R v Iwanczenko - [2013] SASC 63

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v IWANCZENKO
[2013] SASC 63
Judgment of The Honourable Justice Blue
29 April 2013
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
The Attorney-General applies for an order that Mr Iwanczenko be detained in custody until further order under section 23 of the Criminal Law (Sentencing) Act 1988 (SA) ("the Act").
Mr Iwanczenko applies, if such an order is made, for an order authorising his release on licence under section 24 of the Act.
Held:
1. Mr Iwanczenko is incapable of controlling and unwilling to control his sexual instincts within the meaning of section 23 of the Act (at [46]-[47]).
2. An order should be made that Mr Iwanczenko be detained in custody until further order (at [48]-[51]).
3. An order should be made authorising Mr Iwanczenko’s release on licence under section 24 of the Act (at [54]).
Criminal Law Consolidation Act 1935 (SA) ss 56, 77a, 158, 170; Criminal Law (Sentencing) Act 1988 (SA) ss 18A, 23, 24; Summary Offences Act 1953 (SA) ss 7, 17, 23, referred to.
R v Ainsworth [2008] SASC 67; (2008) 100 SASR 238; R v Kiltie (1986) 41 SASR 52; R v O'Shea (1997) 94 A Crim R 560; R v Whyte [2006] SASC 56, discussed.
R v Armfield [2005] SASC 108; (2008) 155 A Crim 299; R v Wichen [2005] SASC 323; (2005) 92 SASR 528, considered.

R v IWANCZENKO
[2013] SASC 63
Criminal:
Blue J:

The Attorney-General applies for an order that Mr Iwanczenko be detained in custody until further order under section 23 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”).
Mr Iwanczenko applies, if such an order is made, for an order authorising his release on licence under section 24 of the Act. With the consent of all parties, I heard Mr Iwanczenko’s conditional application concurrently with the Attorney-General’s application.
The applications give rise to the following issues:
1.   Is Mr Iwanzcenko incapable of controlling, or unwilling to control, his sexual instincts?
2.   If so, am I satisfied that I should make an order that Mr Iwanczenko be detained in custody until further order?
3.   If so, should an order be made authorising Mr Iwanzcenko’s release on licence?
I first address the question whether an order can and should be made that Mr Iwanczenko be detained in custody until further order under section 23. Unless and until such an order is made, the question cannot arise as to Mr Iwanzenko’s release on licence under section 24. I put aside for the time being any considerations relating to release on licence.
Pre-conditions for application by Attorney-General
Section 23(2a) of the Act provides:
If a person has been convicted of a relevant offence, the Attorney-General may, while the person remains in prison…

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 [2013] SASC 63
Case: [2013] SASC 63
Decision Date: 29 April 2013

CaseChat Overview and Summary

In the case of R v Iwanczenko, the Supreme Court of South Australia considered the application for release on licence by Mr Iwanczenko, a prisoner who had been classified as a dangerous sexual offender. The central issue before the court was whether Mr Iwanczenko should be released on licence under the provisions of the Sentencing Act 1998 (SA), given his history of sexual offences and the psychiatric evidence regarding his capacity and willingness to control his sexual instincts. The court had to weigh the risk of Mr Iwanczenko committing further offences against the potential benefits of his participation in a structured rehabilitation program.

The court evaluated the psychiatric evidence provided by three experts, all of whom concluded that Mr Iwanczenko suffers from exhibitionism, a form of paraphilia. They noted that there was a high risk of reoffending if he were released without strict supervisory conditions. The experts also opined that while Mr Iwanczenko had made some progress in therapy, he was not yet in a position to control his sexual impulses without ongoing supervision and treatment. The court was satisfied that, under the proposed conditions of mandatory therapy and strict supervision, there was a reasonable prospect that Mr Iwanczenko would learn to control his sexual instincts. Consequently, the court determined that making an order for his release on licence was appropriate, balancing the protection of the community with Mr Iwanczenko’s rehabilitation needs.

The court concluded that Mr Iwanczenko was incapable of controlling and unwilling to control his sexual instincts, thereby qualifying him as a dangerous sexual offender under the Sentencing Act 1998 (SA). Despite this, the court authorised his release on licence under section 24 of the Act, subject to the conditions recommended by the psychiatric experts. The decision reflects a cautious approach to the release of high-risk offenders, ensuring that the public’s safety is safeguarded while also considering the potential for rehabilitation.

Orders

Orders of the court

Held:

1. Mr Iwanczenko is incapable of controlling and unwilling to control his sexual instincts within the meaning of section 23 of the Act (at [46]-[47]).

