R v Humphrys - [2018] SASC 39

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v HUMPHRYS
[2018] SASC 39
Judgment of The Honourable Justice Kelly
27 March 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
The applicant has a significant antecedence for sexual and dishonesty offences. On 9 July 2009 a Judge of this Court ordered the indefinite detention of the applicant until further order pursuant to s 23 Criminal Law (Sentencing) Act 1988 (SA).
The applicant now applies for release on licence pursuant to s 24 of the Criminal Law (Sentencing) Act 1988 (SA).
Held, acceding to the application:
1. The Court authorises the release on licence of the applicant.
Criminal Law (Sentencing) Act 1988 (SA) s 23, s 24, referred to.
R v Schuster (2016) 125 SASR 388, applied.

R v HUMPHRYS
[2018] SASC 39
Criminal: Application
KELLY J.

This is an application for release on licence pursuant to s 24(1) of the Criminal Law (Sentencing) Act 1988 (SA) (‘Sentencing Act’). On 9 July 2009 a Judge of this Court detained the applicant pursuant to s 23 of the Sentencing Act.
Background
The applicant was born in Western Australia in 1951. His family life was emotionally distant. From the age of about six the applicant was sexually abused by a number of men. In his mid-teenage years he sought counselling from an Anglican priest who subsequently engaged him in sexual behaviour. The applicant left high school at the age of 15. He then worked in a number of jobs including as a baker and a boot maker.
The applicant has a long history of sexual offending across five states of Australia which span over a 30 year period. In 1984 he was charged with child stealing in Queensland and served a sentence of four years imprisonment. He had abducted a 12 year old boy with whom he travelled around Australia. He sexually abused the child. In 1992 in New South Wales he was convicted of offences relating to sexual activity with a person between the age of 10 years and 18 years. The applicant has been convicted of a number of other sexual offences as well as offences of dishonesty including theft, deception and escaping lawful custody.
In 2003 the applicant was charged with five counts of unlawful sexual intercourse with a person under 17 years. These offences related to the sexual abuse of a boy who was 14 years old at the time of the first offence. The applicant had met the boy whilst he was inhaling paint fumes from a plastic bag in a car park in Port Adelaide. Within 30 minutes of meeting the boy the applicant performed three acts of unlawful sexual intercourse against him in a public toilet. The applicant was convicted on those counts by a jury in the District Court of South Australia, as well as two other counts that occurred against the same child on other occasions.
Upon conviction for those offences the Director of Public Prosecutions applied to have the matter transferred to this Court to be dealt with pursuant to s 23 of the Sentencing Act. That application was granted.
On 9 July 2009 the applicant was sentenced by Sulan J to 10 years imprisonment for the five counts of unlawful sexual intercourse. The sentence was to commence on 3 December 2003. His Honour determined that the applicant was unwilling to control his sexual instincts pursuant to s 23 of the Sentencing Act. His Honour ordered the indefinite detention of the applicant until further order pursuant to s 23 of the Sentencing Act.
On 3 December 2013 the applicant’s sentence of imprisonment imposed for the five counts of unlawful sexual intercourse expired.
On 10 December 2013 the applicant applied for release on licence pursuant to s 24 of the Sentencing Act. Pursuant to that application and s 23 of the Sentencing Act, on 20 January 2014 Anderson J ordered that two psychiatric reports be prepared. His Honour also made an order requesting that the Parole Board provide a report regarding the application.
A report was provided to the Court by Dr Brereton dated 24 March 2014. Amongst his findings, Dr Brereton concluded that there was a significant risk that the applicant, if given an opportunity to re-offend, would fail to exercise appropriate control of his sexual instincts.
A report was provided to the Court by Dr Jennings dated 4 April 2014. Dr Jennings concluded that the applicant’s risk of re-offending had significantly reduced since 2009 when the order was made pursuant to s 23. Dr Jennings explained that in his opinion the risk had reduced due to the applicant’s engagement with treatment whilst in custody and his declining physical health. Dr Jennings concluded that although it was difficult to be specific, he would anticipate the applicant being in a far better position to willingly control his sexual instincts than in 2009.
The Parole Board interviewed the applicant and a report was provided to the Court dated 21 March 2014. That report discloses that the Parole Board viewed the applicant as a high risk of re-offending and unsuitable for release.
On 23 May 2014 the applicant withdrew his application for release on licence. Counsel for the applicant subsequently disclosed that the application was abandoned as a result of the reports that were ordered by the Court.
