R v Modra - [2009] SASC 68

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MODRA
[2009] SASC 68
Judgment of The Honourable Justice Nyland
13 March 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - MISCELLANEOUS MATTERS - SEX OFFENDERS INCAPABLE OF CONTROLLING SEXUAL INSTINCTS
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY ATTORNEY-GENERAL OR OTHER CROWN LAW OFFICER - APPLICATIONS TO INCREASE SENTENCE - OFFENCES AGAINST THE PERSON
Application by Attorney-General for order pursuant to s 23(5) Sentencing Act to detain respondent in custody at end of sentence – respondent sentenced to lengthy term of imprisonment for rape and other offences – sentence expires April 2009 – finding that respondent unwilling to control sexual instincts – whether order for indeterminate detention should be made – availability of sex offenders program – need for respondent to receive treatment prior to release to protect community and to assist respondent in re-integration into society – possibility of release on licence pursuant to s 24 Sentencing Act – order made pursuant to s 23(5).
Criminal Law Sentencing Act 1988 ss 23, 24; Statutes Amendment (Truth in Sentencing) Act 1994 s 48; Criminal Law Consolidation Act 1945, referred to.
R v Ainsworth [2008] 100 SASR 238; Buckley v R (2006) ALJR 605, applied.
R v Whyte [2006] SASC 56, discussed.
Modra v Police [2006] SASC 56; R v Healey [2008] SASC 83, considered.

R v MODRA
[2009] SASC 68

NYLAND J: This is an application by the Attorney-General (SA) pursuant to s 23 (2)(a) of the Criminal Law Sentencing Act 1988 (Sentencing Act). Pursuant to s 23(5) Sentencing Act an order is sought that the respondent be detained in custody until further order with the detention to commence at the expiration of all terms of imprisonment that the respondent is likely to serve.
Background
On 19 December 1989, the respondent was convicted and sentenced with respect to three counts of rape. At the date of sentence the respondent was 29 years of age. There were two victims of the three rape offences. The sentencing judge referred to their victim impact statements and described each case as one of the more horrific and terrorising instances that he had ever come across in his eleven and a half years as a judge of the court. At the same time as he was sentenced with respect to the rape offences, the respondent was sentenced with respect to 11 housebreaking and larceny offences.
The respondent’s convictions activated a breach of parole, which he had commenced to serve on 7 July 1986, following his release with respect to an arson offence for which he was convicted in 1984. There was an error in the sentencing process which the judge subsequently corrected on 2 March 1990. There was a further adjustment to the sentence as a result of a successful appeal to the Court of Criminal Appeal. Following that appeal, the respondent was sentenced to 15 years imprisonment to commence at the expiration of the unexpired portion of his parole. That resulted in a sentence of 16 years, nine months and 15 days. A non-parole period of 12 years was fixed to commence from 19 December 1989. The respondent was subsequently sentenced to further terms of imprisonment for a number of other breaking and entering offences committed in 1987 and 1988, as well as offences of escaping from lawful custody, larceny and use of a motor vehicle without consent, which were committed on 15 October 1992. There was yet a further adjustment to the respondent’s sentence as a result of the implementation of the Statutes Amendment (Truth in Sentencing) Act 1994.
A detailed summary of the history of the respondent’s sentences of imprisonment is helpfully set out by Besanko J in Modra v Police[1] that being a judgment on appeal concerned with the sentences imposed for the further breaking and entering offences as well as those offences committed on 15 October 1992. For present purposes it is unnecessary to set out that history in detail, but the cumulative effect of these matters is that the respondent has been continually in custody since he was sentenced in 1989 for the rape and break-in offences, apart from the one day in 1992 when he was unlawfully at large. His current head sentence will expire on 12 April 2009.
[1] [2006] SASC 52 at [11-16].
The respondent became eligible for release on parole on 30 July 1999, but his application for release has been refused on a number of occasions[2] If the respondent is not released on parole prior to his release date and is not sentenced to a further term of imprisonment, in the absence of an order pursuant to s 23 Sentencing Act, the respondent will be released from custody on 12 April 2009. That release will be unconditional and the respondent will not be subject to any requirement of supervision.
[2] Ibid at [17-22].