2. An order should be made that Mr Iwanczenko be detained in custody until further order (at [48]-[51]).

3. An order should be made authorising Mr Iwanczenko’s release on licence under section 24 of the Act (at [54]).

Background

Background to the litigation

The power to make an order is exceptional and should only be exercised with caution and upon cogent evidence.[14][14] R v Ainsworth (2008) 100 SASR 238 at [56] per White J (Doyle CJ agreeing).Background facts Mr Iwanczenko was born in 1969. After leaving school, he completed a four year apprenticeship in painting. His employment since then has been primarily as a painter and a labourer. In March and October 1991, Mr Iwanczenko committed three grossly indecent acts.[15] They involved exhibitionistic behaviour similar to that committed between August 2009 and March 2010 described at [35] below. In April 1991 he was fined for the two March offences and in June 1994 he was sentenced for the October offence to 3 months imprisonment suspended upon his entering into a bond.[15] Summary Offences Act 1953 (SA) s 23(2). In or before 1993, Mr Iwanczenko commenced a relationship with a woman with whom he commenced living in late 1993. They married in 2000. In December 1993 and January 1994, Mr Iwanczenko committed offences of housebreaking and larceny[16] and robbery with violence[17] respectively. He broke into two separate houses to steal women's underwear. On the second occasion, he was disturbed by the occupant. He grabbed her, pushed her to the ground and asked for money. [16] Criminal Law Consolidation Act 1935 (SA) s 170.[17] Criminal Law Consolidation Act 1935 (SA) s 158. As a result of these matters, Mr Iwanczenko was referred by his general practitioner to Dr O'Brien in February 1994. Dr O'Brien provided a psychiatric report for consideration by the Court when sentencing for these offences. In May 1994, Mr Iwanczenko was sentenced in the District Court for those two offences to 3 years imprisonment commencing in April 1994 with a non-parole period of 12 months. He was released on parole in January 1995. Mr Iwanczenko saw Dr O’Brien monthly while in prison between May 1994 and January 1995. Thereafter he saw him from time to time until September 1999. In April 1996, Mr Iwanczenko committed a grossly indecent act.[18] In October 1996, he was sentenced to 2 months imprisonment suspended upon entry into a bond.[18] Summary Offences Act 1953 (SA) s 23(2). Between 1997 and May 2001, Mr Iwanzcenko was working as a labourer and living in Adelaide with his wife. In May 2001, Mr Iwanczenko committed aggravated serious criminal trespass[19], assault with intent to rob whilst armed[20] and indecent assault.[21] He entered the victim’s home wearing a balaclava and armed with a knife. He pointed the knife towards her neck and demanded money. He dragged her into the bedroom onto the bed and then held her to the floor by grabbing her around the neck. He subsequently touched her on the breast and groin when she escaped to the kitchen.[19] Criminal Law Consolidation Act 1935 (SA) s 170.[20] Criminal Law Consolidation Act 1935 (SA) s 158(a).[21] Criminal Law Consolidation Act 1935 (SA) s 56. In May 2001, Mr Iwanczenko was arrested for those offences and remained in custody until sentenced in the District Court in March 2002. He was sentenced to 7½ years imprisonment commencing in May 2001, with a non-parole period of 5 years.

Evidence

Evidence Before The Court

Mr Iwanczenko has committed a number of non-sexual offences, including larceny, wilful damage, assault and resist police. Psychiatric evidence Dr O'Brien provided to the Court psychiatric reports dated February 2012 and February 2013. He also gave oral evidence. He interviewed Mr Iwanczenko in January 2012 and February 2013. Dr O'Brien had treated Mr Iwanczenko between February 1994 and September 1999 and had provided reports for sentencing or parole purposes in 1994, 1997 and 2006. Dr O'Brien expressed the opinion that Mr Iwanczenko suffers from paraphilia, namely exhibitionism. He expressed the opinion that, if Mr Iwanczenko were simply released from prison, there would be a high risk that he would commit further sexual offences, particularly when experiencing anxiety or stress. He expressed the opinion that Mr Iwanczenko is presently incapable of controlling and unwilling to control his sexual instincts. He expressed the opinion that Mr Iwanczenko has made progress in undertaking the Sexual Behaviour Clinic program, but “he is not there yet”. He expressed the opinion that it is desirable in his own interests that he be returned to the community under strict supervisory conditions, including regular mandatory therapy and participation in the Owenia House program. Dr Raeside provided to the Court reports dated January 2012 and February 2013. He also gave oral evidence. He interviewed Mr Iwanczenko in January 2012 and January 2013. He had previously interviewed Mr Iwanczenko and provided to the Magistrates Court a report in September 2010. Dr Raeside expressed the opinion that Mr Iwanczenko suffers from paraphilia, particularly exhibitionism. He meets the criteria for diagnosis of Personality Disorder Not Otherwise Specified. He expressed the opinion that, if Mr Iwanczenko were simply released from prison, there would be a high risk that he would commit further sexual offences, particularly when experiencing anxiety or stress. He expressed the opinion that Mr Iwanczenko is incapable of controlling and unwilling to control his sexual instincts. He expressed a similar opinion to that expressed by Dr O'Brien concerning the desirability in Mr Iwenczenko’s own interests of his being released into the community under strict supervisory conditions. Dr Begg provided to the Court psychiatric reports dated January 2012 and February 2013. He also gave oral evidence. He interviewed Mr Iwanczenko in January 2012 and February 2013. Dr Begg expressed the opinion that Mr Iwanczenko suffers from paraphilia and specifically exhibitionism. He expressed the opinion that, if Mr Iwanczenko were simply released from prison, there would be a significant likelihood that he would commit further sexual offences, particularly when experiencing anxiety or stress. Dr Begg recommended that Mr Iwanczenko be released under strict supervisory conditions, including mandatory individual and group therapy, abstaining from alcohol and illicit drugs, and being assisted in the development of a social network. On that basis and for those reasons, Dr Begg said that he did not support Mr Iwanczenko’s continued detention under section 23 powers and believed that he does have a capacity and willingness to control his sexual impulses. Capacity and willingness

Decision

Reasons for decision

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. Conclusion On the Attorney-General’s application under section 23 of the Act, I order that Mr Iwanczenko be detained until further order. On Mr Iwanczenko’s application under section 24 of the Act, I authorise Mr Iwanczenko’s release on licence. I will hear the parties as to the date of release.

Ratio Decidendi

Legal Principle Established

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