R v Marshall
[2009] SASC 287
•18 September 2009
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 released from prison. He served all of the sentence imposed in 1996, as his earlier release on parole was refused by the Parole Board.
History of Present Proceedings
On or about
29 September 2001Respondent committed offence of causing a child to expose her body to gratify a prurient purpose. This relates to the child “E” who was aged approximately 3 years at the time. Between
12 January 2001 and
17 January 2002Committed offence of causing child to expose part of her body to gratify a prurient interest. This relates to victim “S” who was aged approximately 2 years at the relevant time.
17 January 2002
The Respondent deposited nine rolls of film for developing at K-Mart Modbury, which included the photos of “S” which were developed from these rolls of film.
19 January 2002
Police attended at the respondent’s home and arrested him. The Respondent was however granted bail. The police carried out a search at his house and seized various items from the home, including photos and booklets containing lists of Internet sites relating to pornography.
4 March 2002
Police again attended at the Respondent’s home and searched it. The Respondent was arrested on further charges and bail was refused. The respondent has been in custody ever since.
5 December 2002
The Respondent entered pleas of guilty to two counts of causing a child to expose her body for a prurient purpose. The matter was then referred to the Supreme Court of South Australia for a s 23 enquiry.
3 September 2003 )
22 September 2003 )
23 September 2003 )Evidence was called on a s 23 enquiry before Perry J. The hearing was subsequently adjourned to await defence psychiatric evidence.
2 December 2004
The Respondent’s guilty pleas were vacated and the matter was remitted to the Magistrates Court for trial.
10 October 2005 to
14 October 2005;
15 December 2005 to
16 December 2005;
3 March 2006Evidence and submissions with respect to objective elements of the two alleged offences. 19 April 2006 Judgment delivered in the Magistrates Court. The objective elements of the offences were found proved.
An issue then arose with respect to the mental competence of the Respondent to commit the offences. Evidence as to those matters was taken on 7 August 2006 to 9 August 2006; 17 August 2006; 23 October 2006 - 24 October 2006 and 30 November 2006.
21 June 2007 Judgment was delivered with respect to the mental competence issue. The Respondent was found to be mentally competent. He was convicted of the two charges and the matter was referred back to the Supreme Court for a s 23 enquiry. 22 October 2007
The Respondent’s appeal against his convictions was heard by Sulan J in the Supreme Court. The appeal was allowed and the matter was remitted to the Magistrates Court for a hearing as to the subjective elements of the alleged offences.
27 March 2008
Evidence taken and submissions made on the subjective elements of the alleged offences.
8 May 2008
Judgment was delivered with respect to the subjective elements. The Respondent was convicted and the matter again referred back to the Supreme Court for s 23 enquiry.
19 January 2009 to
20 January 2009Evidence was called in the Supreme Court with respect to the s 23 inquiry. The application was then adjourned to 29 January 2009 for submissions.
29 January 2009 Submissions made following which order made that respondent be referred to Owenia House for assessment as to suitability to enter into treatment program with them. Application adjourned to 11 March 2009 to await report. 11 March 2009 Report obtained but further order made that supplementary report be provided by Owenia House. Matter further adjourned to await supplementary report. Due to a delay in obtaining the further report, the application was adjourned on a number of occasions, but finally set down for further evidence and submissions on 28 August 2009.
28 August 2009 Evidence called from Michael Burvill and further submissions made. Judgment reserved. Penalty
The offences charged against the Respondent were laid pursuant to s 58A CLCA, which has since been repealed. At the relevant time however, s 58A(1) provided that a person who, with a view to gratifying prurient interest, caused or induced a child to expose any part of his/her body should be guilty of an indictable offence, and for a first offence liable to be imprisoned for a term not exceeding two years and for any subsequent offence for a term not exceeding three years.
The Respondent has a previous conviction for an offence under this section. The maximum applicable sentence with respect to each of these offences is therefore a period of three years. As can be seen from the chronology set out above, however, the Respondent has now been in custody for a period longer than the maximum penalty which could be imposed with respect to these crimes. Notwithstanding that matter, counsel for the DPP has asked that, in addition to making the s 23 order, I impose sentence with respect to these two crimes.
