R v Humphrys - [2009] SASC 198

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v HUMPHRYS
[2009] SASC 198
Judgment of The Honourable Justice Sulan
9 July 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS
Application by the Crown pursuant to s 23 Criminal Law (Sentencing) Act 1988 (SA) - respondent convicted of five counts of unlawful sexual intercourse with a person under 17 years of age - respondent previously convicted of a number of sexual offences against young males - whether respondent incapable of controlling or unwilling to control his sexual instincts - consideration of factors to be taken into account when making order pursuant to s 23 Criminal Law (Sentencing) Act 1988 (SA).
Held: Respondent capable of controlling sexual instincts but unwilling to do so. Order pursuant to s 23 Criminal Law (Sentencing) Act 1988 (SA) made.
Criminal Law Consolidation Act 1935 (SA) s 49; Criminal Law (Sentencing) Act 1988 s 23, referred to.
HML v The Queen (2008) 235 CLR 334; R v Ainsworth (2008) 100 SASR 238; R v England (2004) 87 SASR 411; R v O'Shea (1997) 94 A Crim R 560, discussed.

R v HUMPHRYS
[2009] SASC 198
Criminal

SULAN J: This is an application by the Director of Public Prosecutions (‘the DPP’) pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (‘the Sentencing Act’) that Colin Charles Humphrys (‘the defendant’) be detained indefinitely. For the reasons which follow, I conclude that it is appropriate that the defendant be detained in custody until further order.
Procedural history
Following a trial before a jury in the District Court, the defendant was convicted on 15 September 2006 of five counts of unlawful sexual intercourse with a person under 17 years of age. All of the offences were committed against one victim, AB, between October 2001 and March 2003. AB was aged between 14 and 15 years at the time of the offending. I sentenced the defendant to a total of ten years’ imprisonment for the offences. The sentence is to commence on 3 December 2003, when the defendant was taken into custody. I did not set a non-parole period. As I indicated in my sentencing remarks, I consider that it is inappropriate to set a non-parole period when I have determined that the defendant is to be detained until further order. If, at a date in the future, the Court discharges the order for detention and, at that time, the defendant has not completed the sentence I have imposed, then the Court can set a non-parole period, having regard to the defendant’s then personal circumstances.
Section 49 (3) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’) provides:
A person who has sexual intercourse with a person under the age of seventeen years is guilty of an offence.
The maximum penalty for this offence is imprisonment for a period of 10 years.
Upon the defendant being convicted, counsel for the DPP applied for the matter to be transferred to the Supreme Court for an inquiry into whether the defendant is incapable of controlling, or unwilling to control, his sexual instincts.[1] On 21 November 2006 the defendant was remanded in custody to appear before the Supreme Court.
[1] Criminal Law (Sentencing) Act 1988 (SA), s 23(2)(b).
On 27 November 2006, I ordered that two out of either Dr Craig Raeside, Dr Kenneth O’Brien and Dr Narain Nambiar inquire as to the defendant’s mental condition and report to the Court on whether he is incapable of, or unwilling to, control his sexual instincts.[2] The Court received reports from Drs Nambiar and Raeside, dated 23 April 2007 and 4 May 2007 respectively. On 4 September 2008 I directed that further supplementary reports be provided to the Court. The Court received supplementary reports from Drs Nambiar and Raeside on 3 November 2008 and 10 October 2008 respectively.
[2] Criminal Law (Sentencing) Act 1988 (SA), s 23(3).
It is necessary to mention the significant period of time it has taken for these proceedings to be resolved. The defendant was convicted in September 2006, and proceedings were remanded to this Court on 21 November 2006. The defendant sought to appeal his conviction. His application for permission to appeal was out of time. On 19 September 2007 the Court of Criminal Appeal refused to grant him an extension of time within which to file the application for permission to appeal. On 28 September 2007 the Court was informed that an application for special leave to appeal had been filed in the High Court. On that day the, s 23 application was set down for hearing on 28 and 29 November 2007. On 26 November 2007 counsel for the defendant sought an adjournment of the proceedings citing, among other reasons, that no date had been set by the High Court for the hearing of the defendant’s application for special leave to appeal and, until the High Court application had been determined, it was not appropriate to hear the application. The DPP did not oppose the application. On 19 December 2007 the Court was informed that the application for special leave had not yet been filed, that the Legal Services Commission was not willing to fund the defendant’s High Court application and that counsel for the defendant had been released from his instructions.
