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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Humphrys

Details

AGLC: R v Humphrys [2018] SASC 39
Case: [2018] SASC 39
Decision Date: 27 March 2018

CaseChat Overview and Summary

In the case of R v Humphrys, the applicant, who has a history of sexual offending across five states in Australia, applied for release on licence under section 24(1) of the Criminal Law (Sentencing) Act 1988 (SA). The applicant was detained indefinitely by a Judge of the Supreme Court of South Australia under section 23 of the Sentencing Act due to his unwillingness to control his sexual instincts. The applicant had previously been convicted of multiple sexual offences, including unlawful sexual intercourse with a 14-year-old boy, and had served a sentence of 10 years imprisonment. The court was tasked with deciding whether the applicant should be released on licence and what conditions, if any, should be attached to his release.

The court considered several legal issues, including whether the risk of absconding could be adequately managed, the applicant's history of sexual offending, and the potential impact of his release on the community. The court also evaluated the reports from two psychiatrists, Dr Jennings and Dr Brereton, who expressed cautious optimism about the applicant's prognosis but noted the need for structured support. The court examined the comprehensive case plan developed by the Department of Correctional Services and associated agencies to support the applicant's conditional release, including ongoing medication, counselling, and support from organisations such as OARS and Second Chances SA. The court paid particular attention to the projected costs of the applicant's release, noting that they were not prohibitive compared to the costs of continued incarceration.

After considering all the evidence and arguments, the court concluded that it was appropriate to exercise its discretion in favour of the applicant's release, subject to the conditions proposed by the Parole Board. The court found that the proposed regime significantly reduced the identified risks and adequately protected the community. The applicant's release was approved, with strict conditions to be enforced to ensure public safety.

The court ordered the applicant's release on licence, subject to the conditions proposed by the Parole Board. These conditions included ongoing supervision, mandatory participation in a rehabilitation program, restrictions on contact with minors, and the requirement to reside at a specified address. The court also directed that the applicant continue to take anti-libidinal medication and engage in regular counselling. The applicant was to be subject to regular review to ensure compliance with the conditions and to monitor any changes in his risk profile.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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.