Medical reports
It appears that for about the last four years the Respondent has been in custody at the Adelaide Remand Centre, although previously he was incarcerated at the Yatala Labour Prison. Over many years, the Respondent has been the subject of psychiatric assessment. Despite his extensive psychiatric history however, it appears he has not received any treatment during the period he has been on remand for the present offences.
An application pursuant to s 23 Sentencing Act was made in 1996 and expert reports were provided by Dr O’Brien and Dr Raeside. No order was made at the time however as the psychiatrists could not agree as to whether the relevant tests were satisfied. Included in the voluminous quantity of reports with respect to the current application are copies of the reports from that earlier enquiry, together with more recent reports relating to the trial of mental competence and the current s 23 application. I have therefore had regard to the following reports:
·Dr O’Brien – 13 February 1996 (previous s 23 enquiry);
·Dr O’Brien – 21 July 2003 (s 23 report ordered with respect to the hearing before Perry J);
·Dr O’Brien - 30 October 2008 (report ordered on current s 23 enquiry);
·Dr O’Brien – 11 November 2008 (addendum report on current s 23 enquiry);
·Dr Begg – 1 July 2003 (s 23 report with respect to hearing before Perry J);
·Dr Begg – 7 February 2005 (report into mental competence on retrial for these offences);
·Dr Begg – 2 September 2008 (report ordered on current s 23 enquiry);
·Dr Louis – 26 February 2009;
·Dr Louis – 27 July 2009 (supplementary report).
In addition, I was provided with the transcript of evidence given by Dr O’Brien on 23 October 2006 with respect to the mental competence hearing, the transcript of evidence of Dr Raeside of the same date, as well as the evidence of Dr Begg given on 24 November 2006 in the same enquiry.
Dr O’Brien and Dr Begg also gave evidence with respect to the present application. In addition, the defence called evidence from Mr Hall and Mr Glanville, both of whom are associated with the Prison Fellowship Organisation. The Prison Fellowship is a public benevolent institution, which is mainly concerned with helping prisoners and their families. Mr Hall is a volunteer with the Fellowship and has been visiting the Respondent in prison on a regular basis. Mr Glanville started the South Australian branch of the Fellowship about 15 years ago and continues to be actively involved in its affairs. He gave evidence as to the accommodation that would be available for the Respondent in a Prison Fellowship house, should he be released from prison. The prosecution also provided a report (Exhibit P3) of Mr Michael Burvill, the Manager of the Rehabilitation Programs Branch at the Department of Correctional Services, relating to the selection process and criteria for a prisoner’s entry into the Sexual Offender Treatment Program in gaol. Mr Burvill subsequently gave evidence as to the availability in prison of a treatment program for the respondent.
Dr O’Brien
Dr O’Brien is the Service & Clinical Director of the Forensic Mental Health Service in South Australia and has extensive experience in assessing offenders with respect to s 23 CLSA proceedings and its predecessor s 77A CLCA In this capacity, he has known the Respondent for possibly 10 or 12 years. He said that the Respondent had a number of different diagnoses, the two most prevailing being a borderline personality disorder and a chronic post traumatic stress disorder. He also suffers from a condition known as paedophilia. He said the Respondent had difficulty in coping with stresses and his primary mechanism for decompensating was regression into a childlike or infant like state. He has difficulty at times relating to adults and feels more comfortable dealing with younger people, particularly children. He did not consider that the Respondent fitted into the category of a predatory sex offender, but said that the Respondent needed children for companionship and emotional security and his offending tended to occur in that setting.
Dr O’Brien referred to his report dated 19 September 2007 in which he expressed the opinion that the Respondent was incapable of controlling his sexual instincts and furthermore was unwilling to control those sexual instincts. He disagreed with an assessment made at about the same time by Dr Begg, who thought that the Respondent had developed some insight and was no longer a significant risk. Dr O’Brien said, however, that he was quite surprised when he saw the Respondent on 15 September 2008 with respect to the present matters, as he noticed some changes in his presentation. He thought that in the 12 months since the previous report, the Respondent had become a bit more reflective and a bit more introspective and seemed to be more willing to try and develop more mature responses to stressful situations.