I listed the matter for hearing on 27 and 28 February 2008. On 22 February 2008, application was made to adjourn the hearing, as the High Court had reserved judgment in another case, the outcome of which may have affected the defendant’s case.[3] Counsel for the defendant submitted that the defendant had not yet exhausted all avenues of appeal, notwithstanding the fact that the defendant’s application for special leave to appeal in the High Court had lapsed. The application to vacate the hearing was not opposed by the DPP. I vacated the dates for the hearing. On 29 February 2008 counsel for the defendant informed the Court that funding had been obtained to pursue the application for special leave in the High Court. Counsel for the DPP did not oppose a further adjournment of the matter or the re-instatement of the defendant’s application for special leave. On 2 April 2008 the Court was informed that the relevant documents had been filed in the High Court, but that no response had yet been received from the High Court Registry as to the date of the hearing. There were further discussions as to the progress of the defendant’s matter in the High Court on 8 May 2008. On 12 August 2008 counsel for the defendant informed the Court that the defendant had abandoned the application for special leave to appeal.
[3] Counsel for the defendant was referring to HML v The Queen (2008) 235 CLR 334.
As I have already mentioned, on 4 September 2008 I ordered that Drs Raeside and Nambiar provide the Court with supplementary reports. On 18 November 2008 the matter was listed for a hearing to commence on 23 February 2009. After a two-day hearing, the matter was adjourned. Subsequently, counsel for the defendant advised that a further report had been sought from Dr Czechowicz. The matter was adjourned to 17 June 2009, when I heard evidence from Dr Czechowicz and the defendant.
I have taken some time to trace the history of these proceedings as the defendant has been in custody in respect of this offending since 3 December 2003. It is unfortunate that almost six years have elapsed, during which time the defendant has been in custody without resolution of the matter. Extensive delays occurred because the defendant sought adjournments pending the resolution of his appeal. It was inappropriate for these proceedings to go ahead while the defendant was still in the process of appealing his conviction for the present offences. It is clear that, whilst the defendant maintained his denial of the offending conduct, the psychiatrists were unable to conduct satisfactory inquiries into his mental state. Further, counsel for the defendant submitted that the matter could not be resolved whilst the defendant was appealing his conviction. An important matter for the psychiatrists to have regard to was whether the defendant admitted the conduct. It was submitted that it was inappropriate for the defendant to discuss the incident with the psychiatrists whilst the appeal against conviction was pending. Further, it was difficult for the defendant’s legal representatives to obtain final instructions whilst the matter was subject to appeal.
Section 23 CLSA
The primary purpose of s 23 is for the protection of the community from people who are incapable of controlling, or unwilling to control, their sexual instincts.[4] Where a person has been convicted of a relevant offence, which includes having sexual intercourse with a person under the age of 17 years,[5] the defendant may be referred to the Supreme Court. Section 23(2) and (3) provides:
[4] R v O’Shea (1997) 94 A Crim R 560, 564.
[5] Criminal Law Consolidation Act 1935 (SA), s 49.
…
(2)If, in proceedings before the District Court or Magistrates Court, a person is convicted of a relevant offence and –
(a)the court is of the opinion that the defendant should be dealt with under this section; or
(b)the prosecutor applies to have the defendant dealt with under this section,
the court will, instead of sentencing the defendant itself, remand the convicted person, in custody or on bail, to appear before the Supreme Court to be dealt with under this section.
(2a)If a person has been convicted of a relevant offence, the Attorney-General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section.
(2b)The Attorney-General may make an application under subsection (2a) in respect of a person serving a sentence of imprisonment whether or not an application to the Supreme Court to have the person dealt with under this section has previously been made (but, if a previous application has been made, a further application cannot be made more than 12 months before the person is eligible to apply for release on parole).
(3) The Supreme Court will direct at least 2 legally qualified medical practitioners nominated by the Court to inquire into the medical 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.
‘Unwilling’ is defined as:
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 adequate control of his or her sexual instincts.
Section 23(5) of the Act provides:
The Court may order that a person to whom this section applies be detained in custody until further order if—
(a) the Court, after considering the medical practitioner’s reports and any relevant evidence, or representations that the person may desire to put to the Court, is satisfied that the order is appropriate; or
….
While the opinions provided by the appointed medical practitioners will be relevant to the Court’s determination of whether a person is unwilling to control his or her sexual instincts, those opinions are not determinative of the issue. The determination of whether a person is unwilling to control his or her sexual instincts and whether it is appropriate, in all the circumstances, that the defendant be detained until further order is for the Court, having heard all the relevant evidence.