On 30 July 2015 the applicant made a second application for release on licence. This is the application currently before the Court.
A hearing was held on 17 August 2015 before Lovell J on the application. Lovell J ordered two further psychiatric reports pursuant to s 24 of the Sentencing Act. His Honour suggested that those reports be prepared by Dr Brereton and Dr Jennings. His Honour also ordered a report pursuant to s 25 of the Sentencing Act from the Department of Correctional Services (‘DCS’) to outline any rehabilitation courses or treatment undergone in the last five years.
The Parole Board interviewed the applicant on 8 September 2015 and provided a report dated 6 October 2015.
Dr Brereton provided a report to the Court dated 19 October 2015. Dr Jennings provided a report to the Court dated 20 October 2015.
On 11 December 2015 the respondent indicated that the application was opposed. The matter was listed for a hearing so the Court could hear evidence from each of the psychiatrists who had prepared the reports.
This Court heard evidence over two days. Dr Jennings gave evidence on 23 March 2016. Dr Brereton gave evidence on 12 July 2016. Following the hearing on 12 July 2016, I indicated to the parties that a considerable amount of additional information was required from the Parole Board and other government departments to allow this Court to determine the application.
On 27 February 2017 Ms Hayley Mills gave evidence in this Court. Ms Mills is an executive director of Community Corrections and Specialist Prisons within DCS. Ms Mills gave evidence on the terms of the arrangement that could be put in place if the Court were to grant the applicant’s release on licence.
Ms Mills prepared a report dated 31 May 2017 with contributions from multiple government agencies. That report discloses that at the time of the report there was no suitable accommodation available for the applicant if he were released on licence. The report disclosed that efforts were being made to find suitable accommodation for the applicant.
By letter dated 29 November 2017 Sergeant Martin Hayter, coordinator of the South Australia Offender Management Plan (‘OMP’), indicated that suitable accommodation had been located for the applicant. Following the location of suitable accommodation, there has been a considerable amount of further information sought and received regarding the management of the applicant should he be released on licence. This information has been provided by a number of government agencies.
As outlined above, the Court has been provided with and had regard to a considerable amount of material in considering this application. This is in addition to the written submissions prepared by counsel, correspondence between the parties and the evidence which has been given by Dr Jennings, Dr Brereton and Ms Mills. The material that has been considered in determining this application includes:
-Decision and Reasons for Order pursuant to s 23 of the Sentencing Act of Sulan J, dated 9 July 2009.[1]
[1] R v Humphrys [2009] SASC 198.
-Sentencing remarks of Sulan J dated 9 July 2009.
-Risk Assessment Matrix pertaining to the accommodation found for the applicant (undated, received 20 March 2018).
-Reports of Sergeant Martin Hayter, Coordinator of the SA Offender Management Plan, dated 20 March 2018, 13 March 2018, 2 January 2018 and 29 November 2017.
-Reports of Dr William Brereton dated 7 March 2018 (email), 19 October 2015 and 24 March 2014.
-Reports of Dr Ian Jennings dated 1 March 2018, 20 October 2015, and 4 April 2014.
-Reports of the Parole Board dated 29 January 2018, 22 August 2016, 23 May 2016, 13 January 2016, 6 October 2015, 27 January 2015, 21 March 2014, 15 July 2013, 17 January 2013, 8 August 2012, 27 January 2012, 9 August 2011, 22 December 2010 and 20 August 2010.
-Report of Ms Hayley Mills, Acting Deputy Chief Executive for the Department for Correctional Services, dated 31 May 2017.
-Letter of Mr David Brown, Chief Executive for the Department for Correctional Services, regarding the Adelaide Pre-release Centre and options for the applicant whilst in custody as a prisoner, dated 17 November 2016.
-Letter of Mr Ryan Harber, Regional Director for Community Corrections at the Department for Correctional Services, containing information about GPS monitoring, dated 2 September 2016.
-Letter of Jacqui Casey, Director Governance and Executive Support of the Department for Correctional Services, outlining the cost per prisoner per day, dated 3 May 2016.
-Email and letter of Geoff Glanville from Prison Fellowship Australia outlining support available to the applicant by that organisation if released on licence, dated 22 March 2016 and 21 January 2015 respectively.
-Letter of Ryan Harber, Regional Director of the Department for Community Corrections, outlining cost of supervision of released prisoners, dated 6 January 2016.
-Letter of Mr Clark Sim, Manager of Rehabilitation Programs Branch with the Department for Correctional Services, outlining treatment received by the applicant whilst in custody, dated 4 January 2016.