Dr O’Brien returned to see the Respondent on 26 September 2008 and felt that the apparent improvement had continued. Dr O’Brien said that the respondent still adhered to the reasons he had given in the past for his actions involving the two children who are the subject of the current offences and that the basic elements of the offending had not changed, as the respondent had never admitted that the purpose of that behaviour was prurient or for a sexual purpose. Although Dr O’Brien did not feel that there had been any significant change in the respondent’s presentation, he was surprised at the respondent’s apparent increased willingness to try to develop more mature responses to stressful situations. He said he attributed this, rightly or wrongly, to the increased interest that was being taken in the Respondent by Mr Hall and Mr Glanville.
In his report dated 30 October 2008[1], Dr O’Brien referred to the criteria under s 23 and expressed the opinion:
(1) Capacity to control
Mr Marshall has now taken greater responsibility for his actions and is expressing remorse for them. Such developing insight is far more likely to improve his capacity to control his sexual instincts. Whether or not he has reached that point at the present time is problematical, but I am optimistic that with the continuation of the present assistance/support, together with the more obvious availability of trained professionals in the area of sexual offending (either the prison-based Sexual Offender Treatment Programme or community-based programmes such as Owenia House (formerly SOTAP), and the Department for Correctional Services community-based sexual offender treatment programme then adequate and sustained capacity may be achieved. Indeed, there may be opportunities, and it is for the Court to decide, whether or not bail or home detention be considered for him so that he has access to such programmes (allowing his responsiveness to such programmes to be evaluated before final determination of the current matter).
It is a truism that his capacity to control is currently either evolving or present and is essentially linked with the availability and nature of the treatment provided for him. In my opinion, and possibly for the first time in his life, he is now therapeutically “open” and receptive for such interventions; it would be a tragedy, therefore, if such an opportunity were not :”seized”. It may not occur again or at least in the foreseeable future, thereby putting both Mr Marshall and the general community at risk.
(2) Willingness
In my opinion, this question is intimately linked with the capacity issue. His willingness to control in a more colloquial sense is clearly present. However, whether or not that criterion is met within the language of the legislation is more difficult to adjudicate on and, in my opinion, is intimately associated with the question of the provision of immediate treatment opportunities for him.
[1] Exhibit P4.
In evidence in Court, Dr O’Brien said that[2]:
… On the basis of the more recent reviews of him, and I have to say to my surprise, I felt there was an eyelet of opportunity to work with him. I also took the view that in therapeutic terms not only was it important for this to be acknowledged but also to be acted on because it may well be that if the opportunity presents itself for therapy and it’s missed, there may not be another opportunity for a long time, if ever. (Emphasis added).
[2] Transcript 19 January 2009 p12.
Dr O’Brien found it difficult however to be categorical about the question of incapacity, which he described as “an evolving dynamic state”[3], but said he now felt that the Respondent was moving far more in the direction of capability of controlling. He said that[4] if he was without any therapeutic opportunity, he would probably have to say he remains incapable. Factors which he considered would lessen the risk included stable and supervised accommodation, high-quality monitoring and participation in a dedicated sexual offender treatment program[5] If the Respondent meaningfully participated in such conditions, Dr O’Brien was quite optimistic that the Respondent would be moving in a positive direction. He felt there was some internal change occurring. As far as unwillingness was concerned, in the Respondent’s case, he thought that was closely linked with capacity. He said as capacity improves, willingness improves and similarly if capacity diminishes then willingness would also change concurrently. He said however that he:
…would be saying he is unwilling if he was not provided with any meaningful therapeutic opportunities at the present time.[6]
[3] Ibid
[4] Ibid
[5] Ibid p13.
[6] Ibid p14.
When asked about whether he thought the Respondent was sufficiently far along for him to sustain his current situation in the community, Dr O’Brien commented[7]:
Provided the parameters I’ve outlined in my report could be objectively met, I believe so. We are talking about risk and managing risk and what is an acceptable risk. Mr Marshall will always be risky and the community will always be – at the present time – at some risk. The question is whether it’s an acceptable risk. In my respectful view it would be an unacceptable risk to return him to the community unless all those other objectives and recommendations were put in place. If they were put in place and I was satisfied that they were put in place, and of course naturally the courts would have the final determination on that, I believe it is moved from an unacceptable risk into an acceptable risk.
[7] Ibid p15.