In England,[6] Bleby J considered the standard of proof required when determining whether a person is incapable of controlling his or her sexual instincts. He said: [7]
[6] R v England (2004) 87 SASR 411.
[7] Ibid, [53], [56].
It is important to bear in mind precisely what it is that the court is called upon to be satisfied about. It is that the particular person is incapable of controlling his or her sexual instincts. That is not a readily observable fact. It is not something that can readily be inferred by a finder of fact from other primary facts. It depends upon the formation and acceptance of an opinion which in turn depends, not only on the establishment of ascertainable facts, but on expert interpretation of the significance of those facts and of the weight to be given to them. It is not a process which is amenable to satisfaction beyond reasonable doubt.
…
[I]n relation to s 23(5) of the Act, satisfaction as to the inability of a person to control their sexual instincts is a matter of assessing the opinions to that effect, their strengths and their weaknesses, to a point where the court can be satisfied that the incapacity is present. In doing so, the court will need to take account of the seriousness of the declaration it is asked to make and the gravity of the consequences of giving the direction. To borrow the words of Dixon J in Briginshaw v Briginshaw, the necessary degree of satisfaction cannot be produced “by inexact proofs, indefinite testimony or indirect inferences”. It will require cogent and acceptable evidence in order to justify the making of the declaration and the giving of the direction. But even then, there is a residual discretion conferred by the use of the word “may” in the subsection. In that respect it may also be appropriate to consider, as in the case of R v Fahey and R v Riley whether, if a sentence is also imposed, the defendant is likely, at the end of the custodial period, to resume similar sexual activities. This will, in turn, require consideration, among other things, of the defendant’s access to and the likely effect of various regimes of treatment, and whether they can be effected in the prison setting or in some other institution contemplated by the section.
He concluded:[8]
In summary, the process that I perceive to be required by s 23(5) of the Act is, first, the expression on oath of the opinion required by para (a) by two medical practitioners. If one or both of them do not express such an opinion or do not do so on oath, that is the end of the matter.
Secondly, the court will need to assess the strength of those 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 the medical practitioners have based their opinions, and ensuring that they are established to the court’s satisfaction beyond reasonable doubt.
Thirdly, the court will then have to be satisfied in a manner that I have described that the incapability exists.
Finally, the court must exercise its residual discretion as to the making of the declaration and granting of the directions.
[8] Ibid, [57]-[60].
In Williams,[9] I referred to the above cited passage of Bleby J’s judgment and stated that I agreed with the process summarised by Bleby J. In Ainsworth,[10] White J, with whom Doyle CJ agreed, considered that s 23(5) of the Sentencing Act did no more than require the Court to obtain at least two medical opinions and have regard to those opinions. White J observed that the section did not require the Court to be satisfied that two medical practitioners consider that the defendant lacks the requisite capacity or willingness to control his or her sexual instincts as a prerequisite to the Court making an order. He disagreed with the observations of Bleby J that if one of the medical practitioners was not of the opinion that the defendant is incapable or unwilling to control his sexual instincts, that was an end of the matter. In Williams, both Drs O’Brien and Raeside, the psychiatrists who examined Mr Williams, considered that he was unwilling to control his sexual instincts. After considering the evidence, including the circumstances of Mr Williams’ offending, the nature of his prior offending, and other personal circumstances, I declined to make the order.
[9] R v Williams (2006) 96 SASR 226, [15]-[16].
[10] R v Ainsworth (2008) 100 SASR 238, [41].
In Ainsworth,[11] White J observed:[12]
The reasons of the judge do not contain any explanation for the exercise of the power to make the order. Having found that the appellant was unwilling in the requisite sense, the judge said simply “I therefore propose to grant the application”. This appears to indicate that the judge may have proceeded on the basis that the power to order indefinite detention should be exercised upon the court being satisfied about the appellant’s requisite incapacity or unwillingness. The judge does not appear to have considered, as a separate step whether the making of the order for indefinite detention was appropriate. Such a separate consideration was necessary.
[11] Ibid.
[12] Ibid, [77].
The observations of Bleby J and White J are equally relevant to deciding whether a person is unwilling to control their sexual instincts. I agree with Bleby J that the Court, in considering an application pursuant to s 23, must first consider the threshold question of whether the Court is satisfied that the person is unwilling, or incapable, of controlling their sexual instincts. I also agree that, before the Court can be satisfied of the threshold question, the Court requires cogent evidence to support the decision.