Application by the Attorney-General
The present application is brought by the Attorney General on the basis that there are reasonable grounds to believe that the respondent is a person who is incapable of controlling, or unwilling to control, his sexual instincts in respect of whom the court may be satisfied that an order under s 23(5) Sentencing Act is appropriate. Section 23(1) Sentencing Act defines a person as being unwilling,
… if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts.
In this case, the Attorney-General relies upon the extended definition and asks that I find the respondent unwilling to control his sexual instincts, as opposed to be incapable of so doing. The test imposed is essentially objective and does not require an assessment of the subjective willingness of the person to exercise control of his or her sexual instincts.
The meaning of “significant risk” in the context of this legislation was discussed by White J in R v Whyte[3] (and cited with approval by Anderson J in R v Healey[4]):
Before a Court concludes that a person is unwilling in the defined sense, it must be satisfied that the risk of failure to exercise appropriate control is "significant". In context, the word "significant" has the meaning of "substantial". Put more colloquially, the Court must be satisfied that there is a "good chance" that the risk will eventuate. The mere possibility of a failure to exercise appropriate control of sexual instincts will not be sufficient. But on the other hand the Court does not have to predict that the offender will fail to exercise appropriate control, or even consider it probable that he will fail to exercise such control.
[3] [2006] SASC 56 at [30].
[4] [2008] SASC 83 at [76] by Anderson J
The statutory provisions
Section 23(3) Sentencing Act requires the court to direct at least two legally qualified medical practitioners nominated by the court to enquire into the mental condition of a person to whom the section applies, as to whether that person is incapable of or unwilling to control his sexual instincts.
The court may make an order pursuant to s 23(5) of the Act that a person be detained in custody until further order if, after considering the medical reports ordered under s 23(3), and any evidence or representations from the person, it is “satisfied that the order is appropriate”. It is implicit in the scheme of s 23 that the court may not make an order under s 23(5) unless it is satisfied that the person is incapable of controlling, or unwilling to control, his or her sexual instincts.[5] Section 23(2)(a) permits the Attorney-General to make an application to the court, subject to satisfying two preconditions. First, it is necessary to establish that the person has been convicted of a relevant offence. Section 23(1) Sentencing Act defines a relevant offence. It includes an offence of rape, contrary to s 48 Criminal Law (Consolidation) Act 1935 (CLCA) or “any other offence where the evidence indicates that the defendant may be incapable of controlling or unwilling to control his or her sexual instincts.”
[5] R v Ainsworth [2008] 100 SASR 238 at 247 [24] per White J.
Each of the three counts of rape for which the respondent was convicted and sentenced in 1989 is a relevant offence for the purposes of this section and therefore satisfies the first prerequisite condition for making the application. Secondly, the application must be made while the person “remains in prison serving a sentence of imprisonment” although the sentence being served need not be the sentence that was imposed for the relevant offence. In this case the respondent remains in prison serving a sentence of imprisonment which, as I have already mentioned, will expire on 12 April 2009.
Section 24(1) of the Act provides for release on licence for persons who are the subject of orders under s 23(5) on either the application of the Director of Public Prosecutions or the person who is the subject of the s 23 order. As Mr McDonald pointed out in his written submissions, it would appear that the Attorney General has no role to play in the proceedings concerning the release on licence of such a person, even where the initial order for the detention of a person was made on the application of the Attorney General under s 23(2)(a). Nevertheless, a consideration of the possible future situation of the prisoner, including the prospect of his or her future release on licence may be relevant to the court’s assessment of an application by the Attorney General under s 23(2)(a).
The medical reports
Pursuant to the provisions of s 23(3) Sentencing Act, an order was made on 30 October 2008 that two legally qualified medical practitioners enquire into the respondent’s mental condition and report to the court whether the respondent is incapable of controlling or unwilling to control his sexual instincts. Pursuant to that order, Dr O’Brien and Dr Raeside, both of whom are psychiatrists, assessed the respondent and provided reports with respect to their assessment.
Exhibit P1 consists of an agreed bundle of documents provided to both medical practitioners as part of the assessment process. That includes a number of earlier reports which are relied upon by the Attorney General as supporting the present application, namely:
(1) Report of Ms Anastasia Goussios dated 3 April 2000
Ms Goussios was a Senior Psychologist at the Prisoner Assessment Unit. She concluded that the respondent’s attitude to offences of rape revealed “… a minimisation and externalisation of responsibility”. He reported that he was “not a rapist” and was “disgusted” that he now had “this little label”. She said that the respondent “denied his coerciveness”, despite his use of knives to threaten his victims. She said that his concern regarding the offences predominantly related to the adverse consequences for himself. He appeared to consider that rape was acceptable, provided he could avoid detection. He told her that:
… if he was not caught, his sexual offending would have escalated in frequency and violence.
