R v Iwanczenko - [2019] SASC 140

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v IWANCZENKO
[2019] SASC 140
Judgment of The Honourable Justice Parker
13 August 2019
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - PREVENTATIVE DETENTION
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
This is an application for release on licence.
The applicant has a long history of sexual offending, the majority of which involves exposing himself to women, or stealing women’s underwear. In 2013, a Judge of this Court ordered under s 23 of the Criminal Law (Sentencing) Act 1988 (SA) that the applicant be detained indefinitely until further order, and authorised his release on licence under s 24. After he breached his licence conditions in 2015, the applicant was returned to custody, where he has remained since.
On 20 October 2017, the applicant filed a further application for release on licence. It is this application which is now under consideration.
Held, per Parker J, dismissing the application:
1. The present application is governed by s 59 of the Sentencing Act 2017 (SA) as amended by the Sentencing (Release on Licence) Amendment Act 2018 (SA), notwithstanding that it was initially filed under s 24 of the Criminal Law (Sentencing) Act 1988 (at [23]-[25]).
2. The Court is expressly prohibited by s 59(4a) from taking into account the length of time that the applicant has spent in custody or may spend in custody if not released on licence (at [100]-[101]).
3. The decision of the Full Court in Thomas v Attorney-General (SA) is plainly distinguishable and provides no assistance to the present applicant (at [102]-[105]).
4. The Court’s discretion under s 59(1) to release a person on licence is only enlivened if one or the other of the conditions in paragraphs (a) and (b) of s 59(1a) is satisfied. Conversely, if neither condition is satisfied, then the Court cannot exercise the power under s 59(1) (at [106]-[107]).
5. The definitions of “unwilling” and “relevant offence” in s 57(1) must also be applied to s 59 (at [110]-[114]).
6. For the purposes of s 59(1a)(a), a person is willing to control their sexual instincts where there is not a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of their sexual instincts (at [112]).
7. The applicant is at risk of committing a “relevant offence” within the meaning of s 57(1) if he fails to exercise appropriate control of his sexual instincts (at [113]-[121]).
8. At present, there remains a significant risk that the applicant would, if released into the community and presented with an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts. As such, the Court cannot conclude that the applicant is willing to control his sexual instincts within the meaning of s 59(1a)(a) (at [122]-[129]).
9. The discretion of the Court to release the applicant on licence under s 59(1) is not enlivened (at [130]).
Sentencing Act 2017 (SA) ss 57, 59, sch 1 pt 3; Sentencing (Release on Licence) Amendment Act 2018 (SA); Criminal Law (Sentencing) Act 1988 (SA) ss 23, 24; Criminal Law (High Risk Offenders) Act 2015 (SA); Criminal Law Consolidation Act 1935 (SA) ss 56, 134, 158, 170; Summary Offences Act 1953 (SA) s 23, referred to.
Thomas v Attorney-General (SA) [2019] SASCFC 21, distinguished.
R v Iwanczenko [2013] SASC 63, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"unwilling", "willing", "sexual instincts", "relevant offence"

R v IWANCZENKO
[2019] SASC 140
Criminal: Application

PARKER J: This is an application for release on licence pursuant to s 59 of the Sentencing Act 2017 (SA).
For the reasons that follow, I dismiss the application for release on licence.
Background
The applicant, Peter James Iwanczenko, has a long history of sexual offending. The majority of offences committed by the applicant involve exposing himself to women, or stealing women’s underwear.
The earlier sexual offences for which the applicant has been convicted are as follows:
·In 1991, two counts of committing a grossly indecent act;
·In 1992, two counts of offensive behaviour;
·In 1994, robbery with violence and building break and felony; and
·In 1996, one count of committing a grossly indecent act.
The sentencing remarks of Judge Birchall from 1994 relating to the robbery with violence indicate that the applicant broke into a women’s home and stole several items of lingerie. The victim returned home while the applicant was still on the premises. He pushed her into a wall and then to the floor and held her while demanding money. She gave him about $200. In the words of the Judge, he continued to “manhandle” her until he left. The building break and felony involved the applicant breaking into a house and stealing $55. For these offences he was sentenced by the District Court to imprisonment for three years with a non-parole period of 12 months.
Although precise details of the offences of offensive behaviour and grossly indecent act in 1991, 1992 and 1996 have not been provided to the Court, comments in psychiatric reports from that time suggest that the applicant indecently exposed himself to women while wearing women’s underwear and masturbated publicly. The applicant admitted to the psychiatrist, Dr Kenneth O’Brien, in 1994 that he had engaged in such conduct “fairly regularly” and had broken into houses to steal female underwear or taken items from clotheslines.
Between 1997 and 2001, the applicant was not convicted of further offences of a sexual nature or otherwise. The sentencing remarks of Magistrate Baldino dated 11 November 2010 suggest that this seemingly more stable and law-abiding period in the applicant’s life occurred due to the influence of his former wife.
On 28 March 2002, the applicant was sentenced by Judge Lee in the District Court for the following three further offences, to which he had pleaded guilty:
·One count of aggravated serious criminal trespass, contrary to s 170(2) of the Criminal Law Consolidation Act 1935 (SA) (CLCA);
·One count of assault with intent to rob whilst armed, contrary to s 158(a) of the CLCA; and
·One count of indecent assault, contrary to s 56 of the CLCA.
These three offences were committed on 24 May 2001. The applicant, while wearing gloves and armed with a knife, entered the laundry in the victim’s home while she was doing her washing. He placed a gloved hand over the victim’s mouth, pointed the knife at her neck, and demanded money. The applicant dragged her into the bedroom and pushed her on to the bed. The victim struggled and fell from the bed on to the floor, against which the applicant held her by grabbing her around the neck. The applicant eventually escaped to the kitchen, where the applicant caught her and pushed her into a massage room. During the course of the struggle, the applicant roughly touched the victim’s breast and groin areas. This is the most serious offending for which the applicant has been convicted,
The Judge imposed a single sentence for all three offences of imprisonment for seven years and six months, with a non-parole period of five years. Both the term of imprisonment and the non-parole period ran from 24 May 2001, the day on which both the offending occurred and the applicant was arrested.
The applicant was released on parole in August 2008. However, his parole was terminated in November 2008 due to failure to comply with parole conditions. The applicant was returned to custody and served the remainder of his term of imprisonment.
Subsequently, on 11 November 2010, the applicant pleaded guilty to and was sentenced to for the following 25 offences:
·Ten counts of indecent behaviour;
·Five counts of offensive behaviour;
·Seven counts of being unlawfully on premises for the purpose of committing the offence of indecent behaviour;
·One count of unlawful possession; and
·Two counts of stealing.
The Magistrate noted that most of these offences involved the applicant entering premises, exposing himself to (mostly female) members of the public while naked or wearing female underwear and masturbating. These offences were exhibitionist in nature, and involved no element of violence.
A Magistrate imposed a single sentence for all 25 offences, that being a term of imprisonment for three years with a non-parole period of 18 months. The Magistrate noted that he had applied a discount of 12 months imprisonment in recognition of the applicant’s early guilty plea. Both the term of imprisonment and the non-parole period were deemed to have commenced on 4 May 2010, when the applicant was remanded in custody. The applicant did not apply for parole, and was due for release on 3 May 2013.
Before the applicant’s sentence for those 25 offences expired, the Attorney‑General applied for an order that the applicant be detained in custody until further order under s 23 of the Criminal Law (Sentencing) Act 1988 (SA). In response, the applicant applied for an order that, if the order sought by the Attorney-General was made, he be released on licence under s 24 of the Criminal Law (Sentencing) Act.
