R v Mountford
[2019] SASC 16
•26 February 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MOUNTFORD
[2019] SASC 16
Judgment of The Honourable Justice Nicholson
26 February 2019
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - SINGLE SENTENCE FOR MULTIPLE OFFENCES
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
The respondent pleaded guilty to and was entitled to substantial discounts with respect to two counts of unlawful sexual intercourse with a person under the age of 17 years, three counts of inciting or procuring the commission of an act of gross indecency by a person under the age of 16 years, one count of indecent assault, and one count of an act of gross indecency in the presence of persons under the age of 16 years. These offences concerned two victims and occurred in 2000.
The respondent was found guilty in the District Court of a further two counts of indecent assault and one count of unlawful sexual intercourse with a person under 12 years. These offences concerned a third victim and occurred in 2003-4.
Both sets of offending occurred as part of a course of conduct concerning other victims for which the respondent had already been sentenced to and served a term of imprisonment.
All of the unsentenced offending was referred to this Court for sentencing. In addition, the Director of Public Prosecutions applied for an order pursuant to s 57 of the Sentencing Act 2017 (SA) that the respondent be detained in custody until further order.
Held:
1. Application by the Director of Public Prosecutions pursuant to s 57 of the Sentencing Act 2017 (SA) dismissed.
2. Respondent sentenced to imprisonment for five years backdated to commence 18 September 2017 for the seven counts in 2000 to which the respondent pleaded guilty.
3. Respondent sentenced to imprisonment for three years and six months for the three counts in 2003-4 for which the respondent was found guilty in the District Court.
4. The two prison terms are to be served cumulatively; the second prison term is to commence upon the expiration of the first prison term.
5. A non-parole period of six years and ten months backdated to commence 18 September 2017 is fixed.
Sentencing Act 2017 (SA) s 57, s 68; Criminal Law (Sentencing) Act 1988 (SA) s 23; Criminal Law Consolidation Act 1935 (SA) s 49, s 56, s 58, referred to.
R v Mountford [2018] SADC 115; R v M, REM [2008] SASC 348; R v Hoare [2017] SASC 7, considered.
R v MOUNTFORD
[2019] SASC 16Criminal: Application
NICHOLSON J.
Introduction
The respondent has an extensive history of serious sexual offending against children. He was most recently released from prison on 17 September 2017 after having completed a sentence of imprisonment for nine years.[1]
[1] A non-parole period of six years had been fixed but the respondent completed the head sentence without being given parole.
On 21 July 2016, the respondent was charged with a further seven underage sexual offences committed in 2000 (the 2000 KK and GS offending) to which he pleaded guilty in the Magistrates Court on 22 July 2016 (four counts) and in the District Court on 25 November 2016 (three counts). As a consequence, the Director of Public Prosecutions applied for an order of the Supreme Court under subsection 23(4) of the Criminal Law (Sentencing) Act 1988 (SA) that the respondent be detained in custody until further order on the basis that he was either incapable of controlling or unwilling to control his sexual instincts. In accordance with subsection 23(2), the respondent was remanded in custody for the Director’s application to be determined by this Court.
On 6 December 2016, the respondent was charged with a further three underage sexual offences committed in 2003 or 2004 (the 2003-4 JaS offending) with respect to which he was found guilty on 15 November 2018 following a trial by Judge alone.[2] By this time, the Sentencing Act 2017 (SA) which had repealed the Criminal Law (Sentencing) Act 1988 had come into operation.[3] The Director made a second application, this time pursuant to section 57 of the Sentencing Act 2017, again seeking an order that the respondent be detained in custody until further order on the basis that he was either incapable of controlling or unwilling to control his sexual instincts. The District Court Judge who heard the trial of these three offences remanded the respondent to this Court for sentencing as required by section 57.
[2] R v Mountford [2018] SADC 115.
[3] The Sentencing Act 2017 (SA) came into operation on 30 April 2018.
Clause 2(1) of the transitional provisions in the Sentencing Act 2017[4] is in the following terms.
Subject to this clause, this Act applies to the sentencing of a defendant after the commencement of this Act, regardless of whether the offence for which the defendant is being sentenced was committed before or after that commencement.
It follows and is common ground between the parties that the Sentencing Act 2017 applies with respect to the sentencing of the respondent for the 2000 KK and GS offending and the 2003-4 JaS offending. It is also common ground that the Director’s application pursuant to section 23 of the old Act is to be treated as one made pursuant to section 57 of the new Act. In any event, at least insofar as this matter is concerned, there are no material differences between section 23 and section 57.
[4] The transitional provisions are contained in Schedule 1, Part 2 of the Sentencing Act 2017 (SA).
Subsection 57(12) of the Sentencing Act 2017 provides as follows.
If a person to whom this section applies has not been sentenced for a relevant offence, the Supreme Court will deal with the question of sentence at the same time as it deals with the question whether an order is to be made under this section and, if the Court decides to make such an order, the order may be made in addition to, or instead of, a sentence of imprisonment.
Again, it is common ground that the respondent is a person to whom section 57 applies. As such, it is for this Court to deal with the question of sentence and also to determine the Director’s application for indefinite detention. According to subsection 57(12) and where a person has not been sentenced for a relevant offence, the Court has discretion to make an order for indefinite detention either in addition to or in lieu of sentencing the person. In this matter, I am satisfied that I should proceed to sentence first before considering whether or not to also make the order sought by the Director.
Chronology and materials before the Court
Given that the offences now under consideration were committed some 15 to 19 years ago, it is necessary to consider these offences in the context of the respondent’s history of prior sexual offending. To assist in this respect, the Director has provided the following chronology, accepted by the respondent as accurate. I have numbered each entry to facilitate later reference.
1.
30 April 1940
Respondent’s date of birth (he is now 78 years old)
2.
1973-1974
Committed three counts of indecent assault on a single occasion against his daughter when she was 7 or 8 years old.
3.
1979-1980
Committed four offences (3 x indecent assault and 1 x unlawful sexual intercourse) against his step-son E, over a period of a year when E was between 10 and 11 years old.
4.
1980
Committed an indecent assault against his step-son M, when he was 6 years old.
1983 or 1984
Committed unlawful sexual intercourse against M, when he was about 9 or 10 years old.
1986
Committed an indecent assault against M when he was about 12 years old.
1984
Committed an indecent assault against his step-son A on two separate occasions when he was 13 years old.
5.
2000
Committed 7 seven offences against GS (a child in the S family) and KK (a friend of the S family children).[5] Those offences took place on two occasions a week apart. GS is the same GS in the offences committed below. KK was about 13 years old, and GS was 7 or 8 years old.
6.
2002 or 2003
Committed three offences of indecent assault against 3 of the S family children. JS was 9 or 10 years old, GS was 9 or 10 years old, and CS was 10 or 11 years old.