Ms Goussios said that the respondent performed poorly on psychological tests relating to beliefs commonly found in rapists and to the traumatic effect of his offending on his victims. Her evaluation was that the respondent posed “a high risk for sexual violence” should he be released into the community. She thought the most effective way to manage the risk of sexual violence was to refuse the respondent parole.
Although this report is now more than eight years old Mr McDonald submitted that it nevertheless provided a useful background to the consideration of the later reports which are concerned with the respondent’s progress within the prison system.
(2) Report dated 23 July 2005 prepared jointly by Ms Amanda White, Trainee Clinical/Forensic Psychologist and Mr John Cooper, Senior Clinical Psychologist
The respondent was referred to the authors of this report for psychological assessment as to his risk of re-offending and criminogenic need factors and to develop a treatment plan to reduce the risk of re-offending. They set out the respondent’s history in some detail and discussed his suitability for the Sexual Behaviour Clinic (SBC). In their report they say that:
While there had been some psychiatric and psychological intervention with [the respondent] over the course of his imprisonment, the risk factors for his sexual offending had not been addressed.
Without intervention, they assessed the respondent’s risk of re-offending as high. They made a number of recommendations to address the problem. In those recommendations they commented that due to the respondent’s poor literacy skills he might not be suitable for the SBC but said that the intensity and length of that program was comparable to the kind of intervention the respondent required in order to address his risk factors of re-offending. If the respondent was not considered suitable for the SBC Program, they recommended comparable individual intervention by psychologists for a similar length of time.
(3) Internal memorandum dated 6 May 2006 and a report by Ms Hackett dated 6 June 2007
Ms Hackett was a Senior Forensic Psychologist in the Intervention Unit at Yatala Labour Prison. The respondent was referred by the Parole Board to SBC but as at 6 May 2006, had refused to be assessed for it. Ms Hackett however commenced seeing the respondent individually for regular psychological intervention on 14 November 2005. In the internal memorandum dated 6 May 2006, Ms Hackett concurred with the view earlier expressed by Mr White that the respondent’s risk of re-offending was high. She said that the respondent would require, in addition to ongoing intensive intervention, a lengthy period of re-socialisation into the community, consisting of a minimum 18-month period with graduated escorted leave. There was also a concern about the respondent’s ability to “cope on the outside” and the need for consistent support in the community. It appears from her report dated 6 June 2007 that Ms Hackett eventually undertook 42 sessions with the respondent. In that report, Ms Hackett outlined the progress made in her treatment of the respondent and concluded that:
Whilst at the time of writing, little progress has been made in reducing Mr Modra’s risk to any significant extent, in relative terms Mr Modra has made significant clinical improvement in terms of his readiness for treatment.
Ms Hackett said that the respondent had indicated a willingness to continue with ongoing individual intervention which, on the basis of his involvement in the last 18 months, appeared to be sincere as opposed to merely playing ‘lip service’. She said however that the nature of his presentation suggested that intervention was likely to be necessary both for the duration of his imprisonment and following his release to have any likelihood of reducing the level of risk posed to the community. She said that the respondent’s presentation further suggested that the level of engagement in therapeutic intervention would, “wax and wane” and maintaining his motivation would be an ongoing target of such work.
Ms Hackett resigned from the Department of Correctional Services in about mid-2007. After that time, the respondent commenced psychological intervention with Ms Leyna Bruggemann, a Senior Forensic Psychologist with the Department of Correctional Services.
(4) Report of Ms Leyna Bruggeman dated 10 March 2008
In her report, Ms Bruggeman referred to the respondent undertaking supervised visits to the Adelaide Pre-Release Centre and his agreement to undertake assessment for the SBC program, for which he was eventually assessed as appropriate. A plan was developed under which the respondent would attend six weeks of the SBC Program at Yatala before full-time transfer to the Adelaide Pre-Release Centre would be considered. The respondent commenced the SBC Program in late 2007 but ceased involvement about four weeks later due to illness. He then declined to re-commence the Program when it re-started in January 2008. The respondent also declined to participate in one on one intervention after that date. The respondent expressed the intention of allowing his sentence to lapse on 12 April 2009 without further engagement in either group-based or individual therapy.
