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…

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 Iwanczenko

Details

AGLC: R v Iwanczenko [2019] SASC 140
Case: [2019] SASC 140
Decision Date: 13 August 2019

CaseChat Overview and Summary

The case of R v Iwanczenko involves an application for the release of Peter James Iwanczenko on licence after an indefinite detention order was made under s 57 of the Sentencing Act. The applicant has a long history of sexual offences and has been detained under an indefinite detention order since 2018. The primary legal issue before the court was whether the applicant satisfied the conditions precedent for the exercise of the court’s power to release him on licence under s 59(1) of the Sentencing Act. Specifically, the court had to determine whether the applicant was both capable of controlling and willing to control his sexual instincts, or whether he no longer presented an appreciable risk to the safety of the community due to his advanced age or permanent infirmity.

The court considered the applicant’s history of sexual offending, his engagement with rehabilitation programs, and expert evidence provided by psychologists. The court noted that while the applicant had made some progress in recognising the need to address his offending behaviour, he had not demonstrated the required level of control over his sexual instincts. The court also found that the applicant did not satisfy the alternative condition of no longer presenting an appreciable risk to the community due to advanced age or permanent infirmity. The court concluded that neither of the conditions precedent under s 59(1a) was satisfied, and therefore the applicant was not eligible for release on licence.

The court dismissed the application for release on licence, noting that while the applicant had made some progress, he had not sufficiently demonstrated the required level of control over his sexual instincts or that he no longer presented an appreciable risk to the community. The court emphasised that the applicant’s history of sexual offending and lack of progress in managing his sexual instincts were significant factors in reaching this decision. The court also highlighted that the statutory conditions precedent under s 59(1a) must be strictly adhered to in determining whether an applicant is eligible for release on licence.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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,

Evidence

Evidence Before The Court

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 BranchRehabilitation 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.”