An order made pursuant to s 23 (5) of the Sentencing Act is an order of indefinite detention. Such order does not take effect until the expiration of any term of imprisonment imposed upon a person for relevant offending.[13] An order made pursuant to s 23 may have the effect of significantly prolonging the period of time a person spends in custody. In extreme cases, it may amount to an effective sentence of life imprisonment. In Ainsworth, White J said[14]
An indefinite sentence involves a departure from a fundamental principle of sentencing, namely, that of proportionality. The purpose of the order is principally protective, in other words, to protect the public from conduct of a particular kind by the offender. It has been said that because of the exceptional nature of the order, it should be confined to cases in which it is really required. Further, a judge should only make the order upon cogent evidence and with a clear appreciation of the exceptional nature of the course that is being taken. It is clear that an application for such an order should be treated with commensurate care and detail.
In my opinion, the reasons for a decision under s 23(5) should reflect these considerations. [footnotes omitted]
[13] Criminal Law (Sentencing) Act 1988 (SA) s 23 (7).
[14] R v Ainsworth (2008) 100 SASR 238 [56]-[57].
In arriving at my conclusion, I have had regard to the length of the sentence imposed, the time that the defendant will serve in custody before he will be entitled to be released, the regimes of treatment available to the defendant whilst in custody, and the risk to the community if the defendant were released before an assessment has been made of him after he has undergone a treatment regime. I have also had regard to the circumstances of the offending, and the personal circumstances of the defendant, including the sexual abuse that the defendant suffered as a child and as an adolescent. I have had regard to the evidence of the defendant, the evidence of Dr Czechowicz, and the letters of Reverend Cockayne tendered on behalf of the defendant.
The offending
The victim of all five offences of which the defendant was convicted is referred to in these proceedings as AB. He was aged between 14 and 15 years at the time. Three of the counts occurred in a public toilet at Port Adelaide between October 2001 and March 2002, and involved the defendant performing two acts of fellatio upon AB, and AB performing one act of fellatio upon the defendant. This was the first occasion on which the defendant and AB met. The defendant had been on parole when he met AB. He was returned to custody on 24 February 2002 for breaching the conditions of his parole. The alleged breach was that he was observed in the company of AB, who was underage age at the time. There was regular sexual offending with AB within a very short period after the defendant was released from custody. He was released from custody in August 2002.

The fourth count occurred between August 2002 and February 2003 in premises at Pulteney Street, where the defendant performed an act of fellatio upon AB. The fifth count related to an incident which occurred between October 2002 and March 2003 at the Portland Hotel in Port Adelaide, when the defendant engaged in an act of anal intercourse with AB.
At trial AB gave evidence of numerous other sexual encounters with the defendant which were not the subject of any charges. These encounters involved mutual acts of fellatio, and acts of anal sex performed upon AB by the defendant. It is apparent that their sexual relationship was ongoing over a lengthy period and the conduct continued over a number of years.
The defendant moved to reside in Victoria some time around the end of 2002. He paid for AB to visit him there regularly, when further sexual activity occurred.
The defendant denied the offending at trial, and for some years thereafter until his appeals were exhausted. I was informed by his counsel that he now acknowledges that the offences took place.
Antecedents
The defendant has a lengthy criminal history. He was first convicted of an offence in 1970. He has been convicted of the following sexual offences:
Loiter for homosexual purposes – Brighton Magistrates Court (Vic) – 1973
Gross indecency x3 – Melbourne County Court – 1974
Indecent assault male person x 2; Cause person to take drug with intent to commit indictable offence – Sydney District Court – 1976
Indecent assault x3 – Melbourne Magistrates Court – 1984
Indecent assault x4 – Melbourne Magistrates Court – 1984
Gross indecency with male – Melbourne County Court – 1984
Child stealing – Townsville District Court – 1985
Commit act of indecency towards person under 16 years; Homosexual intercourse with male 10-18 years; Attempt homosexual intercourse with male 10-18 years – Sydney District Court – 1992
The 1985 and 1992 offences involved the defendant befriending young boys, aged 10 and 12 respectively, and encouraging them to run away with him. Sexual contact was a feature of the 1992 abduction. There was no conviction in relation to sexual contact in the 1985 abduction, but the sentencing Judge referred to the defendant having masturbated the boy. The 1976 offending involved the defendant meeting a teenage boy in Sydney’s King’s Cross. They returned to the defendant’s premises where an indecent assault took place. The victim spent the night with the defendant. The following morning, the defendant caused the victim to ingest Mandrax, a sedative, following which a further indecent assault took place.