Dr O’Brien said that the Correctional Services community-based programs had temporarily been suspended. The only dedicated program for sexual offenders in the community at the present time is Owenia House (formerly Sexual Offenders Treatment Program – ie SOTAP). Dr O’Brien said the Forensic Mental Health Service would be prepared to take a role in advising Community Corrections about referral to such a program, should the Respondent be released.
In response to a question from me about the risk to the community and whether it would be better for the Respondent to have treatment in custody or after his release, Dr O’Brien said[8]:
…I think one would have to measure up the intensity and sophistication of what was available in the community versus what was available in the gaol. The old SOTAP program has been around a long time and I have a high regard for it; there’s some very sophisticated and experienced therapists there. So I would have confidence they would be able to provide a new equivalent service compared to the one in gaol. He would probably paradoxically have greater opportunity for his own personal abuse issues to be addressed in the community than he would in gaol. The services for personal abuse victims are fairly limited.
[8] Ibid p23.
In commenting on Mr Burvill’s report as to the availability of the equivalent program in gaol, Dr O’Brien thought that at best the Respondent would go on to a waiting list, but how long that list would be was unclear. In his report dated 11 November 2008, Dr O’Brien said:
… Conditions which require to be entrenched for an acceptable (this threshold is for the Court to determine) degree of risk to be considered include:
1.Supervised/supported accommodation – not necessarily 24 hours a day, but sufficiently stringent to minimise risk.
2.Intensive daily monitoring, such as electronic bracelet coupled with appropriate restrictions on personal and geographical movements.
3.Regular meetings and reporting to statutory officers such as a Home Detention Officer or a Community Corrections Officer.
4.Mandated attendance at an appropriate community-based Sexual Offender Treatment Programme.
5. Regular monitoring of his participation at, and response to, such a programme.
6.Abstinence from alcohol and illicit drugs, coupled with random testing.
7.Any other measures that the Court deems to be necessary both to enhance treatment/intervention strategies and to minimise risk to the community. Conditions such as continuing to take any current or contemplated prescribed medication by an authorised medical practitioner, ought to be part of his community-based conditions.
Dr Begg
Dr Begg, like Dr O’Brien considered that the respondent suffered from paedophilia. He described him as:[9]
A.Essentially, I believe he’s a man with quite immature personality functioning as a result of repeated and extensive childhood abuse resulting in a post-traumatic stress disorder, which is a chronic condition and manifestations of that disorder and his personality combined result in him frequently regressing in his personality function and also dissociating in his personality function.
Q.I wonder if you could expand on what you mean by ‘regression’ and ‘dissociating’.
A.‘Regression’ refers to the manner in which a person, when usually under a form of stress but not necessarily, will think and behave in a manner like a younger person, particularly a child, may think and behave. Regressions can occur in normal people under extreme stress, but usually don’t occur in normal people unless the stress is very extreme. Whereas with Mr Marshall it can happen with fairly mild stress and when thinking and acting like a younger person the behaviours that are demonstrated are obviously more immature in that respect. Dissociation is a specific aspect of personality functioning that often occurs when people regress and I’ve seen that occur with Mr Marshall. Normally emotions and the accompanying thought are combined together, so for example if a pleasant experience happens there’ll be an accompanying emotion of happiness. Likewise, if something unhappy happens there’s usually an accompanying emotion that is equivalent, such as disgust or anger. When emotions and feelings – sorry, when emotions and ideas are connected together properly, this seems to help people with the regulation or the expression of those ideas so that the behaviour that is demonstrated has – the person appears to have greater control over their behaviour when the two go together. So it is as if – or rather when – in people who lack that association, and we term that dissociation, such individuals as in the case of Mr Marshall will have greater difficulty in controlling the behaviour that is associated either with the idea – if it’s unaccompanied by emotion – or with the emotion if it’s unaccompanied by an idea and that will manifest itself in impulsivity and other behaviours that would suggest that the person either hasn’t thought carefully about their action or has undertaken the action in a rash way. So the dissociation which is occurring with Mr Marshall, I believe, is important because of its impact on his ability to control the sexual impulses.
[9] Ibid p41.
