R v Robertson - [2010] SASC 41

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v ROBERTSON
[2010] SASC 41
Judgment of The Honourable Justice Sulan
26 February 2010
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCING
Matter referred to the Supreme Court for consideration of whether an order should be made pursuant to s 23 Criminal Law (Sentencing) Act 1988 (SA) - defendant pleaded guilty to aggravated serious criminal trespass in a place of residence, false imprisonment and assault with intent to rape - defendant previously convicted of a number of sexual offences - whether defendant incapable of controlling or unwilling to control his sexual instincts - consideration of factors to be taken into account when making an order pursuant to s 23 Criminal Law (Sentencing) Act 1988 (SA).
Held: Court is not satisfied that an order pursuant to s 23 is justified. Matter remitted to District Court for sentence.
Criminal Law Consolidation Act 1935 (SA) s 170, s 270B; Criminal Law (Sentencing) Act 1988 (SA) s 23, referred to.
R v England (2004) 87 SASR 411, applied.
McGarry v The Queen (2001) 207 CLR 121, discussed.
R v O'Shea (1997) 94 A Crim R 560; R v Humphrys [2009] SASC 198; R v Williams (2006) SASR 226, considered.

R v ROBERTSON
[2010] SASC 41
Criminal
SULAN J
Background

Kenneth Allan Robertson (“the defendant”) pleaded guilty to aggravated serious criminal trespass in a place of residence,[1] false imprisonment, and assault with intent to rape.[2]
[1] Criminal Law Consolidation Act 1935 (SA), s 170(1).
[2] Criminal Law Consolidation Act 1935 (SA), s 270B.
The question which has arisen is whether this Court should make an order pursuant to s 23(5) of the Criminal Law (Sentencing) Act 1988 (SA) (“the CLSA”) in respect of the defendant.
The offending occurred at night and in the early hours of 14 September 2007, involving the same victim, who was 84 years of age at the time. On 25 February 2009, a Judge of the District Court was of the opinion that, having regard to medical reports which he had received, and to the fact that this was the defendant’s third conviction of rape, a serious question arose as to his capacity to control his sexual instincts. He referred the matter to the Supreme Court to consider whether it is appropriate to order that the defendant be detained in custody until further order. No application that the matter be referred to the Supreme Court had been made by the Director of Public Prosecutions (“the DPP”).
Section 23 of the CLSA provides:
(1)In this section –
institution means –
(a)a prison; and
(b)a place declared by the Governor by proclamation to be a place in which persons may be detained under this section; and
(c)in relation to a youth, includes a training centre;
person to whom this section applies means –
(a)a person convicted by the Supreme Court of a relevant offence; or
(b)a person remanded by the District Court or the Magistrates Court under subsection (2) to be dealt with by the Supreme Court under this section; or
(c)a person who is the subject of an application by the Attorney-General under subsection (2a);
relevant offence means –
(a)an offence under section 48, 48A, 49, 50, 56, 58, 59, 63, 63A, 63B, 69 or 72 of the Criminal Law Consolidation Act 1935;
(b)an offence under section 23 of the Summary Offences Act 1953;
(c)any other offence where the evidence indicates that the defendant may be incapable of controlling, or unwilling to control, his or her sexual instincts;
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 his or her sexual instincts.
(2)If, in proceedings before the District Court or Magistrates Court, a person is convicted of a relevant offence and –
(a)the court is of the opinion that the defendant should be dealt with under this section; or
(b)the prosecutor applies to have the defendant dealt with under this section,
the court will, instead of sentencing the defendant itself, remand the convicted person, in custody or on bail, to appear before the Supreme Court to be dealt with under this section.
(2a)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.
(2b)The Attorney-General may make an application under subsection (2a) in respect of a person serving a sentence of imprisonment whether or not an application to the Supreme Court to have the person dealt with under this section has previously been made (but, if a previous application has been made, a further application cannot be made more than 12 months before the person is eligible to apply for release on parole).
(3) The Supreme Court will direct at least 2 legally qualified medical practitioners nominated by the Court to inquire into the medical condition of a person to whom this section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, his or her sexual instincts.
(4)For the purpose of an inquiry under subsection (3), each medical practitioner –
(a)must carry out an independent personal examination of the person; and
(b)may have access to any evidence before the court by which the person was convicted; and
(c)may obtain the assistance of a psychologist, social worker, community corrections officer or any other person.
(5)The Court may order that a person to whom this section applies be detained in custody until further order if –
(a)the Court, after considering the medical practitioners’ reports and any relevant evidence or representations that the person may desire to put to the Court, is satisfied that the order is appropriate; or
(b)the person refuses to cooperate with an inquiry or examination under this section and the Court, after considering any relevant evidence and representations that the person may desire to put to the Court, is satisfied that the order is appropriate
(6)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.