7.
Late 2003
Committed two offences of indecent act with two of his grandchildren in Victoria.
8.
2003-2004
Committed two offences of indecent assault and one of unlawful sexual intercourse against JaS (the youngest S family child), who was about 5 or 6 years old.
9.
29 June 2005
Sentenced to 18 months imprisonment with a non-parole period of 6 months for the Victorian offending.
10.
18 September 2008
Sentenced to 7 years imprisonment with a non-parole period of 4 years increased on appeal to 9 years imprisonment with a non-parole period of 6 years for 13 x indecent assault and 2 x unlawful sexual intercourse (under 12).
11.
21 July 2016
Charged with the seven offences in relation to KK and GS.
22 July 2016
Pleaded guilty to counts 1-4 on the Magistrates Court Information (thus, entitled to up to 40% discount).
25 November 2016
Pleaded guilty to the remaining 3 counts (which had been transferred to a District Court Information) (thus, entitled to up to 20% discount).
12.
6 December 2016
Charged with the offending in relation to [JaS].
13.
17 September 2017
2008 sentence expired.
14.
15 November 2018
Found guilty of the offending in relation to [JaS].
[5] Of the seven offences, KK was the sole victim in three, GS was the sole victim in one and KK and GS were both victims in three.
The entries numbered 2 to 4, 6, 10 and 13 relate to the offences committed with respect to which, on 17 September 2017, the respondent completed the nine year prison term imposed in 2008 and referred to earlier. This sentence embraced offending which took place between 1973 and 2003 and comprised District Court criminal file No. 177 of 2008 (the DCCRM-08-177 offending).
The materials provided to the Court relevant to the DCCRM-08-177 offending comprised material parts of the court record, numerous declarations by pertinent witnesses, transcripts of police interviews with the respondent, numerous victim impact statements, a psychological report by Michael Davis dated 17 September 2008, the District Court Judge’s sentencing remarks dated 24 October 2008 and the sentence appeal judgment of the Court of Criminal Appeal.[6]
[6] R v M, REM [2008] SASC 348.
I note at this stage that three of the victims of the DCCRM-08-177 offending were children of the S family. One of these children, GS, was also a victim of the 2000 KK and GS offending (entry 5) and another child of the family, JaS, was the victim of the 2003-4 JaS offending (entry 8).
The entries numbered 7 and 9 relate to offences committed in Victoria in late 2003 (the Victorian offending) with respect to which only quite limited material is before the Court, comprising a document described as “Case Narrative”, a “Notice of Order Made” and a “Court Outcomes Report”.[7]
[7] The respondent did not object to the Court having regard to this material.
The entries numbered 5 and 11 relate to the 2000 KK and GS offending. The materials provided to the Court relevant to the 2000 KK and GS offending comprised material parts of the court record (Supreme Court criminal file SCCRM-17-68), numerous declarations by pertinent witnesses, transcript of the police record of interview with the respondent on 3 June 2016 and a victim impact statement by KK.
The entries numbered 8, 12 and 14 relate to the 2003-4 JaS offending. The materials provided to the Court relevant to the 2003-4 JaS offending comprised material parts of the court record (District Court criminal file DCCRM-17-1206) and the reasons for verdict of the trial Judge delivered 15 November 2018.[8]
The factual basis, in brief, of each of the separate groups of offending
[8] R v Mountford [2018] SADC 115.
The DCCRM-08-177 offending (entries 2 to 4, 6, 10 and 13)
The factual basis for this group of offences was summarised to an extent sufficient for present purposes by White J (with whose reasons Anderson and Kelly JJ agreed) in R v M, REM when allowing the Director’s appeal against sentence.[9]
[9] R v M, REM [2008] SASC 348 at [6]-[14].
The respondent’s offending involved the sexual abuse of seven children, one of whom is his daughter, three of whom are his stepsons, and three of whom are the sons of a family friend. All involved a gross abuse of a position of trust.
The three offences involving the daughter were offences of indecent assault committed on a single occasion in either 1973 or 1974 when she was seven or eight years old. The respondent entered his daughter’s room and made her rub his penis, later fondled her vagina and, later again, penetrated her vagina with his finger. Although the latter conduct would now amount to unlawful sexual intercourse, in 1973 it comprised an indecent assault.
The next group of offences involved the respondent’s stepsons, the children of his present wife. Some of the offences occurred while the respondent and the mother were establishing their relationship, and others while they were living together in one house. The respondent’s sexual abuse continued over a long period and the times of the offences involving the three boys overlapped.
Four of the offences involved the stepson, E. In 1979 the respondent was working in a music shop. One of his duties was teaching piano playing. E, who was then 10 years old, was one of his pupils. During the course of a lesson the respondent moved his hand up E’s thigh until he touched his genitals on the outside of his underpants (indecent assault). A few lessons later, the respondent masturbated E underneath his clothing (indecent assault). In 1979 or 1980 when E was ten or 11 years old, at the home which they shared the respondent masturbated E, and then made E masturbate him. The respondent then knelt in front of E and performed fellatio on him (unlawful sexual intercourse). About one year later the respondent masturbated E while they watched television together (indecent assault).
In 1980 when his stepson M was six years old, the respondent put his hands down M’s pants and fondled his penis (indecent assault). In either 1983 or 1984, when M was nine or ten years old, the respondent fondled his penis and then performed an act of fellatio upon him (unlawful sexual intercourse). Next, in 1986 when M was about 12 years old, the respondent pulled his pants down, fondled his penis (indecent assault) and asked if M wished him to perform an act of fellatio.
The third stepson, A, was the third of the stepsons to be a victim of the respondent’s offences. On two separate occasions in 1984 when A was 13 years old, the respondent stroked and fondled his penis for about half an hour, initially over the top of his underpants and later in direct contact with his skin (indecent assaults).
The third group of offences involved the children of a family friend at whose premises the respondent was then living. This group of offending occurred after a long interval had elapsed between the offending involving the respondent’s daughter and stepsons.
In 2002 or 2003 J was nine or ten years old. He entered the respondent’s caravan which was parked in the backyard of his (J’s) mother’s home. The respondent pulled J’s pants down and stroked his penis (indecent assault). In the same year, when the victim, G, was nine or ten years old the respondent masturbated him (indecent assault). Finally, in 2002 or 2003 when the victim, C, was ten or 11 years old he too was masturbated by the respondent (indecent assault).
The respondent pleaded guilty to each of these offences and made full admissions to the police when interviewed about them. He acknowledged that none of the offences involving each child was an isolated act with that child. He admitted that the conduct comprising each of the offences was of a kind which he had engaged in with each child on several occasions and in some instances as part of a continuing course of conduct. The material before the Judge indicated that the respondent’s conduct involving the daughter extended over a period of two or three years; with E over a period of about three years; with M over a period of about three years; with A over a period of about three years; with J over a period of about one year; with G over a period of about one year; and with C over a period of about three years. Of course, the respondent was not to be punished for the uncharged conduct, but nor was he entitled to any reduction on the basis that the offences were isolated or had not been repeated.