When Dr Begg reported to the Court on 9 August 2007[10] he thought the Respondent was capable of controlling his sexual instincts and was willing to do so. In his report of 2 September 2008[11] however he said that the respondent would not be able to control his sexual instincts. He said that[12] the main factor he looked at was the degree to which the Respondent dissociates and regresses and was concerned at the manner in which that had occurred in 2008, possibly brought on by an article in The Advertiser newspaper which related to the death of someone the respondent knew. Dr Begg was concerned that outside of the structured environment of the prison, similar occurrences could have an adverse effect upon him. He said:[13]
… I came to the conclusion that he was not capable of controlling his sexual instincts but I need to qualify that by pointing out that it’s not a clear-cut case. There were some favourable features present as well but on the balance of probabilities I felt he was not capable.
…I think given the right opportunity, such as somebody being present, I think he would be unwilling to control his sexual instincts.
[10] Exhibit P9.
[11] Exhibit P8.
[12] Transcript 19 January 2009 p47.
[13] Ibid p46.
He said that the Respondent had indicated a disposition towards getting help through programs such as SOTAP and had presented as quite genuine in that regard. He did not feel the Respondent was just saying it for its positive effect. Dr Begg thought that if such a program had been delivered to the Respondent in custody, he would have participated voluntarily. He agreed that without some help in terms of therapeutic intervention, to deal with the risk of recidivistic sex offending behaviour, there was a risk that, by leaving him in gaol, his progress would go backwards. He agreed that the conditions recommended by Dr O’Brien, should the Respondent be released into the community, were appropriate and he thought that the Respondent would be capable of adhering to them. Dr Begg was asked to comment on the degree of risk to the community, should the Respondent be released into the community with proper support, which included a sexual offenders treatment program of some sort, and said[14]:
My concern is that if those supports are not present, and given opportunity, that he would act upon that in an adverse manner. However, whilst support is available and if that support is ongoing, then I think the risks are greatly reduced. I think there is a risk where the risk comes when he disassociates and regresses and at that point, if he is in contact with children, particularly children who may be sexualised in their own behaviour, then I don’t believe at that point that he would be able to control his impulses. However, on a day-to-day basis, without having close contact with children, I think he would be okay and I don’t believe, unlike some of the more mature paedophiles, that he would be actively seeking out opportunities with children. I think it would be more a case of where he came into contact with children through circumstance rather than in a predatory manner.
[14] Ibid p55.
Mr Hall
Mr Hall presented as a dedicated and sincere volunteer, who over the years appears to have been involved in a number of charitable organisations. About six months before he retired, he joined the Prison Fellowship. He has been seeing the Respondent in the Remand Centre for about four years. He visits the Respondent about once a week and also speaks to him on the telephone from time to time. In the event that the Respondent was released into the community, he would be available to assist and support him, which, in combination with other members of the Fellowship, would include appropriate supervision. He said that in the event of the Respondent being released on some form of home detention bail, he would be prepared to accompany the Respondent when leaving the house for an approved purpose. He would also ensure that he did not engage in behaviours that exposed him to the risk of re-offending as well as adhering to conditions concerning his non-involvement with children.
Mr Glanville
Mr Glanville gave evidence as to the accommodation which had been located for the Respondent, which is a house property in the metropolitan area leased by the Fellowship (address supplied to the Court). He described it as an old house with three bedrooms. The Respondent would have his own room. At the time Mr Glanville gave evidence, there was one former prisoner resident in the house. Mr Glanville said the premises had previously been assessed as suitable for home detention for other prisoners, although on this occasion, the Home Detention Report had classified it as unsuitable due to its proximity to schools, etc. Although there would be no-one from the Fellowship residing in the house, Mr Glanville said that someone from that organisation would visit the Respondent at least once a day. He also confirmed that there would be a suitable person available to accompany the Respondent, should he need to leave the premises for any approved purpose. He confirmed that if the Respondent were permitted to reside in the house, the Fellowship would ensure that any other tenant would not be a sex offender. He said that the Fellowship had a firm policy that if there was any breach of bail or home detention arrangements they should be reported to the appropriate person, whether it be a parole officer, home detention officer, supervision officer or the Court. Mr Glanville thought that the Respondent should be allowed to leave the house, possibly two or three times per week in the company of a volunteer, to provide him with some social contact, but the volunteers would ensure that he not be in company at any time of any children.