In her summary and recommendations Ms Bruggeman re-stated “significant concerns in relation to [the respondent]’s risk of re-offending, his acknowledgment of the likelihood that he will re-offend, the uncertainty of his plans to continue to comply with his psychotropic medication, his ability to self-manage as well as his general plans for the future, (“including the possibility of leaving the State”).
(5) Joint report dated 23 August 2007 by Robert Elmer, Psychologist with the Rehabilitation Program Branch of the Department of Correctional Services and Michael Burvill, the Program Manager.
This was a pre-treatment assessment report relating to the respondent’s suitability to attend the SBC. This states that the respondent commenced the program on 25 October 2007 but ceased on 23 November 2007. Initially the respondent indicated that he was enthusiastic about attending the program and was hopeful of being granted parole and attending SBC from the Adelaide Pre-Release Centre. The respondent was found suitable for participation in the Program but the view was expressed that the respondent’s level of risk of committing further sexual offences was assessed as being in the moderate-high range. They commented in the report that:
Bearing in mind the safety of the community as well as the concerns for [the respondent]’s rehabilitation, a closely monitored, concerted, multi-agency approach will be essential in managing the successful graduated release of [the respondent].
The report mentions that the respondent was assessed as falling within the borderline range of intellectual functioning, “suggesting that he would struggle with the written components and the rate of delivery of the current departmental program” (Hackett, 2007), but said:
These concerns may be offset to some extent by recent modifications to the program presentation that allow participants to proceed at their own pace.
(6) Progress Report of Mr Elmer dated 14 January 2008
This report reviews the progress of the respondent within the SBC program and confirms that the respondent last attended on 23 November 2007 when he excused himself for medical reasons and indicated that he did not propose to return to the program. Mr Elmer said that the respondent’s participation in the SBC program –
… was not considered to have progressed beyond the engagement phase of the program where new participants become accustomed to being in the group and begin to prepare their autobiography. After attending for 13 sessions over a period of approximately four weeks, [the respondent] had only presented one item of homework and had not presented his autobiography nor begun to establish or address his individual treatment targets within the SBC course. [the respondent] was repeatedly advised that he would be given individual assistance in any aspect of the program if he had difficulties.
The effect of these various reports is that the respondent has not received any treatment at all since the end of 2007 and his participation in the SBC program prior to that date and his individual sessions were relatively limited in addressing the respondent’s problems and reducing the risk to the community upon his release.
Dr Raeside

Dr Raeside in his report dated 13 November 2008[6] expressed the opinion that the respondent suffers from a mixed personality disorder with anti-social and borderline traits. He described the respondent as having a range of factors, both static and dynamic, that placed him in the moderate to high risk of further sexual offending in the future. He said that the respondent had features of significant institutionalisation, that he coped poorly with stress and undoubtedly would experience significant stress upon being released back into the community, particularly with no re-socialisation programs thus far. He said:
He has few social skills, is likely to handle stress badly and, in my opinion is likely to act out and re-offend when under stress, once he is back in the community, although not necessarily sexually. Of concern, there is documentation of him acting sexually inappropriately towards female nurses and correctional officers whilst in custody.
[6] Exhibit P3
Dr Raeside went on to say that the respondent:
… is clearly unprepared to be released back into the community for the various reasons already discussed. Upon finding himself in (the) community he is likely to be quickly overwhelmed and, in my opinion, would be at extremely high risk of re-offending, even if it was to simply get back into the more secure environment of a custodial setting. Given that he remains a moderate to high risk of sexual re-offending, he would be at significant risk of re-offending sexually in such a circumstance, as well as non-sexually.
Dr Raeside said that the respondent required a graduated, supported and intense re-socialisation program over a long period of time in order to prepare him to return into the community with even a moderate degree of likelihood of success and that would not occur prior to April 2009. He thought that the respondent was capable of controlling his sexual conduct, but believed he would be “unwilling” in the sense that he would be at moderate to high risk of again sexually offending, if given the opportunity to do so, in the context of decompensating quickly in the community. Dr Raeside therefore supported the application pursuant to s 23 Sentencing Act.