These applications came before a Judge of this Court who, on 29 April 2013, found that the applicant was incapable of controlling and unwilling to control his sexual instincts within the meaning of s 23 of the Criminal Law (Sentencing) Act.[1] His Honour therefore made an order under s 23 that the applicant be detained in custody indefinitely until further order.[2]
[1] R v Iwanczenko [2013] SASC 63 at [47] (Blue J).
[2] Ibid at [48]-[51], [55] (Blue J).
The Judge also considered the application by the applicant for release on licence. His Honour held that:[3]
The evidence of each of Dr O’Brien, Dr Raeside and Dr Begg is that, if Mr Iwanczenko is released under strict supervisory conditions including mandatory therapy and treatment, there is a reasonable prospect that he will learn to control his sexual instincts. The Parole Board is empowered under section 24 to impose conditions upon Mr Iwanczenko’s release on licence and can be expected to do so having regard to interests of the protection of the community, the interests of Mr Iwanczenko and the interests of the community that Mr Iwanczenko learn to control his sexual instincts. While those conditions cannot guarantee in an absolute sense the protection of the community, I am satisfied that it is appropriate to make an order authorising Mr Iwanczenko’s release on licence under section 24.
His Honour therefore authorised the applicant’s release on licence under s 24 of the Criminal Law (Sentencing) Act.[4]
[3] Ibid at [54] (Blue J).
[4] Ibid at [56] (Blue J).
Subsequently, while released on licence, on 23 January 2015 the applicant was arrested and charged with dishonestly taking property without consent and unlawful possession. The applicant had been granted leave to attend a shopping centre with a Community Corrections volunteer. While at the shopping centre, the applicant stole a quantity of women’s underwear from a store whilst out of the view of the volunteer. Later, upon searching his home, police found a further quantity of women’s underwear which had apparently been stolen by the applicant during prior escorted shopping trips.
As a result of this conduct, on 27 January 2015 the Parole Board issued a warrant for the applicant’s arrest. The applicant was returned to custody on the same day, where he has remained since. On 7 July 2015, the Parole Board concluded that the applicant’s stealing of women’s underwear was a breach of his licence conditions, and terminated his release on licence with immediate effect under s 24(5)(b) of the Criminal Law (Sentencing) Act.
On 24 June 2015, the applicant was sentenced to imprisonment for three months for a basic offence of dishonestly taking property without the owner’s consent and unlawful possession. Those offences related to the stealing and possession of women’s underwear in January 2015.
The application
On 20 October 2017, the applicant filed a further application for release on licence under s 24 of the Criminal Law (Sentencing) Act 1988. It is this application which is now under consideration.
For the reasons that follow, the application made on 20 October 2017 is governed by s 59 of the Sentencing Act 2017, as amended by the Sentencing (Release on Licence) Amendment Act 2018 (SA).
Applicable legislation
After the present application was filed, the Criminal Law (Sentencing) Act 1988 was repealed and the Sentencing Act 2017 was enacted. Section 24 of the Criminal Law (Sentencing) Act was replaced by s 59 of the Sentencing Act. Initially, the transitional provisions of the Sentencing Act did not provide for the application of s 59 to the present application.
However, the Sentencing Act was subsequently amended on 25 June 2018 by the Sentencing (Release on Licence) Amendment Act. Relevantly, the following transitional provision was added to Schedule 1 of the Sentencing Act:
Part 3—Transitional provisions relating to Sentencing (Release on Licence) Amendment Act 2018
3—Transitional provisions
…
(2)Section 59 of this Act as in force immediately after the commencement of Part 2 of the Sentencing (Release on Licence) Amendment Act 2018 applies to the following applications:
…
(c) an application under section 24 of the repealed Act for the release on licence from an order for detention under section 23 of the repealed Act where the application was made but not finalised before that commencement.
As a result, and as agreed by both parties, the present application is governed by s 59 of the Sentencing Act, as amended by the Sentencing (Release on Licence) Amendment Act. Section 59 as amended relevantly provides as follows:
59—Release on licence
(1)The Supreme Court may, on application by the DPP or the person, authorise the release on licence of a person detained in custody under this Division.
(1a)A person detained in custody under this Division cannot be released on licence unless the person satisfies the Supreme Court that—
(a)     the person is both capable of controlling and willing to control the person’s sexual instincts; or
(b)     the person no longer presents an appreciable risk to the safety of the community (whether as individuals or in general) due to the person’s advanced age or permanent infirmity.
(2)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, the person's sexual instincts.
(3)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 to protect the safety of the community (whether as individuals or in general).
(4)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 (2)) provided to the Court;
(b)     any relevant evidence or representations that the person may desire to put to the Court;
(c)     a report provided 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 57(15) on the progress and circumstances of the person tendered to the Court;
(f)    any other report required by the Court under section 61;
(g)     any other matter that the Court thinks relevant.
(4a)The Supreme Court, when determining an application under this section, must not have regard to the length of time that the person has spent in custody or may spend in custody if the person is not released on licence.
… .
Significantly, the Sentencing (Release on Licence) Amendment Act inserted sub-ss (1a) and (4a) into s 59 of the Sentencing Act. Sub-sections (1a) and (4a) each impose a significant limitation on the exercise of the Court’s discretion to release a person on licence. For the reasons that follow, these two limitations have a substantial effect on the disposition of the present application.
The evidence
A significant volume of evidence has been put before the Court in respect of the present application. That evidence is as follows.
Rehabilitation Programs Branch
Rehabilitation Summary Report (Clark Sim) — dated 16 January 2018
At the request of the respondent, Clark Sim, Manager of the Rehabilitation Programs Branch of the Department for Correctional Services, prepared a report in respect of the applicant’s rehabilitation progress since July 2015. Mr Sim’s report details the applicant’s interactions and progress with three senior psychologists with the Rehabilitation Programs Branch: Andrea Kroehn, Anne Black and Dolly Amoroso.
Ms Kroehn had previously facilitated the applicant’s progress through the Sexual Behaviour Clinic-Me (SBC-Me) program between 2011 and 2012 during his time in custody, in addition to assisting with clinical oversight when the applicant was residing in the community.[5] Ms Kroehn conducted 14 telephone sessions with the applicant between 2015 and 2017. Ms Kroehn reported that her ability to engage meaningfully with the applicant was restricted due to his social anxiety, rigid rule-based cognitive style, tendency for hopelessness and lack of motivation regarding social interactions or activities. Nevertheless, due to their past history together, the applicant was willing to open up about some issues, albeit that his sense of hopelessness and lack of empowerment was reported as a significant responsivity barrier.
[5] I am aware from evidence given in other cases that the SBC-Me program is directed at sexual offenders with intellectual or learning difficulties.
Ms Kroehn considered that the applicant’s wearing of female underwear did not necessarily have a causative relation to his propensity for sexual offending. In line with earlier assessments, Ms Kroehn considered that the applicant used the wearing of female underwear to regulate uncomfortable emotions (predominantly boredom and insecurity) rather than in response to sexual desires. She opined that the applicant used the wearing of women’s underwear to avoid escalation of sexual behaviour such as exhibitionism. The applicant reported no arousal or thrill from the theft of the underwear itself. Nevertheless, the applicant indicated a strong motivation to use alternative strategies to manage his uncomfortable emotions in the future.

The applicant undertook three face-to-face sessions at Mount Gambier Prison with Ms Black. Ms Black reported that the applicant displayed mood issues, particularly a sense of hopelessness, which made suitable engagement impossible. As a result, the applicant was referred for a mental health review, although no additional treatment was instigated following this. The applicant declined a subsequent session with Ms Black on 22 December 2016, and his contact with Ms Black was terminated as a result.