-Post-treatment Assessment report prepared by Senior Clinician Mr Ben Schar of the Sexual Behaviour Clinic, Rehabilitation Programs Branch of the Department for Correctional Services, dated 27 September 2013.
-Psychological report prepared by Ms Danielle Hamann, Senior Psychologist with the Department for Correctional Services, dated 9 September 2013.
-Results of a drug screening of the applicant, dated 12 August 2015.
-Psychiatric reports of Dr Craig Raeside, dated 10 October 2008 and 4 May 2007.
-Psychiatric reports of Dr Narain Nambiar, dated 3 November 2008 and 23 April 2007.
-Report of Mr Peter Toman of Owenia House dated, 15 February 2007.
-Psychiatric report of Dr Andrew Czechowicz, dated 15 June 2009.
The Court is particularly indebted and records its appreciation to Ms Mills and Sergeant Hayter. Ms Mills and Sergeant Hayter have each provided careful, thorough and intensive reports which have been of great assistance to the Court in determining this application.
Discussion
As can be seen from the foregoing, this matter has a long history. The abandonment of the first application by the applicant is an implicit admission that the applicant had not made sufficient progress to justify release on licence at that time. The current application was filed over two years ago now on 30 July 2015. That application was subsequently amended. The amended application was filed on 12 January 2016.
The response of the Parole Board to the application has been fairly consistent throughout, to the effect that the applicant remains at a high risk of re-offending and is not suitable for release on any terms and conditions. The attitude of the Parole Board is explained in a letter to the Court dated 22 August 2016 in which the Presiding Member, Ms Nelson QC, stated:
If Mr Humphrys were released on licence, it will not be easy to find him suitable accommodation. He is a high risk sex offender, and whether or not he could be placed in public housing depends on the area and whether or not there are children in the area. Our experience is that it is very difficult to place someone like Mr Humphrys in public housing. There is no boarding house or hostel suitable for Mr Humphrys. Notionally, he might be accommodated in an OARS hostel. That is a possibility, but again it would depend on the area. It might be possible to secure accommodation with a non-government agency, such as Anglicare. I would be unable to advise of any geographical restrictions at this stage, because it will depend very much on the demographic of the area in which he might be accommodated.
My understanding is that if he is subjected to GPS monitoring, he could effectively be contained within a given geographic area, and GPS monitoring would monitor, effectively, his whereabouts in terms of any prohibited areas. Our understanding is that authorities can respond very quickly to a response indicating that he has moved into a prohibited area or removed the bracelet. The concern would be that if he removes the bracelet, and his whereabouts are therefore unknown, it might take some time to locate him.
Reports of both Dr Brereton and Dr Jennings at that time were not supportive of the applicant’s release. In a report dated 19 October 2015, Dr Brereton acknowledged that the applicant appeared to have made some progress in that he appeared to accept that he does represent an ongoing risk and will need professional support, therapy and monitoring if released. However Dr Brereton expressed the view that there is a significant risk that the applicant would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts. As such he remained of the opinion that the applicant is a high risk of re-offending. He did however express the view that he is unlikely to offend immediately on release from prison and that his risk could be greatly reduced with treatment, monitoring and supervision in the community.
In July 2016 Dr Brereton was asked to expand on his opinions. He expressed the view that he believed the applicant has a genuine wish to live his life in the community and not be in prison anymore, and to that extent understands that he needs to cease offending. In that regard Dr Brereton opined that he had a strong motivation to cease offending. However Dr Brereton did not depart from his fundamental view that the applicant is unwilling to control his sexual instincts in the sense that there is a significant risk that he would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts. He was then asked whether there were any appropriate external controls to minimise the risk. Dr Brereton expressed the view that if released the applicant would need regular sex offender treatment, very clear geographical restrictions, restrictions from using alcohol or drugs or anything like that and electronic monitoring. His movements would need to be frequently monitored.
Dr Brereton conceded that the applicant’s “appreciation of his risk and his distorted thinking” is as good now as it has ever been. Nevertheless, he opined that it still fell a long way short of any reassurance about his risk level. On the other hand, Dr Brereton expressed the view that if the applicant was to remain in prison and does not have the opportunity to access therapy, he is likely to fall back on his entrenched position and regress.