Dr Louis
As a result of the evidence of Dr O’Brien as to the “eyelet of opportunity” combined with the evidence of Mr Hall and Mr Glanville as to the availability of accommodation and supervision for the respondent, on 29 January 2009 Mr Mancini as counsel for the respondent proposed that the sentencing of the respondent and the s 23 application be adjourned and that the respondent be released into the community, pursuant to a bail agreement, ie a Griffiths remand, to enable him to undertake a regime of treatment within the community. He submitted that the bail agreement could include strict conditions as to the supervision of the respondent while he was undergoing treatment. I indicated however that it would be inappropriate to proceed in that way without having any information as to the availability of a community-based sexual offenders program for the respondent. According to Dr O’Brien the only program available was Owenia House, and at that stage there was no information before me as to whether Owenia House would be prepared to provide that treatment. Dr Louis of Owenia House subsequently provided a report to the court dated 26 February 2009. Dr Louis is the Director of Owenia House and is a psychologist with experience in clinical and forensic psychology. In her report, Dr Louis referred to her previous contact with the respondent and said:
Mr Marshall demonstrates a poor understanding of factors which he needs to control to prevent further offending. He does not appear to understand or have strategies to manage factors leading up to offending. Rather, he attributes control and responsibility to others, including the victims for offending. He shows a tendency to minimise and justify his offending, including alluding to himself as being younger or more vulnerable than his victims. He has a lack of appreciation of victim impact issues and holds attitudes conducive to child molestation, such as “girls can enjoy sex as young as six”, “I’ve seen girls as young as four want to”. There appears to be a paucity of suitable people who could assist him in a community relapse prevention plan by offering appropriate emotional and social support, and in his case, adequate supervision.
The above factors do not auger well for treating Mr Marshall safely in the community with a view to reducing his risk of future offending. Most worrying is that Mr Marshall attributes some of his offending to regression not remembering which places him out of touch with reality and not in a position to control his actions even should he so desire. This makes Mr Marshall especially dangerous and a real and significant risk to children in the community. He is not, at this stage, suitable for community treatment.
In essence, I strongly believe it would not be appropriate to, as Mr Marshall and his legal representative may wish, treat his ‘regression’ and child sexual offending concurrently or to treat these in the community. Issues related to regression or psychosis will need to be addressed before treatment of child sexual offending could commence. A prerequisite for treatment of child sexual offending is that the offender accept responsibility and be able and willing to put in place control strategies to prevent further offending. Becoming ‘regressed’ and/or not remembering mean Mr Marshall is far from ready for a sexual offender programme. I would strongly advise that, for Mr Marshall’s and the community’s sake, the latter because he will eventually be placed in the community again, he be offered treatment in a secure setting for firstly the ‘regression’, etc, and then be included in the prison-based sex offender programme where there is, I believe, provisions for group or, in exceptional circumstances, individual intervention.
When the matter came on for further hearing, however, counsel for the respondent pointed out that Dr Louis had prepared her report without the benefit of the more recent reports provided by Dr Begg and Dr O’Brien, nor the transcript of evidence given by them in relation to the current application. I therefore sought a supplementary report from Dr Louis. After the relevant materials had been provided to Dr Louis, she expressed the following opinion in a report dated 27 July 2009:
I feel Mr Marshall’s unstable mental state, lack of response to previous treatment, denial of any sexual motivation for his present offending, places him at high risk of further offending. His inability or unwillingness to see his present offending as anything more than a mistake or foolish is an impediment to treatment. If not overcome, Mr Marshall’s ability to reduce his risk by identifying, addressing and correcting his pro-offending attitudes and behaviours as well as building a lifestyle which is mindful of his risks factors is limited.
I believe Mr Marshall is a predatory offender who poses an unacceptably high risk to the community without very clear guidelines for community living, careful monitoring as well as treatment for child sexual offending – the last so he may eventually be able to monitor and control his own risk factors. Regarding treatment, I believe he is not yet ready. I would like to see his mental issues better stabilised but accept Dr O’Brien’s opinion that this is the most treatment-ready he has seen Mr Marshall over his years of association with his care. Further, Mr Marshall is in denial about his present offending which means he is not suitable for treatment. Having noted this, Owenia House would accept Mr Marshall on a provisional basis for treatment and a clinician would work with him to move him past denial. He would, however, be excluded should he remain in denial.