The primary purpose of s 23 is for the protection of the community from people who are incapable of controlling, or unwilling to control, their sexual instincts.[3] Where a person has been convicted of a relevant offence or offences,[4] the defendant’s case may be referred to the Supreme Court.
[3] R v O’Shea (1997) 94 A Crim R 560, 564.
[4] Relevant Offence is defined by s 23(1)(c) as including “any other offence where the evidence indicates that the defendant may be incapable of controlling, or unwilling to control, his or her sexual instincts.”
A person will be regarded as “unwilling” if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise adequate control of his or her sexual instincts.
The District Court Judge considered that the matter should be dealt with under sub‑s (2)(a), which empowers the District Court to refrain from sentencing a defendant and to remand him or her to appear before the Supreme Court to be dealt with under the section.
In arriving at his conclusion, the District Court Judge said:
Having considered and compared the circumstances of your year 2000 rape offending as disclosed in the sentencing remarks, I have very real concerns about your capacity or preparedness to control your sexual instincts. In that previous instance, as here, you set upon a vulnerable victim with whom you had established some brief acquaintance. In each case you imprisoned your victim and in each case you used a weapon and threats. Otherwise, the court has not received any material of a psychiatric or psychological kind which purports to deal specifically with that offending behaviour or touch upon your capacity or preparedness to control your sexual instincts.
On 17 November 2009, a Judge of this Court ordered that the matter be returned to the District Court for sentencing on a date that had already been fixed. Reports had been received from two psychiatrists, Drs O’Brien and Raeside. The Supreme Court Judge observed that counsel for the DPP did not support an order being made pursuant to s 23. Without considering the matter further, the Judge transferred the matter to the original District Court Judge.
On 14 December 2009, the matter was again considered by the District Court Judge. The District Court Judge observed that the Judge of this Court had not made a finding as to whether or not he was satisfied that an order should be made pursuant to s 23. The District Court Judge observed that s 23(6) requires the Supreme Court to consider whether an order should be made under the section and, further, whether it would proceed to sentence the defendant. It is a matter for the Supreme Court’s discretion whether, in the exercise of its powers, it refers the matter back to the District Court for sentencing. In the opinion of the District Court Judge, no decision had been made by the Supreme Court to determine the question which had been referred to the Supreme Court. The matter was, therefore, transferred back to this Court for determination.
Should an order pursuant to s 23 be made?
This Court is required to consider and determine whether an order should be made pursuant to s 23 of the CLSA. For the reasons that follow, I conclude that it is not appropriate that the defendant be detained pursuant to s 23. I consider the matter should be remitted to the District Court for sentencing of the defendant.
In R v England,[5] Bleby J dealt with the standard of proof required when determining whether a person is incapable of controlling his or her sexual instincts. He said:[6]
… [I]n relation to s 23(5) of the Act, 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. (Citations committed)
[5] (2004) 87 SASR 411, 423, followed in R v Humphrys [2009] SASC 198 and R v Williams (2006) 96 SASR 226.
[6] R v England (2004) 87 SASR 411, 423-4.
Bleby J further observed:[7]
It is important to bear in mind precisely what it is that the court is called upon to be satisfied about. It is that the particular person is incapable of controlling his or her sexual instincts. That is not a readily observable fact. It is not something that can readily be inferred by a finder of fact from other primary facts. It depends upon the formation and acceptance of an opinion which in turn depends, not only on the establishment of ascertainable facts, but on expert interpretation of the significance of those facts and of the weight to be given to them. It is not a process which is amenable to satisfaction beyond reasonable doubt.
[7] Ibid, 423.
In R v Williams, I said:[8]
I consider that because of the nature of the order being sought, being that the defendant be subject to indeterminate detention, I should be satisfied by cogent evidence that the defendant is a danger to the community before making such an order. The factors to which I should have regard include the defendant’s antecedents, character, age, health, the nature of the offence and any other relevant circumstances which point to the likelihood that he will commit further crimes of a sexual nature: see Chester v The Queen (Citation omitted)
[8] (2006) SASR 226, 230.