Approximately one month later, the applicant was referred to Ms Amoroso. She conducted 12 face-to-face sessions with the applicant between February 2017 and the time of Mr Sim’s report. The goal of these sessions was to reinforce material learnt in the SBC-Me program, develop strategies to mitigate his risk of reoffending and for him to safely reintegrate into the community. Again, it was reported that the applicant had difficulties engaging, with the applicant refusing to attend two sessions due to a belief that he would “never be released”. It was not until the final two sessions with Ms Amoroso that the applicant felt comfortable enough to sit down and engage in mutual conversation, rather than remain standing as he had during previous sessions. Ms Amoroso reported mixed results in these sessions in the areas of self-management and release planning. His presentation ranged from disengaged and mute, rational and able to problem solve, and argumentative and negativistic. The applicant’s progress with Ms Amoroso varied relative to these states.
Throughout his periods of treatment with Ms Kroehn, Ms Black and Ms Amoroso, the applicant’s behaviour in custody was reported to be unproblematic. He was reported to be a quiet and compliant prisoner who predominantly watches television, walks for long periods in the yard and does not interact socially. He has also been involved in gardening and cleaning jobs while in custody.
Mr Sim concluded, given the high volume and intensity of rehabilitation received by the applicant in custody and the applicant’s limitations in engaging with the senior clinicians, that further such rehabilitation sessions in a custodial environment were unlikely to provide any additional benefit. Instead, Mr Sim recommended that if the applicant were granted release, a Rehabilitation Programs Branch clinician conduct comprehensive handover sessions to a suitable Community Corrections officer and community-based psychologist or other treatment provider.
Further Rehabilitation Summary Report (Dr Stacey McCallum) — dated 22 November 2018
At the request of the Court, Dr Stacey McCallum of the Rehabilitation Programs Branch provided a further rehabilitation summary report dated 22 November 2018. Dr McCallum’s report details the treatment and counselling undertaken by the applicant over the course of 2018, following completion of the earlier report by Mr Sim.
Dr McCallum noted that, on previous occasions, it was considered that the applicant made only limited treatment gains during sessions with therapists, due to his responsivity issues and difficulties engaging. Since that time, the applicant had undertaken a further joint individual session with Ms Amoroso and Ms Kroehn, and a further seven one on one sessions with Ms Amoroso. It was reported that the applicant’s engagement had improved, and that he was actively working on a plan for structured days in the community if he were released. The applicant’s general prison behaviour was also assessed as having improved considerably since August 2018, when he was transferred to an independent living unit in the residential accommodation complex at Mount Gambier Prison. The applicant has been observed as more outgoing, interacting better with staff and other prisoners, and contributing more to household responsibilities.
On 19 November 2018, the applicant completed an updated “self‑management plan” and submitted it to the Rehabilitation Programs Branch. A copy of this document has also been put in evidence before the Court. Dr McCallum noted that the applicant had put considerable effort into creating this document and demonstrated a much higher level of insight than he had articulated previously. In creating his self-management plan, Dr McCallum considered that the applicant has demonstrated an understanding of the precipitants of his sexual offending behaviour and how his offending has impacted on others, including his victims. The applicant also identified a number of goals for the future if he is released, including engaging with professional supports in the community, having honest communication with his parole officer, reconnecting with family, engaging in prosocial hobbies and employment. Dr McCallum reported that it is evident that the applicant is now engaging meaningfully in treatment, and that his improved engagement is due to him being able to plan for the future and work towards future oriented goals.
Dr McCallum stated that the applicant’s improvement in recent months, in the form of increased engagement in interventions and working on strategies to mitigate his reoffending risk, represents promising progress. However, Dr McCallum noted that this was a relatively recent development, and that it was possible that these improvements have been assisted by his recent transfer to residential accommodation. She reported that it is unlikely that the applicant will make any further meaningful gains from long-term treatment in prison. As such, Dr McCallum recommended that future treatment for the applicant should occur in the community.
Dr Craig Raeside
Dr Craig Raeside, a forensic psychiatrist at James Nash House, was one of two psychiatric experts who, pursuant to s 59(2) of the Sentencing Act,[6] were directed to inquire into the mental condition of the applicant. In addition to giving oral evidence, Dr Raeside prepared three psychiatric reports dated 9 February 2018, 23 February 2018 and 14 March 2019 respectively. The latter report was provided after Dr Raeside had given oral evidence, following the applicant creating the “self-management plan” and the subsequent report of Dr McCallum.
Report of Dr Raeside — dated 9 February 2018
[6] At that time, the Court made the relevant order under s 24(1a) of the Criminal Law (Sentencing) Act. That sub-section has since been replaced by s 59(2) of the Sentencing Act, which is expressed in near identical terms.
In his report dated 9 February 2019, Dr Raeside indicated that, in comparison to the last time that he had met him, the applicant appeared to show some increased insight and victim awareness, but continued to have difficulty or an unwillingness to answer anything more than simple questions. The applicant’s thinking appeared concrete and his responses brief.
Dr Raeside enquired with the applicant as to the reasons for stealing the women’s underwear in 2015. The applicant indicated that the taking of women’s underwear was “just a comfort thing”. He had not acted on this impulse previously when left unattended, and could not explain why that had changed.
The applicant informed Dr Raeside that he often wore women’s underwear throughout the period that he was in the community. He drew a distinction between wearing women’s underwear and exposing himself to members of the public — with the former making him “feel better”, and the latter being “more of a rush”. He denied having any urges to expose himself when left alone while in the community.
Dr Raeside had reviewed the various psychiatric and psychological reports in respect of the applicant from as far back as 1992. He indicated the overwhelming impression was that there has been little change in the applicant’s presentation and deviant sexual behaviour over time. The applicant has a history of quick resumption of sexual offending soon after release from custody.
Dr Raeside expressed particular concern regarding the applicant’s defiant and belligerent nature when interviewed by the Parole Board regarding his apparent lack of progress in the community (prior to his subsequent offending in 2015). Dr Raeside noted that this was consistent with the applicant’s description that he felt “imprisoned” while on home detention in the community, but also lacked motivation to engage in any resocialisation or other programs which may reduce his risk of offending in the future.
The applicant was psychologically assessed to be in the borderline range of intellectual functioning with evidence of frontal lobe impairment that impacts on his impulse control, organisational abilities and motivation. However, although Dr Raeside noted that the applicant was clearly psychologically disturbed, in his opinion the applicant does not have a serious psychiatric illness. Dr Raeside opined that the applicant qualifies for a diagnosis of a Personality Disorder Not Otherwise Specified (NOS).
Dr Raeside concluded that the applicant is unwilling to control his sexual conduct. The recent developments since he had last seen the applicant in 2013 have not lessened Dr Raeside’s concern that he poses a very high risk to members of the public due to his long entrenched sexual offending behaviour. He went on to note that:
Unfortunately, Mr Iwanczenko’s history and developments in recent years suggest that he is likely to remain at a very high risk for the rest of his life. Questions could be asked about whether it is suitable to continue to keep him in custody for many years, but, unfortunately, he continues to represent a significant risk to the community should he be released unless he has such strict home detention conditions that it is almost indistinguishable from being in custody.
I would recommend that consideration be given to further involvement by Mr Iwanczenko in another sexual behaviour clinic whilst in custody (certainly should he be released into the community) as, with ongoing time and some maturation, he might derive further benefit. However, I think it is unlikely that even should he derive some benefit from this that it would ultimately significantly change his ongoing risk profile.
Report of Dr Raeside — dated 23 February 2018
Subsequently to the preparation of his primary report dated 9 February 2018, Dr Raeside prepared a supplementary report dated 23 February 2018 in light of a number of further documents which had since been provided to him. This additional documentary material did not alter the opinion Dr Raeside expressed in his primary report. However, Dr Raeside did comment on a number of matters raised in these documents of which he was unaware at the time he prepared his primary report.