The defendant has been convicted of further offences since 1992, but up until his conviction for the offending involving AB, they were offences of dishonesty and one of escaping from lawful custody. He has served several lengthy sentences of imprisonment. It appears that some of the earlier offences relate to consensual homosexual conduct with other adults, of the type which is no longer illegal. Other previous offences committed by the defendant that would no longer constitute criminal conduct may be viewed in two ways in relation to the present proceedings. On the one hand, it could be argued that it would not be fair to take into account convictions for actions which are no longer prohibited by law. On the other hand, the fact that the defendant engaged in these actions at a time when it was unlawful to do so can be taken as evidence of the fact that he is willing to ignore or deliberately flout the law to satisfy his sexual urges. Although the offending is relevant, I have given it only slight weight in determining this application.
Personal history
The defendant was born in Western Australia on 28 December 1951. He is one of four siblings born to his parents. He has an adopted younger sibling.
The defendant stated that there was little emotion expressed within his family, and that his early years were characterised by harsh discipline. He felt isolated and alienated from his parents. He appears to have had little or no contact with his family for many years.
The defendant claims a history of childhood sexual abuse, commencing when he was around five or six years of age. The abuse was ongoing. In his early adolescent years the defendant began actively seeking out homosexual liaisons, at least in part to secure financial benefits for himself. The defendant drank alcohol excessively to block out what was occurring. At the age of 17 he was abducted and sexually abused by several people. Upon returning to his family, he experienced a strained relationship with his father. He said that he was made to sleep outside and was not allowed to eat with the family. The defendant enlisted for National Service. He was dishonourably discharged due to his homosexuality. He blames his father for providing the Army with information that discredited him.
The defendant states that he was abused by a number of members of clergy of the Anglican Church of Western Australia. He has received letters of apology from the Archbishop of Western Australia and one of the clergymen who abused him. He expects to receive financial compensation from the Church for the abuse he suffered.
The defendant left Western Australia at the age of 19, and travelled around Australia seeking work. Following short term employment in a number of industries he completed an apprenticeship in cooking and pastry making. He has been consistently employed in bakeries at times when he was not in custody. The defendant is unmarried and has no children. He has been involved in several heterosexual relationships, and was engaged on one occasion. His sexual relationships, both heterosexual and homosexual, have generally been short term.
The defendant believes that the sexual abuse to which he was subjected as a child is at least part of the reason for his homosexuality. He engaged in a series of relationships throughout his teenage years characterised by the exchange of material favours for sexual contact. He described significant confusion over his sexuality.
Expert evidence
As I have indicated, I was provided with two reports each by Drs Nambiar and Raeside. Both of the psychiatrists gave evidence. Dr Nambiar and Dr Raeside have extensive experience as forensic psychiatrists. After hearing their evidence I adjourned proceedings to allow counsel for the defendant to obtain a further report from Dr Czechowicz. I received the report on 17 June 2009 and heard evidence from Dr Czechowicz on that day.
Dr Nambiar interviewed the defendant on three occasions, twice in March 2007 and again on 31 October 2008.
Dr Nambiar noted that it was difficult to engage the defendant in discussion about his offending, both historical and present. He said that the defendant repeatedly sought to steer the conversation away from his offending and towards the abuse that he had suffered in his childhood and adolescence. When Dr Nambiar interviewed the defendant in March 2007, he denied having engaged in any sexual behaviour with AB. While the defendant acknowledged that there had been sexual contact with AB in the October 2008 interview, he disputed a number of facts about the offences of which he had been convicted. For example, he continued to deny having ever engaged in anal sex with AB. Dr Nambiar considered that this was a continuation of the defendant’s earlier conduct in denying the offences and attempting to portray himself as a victim. It was put to Dr Nambiar that the defendant was evasive when questioned about the present offending in the earlier interviews because he denied the offences, and that this evasive attitude carried over into the later interview. Dr Nambiar said that this fact did not explain the defendant’s reluctance to speak about or acknowledge his offending behaviour.
Dr Nambiar said that the defendant’s understanding of interpersonal boundaries was grossly distorted. This correlated to the abuse the defendant had been subjected to when he was young. Dr Nambiar said:
Although it can be difficult to confirm sexual abuse, if I am to believe his account of the many relationships that he had with older males including prostitution it would appear that these early abusive experiences contributed to his confusion about sexual orientation, and developing a very distorted view of boundaries and appropriate sexual behaviour. The cycle of the abused becoming the abuser seems evident in this case.