In a more recent report dated 7 March 2018 Dr Brereton restated his fundamental view that the applicant represents a significant risk of re-offending given his history and longstanding cognitive distortions. However, he has made gains with therapy but not always sustained these. More recently he has been better able to identify his cognitive distortions and accept that broader society views these matters differently to him. In addition, he has been increasingly motivated to remain out of prison and in order to achieve this he understands he will need to comply with restrictions. Dr Brereton expressed a view that the plans that had been most recently prepared by the OMP team appeared to be comprehensive and appropriate. Significantly Dr Brereton stated:
Given that Mr Humphrys has made some gains in terms of his thinking, motivation and cooperation with services, I believe it is reasonable to attempt to manage him in the community under these conditions. However risk cannot be eliminated and I accept that the Parole Board do not believe there are enough resources to manage him safely in the community. …
In a report dated 20 October 2015 Dr Jennings expressed similar views to Dr Brereton. On the issue of whether the applicant is unwilling or unable to control his sexual instincts, his opinion aligned very much with Dr Brereton’s. Dr Jennings stated that he believed the applicant remains a significant risk of re-offending if given an opportunity to do so. Having said that however, the psychiatrist acknowledged that the applicant had been positive and had accepted ongoing treatment through the Owenia House community program and had agreed to close surveillance and 24 hour monitoring. In Dr Jennings’ opinion the applicant is motivated sufficiently to avoid re-offending at least initially on release, however he remained concerned as to the longer term prognosis once he settled back into the community. In Dr Jennings’ opinion the role of close monitoring and surveillance would be the main factors to ensure that this is unlikely to occur.
As with Dr Brereton I had the benefit of hearing Dr Jennings expand on his opinion in March 2016 during oral evidence and most recently in a report of 1 March 2018. He confirmed his opinion that whilst the applicant is presently motivated to cease sexual offending, he remains at risk of re-offending in circumstances where the opportunity may present itself.
Dr Jennings supported each of the recommended conditions provided by the Parole Board in their report to the Court of 22 August 2016 and expressed the view that it is essential that the applicant continues with ongoing counselling through Owenia House and completes any programs offered to him by this service.
Since then it has been made plain that the services offered by Owenia House cannot be continued after the applicant’s release, however the OMP report states that there will be an opportunity for the applicant to have the necessary maintenance, treatment and counselling by Dr Richard Balfour, or a person appointed by him.
The duty of the Court upon an application by a person in respect of whom a declaration under s 23 of the Sentencing Act has been made, is set out in s 24 of the Sentencing Act:
24—Release on licence
(1)The Supreme Court may, on application by the Director of Public Prosecutions or the person, authorise the release on licence of a person detained in custody under this Division.
(1a)The Supreme Court must, before determining an application under this section for the release on licence of a person detained in custody under this Division, 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 the person and report to the Court on whether the person is incapable of controlling, or unwilling to control, his or her sexual instincts.
(1b)The paramount consideration of the Supreme Court when determining an application under this section for the release on licence of a person detained in custody under this Division must be the safety of the community.
(1c)The Supreme Court must also take the following matters into consideration when determining an application under this section for the release on licence of a person detained in custody under this Division:
(a)     the reports of the medical practitioners (as directed and nominated under subsection (1a)) furnished to the Court;
(b)     any relevant evidence or representations that the person may desire to put to the Court;
(c)     a report furnished to the Court by the appropriate board in accordance with the direction of the Court for the purposes of assisting the Court to determine the application, including—
(i)any opinion of the appropriate board on the effect that the release on licence of the person would have on the safety of the community; and
(ii)a report as to the probable circumstances of the person if the person is released on licence; and
(iii)the recommendation of the appropriate board as to whether the person should be released on licence;
(d)     evidence tendered to the Court of the estimated costs directly related to the release of the person on licence;
(e)     the reports resulting from the periodic reviews under section 23(9) on the progress and circumstances of the person tendered to the Court;
(f) any other report required by the Court under section 25;
(g)     any other matter that the Court thinks relevant.
…

The Full Court in R v Schuster[2] has provided authoritative guidance for the considerations which must be taken into account when exercising the discretion to release a person on licence:[3]
[78]Safety of the community and rehabilitation are the competing factors at the core of the discretionary power to release on licence pursuant to s 24 of the Act, and at the core of the discretion to cancel previous orders for release on licence pursuant to Sch 2 of the Act. …
[79]… The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility.
[80]More fundamentally, it is in the very nature of a discretion that the level of risk, whatever it is, may nonetheless be sufficiently outweighed by other factors to justify release on licence. …
[2] (2016) 125 SASR 388.
[3] R v Schuster (2016) 125 SASR 388 at [78]-[80].