Dr Raeside noted a handwritten letter from the applicant which was received by the Parole Board on 10 February 2015. The applicant stated in that letter, in reference to his shoplifting women’s underwear on 23 January 2015, that the Community Corrections volunteer who had accompanied him to the store allowed him to enter the store alone, where he stole property while “only thinking about my own selfish needs and not about the people I was letting down”. Dr Raeside noted that the tone of the applicant’s letter was one of regret and remorse, and that this explained that the applicant was on his own in the store as opposed to somehow deceiving the volunteer who was with him.
Dr Raeside also noted the psychological report of Ms Black of Owenia House dated 27 May 2015, in which Ms Black noted the applicant’s difficulties in engaging with the SBC-Me program whilst in custody. Dr Raeside indicated that this was consistent with the information previously available to him. However, Ms Black had noted that even after completing the SBC-Me program, the applicant was assessed as being in the “very high risk range for sexual reoffending” notwithstanding that he had “gained various useful insights during the program”.
Dr Raeside further noted the Rehabilitation Summary Report prepared by Mr Sim dated 16 January 2018, in which Mr Sim summarised the applicant’s progress with three senior clinicians. Dr Raeside noted Ms Kroehn’s opinion that the applicant’s wearing female underwear did not have a causative relation to his propensity for sexual offending, but rather was used by the applicant to regulate uncomfortable emotions and avoid escalation of sexual behaviour. However, Dr Raeside considered that “there is a clear history a link and association between the fetish for wearing female underwear and the more public exhibitionism and of sexual offending more generally.”
While Dr Raeside noted that there were some positive comments, it was apparent that the applicant continued to be have difficulty engaging in various programs, and there is no major change that would suggest any reduction in his risk of reoffending in the future.
Notwithstanding the additional material, Dr Raeside continued to offer the opinion in his earlier report that the applicant continues to be a very high risk of sexual reoffending based on his unwillingness to control his sexual instincts. In particular, he would be at a high risk of sexually reoffending if he was in a situation in which there was an opportunity to do so. Dr Raeside noted that the extra information provided to him only further reinforces his generally pessimistic view about the applicant’s future prognosis.
Oral Evidence of Dr Raeside — on 29 October 2018
Dr Raeside gave oral evidence in this Court on 29 October 2018, elaborating on a number of matters raised in his two preceding reports.
Dr Raeside stated that, in his view, the stealing and wearing of women’s underwear is a precursor to more serious sexual offending. He elaborated that:
his past history shows there’s a clear association between the two. From a more psychological point of view, even though Mr Iwanczenko describes the purposes slightly differently, for example, wearing the underwear he finds calming, soothing and sexually exposing himself is more of a rush. Usually both tend to occur at times when he is feeling stressed or otherwise psychologically disturbed and often the stealing – or often the wearing of the underwear is a precursor to then re-engaging in the sexual offending itself.
The applicant’s lack of insight into the stealing and wearing of women’s underwear as a trigger to further and more serious sexual offending increases his risk of reoffending.
The applicant’s prior reoffending had been triggered by anger, frustration and depression. Dr Raeside further considered that any strong emotion could be a trigger for the applicant to reoffend. On the occasions that Dr Raeside had met with the applicant in the past, he was usually frustrated and angry at the restrictive regime to which he was subject.
Dr Raeside stated that, as a result of the applicant’s lack of insight, he finds the therapy made available to him to be invasive and intrusive. It was Dr Raeside’s view that the applicant has only been willing to engage in such therapy to the point that he has been forced to or required to. In Dr Raeside’s view, this reflects poorly on the applicant’s willingness to control his sexual instincts in that:
I think the two are connected in the sense that the willingness we are talking about is whether, given the opportunity, he would re-offend. I think it shows that whilst being coerced or controlled or supervised externally may prevent or reduce the risk, that the real risk we are worried about is that if he managed to get the opportunity whether he would. I think that that shows that he remains unwilling and would re-engage in that offending behaviour given the opportunity - reasonable opportunity.
Dr Raeside indicated that he was not prepared to say that the applicant was incapable of controlling his sexual instincts (as opposed to unwilling). Rather, Dr Raeside’s view was that he has the capability to control his sexual instincts, but is nevertheless likely to reoffend sexually if given reasonable opportunity. Dr Raeside expressed two reasons for this view. First, during his time in custody, the applicant has not exposed himself to any female officers since an incident on 20 November 2005, despite the opportunity to do so. However, Dr Raeside further noted that it has never been a regular part of the applicant’s history to expose himself to staff while in custody. The “rush” pursued by the applicant came from exposing himself and escaping, as opposed to exposing himself and being immediately caught and punished. The second reason noted by Dr Raeside was that the applicant does not masturbate in his cell in prison, as this was “frowned upon by others”. This demonstrates a capacity to control his sexual urges.
Dr Raeside expressed the view that the applicant remains a high risk for reoffending. The applicant’s established failure to comply with licence conditions whilst in the community is a significant event. He had an opportunity to progress in the community, but reoffended when the opportunity presented itself. Albeit that the applicant’s reoffending was just the stealing of underwear, this nevertheless shows that he remains a high risk for reoffending.
Under cross examination, Dr Raeside indicated that a man like the applicant, with his criminal history, would always be classified as a high risk. This is because the applicant does not have many dynamic factors that are potentially changeable that would reduce his risk. Dr Raeside went on to agree that, whilst the applicant remains in custody, he cannot demonstrate his willingness to control his instincts to expose himself to random women in public because (excluding female prison officers) “he’s not in the public with random women walking around.”
Report of Dr Raeside — dated 14 March 2019
After he gave oral evidence, Dr Raeside prepared a further supplementary report dated 14 March 2019, giving consideration to the applicant’s “self‑management plan” and the report of Dr McCallum dated 22 November 2018. Both of these documents were created after Dr Raeside gave his oral evidence. Dr Raeside did not interview the applicant again for the purposes of preparing this further supplementary report.
Dr Raeside gave consideration to Dr McCallum’s findings that the applicant has seen considerable improvement since August 2018, in particular regarding his behaviour in prison and his engagement in sessions. Dr Raeside noted Dr McCallum’s comment that the applicant has no further treatment programs available to him in custody, and that the applicant is unlikely to make further meaningful gains from treatment while in custody. Dr McCallum had indicated that “the focus needs to remain on goal oriented release and safety planning”, with further treatment needing to occur in the community.
As to the applicant’s self-management plan, Dr Raeside observed that the applicant has made positive comments which demonstrate increased motivation to improve and greater insight. The applicant had clearly stated multiple times that he does not want to get into trouble, is embarrassed about what has happened in the past, he had a poor attitude and alcohol was a problem. Significantly, the applicant now demonstrates insight into the problems that boredom and depression have on his risk of offending, and is aware of the importance of pursuing hobbies to address this issue. Dr Raeside noted that, paradoxically, if the applicant were released into the community on strict supervisory conditions, his access to various hobbies and activities would be limited, thereby enhancing his boredom and precipitating depression. The applicant’s risk of reoffending would increase as a result.
Dr Raeside acknowledged that there had been a recent positive shift in the applicant’s attitude, insight and engagement in the therapy offered to him in custody. However, this was a recent development, and it remained to be seen whether it will be lasting. Dr Raeside accepted that the applicant had received all of the assistance available to him in custody, and that further assistance would be available to the applicant in the community (if he were released). Assuming he retains access to his hobbies in the community, the applicant’s wellbeing would be assisted by being in the community. However, Dr Raeside went on to state that:
Unfortunately for Mr Iwanczenko I understand that the Court’s primary consideration is for the safety of the community rather than for his particular wellbeing. Therefore, although I acknowledge that in terms of Mr Iwanczenko’s progress the supervised release into the community might be beneficial, overall I do not believe that his risk to the community from further sexual offending has shifted significantly. There are some early signs that this might be beginning to shift, but he remains at high risk and overall I see no reason to change my opinions from last year in which I did not support the application for him to be released into the community.
