct. If given an opportunity to associate with a potential victim, or access to child pornography, I believe he would reoffend. This risk would increase during times of stress.
[35] Report dated 5 August 2015, p9.
Mr Sim and Mr Balfour
During oral submissions I asked the applicant to obtain a report from Mr Sim as to rehabilitation options that could be made available to the respondent: (i) in the event that an order for indefinite detention were to be made and so as to prepare the respondent as best could be achieved to apply for discharge of the order or to be released on licence pursuant to section 24 of the Act; and (ii) in the event that an order for indefinite detention were not to be made.
Mr Sim provided a report to this effect dated 22 October 2015. In response to a number of queries regarding the content of that report raised by the legal representatives for the respondent, Mr Sim provided a further report by way of letter dated 10 November 2015. Mr Sim’s direct knowledge and experience concerns rehabilitative courses and programs provided by the Department for Correctional Services in a custodial environment. He has less experience and less direct knowledge concerning what might be available in the community which, for practical purposes, would be limited in this State to those rehabilitative programs available through private psychological and psychiatric services and through Owenia House.
As a consequence, counsel for the respondent spoke to Mr Richard Balfour who has a greater familiarity with the programs available at Owenia House. As earlier noted, I have before me the written summary of counsel’s attendance on Mr Balfour for the purpose of discussing the relative merits of the prison based and Owenia House based programs.
Mr Sim described the further rehabilitation and case management options in the following terms.
A. In the event that an order for indefinite detention was made:
12. Prior reports on [the respondent] have noted the likely presence of responsivity factors that are thought to have impacted on the effectiveness of previous treatment attempts. In the event that an order for indefinite detention was made, [the respondent] would initially be offered additional assessments to further explore and formulate any responsivity factors. This would include an assessment of his cognitive learning profile and literacy abilities; and a thorough assessment of predisposing personality factors/schema related to abandonment, marginalisation, sexual abuse, and dysfunctional development of sexual identity and self-concept. It is anticipated that these assessments could be completed within a three-month timeframe.
13. Following a detailed assessment and formulation of his treatment needs, [the respondent] would be offered individual treatment with an experienced DCS clinician for six to 12 months. The purpose of the individual treatment would be to engage him beyond the superficial level at which he has seemingly approached previous treatment, and provide therapy for the responsivity barriers mentioned above. It is formulated that these barriers have influenced offending-related entitlement, deceitfulness, and overall unwillingness to monitor and control sexual cognitions and behaviour, as well as discouraged adequate group therapy engagement in the past.
14. Following this [the respondent] would be considered for further group-based treatment in custody: either the custodial SBC or SBC-me, with the latter being a program designed to suit the learning needs of low-functioning offenders. His attendance at either program would be decided both by the earlier cognitive assessment of his functioning, and feedback and advice from the clinician engaged in his individual treatment. This phase of treatment would target any outstanding dynamic risk factors as outlined in his most recent SBC pre-treatment assessment (see paragraph 5) and be informed by progress during the previous phase of previous therapy. The duration of these programs are approximately 9 months for the SBC and approximately fifteen months for the SBC-Me. If neither group were indicated as suitable at that time, it is expected that further individual treatment would be offered to [the respondent] as required.
15. Should [the respondent] then be released on licence pursuant to section 24 of the Criminal Law (Sentencing) Act 1988, a comprehensive handover to a Community Corrections Case Manager would be conducted, and a referral to Owenia House would be made with a view to additional individual and/or group-based treatment as indicated at the time. Additionally, a referral to a community-based psychologist would be considered. The purpose of those referrals would be to monitor [the respondent’s] risk factors, application of treatment-related skills, and his adherence to release restrictions.
B. In the event that an order for indefinite detention was not made:
16. The only valid options available to [the respondent] for further rehabilitation in the South Australia community would be referral to Owenia House and/or a private Psychologist. Owenia House provide options including an intensive program structure over a minimum of approximately one year duration. In respect to referral to a community-based Psychologist, there are a selected few such professionals who could provide specialised treatment suitable for [the respondent’s] needs. These include Adelaide-based, Luke Broomhall, Oscar Williams, Emma Warne or Robert Elmer, and it is feasible that individual assessment and treatment work similar to that described above (see paragraphs 12 and 13) could be provided through adequate engagement with any of these professionals.