Dr O’Brien
Dr O’Brien provided a report to the court dated 26 November 2008[7] in which he mentioned his intermittent contact with the respondent for close on 20 years. He said that for a period of time, many years ago, he was the respondent’s consultant psychiatrist and that the respondent had been under his care at James Nash House. He said that during those years, the respondent had frequent and multiple admissions to James Nash House as he was coping poorly in gaol and needed to be admitted to James Nash House for stabilisation of his mental and behavioural state. Dr O’Brien commented that various diagnoses had been applied to the respondent and there was a more recent view that he may suffer from schizophrenia. Dr O’Brien was disinclined to that diagnostic view but said that, in his opinion, more than likely or not, the respondent suffered from a borderline personality disorder in which pseudo hallucinations were intermittently present.
[7] Exhibit P2
Dr O’Brien asked the respondent why he discontinued with SBC and he responded:
I lack serious academics and I couldn’t cope with the program because of the academics.
He told Dr O’Brien that prior to his participation in that program, he did not have any involvement with the sex offender treatment program, claiming (they) “didn’t want to know me from a bar of soap”.
He also told Dr O’Brien that he believed he was in control of his sexual urges and had stopped masturbating when the despot antipsychotic preparation Zuclopenthixol was prescribed for him. Dr O’Brien went on to say:
His rape history, though many years ago, remains concerning. Mr Modra now protests that essentially he is devoid of any sexual activity, feelings or fantasies. With respect, however, it is impossible to evaluate the veracity of this statement as it is in the form of a self-report only. Whilst it is true that with the passage of time and with advancing age, there may be stabilisation in an individual’s behavioural state (with the gaining of maturity and the accepting of more personal responsibility), this is by no means, and frequently is not, inevitable. It is a truism that the best predictor of future behaviour is past behaviour. Given Mr Modra’s history and the fact that he has not had any consistent therapeutic interventions for his abnormal sexual behaviours/proclivities, I can only come to the conclusion that at the present time an unacceptable risk for re-offending is still present. It would therefore be my view that at the present time, and taking into consideration all the information available to me, and bearing in mind the relevant statutory definitions, Mr Modra is both unable and unwilling (using that term within its applied definition) to control his sexual instincts. In coming to this view, it would be my sincere hope that Mr Modra would reconsider his willingness to participate in a Sexual Offender Treatment Programme. Following his completion of such a programme, further independent psychiatric examinations should be conducted.
Dr O’Brien concluded that at the present time, the respondent was both unable and unwilling to control his sexual instincts.
Dr Raeside and Dr O’Brien each gave evidence on the hearing of the application. Both adhered to the views expressed in their reports and were cross-examined by Mr Mead for the respondent about them. Mr Mead put to Dr Raeside that an assessment of future risk was to some large degree theoretical, given that the respondent had not been in the community for nearly 21 years, in response to which Dr Raeside said:[8]
Certainly, much of it is theoretical in the sense that it’s based on a number of factors, some of which are based on the priority of him coming into custody, the nature of the offences for which he was incarcerated, then the predictions that one might make regarding the future based on that behaviour. Then the other issue that would be taken into account would be various factors whilst he has been in custody, that may or may not bear on that risk further. As I have outlined at the end of my report, there are various risk factors that are not just in relation to sexual offending, but offending generally which have an interplay there as well.
[8] Transcript 30 January 2009 p 4.
Dr Raeside agreed that the respondent had been willing to accept professional help in the past, and had frequently asked for admission to James Nash House when he had not been coping. He said that was one of the positive factors , which indicated that the respondent would be willing to accept psychiatric help on his release and would quickly seek out such help if he was in the community. Another positive factor was the fact that the respondent appeared to engage with Ms Hackett, although she did not get to the level of actually beginning, as he understood it, any meaningful, long-lasting therapeutic change. Dr Raeside referred to the respondent’s quite marked features of institutionalisation and therefore the need for him to have a gradual preparation at least of a period of about a year to cope in the community his institutionalisation was such that he may even re-offend in order to get back into custody.
