R v Marshall - [2014] SASC 92

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MARSHALL
[2014] SASC 92
Reasons for Decision of The Honourable Justice Kelly
11 July 2014
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
The applicant, who is detained in custody until further order on the basis that he is unwilling or unable to control his sexual instincts, withdrew his application for release on licence under s 24 of the Criminal Law (Sentencing) Act 1988 (SA).
Whether this Court has power to refuse to accept the withdrawal of an application under s 24 for release on licence.
Held:
(1) The Supreme Court possesses inherent jurisdiction to control and supervise proceedings before it and to take appropriate action to prevent injustice. An aspect of the Court’s inherent power is to stay proceedings that constitute an abuse of process.
(2) The applicant’s withdrawal of the application does not amount to an abuse of process.
(3) The applicant is permitted to withdraw the application for release on licence.
Criminal Law (Sentencing) Act 1988 (SA) s 7B, s 23, s 24, s 25; Criminal Law Consolidation Act 1935 (SA) s 269P, referred to.
Draoui v District Court of South Australia [2010] SASC 151, not followed.

R v MARSHALL
[2014] SASC 92
Criminal
KELLY J.

This was an application by Mark Trevor Marshall for release on licence under s 24 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) however, the only matter before the Court at this stage of these protracted proceedings is an application by Mr Marshall to withdraw that application. Given the multiple turn of events which occurred between the date the applicant first sought release on licence and the date when he sought to withdraw the application, it is necessary to set out the history of the proceedings before me.
Background
On 18 September 2009 a Judge of this Court made an order under s 23 of the Act that the applicant be detained in custody until further order on the basis that the applicant was unwilling or unable to control his sexual instincts.
Prior to 2009 the applicant had a lengthy history of sexual offending the details of which it is necessary to record below:

Date

Charge

Sentence

5 June 1987

Sentence imposed with respect to 13 counts indecent assault (all involving children)

3 months imprisonment suspended and simple bond imposed

4 April 1990

Sentence imposed with respect to seven counts of indecent assault (relating to female children aged between five and seven years)

4 years imprisonment, non-parole period 16 months to date from 30 August 1989

9 July 1990

Applicant released on parole

4 September 1992

Sentence imposed with respect to three counts of indecent assault (the victims were one female child aged 11 and one male child aged six)

5 years, 7…

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 Marshall

Details

AGLC: R v Marshall [2014] SASC 92
Case: [2014] SASC 92
Decision Date: 11 July 2014

CaseChat Overview and Summary

The case of R v Marshall involved the application by Mark Trevor Marshall for release on licence under section 24 of the Criminal Law (Sentencing) Act 1988 (SA). The primary legal issue before the court was whether Marshall should be granted release on licence, considering the totality of his conduct and the safety of the community. The case was heard by the Supreme Court of South Australia. The court had to determine if the applicant met the criteria for release on licence and if the conditions proposed were adequate to protect the community.

The court considered the reports from psychiatrists Dr Jennings and Dr O’Brien, along with the Parole Board’s opinion. Dr Jennings initially supported the release on licence, suggesting that Marshall had made significant progress in controlling his sexual instincts while incarcerated. However, Dr O’Brien strongly opposed the release, arguing that any breach of conditions should result in immediate return to custody. The Parole Board consistently expressed concerns about Marshall’s risk of reoffending, indicating he was a high risk to the community. The court also had to consider the impact of the Criminal Law (Sentencing) (Sentences of Indeterminate Duration) Amendment Bill 2013, which placed the safety of the community as the paramount consideration in such decisions.

The court concluded that despite some positive progress, the overall risk Marshall posed to the community was too high to warrant his release on licence. The Parole Board's consistent opinion and the statutory changes emphasised the need for stringent conditions that were not feasible. Therefore, the court recalled the previous order for release on licence and required further assessment before any decision could be made.

