R v Marshall - [2009] SASC 287

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MARSHALL
[2009] SASC 287
Judgment of The Honourable Justice Nyland
18 September 2009
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE
Application by DPP for order pursuant to s 23 Sentencing Act on basis that respondent unwilling or unable to control his sexual instincts – respondent with long history of sexual offending – psychiatric evidence that respondent currently receptive to treatment to resolve his problems – whether respondent ready for or capable of release into community – availability of sexual offender treatment program in community – respondent eligible for prison-based treatment program.
Finding that respondent incapable of and unwilling to control sexual instincts – discretion to make a s 23 order enlivened – order made that respondent be detained in custody until further order.
Criminal Law Sentencing Act 1988 s 23, referred to.
R v Ainsworth (2008) 100 SASR 238; R v England (2004) 89 SASR 316, considered.

R v MARSHALL
[2009] SASC 287

NYLAND J: This is an application by the Director of Public Prosecutions (DPP) that Mark Trevor Marshall (the Respondent) be detained in custody until further order pursuant to s 23 Criminal Law Sentencing Act 1988 (Sentencing Act). It is alleged that the Respondent is incapable of controlling, or is unwilling to control, his sexual instincts. The Respondent is currently awaiting sentence with respect to two charges of causing a child to expose her body with a view to gratifying prurient interest. Should a s 23 order may be made it can be in addition to, or instead of, any sentence imposed for those offences.
The respondent has a lengthy history of sexual offending which is relevant to this application.
Previous offending by the Respondent
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

Respondent 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 months, 5 days, non-parole period 4 years (sentence included unexpired portion of parole).

[On 13 October 1995 due to a breach of a designated condition that he not have contact with children and also due to re-offending the Respondent’s parole was cancelled.]

28 June 1996 Sentence imposed with respect to one count of indecent assault and one charge of procuring a child to expose her body (the victim was a female child aged six years). 5 years, 3 months, 12 days. Non-parole period of 4 years. (Other offences not of a sexual nature also included in this sentence).

On 8 January 2001, the Respondent was…

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 [2009] SASC 287
Case: [2009] SASC 287
Decision Date: 18 September 2009

CaseChat Overview and Summary

In the case of R v Marshall, the Director of Public Prosecutions applied for an order under section 23 of the Sentencing Act, seeking the indefinite detention of the respondent who had a history of sexual offences. The respondent was deemed incapable of controlling or unwilling to control his sexual instincts, and the court was tasked with determining whether he was ready for or capable of release into the community. The court considered psychiatric evidence indicating that the respondent was currently receptive to treatment to resolve his problems, but also noted that he had not yet received the necessary therapeutic intervention. The availability of sexual offender treatment programs in the community and in prison was also a factor in the court’s decision.

The legal issue before the court was whether the respondent's history of sexual offences and his current inability to control his sexual instincts justified an order for his indefinite detention. The court had to assess whether the respondent was incapable of or unwilling to control his sexual instincts, and whether an indefinite detention order was appropriate to protect the public. The decision required careful consideration of the medical evidence, the respondent's treatment needs, and the potential for rehabilitation. The court had to balance the need for public protection against the principles of proportionality and the exceptional nature of indefinite detention orders.

The court concluded that the evidence established the respondent was incapable of controlling and/or unwilling to control his sexual instincts. Both medical practitioners provided consistent evidence that the respondent was currently incapable and unwilling, with one doctor stating that the respondent's condition was contingent on receiving therapeutic intervention, which had not yet occurred. The court found that the threshold requirement for a section 23 order was met, and therefore, the discretion to make such an order was activated. The court made an order that the respondent be detained in custody until further order, ensuring the public's protection from the respondent’s conduct.

The final order made by the court was that the respondent be detained in custody until further order, reflecting the court’s determination that the respondent was incapable of controlling and/or unwilling to control his sexual instincts. This decision underscores the importance of indefinite detention orders as a protective measure, given the exceptional nature of such orders and the need for them to be supported by cogent evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On the prosecution case, however, the evidence establishes that the respondent is incapable of controlling and/or is unwilling to control his sexual instincts. On that basis the discretion to make an order pursuant to s 23 is activated and an order should be made.Conclusion The making of a s 23 declaration is a significant matter. As White J said in R v Ainsworth[17]. An indefinite sentence involves a departure from a fundamental principle of sentencing, namely, that of proportionality. The purpose of the order is principally protective, in other words, to protect the public from conduct of a particular kind by the offender. It has been said that because of the exceptional nature of the order, it should be confined to cases in which it is really required. Further, a judge should only make the order upon cogent evidence and with a clear appreciation of the exceptional nature of the course that is being taken. [17] (2008) 100 SASR 238 at [56]. The first step in the determination of a s 23 application requires the court to be satisfied that the offender lacks the requisite capacity or willingness to control his sexual instincts. Once that is established the next step is for the court to determine whether it is appropriate to make an order for indefinite detention. In the first part of the inquiry, the court is required to obtain reports from two medical practitioners with respect to the issue of incapacity or unwillingness. In R v England[18] Doyle CJ described how the court is to use that medical evidence to determine whether or not a person is incapable of controlling his or her sexual instincts. He said at [23]:There is nothing in the section to suggest that each opinion considered in isolation must be sufficiently persuasive to support a finding of incapacity. Such an approach to a finding of fact would be most unusual. For all sorts of reasons one witness might express a firmer or more convincing opinion than the other. Usually findings of fact are made on all of the relevant material, having regard to its combined force. As long as the threshold requirement of two opinions as to incapacity is met, there is no reason why the judge should not be left to assess the evidence of either witness, and then to decide whether or not the judge is satisfied that the defendant is incapable of controlling his sexual instincts.[18] (2004) 89 SASR 316. In this case I have heard evidence from Dr O’Brien and Dr Begg, both of whom have had contact with the respondent over a number of years. It appears that over that period of time they and others have vacillated in their opinions and expressed differing views on the topic of the respondent’s incapacity and/or unwillingness. On the hearing of this application, however, there appeared to be some consistency in the evidence given by each of them. Dr O’Brien had earlier been of the view that the respondent was both incapable and unwilling to control his sexual instincts but he was now more optimistic about that situation changing as a result of a difference in attitude of the respondent. Dr O’Brien’s opinion was, however, contingent upon the respondent receiving some therapeutic intervention, which has not yet occurred. He acknowledged that without that the respondent remained incapable and unwilling. Although Dr Begg described this as “not a clear-cut case”, the effect of his evidence also was that the respondent is presently incapable and unwilling to control his sexual instincts due to the difficulties associated with the respondent regressing when in situations of stress. He was however supportive of the provision of an appropriate sexual treatment program to assist the respondent in addressing his difficulties.

Ratio Decidendi

Legal Principle Established

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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	Respondent 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 months, 5 days, non-parole period 4 years (sentence included unexpired portion of parole).
[On 13 October 1995 due to a breach of a designated condition that he not have contact with children and also due to re-offending the Respondent’s parole was cancelled.]
28 June 1996	Sentence imposed with respect to one count of indecent assault and one charge of procuring a child to expose her body (the victim was a female child aged six years).	5 years, 3 months, 12 days. Non-parole period of 4 years. (Other offences not of a sexual nature also included in this sentence).
On 8 January 2001, the Respondent was…