Mr Mead asked Dr O’Brien about the medication Zuclopenthixol currently being taken by the respondent. Dr O’Brien described it as an anti-psychotic medication with some additive properties, but anticipated that it would cause a degree of reduction in libido. Dr O’Brien thought that Ms Hackett’s report indicated that if the respondent was in a continuing relationship with a professional person and developed a rapport with that person, he was more likely to open up and become more meaningfully engaged in therapy but he also thought there was a degree of ambivalence in the respondent’s presentation.
Mr Mead asked:[9]
Could I ask you to make the same assumptions that I asked Dr Raeside to make, that is, that you assumed that Mr Modra was released into, for example, a residential facility for males only, that he was under strict, reasonably strict supervision, such as a requirement that he remain within the grounds of that facility during the hours of darkness; and assume that there were live-in supervisors on a shift basis, provided to such a facility, and assume that there were daytime programs under supervision such as the sexual behaviour clinic or something similar. If you assumed that was all properly funded and set up for as long as necessary, would that change your view as to Mr Modra’s unwillingness to control his sexual instincts.
[9] Transcript 30 January 2009 p 26.
Dr O’Brien responded that if such a therapeutic situation was to be present, he would be more comfortable about supporting a graduated return of the respondent to the community and be less worried about the potential risk moving him from the relatively high facility of the Correctional Services Department to the broader community.
Regrettably, there appears to be a paucity of suitable programs available for treatment of sexual offenders outside of the prison system in the community. As far as Dr O’Brien was aware, the only program presently available for treatment of sex offenders in the community was that being conducted by Owenia House (formerly the Sexual Offenders Treatment Assessment Panel, otherwise known as SOTAP). The respondent has not however been assessed as suitable for that particular program.
Sexual Behaviour Clinic
The availability of an appropriate treatment program for the respondent, either before or after his release from prison was a significant issue with respect to this application. Correctional Services conduct the SBC within the prison system. Mr Burvill provided a report[10] about the current program and the criteria for entry into it. He gave evidence on the hearing of the application. In his report dated 18 December 2008, Mr Burvill discussed the program and said:
[10] Exhibit P4
In relation to the question of access by offenders, there are currently 211 convicted sex offenders in the SA prison system. Access to treatment for all offenders will be a long-term gaol of the RPB. As noted, DCS is currently providing core treatment in Yatala and Mt Gambier prisons. Such coverage would provide an opportunity for up to 40 new offenders per year to undertake sex offender treatment. Prior to 2005 no such opportunity existed in SA.
In relation to criteria for participation, the following multiple factors are considered for entry into the program:
1.Results of actuarial and dynamic risk assessments conducted by the RPB program staff – the participants’ risk level is matched to the intensity level of the program being delivered. The program is able to cater for moderate and high risk offenders.
2.     Other client issues considered as part of the selection process:
·    date of release – priority is being given to those offenders who may be released in the next two years in order to avoid the release of ‘untreated’ offenders;
·    management of mental health or other health issues;
·    alcohol and drug use;
·    cultural issues and available support. For example, location of family and RCIADIC recommendations re housing of Aboriginal offenders;
·    ‘enemy’ issues that may affect prisoner movement;
·    prison security rating;
·    protectee status;
·    ability of an offender to engage in a group process (eg literacy levels);
·    consent to participate … potential participants may decline to accept treatment.
The report indicated that persons under indeterminate detention orders were not excluded from such an assessment and subsequent potential participation in the program, although priority in the medium term was given to those incarcerated offenders due for release in the next two years or so. A person serving a lengthy prison term, or who is the subject of an indeterminate detention order would in all probability be required to wait a considerable length of time before being offered a place on such a program. The report concluded that despite considerable input, it had not been possible to persuade the respondent to shift from his position that he would refuse any further treatment and serve his full sentence and leave South Australia, unsupervised, on his release.
Mr Burvill in evidence elaborated on the matters in his report. He said that the underlying basis for the majority of sex offender treatment world-wide was that it was provided in a group base setting and that is what was being done in Correctional Services. He went on to say:[11]
However, having said that the concept of supplementary one-to-one therapy for men such as Mr Modra, for example, if he was having difficulty understanding the content of a group-based program or understanding concepts that were being discussed in group, he would be given the opportunity to undertake one-to-one therapy. At this stage, however, we do not provide one-to-one therapy for people who are not also engaged in a group-based process. It is very much a supplementary therapeutic process that is occasionally provided, particularly to men who may have literacy issues and struggle for example with written assignments and so on.