(Emphasis in original)
Dr Narain Nambiar

Dr Narain Nambiar was the second of two psychiatric experts who were directed to inquire into the mental condition of the applicant, consistently with s 59(2) of the Sentencing Act. In addition to giving oral evidence, Dr Nambiar prepared two psychiatric reports dated 2 March 2018 and 15 March 2019 respectively. As with Dr Raeside, the latter report was prepared after he had given oral evidence, and following the applicant creating the “self-management plan” and the subsequent report of Dr McCallum.
Report of Dr Nambiar — dated 2 March 2018
In order to prepare his primary report dated 2 March 2018, Dr Nambiar interviewed the applicant in custody and had regard to the various reports regarding the applicant which have been prepared in the past.
Dr Nambiar noted that, parallel to his history of sexual offending, the applicant has committed a range of non-sexual offences from his adolescence onward. In Dr Nambiar’s view, this confirms that the applicant has an antisocial personality. The applicant is also said to have a paraphilia that gives rise to sexual offending. Dr Nambiar expressed concern that the applicant’s offending behaviour has escalated over the past (then) 16 years of his life, including both contact and non-contact offending. Although his more recent offending whilst on licence has been non-contact and largely exhibitionist in nature, he has in the past committed very serious offences including indecently assaulting women whilst armed with a weapon.
In respect of his more recent offending involving indecent exposure, the applicant admitted to Dr Nambiar that he would expose himself to receive a “rush” in response to prolonged depression and loneliness. This “rush” would negate feelings of anxiety or depression. As to his wearing of women’s underwear, the applicant reported to Dr Nambiar that this was a source of “comfort” that he could not explain. Once again, it appeared to Dr Nambiar that this behaviour occurred in the context of boredom or frustration.
Dr Nambiar examined the history of treatment undergone by the applicant. He noted that the majority of therapies which the applicant has undergone have been abandoned due to lack of engagement or compliance by the applicant. At one point in time, it was suspected that the applicant may have been on the autistic spectrum. However, this has never been confirmed. In the course of undertaking the SBC-Me program in 2011 and 2012, the applicant was identified as being a very high risk for sexual reoffending due to his reluctance to engage, social anxiety, limited cognitive skills and a minimisation and denial of his offences.
Dr Nambiar noted that the applicant’s use of sex to alleviate his distress, depression or anxiety remains an issue that continues to provide a high risk for reoffending in the future.
In his interview with the applicant, Dr Nambiar spoke with the applicant regarding his recent breach of his licence conditions. The applicant had apparently become increasingly frustrated with the electronic monitoring conditions imposed on him, and found it difficult to obtain work under such restrictions. The applicant blamed this frustration as a contributing factor to his reoffending. When the opportunity presented itself in the shopping centre, he obtained women’s underwear in order to comfort himself and alleviate his distress. Dr Nambiar indicated that the applicant fails to acknowledge the significance of this and fails to see how this pattern of behaviour has led to more serious offending in the past.
Dr Nambiar ultimately concluded that:
In the past Mr Iwanczenko has been assessed as being unable to control his sexual instincts. This has been confirmed throughout his offender history and once again was evident when on licence conditions. Despite there not being any clear link between mental illness and his offending, the various psycho-social and environmental factors in Mr Iwanczenko’s life provide him with an ongoing source of frustration, loneliness and depressed mood (not necessarily ameniable to treatment) that continue to cause him to be unable to control his sexual drives. In my opinion Mr Iwanczenko has an inability to control his sexual drive and that if, given an opportunity to commit a relevant offence, would fail to exercise appropriate control of his behaviour and therefore pose a considerable risk to the community. In that regard he has an unwillingness to control his sexual instincts.
Although Mr Iwanczenko’s most recent offending is low on the scale of harm to the community, it does demonstrate a repeat of a pattern of the behaviour that could give rise to more serious offending of a sexual or even non sexual behaviour if unsupervised.
Oral Evidence of Dr Nambiar — on 29 October 2018
Dr Nambiar gave oral evidence in this Court on 29 October 2019.
In the course of his evidence-in-chief, Dr Nambiar elaborated on several aspects of his preceding report. He indicated that, when he noted in his report that the applicant has a paraphilia that gives rise to sexual offending, he meant that:
he has a set of deviant fantasies that relate to in particular exposing himself in public, which includes either appearing naked or in fact masturbating. There is also behaviour that’s been longstanding whereby he wears women’s underwear as a form of comfort, as he describes it.
Dr Nambiar went on to opine that there was a connection between his behaviour in wearing women’s underwear and exposing himself to women, in that one tends to lead to the other. He stated that the stealing of women’s underwear was a precursor to further and more serious offending. When questioned as to why this is, he stated that:
I have established by his history that he has an antisocial personality disorder, so by definition he has a propensity to break laws and offend, part of the offending has been nonsexual but the majority of it has been sexual offending. His pattern of behaviour has been when he has offended it has been mainly in obtaining women’s underwear so that he can wear it. And as I mentioned earlier, that then leads to further offending in the community whereby he wears the underwear, then exposes himself and then masturbates. So there is a connection.
Dr Nambiar stated that the applicant presently is a high risk for reoffending. On previous occasions, the applicant’s offending had occurred while he was unsupervised. However, more recently he has breached his licence conditions by stealing women’s underwear whilst supervised. This demonstrates an increase in risk.
Dr Nambiar further stated that it gave him no comfort that, in his most recent offending, the applicant only stole women’s underwear and did not go as far as exposing himself to a member of the public. The fact that the applicant does not see the connection between those two types of offending means that he has not developed much insight into the nature of the offending and the motivation behind it.
Dr Nambiar further indicated that, in his view, the applicant was unwilling to control his sexual instincts within the meaning of the legislation, in that, given the opportunity, there is a significant risk of the applicant reoffending. To reduce that risk:
He would have to demonstrate his ability to do so. So wherever he is placed - currently he is in custody - he would have to demonstrate by his behaviour and his engagement in whatever therapy is provided that he is able to change his ways. If he were removed to another environment of sorts, once again he would have to show that under supervision that he would be willing to do all of those things.
Dr Nambiar also reiterated that the applicant’s offending is triggered by a variety of emotions including anger, frustration, boredom, depression and loneliness. It was a matter of concern to Dr Nambiar that, upon being released on licence on the previous occasion, the applicant immediately became frustrated with the home detention conditions imposed upon him.
Report of Dr Nambiar — dated 15 May 2019
As with Dr Raeside, Dr Nambiar prepared a supplementary report (dated 15 May 2019) subsequent to his oral evidence, in light of the applicant’s “self‑management plan” and the report of Dr McCallum which followed thereafter. For the purposes of preparing this supplementary report, Dr Nambiar interviewed the applicant again on 6 May 2019.
After reviewing the findings and recommendations of Dr McCallum in her report dated 22 November 2018, Dr Nambiar turned to address the matter of the applicant’s self-management plan. In his interview with the applicant, Dr Nambiar put, with the assistance of Ms Kroehn, some “fairly poignant questions” to the applicant in respect of his self-management plan.
The interview began with a discussion about the applicant’s sessions with Ms Amoroso. The applicant stated that he had covered topics of empathy, strategies for high risk situations and hobbies to keep himself busy in order to distract himself from anxiety or depression. The applicant indicated an awareness that his urge to wear women’s underwear comes about particularly when he is bored, and that it was important to find distractions rather than acting on his urges.
He informed Dr Nambiar that he aims to be more communicative towards people and that he was aware of the importance of discussing his feelings rather than bottling them up. If he were out of prison, he would discuss his urges with his psychologist rather than offend again. He felt that he would be comfortable doing so if extensive handover occurred between services in prison and in the community, such that he would have a familiarity with the workers with which he would need to speak. The applicant also wanted to rebuild connections with his family. In particular, he wanted to be available to assist his mother with her deteriorating health condition.