The respondent’s offending here was extremely serious. It was persistent, prolific, involved a number of very young victims and extended over a very long period of time. When increasing the head sentence to nine years, White J indicated a starting point, before reduction for pleas of guilty and cooperation, of “not less than 13 years”. In my view the starting point of 13 years, following the successful crown appeal, was lenient.
Of course, the respondent is not to be punished again for this offending but the nature of the offending and the timeframes during which it occurred are relevant to considerations such as prospects for rehabilitation and weight to be given to personal and general deterrence when determining the appropriate sentence for the various offences with respect to which I am to sentence the respondent. The nature of the DCCRM-08-177 offending is also relevant to my determination of the Director’s application.
The Victorian offending (entries 7 and 9)
As earlier indicated, only limited material was available concerning this offending. This material indicates that the respondent touched or fondled the genitals or genital areas of two of his grandchildren beneath or in the absence of any clothing. The sentence imposed of 18 months imprisonment after pleas of guilty is indicative of the serious nature of the offending. Whilst the respondent was convicted of two counts of committing an indecent act with a child under 16, the child in each case was in fact less than 8 years of age.
The 2000 KK and GS offending (entries 5 and 11)
The seven offences under consideration here occurred during the year 2000. This was some years after the first two groups of offending described by White J and which concerned the respondent’s daughter and three stepsons. However, it occurred some three years or so prior to both the third group of offences described by White J and also the 2003-4 JaS offending, all of which was directed at children of the S family. Indeed, the offending directed at GS and KK, having occurred in 2000, can be regarded as the beginning of a substantial course of conduct involving the repeated abuse of various children of the S family together with KK, their young friend, over the period of 2000 to late 2003 or early 2004.
The respondent moved in to live with the S family in early 2000. He occupied a caravan in the backyard. Plainly there was a relationship of friendship between the respondent and the S family and the mother of the S family children reposed significant trust in the respondent. Some of the offending against the children of the S family occurred in the caravan in the backyard of the S family home and some of the offending occurred in the respondent’s own home.
In brief, the nature and circumstances of the seven offences committed in 2000 and presently under consideration were as set out in the following paragraphs. I identify the count numbers by reference to the seven counts originally recorded in the Magistrates Court Information dated 21 July 2016, notwithstanding that counts 5, 6 and 7 were transferred to a District Court Information of 25 November 2016 on the basis of which the respondent’s pleas for those counts were taken on that date.
Count 1 charged the offence of sexual intercourse with KK, a person under the age of 17 years, contrary to subsection 49(3) of the Criminal Law Consolidation Act 1935. The maximum penalty for this offence as at the time it was committed was imprisonment for seven years. This incident occurred after both KK and GS had dinner one night at the respondent’s house. The respondent told KK and GS to take off all of their clothes and to lie on the respondent’s bed. The respondent took his clothes off. The respondent then told KK he would show her what a G-spot is, following which he inserted two fingers into her vagina and moved them in and out for a couple of minutes. KK was 13 years old.
Count 2 charged the offence of inciting or procuring the commission of an act of gross indecency by GS, a person under the age of 16 years and in the presence of the respondent, contrary to subsection 58(1)(b) of the Criminal Law Consolidation Act 1935. The maximum penalty for this offence as at the time it was committed was imprisonment for three years. This offence was committed on the same occasion as that for count 1. The respondent instructed GS to masturbate himself whilst the respondent’s fingers were inserted in KK’s vagina. GS was about 7 or 8 years old.
Count 3 charged the offence of inciting or procuring the commission of an act of gross indecency by GS and KK, persons under the age of 16 years and in the presence of the respondent, contrary to subsection 58(1)(b) of the Criminal Law Consolidation Act 1935. This incident occurred on the same occasion as for counts 1 and 2. At one point, the respondent stopped what he had been doing with KK and told her to get on top of GS and have intercourse with GS. KK did that and GS put his penis inside her vagina whilst the respondent watched for about a minute before leaving the room.
Count 4 charged the commission of an act of gross indecency in the presence of KK and GS, being persons under the age of 16 years, contrary to subsection 58(1)(a) of the Criminal Law Consolidation Act 1935. The maximum penalty for this offence as at the time it was committed was imprisonment for three years. This incident also occurred on the same occasion as for counts 1, 2 and 3. The respondent had not left the room for very long before he walked back in and sat on the bed next to the two children. He was completely naked and whilst he watched the two children he started masturbating and continued to do this for a couple of minutes.
Count 5 also occurred on the same occasion and charged an offence of indecently assaulting KK, contrary to section 56 of the Criminal Law Consolidation Act 1935. The maximum penalty for this offence as at the time it was committed was eight years imprisonment. After KK left the room, the respondent followed her to a spare room and told her that he had cancer in his testicles. Whilst KK was sitting on a bed, the respondent grabbed her hand and told her to feel for a lump. He did not let go of her hand but held it and guided it whilst pressing it onto his testicles.
Count 6 also occurred on the same occasion and charged an offence of sexual intercourse with KK, a person under the age of 17 years, contrary to subsection 49(3) of the Criminal Law Consolidation Act 1935. According to KK, the respondent told her to lie flat on her back and then sat on top of her and had intercourse with her. The respondent put his penis into KK’s vagina, thrusting in and out for about 20 minutes.[10] The respondent was rough and this really hurt KK. KK said that she was in shock and just lay there not moving. The respondent did not use a condom.
[10] Whilst I accept the account of this offence given by KK in its essential terms, I am not prepared to accept that it necessarily took place for 20 minutes. Given the age of KK at the time, the extremely distressing circumstances and the delay in recording her statement, I do not accept this as a necessarily reliable estimate of the length of time.
Count 7 occurred on a separate occasion, approximately one week after counts 1 to 6 had taken place. Count 7 charged the offence of inciting or procuring the commission of an act of gross indecency by GS and KK, persons under the age of 16 years and in the presence of the respondent, contrary to subsection 58(1)(b) of the Criminal Law Consolidation Act 1935. On this occasion, KK had gone to the S family house and the respondent was also at the S family house. The mother of the S family children left the house after which the respondent told KK and GS to go into a bedroom at the front of the house. He closed the door behind him and told them to kiss each other. KK and GS started kissing while the respondent watched.
The two events comprising counts 1 to 6 on the one hand and count 7 on the other hand are relied upon by the prosecution as isolated events, that is, they are not asserted to have been representative of a course of conduct. They are isolated incidents that occurred over a period of approximately a week with respect to KK. However, they are clearly part of a pattern or course of conduct involving the respondent’s dealings with various children of the S family over the periods of time identified in the chronology earlier set out.