17. However it was noted that [the respondent’s] current conditional release date was 09/02/2016, and his sentence expiry date was 09/08/2016. If [the respondent] were to engage in community-based treatment, it could only be conditionally-imposed on him until 09/08/2016; and he has shown a pattern of disregard in respect to sentence conditions and restrictions whilst in the community. After 09/08/2016, he would become a voluntary client. Given the persistence of his dynamic risk factors to date and the limited progress he has made during previous group treatment, there are concerns that [the respondent] may remain superficially engaged with treatment until his sentence expires, and then withdraw from treatment. At that stage his only contact with statutory authorities would be through his registration with ANCOR,[36] an authority he has already failed to comply with in the past. Furthermore, in respect to private Psychologists, [the respondent] would also need to self-fund what would be a lengthy and therefore expensive intervention, with rates of between $150 and $200 per hour being standard.
18. Overall, community-based rehabilitation options without comprehensive prior responsivity and offending-related treatment in custody, were considered to pose a high level of risk of harm to the community due to [the respondent’s] assessed risk of recidivism, poor previous cooperation with supervision, and past difficulties engaging and benefitting from treatment.
[36] The Australian National Child Offender Register.
A substantial amount of information was provided by Mr Sim and Mr Balfour on the topic of rehabilitation program options. It is not necessary to repeat that information in detail; the following general propositions are not seriously or significantly in dispute.
(i)Actuarial and clinical risk assessments available to the Department for Correctional Services estimate the respondent to be at very high risk of sexual reoffending should he not receive any further treatment. The evidence relied on by and opinions expressed by both Dr Begg and Dr Nambiar support this conclusion.
(ii)The respondent’s offending history has been described as covert, deceitful and exploitative. He has a history of obtaining access to young children through forming a relationship with their mother or their families.
(iii)The results of past participations in therapeutic programs both in custody and in the community, to this point, have been disappointing. On all of the evidence, the respondent has been either incapable of genuine engagement with such programs or unwilling to genuinely engage with such programs. As a consequence, he has obtained some intellectual appreciation of the wrongfulness of his conduct but no genuine understanding of or commitment to its wrongfulness and to the need for change.
(iv)Both the prison system and Owenia House offer rehabilitation programs, courses of counselling and access to suitable professional assistance such that should the respondent genuinely engage through either avenue, an appreciable measure of rehabilitation might be obtained.
(v)It is not possible to predict in advance the extent to which further rehabilitative efforts, whether pursued through the in custody programs or through the Owenia House or private psychologist options, might succeed. I accept, on the evidence and notwithstanding the limited progress made by the respondent to this point in terms of genuine rehabilitative effort, that if he were to properly apply himself and genuinely engage with a rehabilitative process the risk he continues to pose to the community may be appreciably reduced. I am satisfied of this whichever of the in custody or Owenia House avenues were to be pursued.
(vi)Pursuing rehabilitation through the programs available whilst in custody has a significant advantage over the pursuit of rehabilitation whilst in the community. Whilst such participation is not compulsory when in custody, there is a major incentive to genuinely participate. Genuine participation or lack thereof is likely to have a significant impact on parole prospects or, in the case of the respondent, on his prospects of having any section 23 order for indefinite detention revoked or of obtaining favourable consideration of an application to be released on licence pursuant to section 24.
(vii)By way of contrast, the programs offered by Owenia House or through a private psychologist, are truly voluntary. If the respondent were to be granted parole it could be made a condition of his parole that he attend such a program. However, any parole period that might be enjoyed by the respondent would be only a matter of months. According to all of the professional opinion and on any analysis, this would not be anywhere near a sufficient time period within which to achieve a successful rehabilitation. The respondent’s present sentence will expire in August of this year at which time he would be entitled (absent an order for continued detention under section 23) to be released into the community unconditionally. Given the respondent’s history of covert and deceitful behaviour aimed at permitting him to continue to offend without detection and given the obvious and significant risk to the community posed by the respondent unless and until some successful rehabilitation occurs, the risks associated with relying on voluntary attendance at Owenia House or a private psychologist are of significance.