[11] Transcript 30 January 2009 at p 28.
Mr Mead raised the respondent’s literacy difficulties with Mr Burvill, who indicated that the majority of members participating in the program were similarly disadvantaged. He said the programs were very much designed to accommodate those difficulties, although there were occasions when the severity of the disability might require additional assistance.
When asked to clarify an apparent conflict between the statement as to priority being given to offenders who might be released in the next two years as against his comment that s 23 prisoners were not to be disadvantaged, Mr Burvill said:[12]
The virtue that they are apparently conflicting required our branch to take into account the fact that those individuals, if we apply the principle of two years prior to release, would never receive treatment and therefore would be disadvantaged and therefore their orders would never be rescinded for not having received treatment. The truth is there are only seven individuals in that situation within the correctional system at the moment. So it’s quite easy for us to take those people into account, ensure that they receive treatment in what is considered a reasonable time frame and to date, I believe that all men under s.23 have received treatment or are in the process of receiving treatment. So it’s an exception to that principle.
[12] Ibid at p 30.
Mr Burvill said the next SBC clinic at Yatala Labour Prison was due to commence at the end of February 2009 and he strongly recommended the respondent commence that course immediately. That program would require him to remain in custody for a period of about six to nine months.
On the adjourned hearing of the application, I was provided with a letter from the Offender Development Directorate (Exhibit P5) which clarified the situation with respect to the respondent’s security rating and the availability of programs for a person with that rating. The report indicated that the respondent had a medium security rating, which meant that he would be eligible to be transferred to the program at Mount Gambier, but the Department would not transfer him due to his refusal to engage in the SBC Program. Should he now agree to participate however, he would be placed in the SBC Program in B – Top Division at Yatala Labour Prison. That was due to commence in March 2009 and a place has been held open to accommodate for the respondent.
Should the s 23 order be made?
The decision whether to make an order under s 23(5) of the Act is discretionary. It does not follow as a matter of course that the order should be made simply because the court is satisfied that the person is unwilling to control his or her sexual instincts or because one or more of the medical practitioners who examined the person has expressed that view.[13] It is necessary, if a finding of unwillingness (or incapacity) is made, to go on to consider as a separate step whether the making of the order for indefinite detention is appropriate.
[13] R v Ainsworth [2008] 100 SASR 238 at 259 [77].
Submissions by Attorney-General
Mr McDonald submitted that in this case, it was appropriate for the order to be made. There was evidence upon which I could be satisfied that the respondent was unwilling to control his sexual instincts and pointed out that the primary purpose of s 23 is to protect the community from a person committing serious sexual offences upon his release from custody. In this case the further detention of the respondent was reasonably necessary for that purpose. He submitted that there were further steps that could be taken in the immediate or near future, which would reduce the risk of sexual re-offending. The evidence of Mr Burvill indicated that there was a very high likelihood that, should he wish to do so, the respondent would be able to participate in the SBC Program, and that could commence as early as March 2009. Although the respondent had expressed an unwillingness to apply for that Program, his future participation was a matter that was primarily within his own control.
Mr McDonald submitted that the court should not countenance the respondent’s release into the community unless and until he had successfully completed the SBC Program or an equivalent course. At present, however, the SBC Program was not currently offered as a community-based program and was only available within the prison system. Mr McDonald submitted that the making of an order under s 23(5) would facilitate the making of further orders in the future, pursuant to s 24, which would allow the respondent’s release to be accompanied by conditions designed to assist his re-integration into the community and to minimise the risk to the community associated with his release. In the absence of an order under s 23(5), the respondent’s release would be unconditional.
Submissions on behalf of respondent
The respondent did not give evidence at the hearing of this application, nor call any evidence with respect to it. Mr Mead, on behalf of the respondent, however, opposed the making of an order for indeterminate detention, although he acknowledged that there was evidence from which the court could conclude, in the sense defined in the legislation, that the respondent could be regarded as unwilling to control his sexual instincts. Factors against that conclusion included the fact that Dr Raeside had acknowledged that, if released, the respondent was likely to seek help and it appeared undisputed that he had been compliant with medication in the past. In addition, Mr Mead referred to the evidence of Dr O’Brien that the current medication had an anti-libidinous effect.