The 2003-4 JaS offending (entries 8, 12 and 14)
JaS was between the ages of 5 and 6 at the time of this offending. He is the youngest of the S family children and was the victim of two counts of indecent assault contrary to section 56 of the Criminal Law Consolidation Act 1935 and one count of unlawful sexual intercourse with a person under the age of 12 years, contrary to subsection 49(1) of the Criminal Law Consolidation Act 1935. At the time these offences were committed the relevant maximum penalties were imprisonment for eight years and imprisonment for life respectively. The offending against JaS occurred approximately three years after the respondent had dealt with GS and KK and not long after he had dealt with three of the other S family children (entry 6 on the chronology) which formed part of the DCCRM-08-177 offending for which the respondent was sentenced in 2008.
As already indicated, the respondent was a friend of the S family and at the time relevant to this offending was living in a caravan in the backyard of the S family house. The sexual abuse against JaS occurred in the caravan. On one occasion, the respondent invited JaS into the caravan to play Xbox. Whilst JaS was sitting and playing, the respondent committed the first count of indecent assault and count 2 being an offence of unlawful sexual intercourse. On the second occasion two or three days later when JaS was again in the respondent’s caravan playing Xbox, the respondent committed count 3, another offence of indecent assault. The essential factual basis as found by the trial Judge was as follows.[11]
I am satisfied beyond reasonable doubt that the accused invited the complainant into his caravan to play on the Xbox that was in that caravan. Whilst the complainant was doing this, the accused sat next to him and slid his hand between his legs, putting his hands onto the complainant’s thigh and starting to rub up and down. He then moved his hands onto the testicles and penis of the complainant and rubbed for a few minutes. After that had occurred, the accused pulled down the complainant’s pants and underwear, made the complainant sit back on the bed and fellated the complainant for a couple of minutes. This was then interrupted by someone knocking at the locked door.
Further, I am satisfied beyond reasonable doubt that on a subsequent occasion the complainant was told to go into the caravan by the accused and play the Xbox. Whilst he was in the caravan he was alone with the accused. He played on the Xbox whilst sitting at the foot of the bed and on that occasion the accused grabbed his hand off the Xbox and slid it onto the accused’s crotch. The accused then placed his own hand over the top of the complainant’s hand and caused him to rub up and down on the accused’s penis. This happened for a few minutes and was interrupted by the complainant’s mother yelling from the house for the complainant.
[11] R v Mountford [2018] SADC 115 at [152]-[153].
Victim impact statements
During the hearing of submissions on sentence I received victim impact statements from KK, JaS and JJ, the mother of JaS. The respondent’s offending has caused KK and JaS great ongoing distress and emotional and psychological harm. KK has been unable to study or gain employment. She suffers greatly from anxiety and depression for which she is on regular and possibly lifelong medication. She is constantly beset with lack of confidence and thoughts of the futility of life. JaS has experienced anger and relationship difficulties. He has struggled at school and with developing friendships. His relationship with his family particularly his mother has been badly, perhaps irretrievably, damaged. He does not trust anyone and has no social life. According to JJ, and understandably so, the respondent’s conduct has been simply ruinous of her life, her children’s lives and of her family.
The respondent’s personal circumstances
The respondent’s personal circumstances leading up to when he was convicted and sentenced to imprisonment in 2008 were summarised by White J speaking on behalf of the Court of Criminal Appeal.[12]
The respondent is now aged 68 but was 33 when his offending commenced. He reported having been sexually abused himself when he was a boy. The incidence of those who have been victims of sexual abuse offending in similar ways themselves has been noted in other authorities. That is one reason why general deterrence is an important feature of sentencing for this kind of offending.
The respondent’s first marriage survived for 15 years. Shortly after that relationship ended, the respondent commenced his relationship with his present wife, the mother of his stepsons. That relationship continues to the present day, although there was a separation of approximately six months in the early 1990’s when the wife learnt of the respondent’s sexual abuse of her sons. The fact that their mother has remained with the respondent has been, and continues to be, a cause of considerable distress to the stepsons.
There was an element of calculation and premeditation to the respondent’s conduct. He told an assessing psychologist that the three sons of his second wife were one of the reasons he was attracted to her.
The respondent committed offences of indecent acts with two of his grandchildren in Victoria in late 2003, ie, after the last of the subject offences. In June 2005 he was sentenced in Victoria to imprisonment for 18 months for these two offences.
When interviewed by the Victorian police concerning these offences, the appellant made admissions concerning the subject offending. This led to him being interviewed by the South Australian Police while still in custody in Victoria. During the course of that interview he made full admissions concerning his offending in South Australia. This included admissions of offending which had not been reported to the South Australian Police at that time. It is appropriate to say that the respondent cooperated fully with the South Australian Police in their investigation, and did not at that time, or subsequently, seek to diminish the extent of his conduct.
Since his discharge from custody in Victoria, the respondent has taken steps to avoid further offending. Those steps comprise principally the confining of himself to his own house and ensuring that he leaves the house only when in company with his wife.
A report from the respondent’s general practitioner indicates that he suffers from diabetes, high cholesterol and angina. Without treatment these conditions are life threatening. They have however been managed adequately by medication and there is no reason to suppose that they will not be managed in a similar way while he is in custody.
The assessing psychologist considered that the respondent satisfies the criteria for a diagnosis of paedophilia and that he continues to be at risk of re-offending. That risk is regarded as high if the respondent is ever again placed in a situation in which he has regular unsupervised contact with young boys.
[12] R v M, REM [2008] SASC 348 at [18]-[25].
Further detail with respect to the respondent’s personal circumstances as at 2008 is contained in the sentencing remarks of the District Court Judge.
You were born in England in 1940 and you grew up on what was called a ‘hotel farm’ where your mother worked as the manager while your father was away at the war.
You said you were sexually abused when you were just four years of age by another person who worked on the farm.
When you were eight you came to Australia with your parents and soon afterwards you say you were also sexually abused by a person you described as a step-uncle. It would seem that from quite a young age you became preoccupied with sex involving young boys.
You were married to your first wife for 15 years. You say you are still friends with her and you remain close to all six of your children, even your daughter who is one of the victims in the current charges.
You met your second wife soon after your first marriage ended and you separated from her for about six months in the early 1990s, when the abuse against your stepsons first was disclosed. At that time she later asked to be reconciled with you and you have been living with her ever since. I understand that her sons have since disowned her over the abuse they suffered at your hands.
You are now 68 years old. You have a number of medical issues and they are set out in a report from your general practitioner. Most notably you suffer from diabetes, angina and high cholesterol. Your diabetes is currently not under control and you are on the maximum dose of medication. It may be that you will have to start having injections to deal with this problem.