Dr Nambiar referred to a pattern of behaviour by the defendant that involved the rapid establishment of relationships with potential victims, moving quickly to sexual exploitation. He acknowledged that such exploitation may not have been the defendant’s goal from the outset, but that this was frequently the way those relationships developed. This was the case with AB and, with other victims in the past. He observed:
The inconsistencies in his account [of his history] lead me to surmise that his insight in regard to the inappropriateness of his behaviour is grossly affected. Although he claimed to me that he would “never have sex with a boy under eighteen again” it would appear that he had little motivation to support that statement.
Closely linked to his insight is his judgement and I would suggest that by virtue of his distorted boundaries in the area of interpersonal relationships Mr Humphrys has developed extremely poor judgement in regard to his associations with young boys in particular with predatory and exploitative behaviour.
Dr Nambiar found no history of any major psychiatric disorders, and concluded that the defendant was not suffering from any such disorders at the time he was examined. He noted a number of psychopathic tendencies in the defendant, including a shallow regard for others’ needs and tendency to favour self-gratification through vulnerable individuals. In addition to this, he observed that the defendant displayed antisocial personality features. These features were not manifested exclusively in the defendant’s sexual offending, but were also present in his non-sexual offending and general demeanour.
As to treatment in the past, the defendant has been involved in some sexual offender treatment. Dr Nambiar said:
There is an abundance of evidence, including in particular the assessment provided by Dr Toman and Mr Humphrys’ behaviour during interviews that suggest he has little or no insight in relation to the implications of his behaviour. It would be extremely difficult for a therapist to engage in treatment with him given his style of denial and deflecting the focus of discussion from the nature of his behaviour to his preoccupation with being a victim of abuse. Mr Humphrys has very little if any empathy for his victims and he has very little remorse for his actions.
Dr Nambiar concluded that the defendant is unlikely to engage in, or respond to, sexual offender treatment while his attitude towards his offending is one of minimisation and denial.
Dr Nambiar is of the opinion that, while the defendant is capable of controlling his sexual instincts, he is unwilling to do so. He reported that:
there is a significant risk that Mr Humphrys would, if given an opportunity to commit a relevant offence, fail to exercise appropriate control over his sexual instincts.
He confirmed his opinion in his further report, and when he gave evidence.
Dr Raeside interviewed the defendant on 8 March 2007, 3 May 2007 and 3 October 2008.
He described the defendant as ‘quite a difficult historian’. He echoed many of the observations made by Dr Nambiar. The defendant denied the present offending in the first two interviews, and disputed elements of it in the final interview. He also sought to minimise his earlier offending.
Dr Raeside concluded that the defendant does not suffer from any psychiatric illnesses or problems that would make him incapable of controlling his sexual instincts. He diagnosed the defendant as having a mixed personality disorder with narcissistic, antisocial and borderline traits. He noted that the defendant’s sexual preference appeared to be for teenage and young adult males.
Dr Raeside referred to the defendant entering into relationships with young males, ostensibly for the purpose of assisting them, and then engaging in what he perceives to be consensual sexual behaviour with them. This conduct is described as reflecting:
a fundamental and profound disturbance in his own sexual identity formation, as well as his distortion in what would otherwise be considered appropriate sexual behaviour.
Dr Raeside said:
In my view, rather than representing simple predatory behaviour for sexual gratification, it appears that Mr Humphrys seeks to form non sexual relationships with inappropriately aged young men and that invariably it becomes sexual as well. There is probably a clear contribution from his own psychological damage arising out of his ongoing sexual abuse from his childhood through his adolescence and into his early adulthood.
Dr Raeside concluded that the defendant is unwilling to control his sexual instincts. It is his opinion that given the opportunity to offend the defendant would present an unacceptable risk to the community. He recommended that the defendant engage in an appropriate treatment program while in custody.
Both Dr Nambiar and Dr Raeside indicated that the defendant has not engaged meaningfully with sexual offender treatment. In their opinions, he has appeared more concerned with using treatment to deal with his own problems arising out of his abuse as a child and youth.
Dr Czechowicz interviewed the defendant on 24 April 2009. He described the defendant as exhibiting chronic sexually violent behaviour.
Dr Czechowicz is of the opinion that while the defendant displayed anti-social tendencies, he did not qualify for a diagnosis of anti-social personality disorder.
Dr Czechowicz concluded that the defendant suffers from post-traumatic stress disorder arising out of the abuse to which he was subjected as a child. He identified the presence of post-traumatic stress disorder as a factor standing in the way of the defendant’s treatment. He said that post-traumatic stress disorder may lead to a lack of therapeutic trust, and that this may prevent the sufferer from engaging in treatment. Dr Czechowicz suggested that treatment of the defendant’s post-traumatic stress disorder would increase the likelihood of his responding to treatment for his sexual disorder.