(viii)The significant disadvantage that comes with an order for indefinite detention is that the rehabilitation programs available in custody will take quite some time to be offered and to be completed. It is quite possible that should an order for continued detention be made, the respondent will be required to spend a substantial period of time, perhaps one or more years, in custody after the expiration of his present sentence before the indicated programs would be offered and completed. Further, it is likely, although not inevitable, that the respondent will need to successfully complete the rehabilitation programs available whilst in custody and demonstrate a major change in his attitude, understandings and behaviour before he would succeed with an application for any section 23 order to be discharged or for a release on licence pursuant to section 24.
Consideration
The respondent submits that his offending to date falls short of the most serious offences of the type he has committed and that it has occurred in a limited range of settings and neither in public nor on a random basis. Further, appropriate treatment and rehabilitation programs would be available in the community once the respondent were to be released. The respondent also submits that the substantial delays involved with the in custody programs would likely result in the respondent serving a very substantial period in prison over and above the sentence now being served. According to counsel, this deprivation of liberty would be unnecessary and unjust given the protections available should the respondent be released at the expiration of his sentence or on parole prior to its expiration.
The overarching submission by the respondent is to the effect that the significant risk of reoffending posed by the respondent, should an order for indefinite detention not be made, can be rendered an acceptable or manageable risk by the taking of other measures.
The respondent is presently subject to an order under section 66N of the Child Sex Offenders Registration Act 2006 which requires that he wear a GPS transmitter to monitor his movements. That order expires in February 2017 but there is a discretion in the relevant authority to renew the order. It is submitted that the availability of monitoring in this way will pose a major impediment to the respondent changing his domestic circumstances without those changes being readily detected and that the order, by itself, would have the effect of significantly reducing the respondent’s opportunity to further offend. In addition, the respondent will remain subject to the various reporting obligations imposed by the Child Sex Offenders Registration Act 2006.
The respondent has also indicated a willingness to consent to the making of a control order under section 66JA of that Act. The terms of any such control order are provided for in section 66JB.
66JB—Terms of control order
(1)A control order may prohibit or restrict any conduct, including (without limitation)—
(a) associating with, or communicating with, a specified person or persons of a specified class; or
(b) being present at, or being in the vicinity of, a specified place or premises or a place or premises of a specified class; or
(c) undertaking specified employment or employment of a specified kind; or
(d) other conduct of a kind specified in the order.
(2)The Court must, on making or varying a control order in relation to a registrable offender, take all reasonable steps to explain to the registrable offender the terms of the control order and in particular—
(a) the registrable offender's obligations under the control order; and
(b) the consequences that may follow from a failure to comply with the control.
Wide powers of enforcement of a control order are available to the police pursuant to section 66M of the Act and a breach of such an order can expose the subject of the order to prosecution and imprisonment.
The respondent has also indicated a willingness to consent to the making of a paedophile restraining order under section 99AA of the Summary Procedure Act 1921. Such an order would operate, inter alia, to prevent the respondent from owning or using any computer device capable of accessing the internet. If such an order were to be observed, the opportunity to access child exploitation material would be substantially reduced, although not wholly eliminated. Again, the police have wide powers of enforcement with respect to any such order in accordance with the provisions of section 99AB of that Act. Any breach of a control order or of a paedophile restraining order can render the relevant person liable to a fresh application being made under section 23 of the Criminal Law (Sentencing) Act 1988.
The respondent also has indicated a willingness to abide by the requirements of a management plan in the event that he were to be invited to be subject to the supervision of the SA Offenders Management Unit and has also indicated a willingness to voluntarily attend Owenia House for assessment and, if accepted, participation in programs conducted by that organisation.
There are a number of potential practical and legal requirements (some of which may raise impediments) before the respondent might become subject, by consent or otherwise, to the various controls and restrictions just summarised. However, for present purposes, I will assume that each of the restrictions or controls identified and to which the respondent has indicated a willingness to be subjected can be brought into effect.