A complication of your diabetes is a condition called peripheral neuropathy which affects the tiny nerve fibres in your hands and legs. You say that as a result of this condition your lower legs are numb. It would appear that you are also impotent and have no genital sensation as well. Your doctor says the only treatment for this condition is control of you sugar levels, exercise, diet and medication. He says with the combination of these conditions, combined with the stress of imprisonment, your overall health will be severely compromised; I accept that.
In your psychological consultation with Mr Davis you were very candid about the fact that your sexual preference is for young boys. In his assessment Mr Davis concluded that you clearly meet the criteria for a diagnosis of paedophilia. He states that you pose a moderate risk for sexual recidivism. He says this would increase if you have regular, unsupervised contact with young boys, and I note Mr Kelly’s submission on your behalf that you have been avoiding such contact ever since you have spoken to the police. If you do come into contact unsupervised with young boys, Mr Davis regards the chances of your re-offending as high.
Although there are two convictions on your record for behaviour involving indecency with a child under 16, these offences occurred on 1 November 2003 and 31 December 2003; that is, after the offences before me and the victims were your two step grandsons, aged eight and six at the time.
You were convicted of these offences in June 2005 and were sentenced to imprisonment for 18 months, with a non-parole period of six months.
It was during an interview with the Victorian Police in relation to those matters that you made admissions about your offending in South Australia. South Australia Police interviewed you in 2006 and you made full admissions in relation to these offences.
Six of your seven victims tendered victim impact statements. Each of the statements gave a harrowing insight into the devastation that your abuse has had on each of their lives and their relationships with others. Your crimes will have a life-long effect on each of them. For each of them the abuse that you committed against them was part of a prolonged course of conduct.
With the exception of your daughter, all of your victims wrote of an overpowering anger that still plagues their lives. They spoke of the distressing effects that your abuse has had on the relationships that they have tried to have with others. Perhaps most tragically is the effect your abuse has had on your stepsons’ relationships with their own children. Two of them made reference to the fact that they now have difficulty showing affection to their own children, saying that to do so makes them feel ‘dirty’ or ‘uncomfortable’.
Three of your other victims, the sons of your family friend, wrote about the disintegration of their relationships within the family. They each wrote about the consuming anger that now permeates their lives and how they have all become untrusting of other people, especially older men.
Your counsel, Mr Kelly, told me you are contrite and deeply regret the offences you have committed. He made submissions that your remorse is evidenced by your co operation with the police and your timely pleas and I accept that.
He said you volunteered for a Sexual Offender Treatment Program 25 years ago, but did not complete that because of the rather bizarre treatment practices they employed. I was also told you participated in a Sexual Offenders Program while you were in custody in Victoria and that you attempted to gain entry into a more extensive program, but you could not do so until after these matters were finalised.
Since your release from prison in Victoria you have been determined not to re-offend. I am told you avoid going out and when you do go out your wife always accompanies you.
Of course, the respondent has been in custody since 2008 either serving a sentence or latterly on remand with respect to the matters that are before me. As such, no further information concerning the respondent’s lifestyle and conduct in the community is available. However, in support of the Director’s application for an indefinite detention order, various reports from the Parole Board and the Department for Correctional Services and various expert psychiatric and neuropsychological reports have been provided to the Court.
Of relevance to both the question of sentence and the Director’s application is the respondent’s current state of physical and mental health. The parties are in substantial agreement concerning the respondent’s current physical and psychological state. As such I will focus on only the more recently prepared reports, and only briefly.
According to a report from Dr Dan Pronk, Medical Director of the SA Prison Health Service, dated 8 December 2017, the respondent suffered, as at that date, from the following medical conditions, all of which have been managed by the SA Prison Health Service whilst the respondent has been in custody.
· Ischaemic heart disease with triple coronary artery bypass grafting in 2015
· Congestive cardiac failure
· Hypertension
· Hypercholesterolemia
· Transient Ischaemic Attacks (TIAs)
· Type 2 diabetes (non-insulin dependent diabetes – NIDDM)
· Chronic renal failure with hyperkalaemia
· Anaemia
· History and risk of falls due to chronic health status and frailty
Dr Pronk said that it was impossible to predict an exact life expectancy due to the many variables associated with the respondent’s health. However, Dr Pronk expressed a view that whilst statistically the respondent (then 76) might be approaching his life expectancy, with current medical management of the various conditions “he may live for many more years”. Dr Pronk saw no reason to think that the ongoing incarceration of the respondent would lead to a shorter life expectancy than could be expected if he were to be living in the community.
A number of psychiatric and psychological reports have been made available. Of particular assistance are the report of the clinical psychiatrist, Dr Ian Jennings, dated 24 July 2017 and his addendum report of 7 September 2018, the report of the clinical psychiatrist, Dr Paul Furst, of 21 August 2017 and his addendum report of 24 September 2018 and the report of the forensic neuropsychologist, Mr Mark Reid, dated 1 August 2018. The addendum reports of Dr Jennings and Dr Furst were obtained so as to enable them to comment on the findings of Mr Mark Reid and to identify whether that additional information might lead to a revision of the opinions previously expressed by those two doctors.
It is unnecessary to summarise these reports in any detail. I am satisfied that the opinions expressed are soundly based both on the evidence before the respective practitioners and as a product of their undoubted expertise. There was no challenge to the content of the reports by the respondent as to either the factual basis relied on or the opinions expressed.
Dr Jennings, in his initial report, expressed the following conclusions.
[The respondent] had a long history and well established pattern of offending since the 1970s. His offending was obviously premeditated, with him engaging with mothers of children he was attracted to, and the offending occurred over prolonged periods of time, and included often taking non-family victims to his residence for the offences. His behaviour was not impulsive. The victims of his offending were children under his care either as a father, step-father or babysitter.
. . . .
I would agree with the Sexual Behaviour Clinic post-treatment review that there would be an ongoing concern that [the respondent’s] diminishing cognitive capacity may further increase his risk of re-offending. Although [the respondent] denies any ongoing sexual libido or fantasies and states he is unable to achieve an erection, most of [the respondent’s] offending related to fondling his victims, watching his victims or digitally penetrating his victims.
. . . .
I believe [the respondent] has a well documented history of not being able, or unwilling, to control his sexual urges. He continues to minimise his offences and continues to see the victims as initiating the offences. I believe this would make him an ongoing high risk of re-offending if an opportunity were to occur in the future. This risk, I believe, would be further increased with the evidence of [the respondent’s] diminishing cognitive capacity, reducing his insight and understanding of his behaviour and reduce [sic] his capacity to control potential future sexual interests.
Dr Furst, in his initial report, expressed similar opinions. He concluded in the following terms.