Mr Burvill
The application came on for further hearing before me on 28 August 2009, at which time Mr Burvill was in attendance. Mr Burvill is the Manager of Rehabilitation Programs for the Department of Correctional Services. He gave evidence with respect to the current treatment program available within the prison system, with particular reference to the suitability and the ability of the respondent to participate in it.
Mr Burvill said the Rehabilitation Programs Branch is responsible for the provision of group-based criminogenically focussed intervention programs specifically aimed at violent offenders, sexual offenders and Aboriginal offenders. He said that at present the programs offered for sex offenders are focussed on custodial sentences. In the past there have been community-based programs but those are not currently available. The present custodial programs are delivered at Yatala Labour Prison and at the Mount Gambier Prison. There are however maintenance programs for offenders who have completed the core program, and those programs are available both in custody and in the community. The community-based services are conducted at the Adelaide Community Corrections Office.
Mr Burvill said that the current program for sexual offenders takes a minimum of six months and up to nine months to complete. Sessions are conducted up to four times a week, or two and a half hours per session. Participants are also required to undertake homework between sessions. The Department has the capacity to run two programs per year at Mount Gambier and two at Yatala, with an average of 11 prisoners in each group. He said that a person is usually referred for assessment at the relevant branch. If a person is found to be a moderate to high risk in terms of likelihood of re-offending, he is considered eligible for the program provided he has the mental capacity to engage in the program and no mental health issues will interfere with participation. Some degree of prioritisation is given to offenders who are likely to be subject to early release, as opposed to someone who is subject to a lengthy sentence.
Mr Burvill indicated that he was at present completing the program for the next list of participants at Yatala and in the event that the respondent was fast-tracked, he would potentially have access to that program. In response to a question about whether the respondent’s rehabilitation needs might be met by the program offered in custody, Mr Burvill’s evidence was:[15]
A.My understanding of Mr Marshall’s rehabilitation needs are that he has two areas of need, one being his offending and the work that needs to be done around that to reduce his risk of re-offending, but also his own personal experiences of trauma as a young man. I understand that quite a bit of work in terms of psychological intervention has been attempted in that regard and I can’t comment on the success or otherwise of those interventions. The programs that we deliver don’t necessarily deal with a person’s individual experience of trauma, so his involvement with the program may accompany a referral for psychological services in addition to what we provide.
Q.Do you have any understanding of the sexual offender treatment programs offered at Owenia House in the community.
A.I worked there for two years 13 years ago and I believe I have a clear understanding of what’s being provided there. By comparison, I suppose my understanding is that Owenia House would be a once a week attendance scenario, perhaps over a year or perhaps longer. They do have specialist programs for intellectually disabled offenders. It is a similar conceptual framework in the delivery of their programs and so on, but the intensity is markedly reduced compared to the Correctional Services version.
Q.Is it an impediment for a prisoner to participate in the program if they’re denying the offence, that is, if they still don’t acknowledge –
A.It is at Owenia House but not in our program, no.
[15] Transcript 28 August 2009 p 7.
Mr Burvill said however that whilst the respondent remained on remand and not sentenced, the Department was not in a position to offer him any services.
In cross-examination, Mr Burvill was asked about the possibility of the respondent having access to psychological services to address his personal psychological trauma and Mr Burvill said:[16]
A.I manage the rehab programs branch. There is also a psychological services unit in the department who would receive a referral regarding Mr Marshall. They would undertake intervention with him before, during or after his involvement with the program, depending on psychologist availability and timing and those kinds of things.
Q.That could be done within the prison system.
A.It would be done within the prison system by DCS staff, yes.
[16] Transcript 28 August 2009 p 10.
Mr Burvill said that the first step for the respondent to access treatment would be for an assessment to take place. He said he would endeavour to expedite that matter, although that would probably require the movement of the respondent from the Remand Centre back to either the Yatala or Mount Gambier Prisons, notwithstanding that the respondent had apparently been moved to the Remand Centre for safety as a protected prisoner.