The applicant indicated that, if released, he would prefer to seek employment rather than do community service if this was possible. However, he understood that there were barriers to his finding work easily. The applicant reported that frustration with this could lead to a higher risk scenario, but that he would use that opportunity to discuss with his therapist alternative strategies to cope with that frustration.
The applicant further reported that his attitude had undergone a positive change. He was now engaging more in therapy, provided that he had a good relationship with the therapist to whom he was assigned. Dr Nambiar himself noted in this report that, during this interview, the applicant was a lot more forthcoming and engaging than on the previous occasion.
In light of these more recent developments in the applicant’s rehabilitation, Dr Nambiar expressed the following opinions:
Mr Iwanczenko has made some further progress since I last interviewed him over 12 months ago. It is important to note however, that progress has only been made recently and for a very short space of time. I would be very cautious in concluding that he has made very significant progress. At the same time I do acknowledge that some progress has been made and that it would appear that this has been related to the relationship that he has established with his current therapist. To echo the suggestions made by Clarke Sim in his report, “if Mr Iwanczenko is granted release, that the relevant RPB clinician conduct comprehensive handover sessions to a suitable Community Corrections Officer and community based psychologist”.
The risk scenarios that have been identified in the past remain the same with Mr Iwanczenko. I concur with the opinion of Dr McCallum that in fact Mr Iwanczenko’s engagement in the intervention has improved in recent months but I also agree with the fact that although his progress is promising, it should be noted that it is a relatively recent development. Mr Iwanczenko’s progress and engagement appears to be in the context of his hope that he will be released into the community in the near future.
In my opinion, Mr Iwanczenko risk of re-offending remains high and will continue to remain high even if released on licence conditions and he is closely supervised. Whether in fact he can implement the strategies that he has come up with in his self management plan, is yet to be tested.
If the court were to consider releasing Mr Iwanczenko under licence conditions, I would support the recommendations made by Dr McCallum as they appear to be sensible and would address the major contributing factors to give rise to reoffending for Mr Iwanczenko.
Parole Board
Parole Board Report — dated 17 April 2018
Section 59(4)(c) of the Sentencing Act requires the Court, in determining an application for release on licence, to take into consideration a report of the Parole Board. To that end, the Court has been provided with a report of Ms E F Nelson QC, Presiding Member of the Parole Board, dated 17 April 2018.
After outlining the applicant’s history of offending and time in custody, Ms Nelson stated as follows:
The Parole Board has since that time reviewed his case, as required by the legislation. He was at times unwilling to engage in an interview process for the purpose of an annual review and, from time to time, would only answer one or two questions, reluctantly. As at February 2017, he was detained at Mount Gambier Prison, where he was able to access psychological counselling should he wish. In 2017 he did engage with a Community Corrections Officer to discuss his Section 24 application, but has not otherwise engaged in any intervention of which we are aware
When he was released on licence he was subject to intensive supervision, including GPS electronic monitoring. He was still able to steal womens underwear whilst in the company of a supervisor.
Ms Hunter from the Offender Management Plan did meet Mr Iwanczenko in mid-2015, after his return to custody, when she said he showed a very different presentation and was actually quite talkative. Ms Anne Black, psychologist, has advised the Parole Board that, in terms of Mr Iwanczenko’s release and future management, there would need to be a graded approach. Initially, if released, it should be into a very structured, strictly supervised situation and one which she described as a “step down manner”. He will require on-going treatment for his reported mental health difficulties and sexual issues, all of which have been unresolved for a considerable period of time. She considered that there would need to be a lengthy on-going process, monitored by a psychologist with expertise in treating sexual offenders.
Mr Iwanczenko himself identifies difficulties with boredom and lack of activity in the community. Lack of structure in his daily activities will be, as he acknowledges, a barrier to successful release.
In our view, Mr Iwanczenko is not currently suitable for release because of his very high risk of re-offending and because he breached his licence conditions in a way that was indicative of potential sexual re-offending. His history indicated that he has a sense of deprivation relating to social connection, and has used maladaptive measures to cope with this, including exhibitionism, sexual offending and utilising prostitutes. It is also of concern that although he has completed the Sexual Behaviour Clinic Program in prison, he failed to implement the strategies he should have learned in the program when in the community.
There are a number of positive factors, including his employment history, and the fact that he has no issue with illegal drugs. In our view, he should have some intervention to deal with his mental health issues and difficulties with social connection, as well as his sexual offending, prior to release. It was to some extent encouraging that when interviewed by Ms Hunter last year, he reacted more positively and engaged more readily, and that may indicate a willingness on his part to participate more effectively in any supervision process. If he is to be released, it is critical that he be subject to electronic monitoring, as well as intensive case management.
In forming these conclusions as to the applicant’s suitability for release on licence, the Parole Board did not have access to the reports of Dr Raeside, Dr Nambiar and Dr McCallum. The Parole Board report also notably predates the applicant’s more recent progress in custody, as outlined in the report of Dr McCallum dated 22 November 2018, the report of Dr Raeside dated 14 March 2019 and the report of Dr Nambiar dated 15 May 2019.
Parole Board Annual Review Report — dated 24 January 2019
Since the time of the Parole Board’s report as to the applicant’s suitability for release on licence, the Parole Board has also prepared an Annual Review Report in respect of the applicant dated 24 January 2019. Unlike the preceding report of 17 April 2018, this report was not prepared specifically for the purposes of the present application, but rather as part of the Parole Board’s ordinary annual review process.
Ms Nelson relevantly noted in this report that:
Mr Iwanczenko has applied to be released again on licence. The Supreme Court has received psychiatric reports in respect of that application. The Court also ordered a report from the Department for Correctional Services concerning any treatment or counselling provided to Mr Iwanczenko since 1 January 2018. The matter has been adjourned further to 5 February 2019.
He has more recently engaged with a social worker from the Rehabilitation Programs Branch to work on his application for release on licence.
The Parole Board has not been provided with copies of the psychiatric reports tendered to the Court, and therefore is not in a position to comment on the assessment of risk contained therein. However, unless there has been significant change we would not consider Mr Iwanczenko suitable for release.
The applicant’s submissions
The applicant submits that it is open to the Court, on the evidence before it, to release him on licence.
The applicant submits that he has, in one form or another, been in custody ever since he was arrested on 4 May 2010. This amounts to a total of over nine years in custody, including the period between 2013 and 2015 when he was in home detention in the community subject to strict licence conditions. Excluding this time in the community, the applicant points out that he has (at the time of oral submissions in July 2019) been in custody for seven years and four months split between two periods of imprisonment.
Since the applicant was placed in custody in 2010, there has been no suggestion of offending involving physical contact. The only offending involving physical contact occurred in 2001. Contrary to that submission, I have already noted that in 1994 the applicant was convicted of robbery with violence.
The applicant submits that he is “someone who doesn’t communicate very easily, which always causes mental health professionals concerns because they can’t find out what the thinking is and then attack it”. He is a “simple man” with a borderline cognitive functioning IQ, making it difficult to fully understand his situation.
Nevertheless, the applicant submits that the more recent psychological reports indicate that he has made promising progress. Notwithstanding this improvement, the psychiatric experts nevertheless conclude that his risk of reoffending remains high. However, the applicant submits that this is a static risk, in that any individual with a past history of offending nearly always retains a high risk of reoffending. In any event, given his limited history of physical contact offending, the Court should question what kind of offending the applicant is at risk of committing. The Court is not bound by the recommendations or views of the psychiatric experts, but must form its own view based on the evidence.
The applicant relies on the recent decision of the Full Court in Thomas v Attorney-General (SA).[7] The applicant submits that the present matter is, in some respects, on all fours with that in Thomas, albeit that the applicant in Thomas had a far more serious history of offending.