Dr Czechowicz said that post-traumatic stress disorder may lead to sufferers seeking to avoid situations which will give rise to stressors. He said that this could potentially explain the defendant’s failure to engage in treatment.
Dr Czechowicz agreed with Dr Nambiar and Dr Raeside that the defendant currently poses a significant risk that, if given the opportunity to engage in sexual behaviour with boys under the age of 16 years, he would choose to engage in such behaviour. The major difference in opinion between Drs Nambiar and Raeside and Dr Czechowicz is that Dr Czechowicz is of the opinion that the defendant suffers from an underlying psychiatric condition of post-traumatic stress disorder which requires treatment before any treatment for his sexual disorder can be effective.
I was impressed by the evidence of Drs Nambiar and Raeside. Both psychiatrists had interviewed the defendant at various times over a long period of time. I am satisfied that the defendant poses a present risk of re-offending if he is released without undergoing treatment and being re-assessed after having undergone such treatment. I assume that any further assessment of the defendant will have regard to the opinion of Dr Czechowicz and, if those treating the defendant agree that he suffers from a post-traumatic stress disorder that requires treatment, such treatment will be made available.
The defendant
The defendant gave evidence. He admitted the offences against AB, and for the first time acknowledged that he had engaged in an act of anal intercourse with him. He said that he understood that having sex with AB was both legally and morally wrong.
The defendant said that his childhood experience of abuse had left him with severe trauma, causing him mental pain and suffering. He said that he now understood that his offending behaviour towards AB and other victims caused the same pain to them as his abuse caused to him. This understanding had, in part, come from psychological counselling arranged by the Anglican Church over an 18 month period while the defendant was in Yatala Labour Prison and the Adelaide Remand Centre. Prior to this counselling, the defendant had undertaken a preliminary course in Junee Correctional Centre in New South Wales. He said that there were a number of factors unrelated to his willingness to engage in treatment that had previously prevented him obtaining further assistance while in custody.
In cross-examination, the defendant sought to minimise and justify much of his behaviour with young boys from the age of ten to the age of 16 years. He did not appear to genuinely comprehend the serious nature of his past conduct. Although he accepted his conduct had been unlawful, I consider that he was more focussed upon what had happened to him in the past, rather than how his conduct may have affected his victims. This is consistent with the observations of Drs Nambiar and Raeside.
At the time when the defendant first met AB, the defendant was on parole, a condition of which was that he not remain in the presence of any person under the age of 16 years. In cross-examination, the defendant was reluctant to admit that he knew AB was underage when they met. Although he may not have known how old AB was on the occasion of their first meeting, the defendant very soon became aware of AB’s age. He claimed that he did not give any thought to the fact that he was violating his parole by remaining in contact with AB, let alone engaging in sexual relationships with AB.
The defendant attended before the Parole Board of South Australia in June 2002 in relation to having been seen in the company of AB on 16 February 2002. The breach of parole was found, and the defendant’s parole was cancelled. He was released on 7 August 2002, and resumed contact with AB in December 2002. The defendant had told the Parole Board that his contact with AB had nothing to do with any sexual offending.
The defendant presented as a man who was eager to talk at length about himself and his problems. He claimed that he needed treatment, and that he desired to cease offending. However, he appeared evasive when questioned directly about his offending. He launched into lengthy discussions of peripheral or irrelevant issues rather than respond to questions from counsel. He appeared pre-occupied with the effect that his abuse had had on him, and showed very limited insight about the effect his conduct had upon his victims. He avoided dealing with more substantive issues relating to his past conduct.
The defendant exhibited the very characteristics described by Drs Nambiar and Raeside and, to a lesser extent, Dr Czechowicz. I am satisfied that he continues to lack insight into his offending and the effect it has had on his victims.
Other materials
I have had regard to the defendant’s antecedent report, various police interviews and sentencing remarks in relation to previous offences, a pre-sentence report in respect of the present offending and a number of documents from the Parole Board of South Australia. As I have already noted, I also have a report of Dr Peter Toman dated 15 February 2007.
