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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Modra

Details

AGLC: R v Modra [2009] SASC 68
Case: [2009] SASC 68
Decision Date: 13 March 2009

CaseChat Overview and Summary

The case of R v Modra involves an application by the Attorney-General for an order under section 23(5) of the Sentencing Act to detain the respondent, who had been sentenced to a lengthy term of imprisonment for rape and other offences. The sentence was due to expire in April 2009. The central issue before the court was whether an order for the respondent's indeterminate detention should be made, given the finding that he was unwilling to control his sexual instincts.

The court had to determine the appropriate course of action to protect the community and assist the respondent in re-integrating into society. The availability of a sex offenders program and the necessity for the respondent to receive treatment prior to release were key considerations. Additionally, the possibility of the respondent's release on licence under section 24 of the Sentencing Act was examined.

In reaching its decision, the court concluded that making the order sought by the Attorney-General was appropriate. The respondent was deemed to be a person unwilling to control his sexual instincts within the meaning of section 23(1) of the Criminal Law Sentencing Act 1988. Consequently, the court ordered that the respondent be detained in custody until further order, pursuant to section 23(5) of the Sentencing Act, with this detention to commence at the expiration of all terms of imprisonment that the respondent was then likely to serve.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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