[7] [2019] SASCFC 21.

The applicant submits that it is a matter of some concern that a person should remain in custody indefinitely for the stealing of underwear from backyards and acts of public masturbation nine years ago, where he has committed no further offending since apart from shoplifting. It is submitted this is a matter of considerable weight in the balancing exercise.
The respondent’s submissions
The respondent submits that the question for determination by the Court is whether the applicant is now willing and capable of controlling his sexual instincts. The respondent, in taking the Court through a detailed examination of the psychiatric evidence, submits that there is no evidence before the Court to demonstrate that he is willing and capable, and an abundance of evidence which demonstrates that he remains unwilling. As a result, due to the wording of s 59, the Court cannot release the applicant and the application should therefore be refused.
As to the applicant’s reliance on the decision of the Full Court in Thomas, the respondent submits that that was a decision in respect of whether an order for permanent detainment should be made. In the present matter, “that ship has sailed”, in that the Court has already made an order for the applicant’s indefinite detention. The Court is now bound by the requirements of s 59 of the Sentencing Act as amended in 2018 in determining whether to release the applicant on licence.
Consideration
Consideration — length of time in custody
There is some force in the applicant’s submission that the length of time which he has spent in custody to date, and the length of time which he could spend in custody in the future, does not properly reflect the nature of his offending in recent years. Following the applicant’s arrest for offences which were primarily of an exhibitionist nature on 4 May 2010, at all times he has either been in custody or released on licence subject to home detention conditions. His release on licence was terminated in 2015 after less than two years following his arrest for shoplifting offences. He has since remained in prison.
While I have acknowledged that there is some merit in the applicant’s submission about the length of time that he has already spent in custody, or may now spend in custody if he is not released on licence, the Court is expressly prohibited by s 59(4a) from taking into account those issues when deciding whether he should be released on licence.
Consideration — Thomas v Attorney-General (SA)
The applicant has placed some reliance on the recent decision of the Full Court in Thomas v Attorney-General (SA).[8]He submits that the present matter is, in some respects, on all fours with Thomas, and also suggests that the applicant in Thomas had a far more serious history of offending. For completeness, I will address this submission.
[8] Ibid.
In Thomas, the Court of Criminal Appeal considered an application for permission to appeal against an order of a single Judge of this Court that the applicant be indefinitely detained pursuant to s 23 of the Criminal Law (Sentencing) Act. At the same time, the Judge had declined to make an extended supervision order under the Criminal Law (High Risk Offenders) Act 2015 (SA). Kourakis CJ, with whom Nicholson J and I agreed, held that the Judge erred by failing to have regard to the powers of the Court to make an extended supervision order under the Criminal Law (High Risk Offenders) Act. As a result, the appeal was allowed and the indefinite detention order set aside. Instead, the Court ordered that an extended supervision order be made.
It is neither necessary nor appropriate to decide whether or not the applicant in Thomas had a more serious history of sexual criminal offending than the present applicant. It is sufficient to note that while the offences committed by the applicant in Thomas were undoubtedly serious, they each tended towards the lower end of the scale of seriousness for offences of that particular type. Most importantly, none of the offences in Thomas involved violence, although there had been one physical contact offence in 1995 comprising the indecent assault of a youth aged 16 years who had a mild intellectual disability. The present applicant’s record of sexual offending includes the two offences in 1994 and 2001 that involved significant violence to women (albeit without inflicting physical injury) after unlawfully entering their homes. The balance of the applicant’s sexual offending has comprised indecent exposure, public masturbation and stealing women’s underwear.
I consider that the decision in Thomas is plainly distinguishable and provides no assistance to the present applicant. The issue before the Court of Criminal Appeal in Thomas was whether an indefinite detention order was properly made in circumstances where it was possible for the Court to make an extended supervision order. In contrast, the present applicant does not challenge the making of the indefinite detention order but has applied for release on licence.
Consideration — capable of controlling and willing to control sexual instincts
Section 59(1a) imposes the following conditions precedent to the exercise of the Court’s power to release on licence under s 59(1):
(1a)A person detained in custody under this Division cannot be released on licence unless the person satisfies the Supreme Court that—
(a) the person is both capable of controlling and willing to control the person's sexual instincts; or
(b) the person no longer presents an appreciable risk to the safety of the community (whether as individuals or in general) due to the person's advanced age or permanent infirmity.
The Court’s discretion under s 59(1) to release a person on licence is only enlivened if one or the other of the conditions in paragraphs (a) and (b) of s 59(1a) is satisfied. Conversely, if neither condition is satisfied, then the Court cannot exercise the power under s 59(1). Most importantly, following the 2018 amendments, the newly enacted s 59(1a) requires the applicant to satisfy the Court that he meets the requirements of either paragraph (a) or (b).
It has not been suggested that the applicant suffers from advanced age or permanent infirmity such that he no longer presents an appreciable risk to the safety of the community. [9] Thus, it is clear that the condition in s 59(1a)(b) is not satisfied.
[9] He is currently aged 50 years.
Accordingly, the relevant question is whether the applicant is both capable of controlling and willing to control his sexual instincts, within the meaning of s 59(1a)(a).
Meaning of “both capable of controlling and willing to control the person’s sexual instincts”
The expression “both capable of controlling and willing to control the person's sexual instincts” in s 59(1a)(a) is not defined in the Sentencing Act, nor are the individual terms which make up that expression. However, s 57(1) provides the following definition for the purposes of s 57:
unwilling—a person to whom this section applies will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of the person's sexual instincts.
Section 57 is entitled “Offenders incapable of controlling, or unwilling to control, sexual instincts”. Section 57(7) empowers the Court to make an order that a person to whom s 57 applies be detained in custody until further order if satisfied that such an order is appropriate. Both ss 57 and 59 fall within Division 5 Part 3 of the Sentencing Act, and are intrinsically connected. That is because the former provides for the making of an indefinite detention order while the latter provides for the release on licence of a person who is subject to such an order. Both sections also use the terms “unwilling” and “sexual instincts” in analogous contexts and as an integral part of a single legislative scheme. For example, both ss 57(6) and 59(2) require the Court to direct at least two legally qualified medical practitioners to “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, the person's sexual instincts.”
I therefore consider that the test in s 57(1) as to when a person will be regarded as being “unwilling to control sexual instincts” must also be applied for the purposes of s 59. As a result, the phrase “willing to control … sexual instincts” in s 59(1a)(a) can be interpreted as the inverse of the definition in s 57(1). Thus, for the purposes of s 59(1a)(a), a person is willing to control their sexual instincts where there is not a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of their sexual instincts.
Is the applicant at risk of committing a “relevant offence”?
In considering whether a person is willing to control their sexual instincts, it is therefore necessary to consider whether the person is at risk of committing a “relevant offence” if they fail to control their sexual instincts. The term “relevant offence” is defined in s 57(1) as follows:
relevant offence means—
(a)an offence under section 48, 48A, 49, 50, 56, 58, 59, 63, 63A, 63B, 69 or 72 of the Criminal Law Consolidation Act 1935; or
(b) an offence under section 23 of the Summary Offences Act 1953; or
(c)an offence under a corresponding previous enactment substantially similar to an offence referred to in either of the preceding paragraphs; or
(d)any other offence where the evidence indicates that the defendant may be incapable of controlling, or unwilling to control, the defendant's sexual instincts; or
(e)an offence of failing to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse where the defendant is a registrable offender within the meaning of the Child Sex Offenders Registration Act 2006;
While the definition of “relevant offence” in s 57(1) purports to apply only for the purposes of s 57, for the reasons I have already stated, that definition must also be applied for the purposes of s 59.