Overall, when considering the presence of a number of risk factors, particularly [the respondent’s] history of frequent offending, his poor response to treatment and his somewhat unrealistic plans to live with his family and have contact with his grandchildren suggest that there is some risk that he would again offend if he had the opportunity. He has reported that he no longer has any sexual function physically, and this is consistent with his age and history of Type II diabetes, however, his claim that this function ceased upon being charged for the current offences is something that I find concerning and raises questions about his reliability as a historian. He has also denied significant elements of his most recent offence and has blamed the victim, not only for his offending, but also for his decision to initially plead guilty. Generally, the risk of sexual offending decreases significantly with age and also with time since the last offence. However, given [the respondent’s] presentation, I believe that there is still an appreciable risk that we [sic] would offend if he had the opportunity. The most likely victims would be young children with whom he has easy access, such as his grandchildren. As I noted previously, the authors of the RSVP point out that it is impossible to predict with any certainty whether a person will engage in a specific act at some time in the future, but having taken into account all of the factors outlined above and the material provided, especially the SBC post-treatment report, I believe that there is a significant risk that [the respondent] would, if given the opportunity, commit a relevant offence and therefore could be considered as ‘unwilling’ within the meaning of the legislation.
(Emphasis in original)
Mr Mark Reid undertook a neuropsychological assessment and reported on his findings in a report of 23 May 2017 and in his later report of 1 August 2018, referred to earlier. In the latter report he concluded as follows.
The clinical presentation and the results of this current neuropsychological assessment, do indicate there has been some deterioration of [the respondent’s] cognitive ability as described, which would currently be considered as “Mild Cognitive Impairment” (MCI). This is therefore suggestive of a potentially progressive cognitive decline and I am aware he does have a number of cerebrovascular risk factors based on his previous medical and health history.
. . . .
Although I believe he is currently [that is, as at 1 August 2018] fit to stand trial, based on my current findings, this status may change with the further passage of time. I believe it is probable he does have a deteriorating cognitive state, possibly a cerebrovascular dementia, but an an Alzheimer’s type dementia could also be possible. At this stage, in the context of Mild Cognitive Impairment, it is not possible to provide a formal diagnosis or delineate any specific type of dementing illness, but regardless of this there is clearly the potential of further deterioration and the possibility that he will not be fit to stand trial in twelve months time.
In his addendum report, Dr Jennings expressed the following opinion.
The evidence from the neuropsychological reports prepared by Mr Reid would suggest that [the respondent’s] cognitive incapacity has not significantly changed his assessed level of risk for reoffending. However, as his cognitive functions decline, there is a risk this may contribute to actually increasing his risk of reoffending, as a result of increasing disinhibition, poor insight and comprehension of the nature of his actions and poor decision-making. If his dementia continues to progress, then it would eventually reach a stage which would reduce [the respondent’s] risk of offending. However, as the nature of his dementing illness has not been formalised, and the progress of dementing illnesses is difficult to predict, the time course of the cognitive impairment increasing his risk factors followed then by diminishing his risk factors is impossible to determine with any certainty.
Dr Furst, in his addendum report, expressed the following opinion.
[The respondent] is a 78 year old man who has a long history of sexual offending against children. Whilst it would appear that he has not offended since 2005 and his risk of future offending is much reduced given his advanced age and the duration of time since his last offence, there were a number of risk factors that suggested to me that [the respondent] was still at an elevated risk of offending if given the opportunity to do so.
When considering my opinion, I took into account at that time that [the respondent] had mild cognitive impairment and, whilst I note the recent assessment provided by Mr Mark Reid and the reports of Dr Dan Pronk, these are consistent with the earlier assessment and do not significantly worsen his prognosis but, as I have previously indicated, do bear ongoing monitoring. The slow progression of his mild cognitive impairment does not improve his prognosis.
In my opinion, [the respondent] remains an elevated risk of reoffending if he were to be released into the community without restriction. This means that he is more likely to offend in a sexual manner than other general offenders, but does not necessarily mean that he is more likely than not to reoffend. Whether this meets the legal criteria of appreciable risk will remain a matter for the Court.
In summary, I do not believe that the reports provided have any significant impact on my assessment of [the respondent].
Of the departmental materials, the most recent and most useful report for present purposes is the post-treatment assessment report of the Rehabilitation Programs Branch, Sexual Behaviour Clinic dated 10 August 2016. Under the heading “Summary and Recommendations”, the author of that report[13] made the following observations.
Mr Mountford participated in the Port Lincoln Prison SBC[14] from 07/10/2015 – 28/06/2016. His participation and engagement were good throughout the program, however few behavioural changes were noted.
Despite Mr Mountford developing small insight and skills into areas of relationships, sexual deviancy, cognitive distortions and self-management, overall, the post-treatment assessment indicated that Mr Mountford had gained limited insight and skills into his treatment targets. It was possible that Mr Mountford’s cognitive impairments limited some understanding of the concepts, at the same time facilitators perceived that Mr Mountford was engaging in positive impression management to some degree. It appeared that Mr Mountford was still in the early stages of treatment and required further intervention to address outstanding treatment targets and/or possible medication strategies to manage his deviant sexual arousal if deemed appropriate (as Mr Mountford’s cognitive capacity may decline in the future).
The report writer made a number of recommendations for further treatment intended “to enhance Mr Mountford’s ability to maintain a pro-social offence free lifestyle upon his release”.
[13] The author was Anne Black B.Health.SCI.(Hons) M.Psych (Clinical), a senior clinician/clinical psychologist, Rehabilitation Programs Branch, Department for Correctional Services South Australia. The report was reviewed by Kim Pfitzner M.Psych.Forensic, an acting manager, Rehabilitation Programs Brach, Department for Correctional Services South Australia.
[14] SBC is an acronym for Sexual Behaviour Clinic.
Sentence
I will sentence separately for the 2000 KK and GS offending and the
2003-4 JaS offending. The respondent has been in custody on remand since 18 September 2017 for the 2000 KK and GS offending. I will backdate the sentence I impose for that offending to that date. The 2003-4 JaS offending took place some three or more years later. As such, I will order that the separate sentence I impose for the 2003-4 JaS offending be served cumulatively on and to commence at the expiration of the sentence for the 2000 KK and GS offending.
All of the offending under my consideration was extremely serious. It was premeditated, repetitive and in breach of trust. It involved penetrative conduct and very serious non-penetrative conduct with extremely young children. It was part of a pattern of like offending that persisted over decades. Two additional victims, KK and JaS, were offended against and GS was further offended against.