At the conclusion of Mr Burvill’s evidence Mr Mancini renewed his application for an order that the s 23 application be adjourned and that the respondent be released into the community on bail on acknowledged stringent conditions to enable him to undertake a course of community-based treatment to promote his rehabilitation. Mr Mancini submitted that the respondent’s liberty had been compromised by the lack of treatment during the lengthy period that he had been on remand and argued that there was no guarantee that a course of treatment would be expedited within the prison system, should the s 23 application be granted. He pointed out that the respondent had, in effect, already been subject to an indeterminate sentence by reason of his lengthy period in custody, which exceeded the sentence that could be imposed for the subject offences. Further, he submitted the program outlined by Mr Burvill would not address the psychological help required by the respondent to deal with his personal trauma.
The fact that the respondent has been in custody for such a long period of time without the issue of his sexual offending being addressed is unsatisfactory and a matter of concern. It is however understandable that the Department of Correctional Services does not offer such programs to people on remand, given the limited number of places available within the program, and the opportunity that a remand prisoner has to apply for bail and be released at any time. The respondent is however in a rather unique position, having been on remand for such a long period of time whilst legal issues relating to his status have been addressed.
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.
I am satisfied that returning to the community and daily life will be stressful for the respondent and the evidence indicates that stress might well cause regression in the respondent which would increase the risk of re-offending. Although there are structures which can be put in place to reduce that risk, both doctors appear to agree that the risk remains although, as Dr O’Brien indicated, it is a question of whether such structures could move the respondent from an unacceptable risk to an acceptable risk. Although there are positive signs exhibited by the respondent, the effect of the medical evidence is that without appropriate medical treatment, the respondent is incapable of controlling his sexual instincts and that he is also unwilling to do so. I am therefore satisfied that at the date hereof the respondent is incapable of controlling his sexual instincts and is also unwilling in that there is a significant risk that he would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts. I am therefore satisfied that the discretion to make the s 23 order is enlivened.
It is now necessary to address the issue of whether, in those circumstances, it is appropriate to make an order for the indefinite detention of the respondent. The respondent has now been in custody for a lengthy period of time. It is clear however that during that period both Mr Glanville and Mr Hall have had a positive influence on him and I am satisfied that they would use their best endeavours to assist and supervise the respondent, should he be released into the community.
Dr O’Brien has emphasised the need to take advantage of the “eyelet of opportunity” to work with the respondent to promote his rehabilitation but central to the proposal for the respondent to be released is the availability of an appropriate treatment program. On the evidence before me, the only community-based treatment program available for the respondent is that provided by Owenia House. I am satisfied that if I were to make an order for the respondent to attend such a program, he would do so, and it appears from the report of Dr Louis dated 27 July 2009 that she would accept the respondent into it although only on a provisional basis in order to move the respondent past denial, which is fundamental to treatment in that program. The thrust of Dr Louis’ two reports is however that the respondent is not at this stage suitable for community treatment and she is clearly pessimistic about the respondent’s ability to complete the program offered by Owenia House. That, in my opinion, weighs heavily against any order or arrangement by which the respondent be released into the community while undergoing therapy for his sexual difficulties.
From the evidence of Mr Burvill however there is a viable alternative treatment program for the respondent. Mr Burvill has indicated that, subject to an appropriate assessment, the respondent should be able to be admitted promptly into the program being conducted by the Department of Correctional Services within the prison system. That program appears to be more intensive than that provided by Owenia House and it can be delivered to the respondent in prison without any risk to the community. Absent an order under s 23, the respondent will have completed the sentence to be imposed with respect to the subject offences and will be able to be released immediately upon sentence being passed. In my opinion, however, at the present time there is a significant risk of the respondent re-offending and until appropriate treatment is provided to him the respondent represents a continuing danger to the community. It would therefore be inappropriate for him to be released from prison without any treatment for his sexual problems. On the evidence of Mr Burvill, that treatment could commence in the near future and Mr Burvill has assured me that he would endeavour to expedite the matter.
In my opinion, the protection of the community favours the making of an order under s 23. I therefore order that, pursuant to s 23 Sentencing Act, the respondent be detained in custody until further order, such order to be in addition to the sentence of imprisonment to be imposed with respect to the subject offences. I further order that a copy of these reasons be provided to the Department of Correctional Services with a request that the respondent’s entry into a sexual treatment program be expedited.
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