The applicant was convicted of one count of indecent assault that occurred in 2001, contrary to s 56 of the CLCA. This is a “relevant offence” under paragraph (a) of the definition. However, since 2001, the applicant has not committed any further indecent assault, nor any other offence involving physical contact. When viewed in isolation from any other concurrent offending that may possibly have occurred (e.g. criminal trespass in a place of residence) the stealing of underwear, whether from a shop, a clothesline or otherwise, would constitute the offence of theft contrary to s 134 of the CLCA. Plainly, theft is not, when viewed in isolation, a “relevant offence” within the meaning of s 57(1).
The indecent exposure offences contravene s 23 of the Summary Offences Act 1953 (SA). Those offences would plainly constitute a “relevant offence” under paragraph (b) of the definition. I note that the applicant has not deliberately exposed himself to any member of the public since 2010. However, for the greater part of that period, the applicant has been in custody and for the balance of the period he was subject to home detention. He would therefore have had very little opportunity to indecently expose himself. While the applicant allegedly indecently exposed himself to female prison staff in November 2004 and November 2005, there has been no such report since his incarceration in 2010 or during the two years he spent on home detention. I also note that the applicant now denies that he presently has urges to indecently expose himself. That assertion must be considered in light of the expert evidence.
Both Dr Raeside and Dr Nambiar gave clear expert evidence that the stealing of women’s underwear is a “precursor” to other sexual offending, including exposing himself. However, Ms Kroehn considered that the wearing of female underwear did not necessarily have a causative relation to the applicant’s propensity for sexual offending.
Dr Raeside explained the basis for his disagreement with Ms Kroehn as being that “there is a clear history a link and association between the fetish for wearing female underwear and the more public exhibitionism and of sexual offending more generally.”
On balance, I consider that the opinion of Dr Raeside and Dr Nambiar on this issue is correct. It is apparent from their evidence that the two types of behaviour are inextricably connected, and that the applicant refuses to acknowledge this. The applicant has committed offences involving stealing and wearing women’s underwear far more recently, in 2015 whilst on licence in the community, after having only been released for a relatively short period of time. In light of the apparent connection between these two types of conduct, I therefore consider that there remains a risk of the applicant deliberately exposing himself to members of the public if he fails to control his sexual instincts, notwithstanding the considerable length of time since this has last occurred. The applicant is therefore at risk of committing a “relevant offence” if he fails to control his sexual instincts.
It is apparent from the expert psychiatric evidence that the stealing of women’s underwear by the applicant is a part of his paraphilia that gives rise to sexual offending. It is also clear on the evidence that the stealing of women’s underwear is a precursor to more serious sexual offending by the applicant. I therefore consider that, in the applicant’s case, the stealing of women’s underwear is itself also a “relevant offence” under paragraph (d) of the definition. That is because it is an “offence where the evidence indicates that the defendant may be incapable of controlling, or unwilling to control, the defendant's sexual instincts”. This is so notwithstanding that offending of this type, when considered in isolation, is of a lesser level of seriousness.
For the foregoing reasons, I therefore consider that the applicant is at risk of committing a “relevant offence” within the meaning of s 57(1) if he fails to exercise appropriate control of his sexual instincts.
Would the applicant fail to exercise appropriate control of his sexual instincts?
I turn to consider whether 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.
The overwhelming preponderance of psychiatric opinion evidence is that the applicant is unwilling to control his sexual instincts. Both Dr Raeside and Dr Nambiar consider that the applicant has a high risk of reoffending if released on licence into the community. Dr Nambiar went so far as to state that this risk would remain high even if the applicant were closely supervised. Both Dr Raeside and Dr Nambiar maintained their opinions notwithstanding the applicant’s more recent progress in rehabilitation. As the applicant submits, the Court is not bound to accept this view, but must form its own view based on the evidence. Nevertheless, the opinions of Dr Raeside and Dr Nambiar plainly carry very significant weight.
The applicant’s progress since 2018 is promising. He now demonstrates a higher level of insight into the causes of his sexual offending, albeit that this is a relatively recent development and it remains to be seen if the applicant can maintain this insight over time. The “self-management plan” created by the applicant on 19 November 2018 suggests that he possesses a far greater understanding of his sexual offending than previously. He also outlines strategies to avoid reoffending in the future.
It is apparent from the expert reports compiled over many years that the applicant’s acting on his sexual instincts generally occurs in the face of boredom or depression. He considers that the pursuit of hobbies and other activities will stave off boredom, and therefore diminish the risk of his acting inappropriately in response to his sexual instincts. Whether this strategy would assist the applicant in exercising control over his sexual instincts in the medium to long term remains untested for two reasons. First, the applicant’s insight into boredom as a cause of his misbehaviour is a relatively recent development, and it remains to be seen whether this will be maintained over time. As Dr Nambiar noted, “[w]hether in fact he can implement the strategies that he has come up with in his self management plan, is yet to be tested.” Secondly, while he remains in custody the applicant does not have the opportunity to commit sexual offences of the type that have brought him before the courts over many years.
In any event, as Dr Raeside noted in his final report, if the applicant were released into the community under strict supervision, his access to various hobbies and activities would be limited, thereby enhancing his boredom and precipitating depression. This being so, somewhat paradoxically, if the applicant were released on licence into the community, his risk of failing to control his sexual instincts and reoffending may, in fact, increase.
The applicant’s recent progress in custody is quite promising, but was insufficient to persuade Dr Raeside and Dr Nambiar that he is not at a high risk of reoffending if given the opportunity. I am therefore faced with evidence from two different psychiatric experts that the applicant has a high risk of reoffending if presented with an opportunity. Nothing before the Court persuades me that Dr Raeside and Dr Nambiar’s opinions are not correct.
I therefore consider that, at present, there remains a significant risk that the applicant would, if released into the community and presented with an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts. As such, I cannot conclude that the applicant is willing to control his sexual instincts within the meaning of s 59(1a)(a).
I note that the applicant has submitted that his risk of reoffending is static, in that a person with his history of criminal offending nearly always retains a high risk of reoffending. Dr Raeside agreed with this proposition in cross examination. Be that as it may, the Court cannot conclude that the requirement in s 59(1a)(a) is satisfied when the expert evidence is consistently that the applicant has a high risk of failing to control his sexual instincts in the face of an opportunity to commit a relevant offence.
Because neither of the requirements in s 59(1a) are presently satisfied, the discretion of the Court to release the applicant on licence under s 59(1) is not enlivened. It is therefore unnecessary to consider whether, in the present circumstances, it is appropriate that the applicant be released on licence.
If it had been necessary to consider whether to exercise the discretion to release on licence, the statutory direction in s 59(3) would have been a mandatory consideration.
Section 59(3) requires the Court to give paramount consideration to the protection of the safety of the community when considering an application for release on licence. In considering the safety of the community, I would place the primary weight upon the potential for the applicant to commit further offences similar to those he committed in 1994 and on 24 May 2001. In those instances the applicant used violence towards, and in the latter case also indecently assaulted women after entering their homes. While the numerous offences of indecent exposure committed by the applicant, often accompanied by masturbation, would undoubtedly have been distressing to the victims, there is no suggestion in the material before the Court that their physical safety was put at risk. There is also no evidence as to whether the victims suffered any psychological damage. While the many offences of stealing female underwear committed by the applicant did not directly threaten the safety of the community, the incidents that occurred in 1994 and in 2001, combined with the medical evidence, make clear that there is a risk that this conduct could escalate. However, because the applicant has not satisfied me that he is willing to control his sexual instincts, it is not necessary to further consider this issue.

While I must dismiss the present application, the evidence does suggest that the applicant has started to recognise the need to make use of the many opportunities provided to him over the years to address his offending behaviour. If he maintains that progress, further expert evidence may persuade the Court at some time in the future that he satisfies the requirements for release on licence under s 59.
Conclusion
For the preceding reasons, I dismiss the application for release on licence.