With those considerations in mind, I turn now to discuss the issue which arises under s 24(1b) of the Sentencing Act, namely the potential risk to the community should the applicant be released on licence.
The risk posed by the applicant’s release
It is plain that both of the psychiatrists Drs Brereton and Jennings have expressed the view consistently that at the time of their respective assessments the applicant remains unwilling to control his sexual instincts.
That being so, it has been necessary to consider in some detail the specific risks posed by the applicant’s release on licence, taking into account the steps that have been put in place to manage those risks.
To assist me in that assessment the departmental personnel responsible for the OMP with specific reference to this applicant have provided me with extensive material. One of those documents was provided on 20 February 2018. It is described as a housing assessment risk matrix in respect of the proposed property should the applicant be released on licence. I have been provided with considerable assistance from DCS in relation to the identification of the risks posed by the applicant in relation to the proposed release to that address. That document identifies 11 specific risk factors. Of those 11 specific risk factors identified, nine of them were considered unlikely to arise. The only risk identified as major was the possibility of the failure of the electronic monitoring system. In the event of that occurring the case management plan states that systems will be put in place with a trigger system and a trigger plan ready for such an occurrence. Equipment currently in use in the DCS is to be tried and tested and currently assessed as suitable for use. In the most recent OMP report which I received dated 20 March 2018 I am informed that if the electronic monitoring equipment is tampered with, or an excluded area is entered, there will be an immediate notification at the monitoring centre. The response would be assessed and may involve ringing the offender, dispatching of DCS staff to attend the address or requesting a priority tasking to the SA Police for a priority tasking. A priority tasking will require an immediate police response to the location. This is in conformity with information previously provided to the Court in the letter of Mr Harber dated 2 September 2016.
Of the two remaining risk factors not deemed to be insignificant, both the location of the address to the North Adelaide parklands and the proximity of the Bowden Brompton Community School were considered to be of moderate concern.
The SA Police have indicated that attendance would be a priority response in the event that the applicant is detected at the parklands.
In relation to the proximity to the school, a communication strategy identified in the plan would be in place to disseminate information in a timely fashion if the need arises. It is also considered that as the proposed location is considered to be too far away from the school that the school could be included in places excluded by the electronic monitoring system.
Of the remaining risks, all of which were deemed to be insignificant, I am satisfied that once the electronic monitoring regime is in place most of those identified risks will be reduced. The topography of the proposed address is such that there is a low possibility of passing foot traffic. There are no retail or other premises nearby which the applicant is likely to visit and no thoroughfare to other areas. The nearest neighbours are mostly elderly and single.
I note that the proposed electronic monitoring regime will significantly curtail the freedom of movement of the applicant in the community. When outside of his residence he will be accompanied at all times by a suitably trained worker.
The Parole Board
The Parole Board have indicated the conditions of release appropriate which will need to be put in place. Those conditions are set out in the report dated 22 August 2016 and include:
●That you be subject to electronic monitoring. Upon your release from custody the Parole Board directs that you be subject to an intensive supervision regime with the Intensive Compliance Unit (ICU), including electronic monitoring for such time as the Parole Board shall determine, and that you obey all directions, requirements and rules of the ICU program, and comply with the directions of the ICU officer under whose supervision you are placed. You are directed to travel directly to [address] on your release and immediately telephone the ICU Office on [telephone number].
●That you report weekly in person to, and meet with, the Community Corrections Officer under whose supervision you have from time to time been placed and this is not to be varied without the approval of the Parole Board.
●That you undertake and complete a psychological assessment at the direction of your Community Corrections Officer and that you thereafter undertake and co-operate with such treatment as is recommended.
●That you not provide or offer accommodation to a child who is not related to you by blood or marriage or of whom you do not have lawful custody.
●That you not loiter without reasonable excuse, at or in the vicinity of a school, public toilet, playground or place at which children are regularly present at the school, toilet, playground or place.
●That you not undertake any remunerated or voluntary work with children or participate in any organisation which provides recreational, social, educational or other facilities for children.
●That you take all steps necessary to comply with the requirements of the Australian National Child Offender Register (ANCOR).
●That you attend for counselling at Owenia House (previously Sexual Offenders Treatment and Assessment Program) and that you co-operate with and complete any program there as directed by the Parole Board, and the Parole Board so directs.
●That you do not contact, attempt to contact or associate in any way, whether directly or indirectly, any person under the age of sixteen (16) years, unless your Community Corrections Officer is present, or a person nominated by your Community Corrections Officer is present.