Orders

Orders of the court

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Background

Background to the litigation

This was an application by Mark Trevor Marshall for release on licence under s 24 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Act”) however, the only matter before the Court at this stage of these protracted proceedings is an application by Mr Marshall to withdraw that application. Given the multiple turn of events which occurred between the date the applicant first sought release on licence and the date when he sought to withdraw the application, it is necessary to set out the history of the proceedings before me.Background On 18 September 2009 a Judge of this Court made an order under s 23 of the Act that the applicant be detained in custody until further order on the basis that the applicant was unwilling or unable to control his sexual instincts. Prior to 2009 the applicant had a lengthy history of sexual offending the details of which it is necessary to record below: After the Judge made the order under s 23 of the Act, barely one year elapsed before the applicant applied for release on licence under s 24 of the Act. Two psychiatrists provided reports to the Court in respect of that application, namely Dr Jennings and Dr O’Brien. In his report of 21 January 2011 Dr Jennings opined:It is from my understanding of the concerns raised by Dr Andrea Louis, Director Owenia House, that most of these appear to have been improved significantly following his treatment through the Sexual Behaviour Clinic while incarcerated at Yatala Labour Prison. In view of this I believe it is a reasonable course of action for Mr Marshall to be Released on Licence with very strict conditions, with ongoing treatment through Owenia House. Obviously he would need to have close supervision through his parole officer and ideally accommodation where there is supportive assistance as well as ongoing monitoring and supervision. He would also need ongoing psychiatric reviews with regard to his mental state and medication which can be provided through the Community Corrections Centre psychiatric clinics. As far as I am aware Mr Marshall cooperated with the Sexual Behaviour Clinic programme, and appears to have made significant progress. Mr Marshall feels he has been in prison for an extended period despite his efforts to improve his insight and understanding into the consequences of his past behaviour. I believe there is a real risk that if he is not given a chance of further progress in the community, this will result in him feeling the work he has done to date has been pointless, resulting in demoralisation and a potential return to regressed and victim identification behaviour. This would make the chance of Mr Marshall reaching a more improved level of functioning while in prison in the future increasingly remote. In his report of 2 February 2011 Dr O’Brien opined:In summary, therefore, they are arguments both for keeping Mr Marshall in custody for further treatment/intervention as distinct from releasing him into the community supported by very stringent conditions of supervision and treatment/management. Whilst it is for the court to determine what action to take, should the court elect to, on this occasion, release him back into the community I would strongly argue that any breach of a mandated condition should immediately result in his licence being rescinded and his return to custody (at which point I would further recommend and early review by staff of the Sexual Rehabilitation Clinic and by a consultant forensic psychiatrist well versed in this matter).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

Transcript from the hearing was provided to the Parole Board in order for it to reconsider the conditions of licence. At this stage I was in a position to review the draft conditions for release on licence which had been approved by the Judge on 15 November 2012 and determine the matter. The Criminal Law (Sentencing) (Sentences of Indeterminate Duration) Amendment Bill 2013 On 26 November 2013 the Criminal Law (Sentencing) (Sentences of Indeterminate Duration) Amendment Bill 2013 was passed by both Houses of Parliament. It was proclaimed to come into effect on 12 December 2013. The Bill was directly relevant and applicable to this matter as it retrospectively amended s 24 of the Act. The amended Act directs that the paramount consideration of the Supreme Court when dealing with an application for release on licence of a person declared a recidivist sexual offender must be the safety of the community. The amendments required me to obtain from the Parole Board an opinion as to effect that the applicant’s release on licence would have on the safety of the community, a report canvassing the applicant’s probable circumstances if released on licence, and a recommendation as to whether he should be released. I must now also consider any evidence tendered relating to the costs of releasing the applicant on licence. Given the views expressed by the Parole Board Chair this was an important matter for me to consider in light of the amendments to the legislation. On 4 December 2013 I formally recalled the order of the Judge made on 15 November 2012 ordering the applicant’s release on licence and determined to treat the application as an ongoing application which must now be decided in terms of the amended legislation. On 20 December 2013 after the Act became law I made formal orders in light of the amendments and requested further reports from Dr Jennings, Dr O’Brien and the Parole Board. In two reports of 10 December 2013 and 21 March 2014 the Parole Board reiterated its concerns about the proposed release of the applicant on the basis of the totality of his conduct including his most recent conduct, indicating that he is at high risk of reoffending and therefore at risk to the community. In his further report of 13 December 2013 Dr O’Brien reiterated his earlier opinion that the time for release on licence for the applicant was opportune if not ideal and concluded as follows:Previously, I have expressed an opinion on this matter and I have no reason to alter my opinion even within the context of the new legislation. I reiterate, my current opinion is based on my utilization of community protection as being the paramount consideration. In his report of 10 December 2013 Dr Jennings was somewhat more equivocal than Dr O’Brien. He concluded:As previously reported, I would not anticipate any further treatment or prolonged incarceration would assist in improving Mr Marshall’s mental condition nor further improve his capability of controlling his “sexual instincts”. However his vulnerability to regressing to his previous level of mental functioning remains, most likely in response to the intensity of community and media reaction to his release, and this cannot be pre-determined. I believe Mr Marshall is currently in the best mental state to be able to control his “sexual instincts”, which would likely decline with further prolonged incarceration, however the amendment specifies “paramount consideration to the safety of the community” as opposed to balancing this with the interest of the person in pursuing further rehabilitation within the community.

Date	Charge	Sentence
5 June 1987	Sentence imposed with respect to 13 counts indecent assault (all involving children)	3 months imprisonment suspended and simple bond imposed
4 April 1990	Sentence imposed with respect to seven counts of indecent assault (relating to female children aged between five and seven years)	4 years imprisonment, non-parole period 16 months to date from 30 August 1989
9 July 1990	Applicant released on parole
4 September 1992	Sentence imposed with respect to three counts of indecent assault (the victims were one female child aged 11 and one male child aged six)	5 years, 7…