There is good reason only to exercise the Court’s power in the clearest of cases. In McGarry v The Queen,[9] the High Court was concerned with the question of whether it had been established that the appellant was “a danger to society or part of [it]”[10] and should accordingly be subjected to an indeterminate sentence. Kirby J referred to the rationale behind exercising caution in the exercise of the Court’s power to impose an indeterminate sentence:[11]
In part, the reason why the system of criminal justice treats an order of indefinite imprisonment as a serious and extraordinary step, derives from the respect which the law accords to individual liberty and the need for very clear authority, both of law and of fact, to deprive a person of liberty, particularly indefinitely. In part, this approach rests upon the indisputable feature of almost all criminal sentencing in Australia that limits the sentence imposed to one that is proportionate to the offence of which the person has been convicted. In part, it reflects a tendency to recoil from preventive detention that involves punishing a person "not for something that he has done but because of something it is feared he might do"⁵⁰. In part, it represents a realistic acknowledgment of the limitations experienced by judicial officers, parole officers and everyone else in predicting dangerousness accurately and estimating what people will do in the future⁵¹. (Citations omitted)
[9] (2001) 207 CLR 121.
[10] Ibid, 154.
[11] Ibid, [141].
Kirby J’s observations are relevant to a consideration of whether this Court should order that a defendant who cannot or will not control his sexual instincts should be detained for an indeterminate period.
In considering whether an order should be made in this case, I have relied upon the reports of Drs O’Brien and Raeside. I do not consider it is necessary for either doctor to give evidence, as their opinions are not challenged and their views are uncontroversial. I agree with the observations of Bleby J in England that, if the Court is inclined to make an order for an indeterminate sentence, it should hear evidence from the medical practitioners on oath, although there is no statutory requirement for that to occur. Nevertheless, before imposing such an order with such far-reaching consequences, the Court should, in most cases, be satisfied by evidence on oath that it is the appropriate course to adopt.
The offending
The events which led to the defendant being charged with these offences are that late on the evening of 13 September 2007, the defendant attended at premises of the victim, a woman aged 84 years. She was known to the defendant, as he had previously stayed with a friend who lived next door. The defendant had expressed to his friend an interest in some kind of relationship with the victim, notwithstanding her age.
On the evening of the incident, the defendant approached the victim with the pretext that her neighbour’s telephone was not operating and that he wished to use her phone. The victim let the defendant into the house, although it immediately became apparent to her that he had other intentions. The victim, who was concerned about the defendant’s behaviour, hit him with her walking stick. The defendant overpowered the victim and told her to go to the bedroom and be quiet. He emptied her handbag, took her credit card and asked for her PIN number. After the victim feigned health problems, he tended to her request to get her medication. The defendant returned to the bedroom naked, and holding a pocket knife. He directed the victim to take off her dressing gown. She refused, saying that he would have to kill her first. The defendant told her that she would have to obey him, or he would smother her with a pillow. An argument followed which involved the defendant pushing a knife against the victim’s throat and making threats to her life. Eventually, at about 12.30 am, the victim said she would make him a cup of tea and they both went into the kitchen. The victim tried to placate the defendant to convince him to leave the house. The defendant remained there until 3.30 am. The victim alerted the neighbours at 6.30 am.
Antecedents
The defendant has two prior convictions of rape. On 14 June 1983, he assaulted a prostitute in premises he knew to be a brothel. The defendant produced a knife, threatened the victim, and then had vaginal sexual intercourse with her. He was sentenced to three years and nine months’ imprisonment, with a non-parole period of 15 months.
The second conviction involved the raping of a 13-year-old girl on 24 December 2000. The defendant threatened the victim by pointing a gun at her and he then performed an act of cunnilingus upon her. He was sentenced to five years and six months’ imprisonment, with a non-parole period of four years’ imprisonment. The sentencing Judge observed that the defendant had little insight into his offending behaviour and had difficulty controlling his anger towards women. The Judge observed that, with appropriate counselling, his prospects of rehabilitation were good.
Psychiatric reports
I was provided with reports of Drs O’Brien and Raeside. Counsel for the defendant and counsel for the DPP each indicated that they did not intend to cross-examine either psychiatrist, and that I should rely upon their reports.
Dr Raeside interviewed the defendant on 21 July 2009 and on 30 July 2009. Dr Raeside reported that he was unable to find any evidence of any current psychiatric disorder or any marked psychological illness in the past. He considered that the defendant’s offending appears to be related to underlying personality disturbances. In relation to the personality disturbances, Dr Raeside concurred with an opinion given previously by Dr Branson, which referred to a combination of schizoid and antisocial traits. Dr Raeside concluded that the defendant appears to suffer from some reactive depression fuelled both by his previous offending and problems brought about by his personality difficulties.
Dr Raeside noted that substance abuse has become problematic, in particular the defendant’s marijuana use over many years and, more recently, his heavy amphetamine use. Dr Raeside commented that while the defendant’s offending cannot directly be attributed to his amphetamine use, it appears to be related to his offending. His underlying personality disturbances and difficulties with women is a more strongly related factor. In his report, Dr Raeside referred to an earlier report of Dr Clayer of 2 March 1984, who commented in relation to the earlier offending:
A more basic problem, however, which undoubtedly contributed to his action, was his continued inability to form relationships with women, his need to pay for services and the anger and frustration which this produced. It was almost certainly a combination and culmination of all of the above factors which caused him to behave so inappropriately on the 14^th June, 1983.