●That you not use or be linked to any computer network or any equipment with access to the internet/or social media and that you not enter that part of any premises in which an internet facility is provided for use by the public.
●That you do not possess or use any video or still camera or other recording device including a camera equipped mobile phone.
●That you do not possess or use any photographic equipment without the prior written permission of your Community Corrections Officer.
●That you do not enter upon or remain upon the premises of any licensed hotel, licensed club or licensed entertainment venue.
●That you abstain from alcohol.
●That you submit to any breath testing analysis as directed by your Community Corrections Officer.
●That you follow your community Corrections Officer’s direction in relation to the people with whom you associate.
To summarise, the proposed conditions include that the applicant will wear a tracking device, will be in company with workers when he is absent from his address, will continue to take the anti-libidinal medication recommended by the psychiatrists, will not communicate with or be in the company of any child, will not have drugs or alcohol and be subject to random tests in relation to the same, and will travel straight from prison to the location where the intensive compliance unit regime will commence immediately.
I acknowledge that the Parole Board has consistently opposed the release of the applicant on any conditions. In the most recent report I received from the Parole Board of 29 January 2018, the Parole Board does not appear to have been made aware of the proposed address, its location or the documents which I received including both the risk matrix and the case plan developed by the OMP.
Even so, in submissions on 21 March 2018 I was informed by counsel for the Director that I could assume the Parole Board did now have the relevant documentation and remained opposed to the release.
I accept that absconding will always be a risk with regard to the release of any offender and that is a risk that will never be eliminated. I also accept that there are a number of risk factors in relation to the applicant which the Parole Board has identified repeatedly.
Further Considerations
Unlike other applicants, in particular the applicant in Schuster, this applicant has never had the opportunity to demonstrate his capacity to comply with licence conditions. It is one of the matters which concern both Dr Jennings and Dr Brereton who have examined the applicant and reported on him more than twice in the last two years. Both psychiatrists, while expressing cautious and conservative opinions as to the applicant’s prognosis, echoed the same concern that if this applicant is not given the opportunity to demonstrate his capacity to comply with terms and conditions on release, it is unlikely that he will ever be in a better position than he is today.
I am satisfied from the report I received on 2 January 2018 from the OMP that considerable work has already been put into preparing the applicant for conditional release. That preparation includes the voluntary assumption by him of responsibility to continue taking anti-libidinal medication, counselling, engagement with a social worker employed by OARS regarding accommodation and the support of “Second Chances SA” who are prepared to provide ongoing support and mentorship should the applicant be released.
I note it is particularly important that if the applicant is released he should not be socially isolated. Therefore I see it as important that organisations such as OARS and Second Chances will be vital to the applicant’s ability to engage with others in a positive way while in the community.
In this respect the OMP states that it has developed a specific case plan for regular review of the applicant’s emotional and mental stability, his associations, his drug and alcohol use, his attitudes, his housing and accommodation, his finances, his academic and vocational requirements and his gambling.
Finally I have been provided with, admittedly a very broad estimate, of the costs of release of the applicant, a matter I am required to pay specific attention to under s 24(1c)(d) of the Sentencing Act. I note that the projected costs of release do not appear to be a significantly prohibitive factor especially when compared with the equivalent costs of continued incarceration.
I am acutely conscious of the responsibility reposed in this Court for the determination of this application. Safety of the community is the paramount consideration which I must take into account on this application.
I acknowledge the submission of both counsel for the Director and the Parole Board that the risk posed by the applicant is so great that this consideration cannot be adequately met by any conditional release on any terms.
Nevertheless, from the material which has been provided to me which I consider has comprehensively identified what steps will be taken by the DCS and associated agencies to support the applicant’s release that many of the identified risks are significantly reduced by the proposed regime. I am also acutely conscious that in exercising the discretion reposed in the Court, it is my duty to exercise that discretion having regard to both the interests of the community and the interests of the applicant. It is unquestionable that the consideration of the community’s safety is the paramount consideration. Taking all of these matters into account I am satisfied that in this applicant’s case it is appropriate to exercise the discretion in favour of his release taking into account all of the terms and conditions proposed by the Parole Board. I do not consider that the point has been reached with regard to this particular applicant that it is as yet appropriate to incarcerate him in all probability for the rest of his natural life because he has been found unable or unwilling to control his sexual instincts. There is enough material supporting release on a strict regime for me to consider that the community can be adequately protected by the regime proposed to be put in place immediately on his release.
For these reasons I will accede to the application.