I have had regard to the general expression of sentencing considerations for this type of offending explained by Doyle CJ in R v D.[15] However, in this respect, there are a number of factors which must be taken into account such that the sentencing standard in R v D (as endorsed by section 68 of the Sentencing Act 2017) is not directly applicable. The maximum penalties in place at the time of some of the offences (as earlier set out) differ from those in place at the time of R v D and today. Next, whilst the offending before me occurred as part of a course of conduct in the 1980s, the offences committed against KK, GS and JaS were not representative of a course of offending against those victims taking place over a lengthy period of time. Further, whilst all of the offending before me was part of this course of conduct in the 1980s, the respondent has already been sentenced for much of that offending and on the basis that the respondent engaged in a course of conduct. As such, any risk of double punishment is to be guarded against and, in this respect, it is not possible to give direct effect to considerations of concurrency. Operating against this last consideration is the fact that the present offending can be seen as involving separate incursions into crime with additional victims. Ordinarily, the fact that an offender continues to offend in the same way over a lengthy period of time is not of itself a reason to discount an otherwise appropriate and proportionate sentence.
[15] (1997) 69 SASR 413.
The foregoing bears on the questions of proportionality and leniency. In this respect, I also have had regard to the facts that the respondent is now 78, suffers significantly from ill health, has a quite limited life expectancy and has been continuously in custody since 2008.
A difficulty arises with respect to the 2000 KK and GS offending. Because counts 1 to 4 and 5 to 7 attract different maximum discounts for the pleas, I need to indicate separate starting points for each group. However, counts 5 and 6 took place on the same occasion as counts 1 to 4 and all six counts might be characterised as forming part of the one single, albeit quite extended, “transaction”. They more readily lend themselves to be sentenced by way of a single penalty for the six counts. I will address this concern by sentencing for counts 1 to 4 independently of sentencing for counts 5 to 7 but allowing a reasonable measure of concurrency between the sentences for the two groups.
For the 2000 KK and GS offending I propose to impose a single penalty pursuant to section 26 of the Sentencing Act 2017 of imprisonment for five years. I have arrived at that head sentence in the following way. For counts 1 to 4 which attract a maximum discount for the early pleas of 40 per cent, I start with five years and reduce that to three years. For counts 5 to 7 which attract a maximum discount for the early pleas of 20 per cent, I start with four years and six months and reduce that by a shade under 20 per cent to three years and eight months. After allowing one year and eight months for partial concurrency, the single penalty for counts 1 to 7 that I impose is five years.
For the 2003-4 JaS offending, I impose a single penalty pursuant to section 26 of the Sentencing Act 2017 of imprisonment for three years and six months. There was no plea and therefore no entitlement to any discount.
I backdate the sentence of five years for the 2000 KK and GS offending to commence 18 September 2017. The three years and six months for the 2003-4 JaS offending is to be served cumulatively on the sentence for the 2000 KK and GS offending and is to commence upon its expiration. This gives rise to a total period of imprisonment to be served of eight years and six months.
By force of section 52 of the Sentencing Act 2017, the respondent is a serious repeat offender. The respondent does not challenge this and in accordance with section 54, when sentencing the respondent I am not bound to observe the principle of proportionality (but may do so). However, any non-parole period fixed must be at least four-fifths the length of the sentence (subject to the qualification referred to below). In the circumstances of this case, I am not satisfied that a disproportionate sentence is needed for the proper protection of the community and in setting the head sentences as indicated above, I have endeavoured to observe the principle of proportionality.
As far as the non-parole period is concerned, a discretion to go below the otherwise mandatory four-fifths is resurrected if the circumstances prescribed by subsection 54(2) were to be established. They have not been made out in this case and the respondent has not put a submission that any non-parole period should be other than the four-fifths of the total period of imprisonment imposed. I fix a non-parole period of six years and ten months. The non-parole period is also backdated to commence 18 September 2017.
The Director’s application
The Director has applied for an order pursuant to subsection 57(7) of the Sentencing Act 2017 that the respondent be detained in custody until further order on the ground that the respondent is unwilling to control his sexual instincts and poses a continuing risk of harm to the public. Subsection 57(7) provides as follows.
The Supreme Court may order that a person to whom this section applies be detained in custody until further order if satisfied that the order is appropriate.
By virtue of subsection 57(13) where, as in this case, any such further detention would be in addition to the sentence of imprisonment that I have imposed, the further detention is to commence on the expiration of the term of imprisonment imposed.
I gratefully adopt, as sufficient for present purposes, the analysis of the statutory scheme and applicable legal principles set out by Hinton J in R v Hoare[16] bearing in mind that these principles were outlined in the context of an application pursuant to section 23 of the Criminal Law (Sentencing) Act 1988 and with reference to an application brought by the Attorney-General with respect to a serving prisoner. I am satisfied that the same principles, mutatis mutandis, apply to the Director’s application pursuant to section 57 of the Sentencing Act 2017 that is before me. What follows are aspects of Hinton J’s analysis that are particularly pertinent to the present matter.[17]
[16] [2017] SASC 7 at [62]-[73].
[17] R v Hoare [2017] SASC 7 at [63]-[65], [71]-[73].
Whilst the exercise of the power [to order indefinite detention] is not expressly conditioned upon the Court finding that the offender subject of an application is incapable of controlling, or unwilling to control, his or her sexual instincts, the Full Court has stated that the question whether the subject is incapable or unwilling to control his or her sexual instincts is a threshold question that must be answered yes or no, otherwise, bearing in mind the scheme created … no proper foundation exists for the Court to consider the risk that the offender poses to the safety of the community. Having answered the threshold question, there remains vested in the Court a residual discretion – despite the Court finding that a person to whom the section applies is incapable or unwilling to control his or her sexual instincts, it may be inappropriate that an order for indeterminate detention be made. Here it is important to bear in mind, for example, that the application may be made well in advance of the completion of an offender’s determinate sentence, when there is much time remaining for the offender to take advantage of courses and programs offered by the Department for Correctional Services.
While a conviction for a “relevant offence” is a precondition to the engagement of the scheme, the scheme’s purpose is not punitive. Rather, it is concerned with preventing recidivist sexual offending through incapacitation and rehabilitation. The scheme does not punish an offender twice for the same offences or increase the punishment for those offences. While it operates by reference to an offender’s status as a person convicted of a relevant offence, it sets up its own normative structure. The purpose of an order of indeterminate detention is to protect the community from sexual offenders where the risk posed by such a person is such that it is inappropriate that they be released, even when they have completed what would otherwise be their period of imprisonment for the offences that they have committed. Additionally it is to ensure that the person “receives appropriate treatment, review and supervision”.