Mr Mead pointed out that the respondent was left in an impossible situation in that after a period of incarceration of about 21 years, the respondent had not received any significant re-socialisation. It appeared now that the only prospect for his progress was for him to undertake the SBC course, despite him having encountered problems with that course in the past. Mr Mead suggested therefore that something more should be done to assist the respondent, perhaps by way of an offence specific program which would facilitate the respondent in his future attempts to re-integrate into society.
The risk of re-offending
The making of an order for indeterminate detention is an exception to the general common law principle of proportionality. As the High Court said in Buckley v R[14]:
… there may be cases in which such a departure is justified by the need to protect society against serious physical harm; but a judge who takes that step must act upon cogent evidence, with a clear appreciation of the exceptional nature of the course that is being taken.
[14] (2006) 80 ALJR 605 at 607.

The principle rationale behind s 23 however is to provide protection to the community from those offenders who are unable to control their sexual instincts. In this case, there is a consistent opinion expressed through the reports of those who have dealt with the respondent over a number of years that in the absence of appropriate psychiatric or psychological treatment, the respondent’s risk of re-offending upon his release is high. It is a result of those concerns that the respondent has not been released on parole. Attempts have been made to provide appropriate treatment for the respondent but in recent times that has been declined with the respondent now indicating that he does not intend to apply for parole but prefers to serve out his sentence.
Dr O’Brien and Dr Raeside in their court-ordered reports have both expressed the opinion that at the date hereof the respondent is a person who is unwilling to control his sexual instincts. Dr Raeside considered the respondent to be at extremely high risk of re-offending. He described the respondent as having quite marked features of institutionalisation, strong dependency traits and he was likely to find it extremely stressful, just being released from custody. Dr Raeside said that the respondent needed a gradual preparation to end up in a setting where he was eventually in the community and that if he were to be released immediately, he would fail. Dr Raeside thought that it would take about a year to prepare the respondent for release. Dr Raeside thought that his pre-existing personality difficulties and mental health problems combined to make it highly likely that the respondent would not cope very well when released and he had shown in the past that when he did not cope, he tended to re-offend, simply to get back into custody. The added aspect of the respondent was the nature of his sexual offences and therefore by implication there was a high risk of sexual re-offending in such difficult circumstances.
Finding that the respondent is unwilling to control his sexual instincts
I am satisfied that the respondent is a person unwilling to control his sexual instincts 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”[15]. Having made that finding, it is necessary to consider whether an order should be made under s 23.
[15] S 23(1) Sentencing Act
Should an order be made pursuant to s 23?
The respondent has been provided with opportunities in the past to attend the SBC program but as can be seen from the history set out herein, his attendance has been limited. He appears to have established some rapport with Ms Hackett and it is unfortunate that the respondent’s relationship with her came to an end when she resigned from the Department of Correctional Services in about mid-2007.
I am satisfied that it is necessary for the respondent to have an appropriate course of treatment to prepare him for his release into the community. At present, the only course which is realistically available is that provided by the SBC program which is conducted by Correctional Services within the prison system. Even if the respondent was assessed as suitable for the Owenia House program, it would not be possible to enforce his attendance thereat should he be released from prison without any supervisory conditions in April when his sentence ends. The respondent’s complaint about the SBC program in the past appears to some extent to have centred on difficulty coping on account of his literacy difficulties. Mr Burvill indicated however that there had been modifications to the course which hopefully will assist with resolving those problems. In addition, he has not discounted the possibility of one to one therapy, should that be required. Mr Burvill also indicated that it is possible for the respondent to commence the SBC course immediately, should he wish to do so. In the event that the respondent successfully completes that course, it will be open to him to make an application pursuant to s 24 Sentencing Act for release on licence. Should an order be made pursuant to s 24 Sentencing Act, it would be possible to fashion appropriate conditions to prevent any continuing danger to the community and at the same time assist the respondent in coping with his re-integration into the community after such a lengthy period of imprisonment.
In all the circumstances, I am satisfied that it is appropriate to make the orders sought by the Attorney-General.
Conclusion
I therefore declare that:
(1) the respondent is a person unwilling to control his sexual instincts within the meaning of s 23(1) Criminal Law Sentencing Act 1988;
(2) I order that the respondent be detained in custody until further order, pursuant to s 23(5) Sentencing Act, such detention to commence at the expiration of all terms of imprisonment that the respondent is at present likely to serve.