I accept the submission that the respondent’s criminal conduct to this point is not of the most serious type when regard is had to the range of potential sexual offending against young children. Nevertheless, it is of a very serious nature. Furthermore, information now in the public domain and that repeatedly comes before the courts is to the effect that even relatively minor sexual offending against a child can (although will not necessarily) lead to very serious consequences for a victim’s emotional and psychological development and that of their close family members. Further, the respondent’s offending has been persistent and notwithstanding the treatment programs undertaken and the deterrent effect to be expected from the respondent’s interactions with the criminal justice system over a number of years (including two prison sentences). In addition, there is the covert and deceitful nature of the offending as described by the psychiatrists and the almost complete lack of insight and empathy for victims demonstrated to this point.
I accept that if all of the controls and restrictions suggested by the respondent were to be effected and observed by the respondent, the undoubted serious risk to the community that the respondent poses would be reduced. However, I am not confident that the respondent would observe the restrictions and controls. He has demonstrated in the past that he is not prepared to do so. In this respect, the egregious breaches of the reporting obligations that were in place after leaving prison, whereby he engaged in internet investigations with the purpose of meeting another family and as a result of which he commenced to live with a young woman with three small children without advising the authorities, is telling.
I have also formed the view on the evidence that the prospects of any appreciable rehabilitation taking place are far greater through the programs that would become available in custody, albeit with the delays necessarily involved, than with respect to the programs available at Owenia House or through a private psychologist or counselling service which would be on a wholly voluntary basis. Again, given the respondent’s history, I am not confident that he would have the determination and the discipline to persist in a wholly voluntary environment.
An order under section 23 is an exceptional order and should only be made where it is really required to protect the public.[37] Nevertheless, it should always be borne in mind that the paramount consideration before the Court in determining whether to make such an order is the safety of the community.
[37] R v Ainsworth [2008] SASC 67; (2008) 100 SASR 238 at [56]-[57].
I also accept that an order under section 23 should only be made sparingly and in clear cases[38] and that it involves an exercise of balancing the interests of the community against the very strong imperative in our legal system of respecting a citizen’s right not to be imprisoned without just cause.[39] Only if the respondent represents a sufficient and continuing degree of danger to the community can the making of such an exceptional order be justified.
[38] R v Williams [2006] SASC 377; (2006) 96 SASR 226 at [13]-[14].
[39] R v Wichen [2005] SASC 323; (2005) 92 SASR 528 at [121].
In my view, the risk of further sexual offending against children should the respondent be released is very high and will remain so unless and until the respondent genuinely engages with and responds to further counselling and rehabilitative programs. Whilst the controls and protections available, were the respondent to be released into the community and advocated on behalf of the respondent, might assist in ameliorating the risk he poses, any such amelioration would only be for the short term in the absence of genuine rehabilitative effort. The community requires protection over the long term and this is most likely to be achieved through the programs available whilst in custody.
Having weighed the competing considerations I came to the view, at the time I made the order referred to in paragraph [3] above, that the discretion available under section 23 was to be exercised in favour of making that order.
I add the following. I am aware of assertions to the effect that the Department for Correctional Services, being an environment of scarce and stretched resources, may at times give priority for places in sexual offender rehabilitation programs to prisoners with a fixed release date in order to ensure, where possible, that those prisoners can be made ready in a timely way for either parole or release. I have heard the concern expressed that prisoners who do not have a fixed release date, such as those ordered to be detained until further order pursuant to section 23, might be regarded as enjoying a lower priority. I do not have evidence before me in this matter sufficient to make any findings as to the manner by which the Department husbands its scarce resources devoted to rehabilitation programs. Nevertheless, it is unacceptable for a person, the subject of an order under section 23, to be detained any longer than is absolutely necessary for the purposes of protecting the public. It must be borne in mind that such a detainee is, by definition, being kept in custody notwithstanding the expiration of their head sentence and that an order under section 23 is not a punishment and is not a sentence for a crime committed but serves only as a mechanism to protect the public in the context of perceived risk of future criminal conduct.
In these circumstances, it is important that the respondent be assessed for and included in further rehabilitation programs, designed to assist him to press an application for either release on licence or for the discharge of the section 23 order that I have made, as soon as practicable.
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