An order for indeterminate detention should only be made where there is cogent and reliable evidence justifying the making of the order. In this regard Bleby J’s observations in R v England made in relation to a prior version of s 23 remain apposite. He said:
... satisfaction as to the inability of a person to control their sexual instincts is a matter of assessing the opinions to that effect, their strengths and their weaknesses, to a point where the court can be satisfied that the incapacity is present. In doing so, the court will need to take account of the seriousness of the declaration it is asked to make and the gravity of the consequences of giving the direction. To borrow the words of Dixon J in Briginshaw v Briginshaw, the necessary degree of satisfaction cannot be produced “by inexact proofs, indefinite testimony or indirect inferences”. It will require cogent and acceptable evidence in order to justify the making of the declaration and the giving of the direction. But even then, there is a residual discretion conferred by the use of the word “may” in the subsection. In that respect it may also be appropriate to consider, as in the case of R v Fahey and R v Riley whether, if a sentence is also imposed, the defendant is likely, at the end of the custodial period, to resume similar sexual activities. This will, in turn, require consideration, among other things, of the defendant’s access to and the likely effect of various regimes of treatment, and whether they can be effected in the prison setting or in some other institution contemplated by the section.
(footnotes omitted).
. . . .
Something more should be said here as to the significance of s 23(5). In R v Schuster the Full Court tackled the question of the significance of making the public safety the paramount consideration in the context of an application for release on licence. It said:
What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility.
I think these observations apply equally to s 23(5). So too the observation that the “exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety”. The Court quoted from the judgment of the Queensland Court of Appeal in Attorney-General (Qld) v Francis as reflecting the approach to be adopted. In that case Keane and Holmes JJA and Dutney J said:
The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.
Again such approach may be seen to apply equally to an application made under s 23. If the Court is satisfied that the offender is incapable or unwilling to control his or her sexual instincts, the question is whether an order for indeterminate detention is apt to ensure adequate protection of the community, having regard to the risk to the community posed by the offender.
[footnotes omitted]
The respondent, having been convicted in the District Court of relevant offences as defined, is a person to whom section 57 of the Sentencing Act 2017 applies.[18] As such, the discretion arises to make the order as sought by the Director.[19] Before making any such order, the Court is to have regard to the reports from two legally qualified medical practitioners who have enquired into the medical condition of the respondent and in particular as to whether or not the respondent is incapable of controlling, or unwilling to control, his sexual instincts.[20] In addition, the Court must take into consideration the matters set out in subsection 57(9) which is in the following terms.
[18] Subsection 57(2).
[19] Subsection 57(7).
[20] Subsection 57(6).
The Supreme Court must also take the following matters into consideration in determining whether to make an order that a person to whom this section applies be detained in custody until further order:
(a)the reports of the medical practitioners (as directed and nominated under subsection (6)) provided to the Court;
(b)any relevant evidence or representations that the person may desire to put to the Court;
(c)any report required by the Court under section 61;
(d)any other matter that the Court thinks relevant.
The term “unwilling” in the context of the enquiry of whether or not a person is unwilling to control their sexual instincts, is defined in subsection 57(1) in these terms.
unwilling—a person to whom this section applies will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of the person's sexual instincts.
The respondent’s history of offending together with the forensic psychiatric reports prepared by Dr Jennings and Dr Furst serve to persuade me that the respondent is presently unwilling (as defined) to control his sexual instincts and, if he were to be released today to live in the community, would pose an appreciable risk to the safety of the community. This has not been challenged on behalf of the respondent.
Central to the power to be exercised under section 57 is the requirement laid down in subsection 57(8).
The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be to protect the safety of the community (whether as individuals or in general).
Having had regard to the matters identified in subsection 57(9) insofar as material and, in particular, to the respondent’s criminal history, the medical and psychiatric reports available to the Court and the post-treatment assessment report of the Rehabilitation Programs Branch, Sexual Behaviour Clinic, I would most likely make the order sought by the Director if the respondent’s release into the community were to be imminent. However, it is not imminent. Indeed, there is no prospect that the respondent will be released before the elapse of another approximately five years and four months[21] by which time he will be 83 years old. The respondent’s further incarceration may be for more than seven years[22] in the event that parole were not to be granted.
[21] The non-parole period is six years and ten months commencing 18 September 2017.
[22] Bearing in mind that the head sentence of eight years and six months is to be backdated to commence 19 September 2017.
In this context, the respondent’s submission was to the effect that the making of such an order at this stage would be unnecessary and premature. I agree with that submission.
The paramount consideration when deciding whether or not to make an order for indefinite detention is the need to protect the safety of the community. Nevertheless, the purpose of such an order is not to punish (again) and it is still to be regarded as an exceptional order and not lightly entered upon. In this case, the following factors militate against making an order, at this stage.
(i)The respondent is now 78 and will not be released from prison until he is approximately 83 at the earliest.
(ii)The respondent suffers from significant declining ill health and physical impairments.
(iii)The respondent suffers from cognitive impairments which are thought to be progressive and which, whilst for the indeterminate future might serve to exacerbate his risk of re-offending, in the longer term it may ultimately serve to reduce his risk of re-offending.
(iv)A combination of (i), (ii) and (iii) above leaves open the real possibility, perhaps likelihood, that by the time the respondent were to become eligible for release from custody either on parole or having completed the head sentence I have indicated, he may not be able to live independently and may require a significant level of supervision in any event.
(v)A combination of (i) to (iv) above gives rise to the real possibility, perhaps likelihood, that by the time the respondent were to be released from prison he would pose no or no appreciable risk of underage sexual offending.
(vi)At any time in the future, whilst the respondent remains in custody as a serving prisoner, the Attorney-General has a statutory entitlement to apply for an order for indefinite detention.
In short, on the evidence presently available, I am not in a position to form a view as to whether or not there will be a need to protect the safety of the community insofar as the respondent is concerned at the time some years in the future when he is likely to be released from prison. In my view, it is unnecessary and premature to make the exceptional order sought by the Director at this stage.
The public is sufficiently protected at present by the sentence I have imposed and by the legislative entitlement in the Attorney-General to bring a further application pursuant to section 57 at an appropriate time and prior to the respondent’s release from custody. Subsection 57(3) provides as follows.
If a person has been convicted of a relevant offence, the Attorney General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section.
Any such future application brought by the Attorney-General would have the significant advantage, as compared with the present application, of being based on updated evidentiary material. As a consequence, the questions of whether the respondent were to continue to be “unwilling” to control his sexual instincts and whether there were to be a continuing need to protect the safety of the community, as at a time closer to the time of any proposed release from custody, are likely to be answered more reliably. For these reasons I refuse the Director’s application.
Conclusion
I make the following orders.
1.The Director’s application is dismissed.
2.With respect to the seven counts comprising the 2000 KK and GS offending the respondent is sentenced to imprisonment for five years backdated to commence 18 September 2017.
3.With respect to the three counts comprising the 2003-4 JaS offending the respondent is sentenced to imprisonment for three years and six months.
4.The prison term in order 3 is to be served cumulatively on the prison term in order 2 and is to commence upon its expiration.
5.A non-parole period of six years and ten months backdated to commence 18 September 2017 is fixed.
4
4
1