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…

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 [2009] SASC 198
Case: [2009] SASC 198
Decision Date: 9 July 2009

CaseChat Overview and Summary

In the matter of R v Humphrys, the Crown sought an application under section 23 of the Criminal Law (Sentencing) Act 1988 (SA), requesting an indefinite detention order for the respondent who had been convicted of five counts of unlawful sexual intercourse with a person under 17 years of age. The respondent had a prior history of sexual offences against young males, which raised concerns about his capacity to control his sexual instincts or his willingness to do so. The court had to decide whether the respondent was incapable of controlling or unwilling to control his sexual instincts, and if so, whether an order for his indefinite detention was appropriate under the statute.

The court considered the expert evidence provided by three psychiatrists and a psychologist, who examined the respondent's history of sexual abuse, his distorted understanding of interpersonal boundaries, and his pattern of rapidly forming relationships that often led to sexual exploitation. The evidence suggested that the respondent's insight into his offending conduct was very low or non-existent, and that he was likely to re-offend if released. The court also took into account the views of the sentencing judge, who believed that the respondent would be a suitable candidate for the Sexual Behaviour Control (SBC) program, a rehabilitation initiative aimed at addressing the sexual behaviour of high-risk offenders.

The court concluded that the respondent was likely to fall back into his established pattern of behaviour, which placed him at a significant risk of not controlling his sexual instincts. Despite acknowledging his offending conduct after the abandonment of his High Court appeal, the respondent remained focused on the abuse he suffered in his childhood and had limited understanding of the impact of his behaviour on others. The court found that the discretion under section 23 was indeed triggered, and it was appropriate to make an order for the respondent's indefinite detention. The court was satisfied that there were rehabilitation programs available that could potentially improve the respondent's prognosis in the future.

The final order of the court was that the respondent be detained in custody until further order, pursuant to section 23 of the Criminal Law (Sentencing) Act 1988 (SA). This decision was made based on the significant risk the respondent posed to the community if released, given his history of sexual offences and lack of insight into his offending conduct. The court believed that indefinite detention was necessary to protect the community and provide the respondent with the opportunity to participate in rehabilitation programs aimed at addressing his sexual behaviour.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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