Dr Toman interviewed the defendant on a number of occasions in 2001 and late 2002 while he was on parole for other offending. His report was prepared in February 2007. Many of his observations echo those of Dr Nambiar and Dr Raeside. He found that the defendant was evasive in answering questions and frequently sought to minimise or justify his previous offending. The defendant told Dr Toman that he believed sex between adult men and boys was acceptable regardless of age, so long as the boy was willing

Dr Toman found that the defendant was at a high risk of re-offending in 2002, and his opinion was that unless something had changed drastically since then the defendant remained a significant risk of re-offending. Dr Toman felt that he was unable to engage the defendant in treatment, and doubts that the defendant gained any benefit from the time he spent in treatment. I have considered Dr Toman’s report, but I have not relied upon his opinion because of the effluxion of time since he saw the defendant. I note that Dr Toman has not spoken to the defendant since 2002.
I have had regard to two letters of Reverend Michael Cockayne, one dated 18 June 2009 and the other undated but written after 18 June 2009. Reverend Cockayne states that the defendant has, in the past, attempted to obtain treatment to deal with his problems. Through no fault of the defendant, such treatment has been incomplete and disrupted. Reverend Cockayne confirms much of the psychiatrists’ observations that the defendant is self-occupied about the abuse he suffered, and that his judgment in the past about his own offending has been clouded by unresolved issues from his early childhood experiences.
Reverend Cockayne appears to have relied upon the defendant’s account of what has occurred in the past. It is unclear how much of the information provided by Reverend Cockayne was of his own knowledge. In any event, Reverend Cockayne provides some historical information, but can provide no relevant information about the defendant’s willingness to control his sexual instincts.
I heard evidence from Mr Michael Burvill, the manager of the Rehabilitations Program Branch in the department for Correctional Services. He is a forensic and clinical psychologist. Mr Burvill said that, currently, the Department for Correctional Services offers the Sexual Behaviours Clinic (‘SBC’) to prisoners who have been convicted of sexual offences. Prisoners detained pursuant to s 23 are eligible to participate in the SBC. Mr Burvill described the eligibility criteria for entry into the SBC. Assessment for eligibility is only available to people who have received a prison sentence. The SBC runs for six to nine months and is an intensive treatment program aimed at reducing the risk of re-offending among sex offenders. Successful completion of the program is followed by a separate and ongoing maintenance program aimed at consolidating and reinforcing gains made in the SBC and preventing relapse into offending behaviour. This maintenance program does not have any time limit on it, and will continue so long as the program coordinators feel attendance is necessary. It is available both in the prison system and in the community for parolees.
Mr Burvill is familiar with the defendant’s history and the present offending. He is of the view that once sentenced the defendant would be a fairly high priority candidate to enter into the SBC, particularly if a s 23 order was made. The defendant would be assessed regularly whilst undergoing the program.
Conclusion
I have had regard to the reports and evidence of Drs Nambiar and Raeside. I accept their evidence that, while the defendant is capable of controlling his sexual instincts, there is a significant risk that the defendant would, if given the opportunity, fail to exercise appropriate control over his sexual instincts. Dr Czechowicz is of the same opinion. The defendant is likely to place himself in a position where he will commit offences of the type for which he has previously been convicted. The pattern of relationship formation moving quickly to sexual exploitation is identified by both psychiatrists, and suggests that the defendant would be likely to re-offend. I find that the defendant is likely to fall back into this pattern of behaviour, and that this is likely to place the defendant in a position where there is a significant risk that he will not control his sexual instincts.
The psychiatrists and psychologist who examined the defendant took the view that his level of insight into his offending conduct is very low, or non-existent. Although the defendant acknowledged the offending conduct following the abandonment of his High Court appeal, I conclude that this did not have a significant effect on his level of insight. Generally, the defendant remains focussed on the abuse that he suffered in his childhood and adolescence, and possesses limited understanding of the effect his behaviour can have on others.
I consider the discretion under s 23 is enlivened.
The next question is whether an order pursuant to that section should be made. This is a separate enquiry, although it is linked to the finding that the defendant is unwilling to control his sexual instincts. I have considered all the evidence and material provided to me. I conclude that, if released, there is a significant risk that the defendant will acquaint himself with under-age young men and engage in sexual activity with them. His history of forming inappropriate relationships that quickly lead to sexual exploitation of vulnerable boys and young men is likely to be repeated. The defendant is very likely to place himself in situations where the opportunity to offend will arise. When presented with this opportunity, the defendant is likely to offend. Given his history and lack of insight, I consider the defendant presently presents an unacceptable risk to the community, and that an order for his indefinite detention is appropriate. I am satisfied that there are rehabilitation programs that the defendant could undertake which may result in his prognosis improving at some time in the future.
It is the order of the Court that, pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA), the defendant be detained in custody until further order.