Following the second bout of offending involving the 13 year old girl, Dr Branson concluded in his report of 31 July 2001:
Mr Robertson is a man with serious personality difficulties and major problems with unexpressed anger especially towards women. I am sure that the current offence is directly related to these problems, and I would surmise that a previous conviction for rape is very much part of the same pattern.
In that report, Dr Branson noted that there were distinct possibilities for the improvement of the defendant’s situation.
In considering whether the defendant was unwilling to control his sexual instincts, Dr Raeside stated:
…Mr Robertson seems to continue to have little or no insight into the nature of his sexual offending, despite apparent SOTAP treatment. This renders him at significant risk in the future of continuing to be unwilling to control his behaviour under the meaning of the Act.
Consequently, it would be my opinion based on my interview with Mr Robertson and the material available to me that he could be classified as unwilling to control his sexual behaviour. I think that there is some evidence that he is able to control his behaviour. (Bolding mine)
Dr O’Brien took a similar view that there was no evidence of any particular active mental illness in the form of psychosis. He concluded that, clinically, there was no evidence of any organic brain dysfunction. Dr O’Brien is of the opinion that the current offences and the 2000 offence appear to be related to recklessness associated with his amphetamine use and dependence. The defendant attributes the 2000 offence to his dependency on amphetamines.
Dr O’Brien observed that, in some respects, the defendant could be considered a bit of a “loner”. He observed that this, combined with his experiences as he was growing up in a dysfunctional family, have contributed to his personality disorder. He noted that the defendant is also prone to depressive spells but that, in his judgment, the defendant was not clinically depressed or abnormally anxious. Dr O’Brien explained:
Whilst these factors may contribute to periodic feelings of sexual frustration it is, primarily his abuse of and dependency on amphetamines which both elevate his sexual desires and also cause disinhibition and recklessness. Therefore it is my opinion that under ordinary circumstances (when he is not using amphetamines), more likely than not he is capable of controlling his sexual instincts or, seemingly, willing to do so.
In referring to the definition of “unwillingness” he noted:
I believe that, when Mr Robertson is using amphetamines, then there is a significant risk that he would, “given an opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts.”
The application pursuant to s 23
I have had regard to the reports of Dr O’Brien and Dr Raeside. In particular, I have had regard to the fact that both psychiatrists are of the view that the defendant’s offending is related to his amphetamine use. Dr O’Brien considers that the defendant’s amphetamine use places him at “significant risk” of being unable to control his sexual instincts. Dr Raeside tends not to view amphetamine use as causative. Nevertheless, he does suggest that it may be related to the offending. Significantly, in the interview conducted by Dr Raeside, the defendant admits that amphetamine use played a role in both the current offending and the 2000 offending.
Although it is difficult to predict whether the defendant will respond to further treatment, there is at least an optimistic assessment by Dr Raeside, who is of the view that, under ordinary circumstances and in the absence of amphetamine use, the defendant is more likely than not capable of controlling his sexual instincts and is seemingly willing to do so. In reaching this conclusion, Dr Raeside also noted.
Mr Robertson displayed a degree of ability to control his behaviour at the times of each of the three offences under consideration, being deterred to some degree by each of the victims in these matters, notwithstanding him being armed with a weapon.
I have had regard to the nature of the defendant’s offending. I have also had regard to the reports of the psychiatric experts.
I have taken into account that the defendant’s use of amphetamines is a contributing factor to his offending. I am satisfied that, if his drug use can be controlled, there are reasonable prospects that he will not commit further offences of a sexual nature. I am of the view that he should receive intensive treatment for his drug abuse whilst he is in custody, and upon his release.
A decision to order that the defendant be detained indefinitely should only be taken when the Court is satisfied that the defendant is unable or unwilling to control his sexual instincts, and that he represents such a danger to the public that the extraordinary step of imposing an indeterminate sentence is justified.
I accept the psychiatrists’ opinions that the defendant’s offending is related to his amphetamine use. When affected by drugs, he is unwilling to control his sexual instincts. In the defendant’s case, it cannot be said that there will be no risk of re‑offending when he is released into the community. However, with adequate counselling and treatment, particularly in relation to the defendant’s amphetamine use, there are reasonable prospects that he will be willing and able to avoid further offending.
I am not satisfied that, on account of the defendant’s prior offending, his offending has become so entrenched that he poses such a risk to the community that it is appropriate to make an order detaining him indefinitely, and I refrain from doing so.
I remit the matter to the District Court for sentence for his current offending.