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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Robertson

Details

AGLC: R v Robertson [2010] SASC 41
Case: [2010] SASC 41
Decision Date: 26 February 2010

CaseChat Overview and Summary

In the matter of R v Robertson, the respondent stood convicted of aggravated serious criminal trespass in a place of residence, false imprisonment and assault with intent to rape. The Supreme Court was asked to consider whether an order should be made pursuant to section 23 of the Criminal Law (Sentencing) Act 1988 (SA). The respondent had a history of sexual offences, and the court needed to determine whether he was incapable of controlling or unwilling to control his sexual instincts. The court was also required to consider the factors to be taken into account when making an order under section 23 of the Act.

The court began by noting the seriousness of the respondent's criminal history and the potential risk he posed to the community if not properly managed. The court found that the respondent was not incapable of controlling or unwilling to control his sexual instincts, but rather, he had a pattern of poor self-control and a lack of regard for the rights and autonomy of others. The court considered a range of factors, including the respondent's background, the nature and circumstances of the offences, and the potential for rehabilitation and reintegration into the community. The court also considered the impact of the offences on the victim, and the need for deterrence and denunciation.

The court concluded that an order under section 23 of the Criminal Law (Sentencing) Act 1988 (SA) was appropriate in this case. The court made an order for the respondent to undergo treatment and supervision to address his sexual offending behaviour and to reduce the risk of reoffending. The court also imposed a sentence of imprisonment, followed by a period of community supervision, to reflect the seriousness of the offences and to provide a measure of protection to the community.

The final orders of the court included a sentence of imprisonment for the respondent, followed by a period of community supervision, and an order for the respondent to undergo treatment and supervision to address his sexual offending behaviour and to reduce the risk of reoffending. The court also made an order for the respondent to pay compensation to the victim, and to comply with a range of other conditions designed to promote his rehabilitation and reintegration into the community.

Orders