R v Schuster - [2016] SASCFC 86

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v SCHUSTER
[2016] SASCFC 86
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Blue and The Honourable Justice Doyle)
8 August 2016
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - PREVENTATIVE DETENTION
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Appeal by Director against order for release on licence.
In March 2000, the respondent was sentenced for unlawful sexual intercourse and indecent assault to imprisonment for seven years, with a non-parole period of five years, backdated to commence in September 1999. An order was made under s 23 of the Criminal Law (Sentencing) Act 1988 (SA) that the respondent be detained in custody until further order after the expiration of his sentence on the ground that he was incapable of controlling his sexual instincts.
On 27 March 2013, an order was made under s 24 that the respondent be released on licence on 1 July 2013. The respondent was released but was returned to custody six days later because the facility into which he had been released could no longer accommodate him.
On 12 December 2013, amendments to the Act came into effect conferring on the Court power, on the application of the Director, to cancel a release on licence and making safety of the community the paramount consideration in determining applications under Division 3.
On 18 December 2013, the Director applied to cancel the release on licence. Reports were sought by the Court from two psychiatrists concerning specific matters but not on the ability or willingness of the respondent to control his sexual instincts.
On 1 April 2016, a Judge ordered that the licence be cancelled and on 18 April 2016 the Judge ordered that the respondent be released on a new licence on a date to be fixed.
The Director appeals against the order for release on licence on grounds that the Judge erred in the exercise of his discretion by failing to take into account three material considerations and by determining that on an application for release on licence the emphasis is on rehabilitation of the respondent and on the ground that the order was unreasonable or plainly unjust. The Director applied for permission to amend the notice of appeal to add an additional ground that the Judge erred in making the order without two medical practitioners having been directed to report on whether the respondent was unable or unwilling to control his sexual instincts.
Held by the Court (allowing the appeal):
1. Observations on the statutory scheme for the indefinite detention of persons unable or unwilling to control their sexual instincts and the criteria to be taken into account on application for release on licence (at [75]-[83]).
2. Observations on the Executive’s failure to provide appropriate custodial and licencing arrangements for persons released on licence (at [84]-[88]).
3. The psychiatrists were not asked, and did not express an opinion, whether the respondent was unable or unwilling to control his sexual instincts or, if so, in what circumstances and to what degree. The Judge made no findings in relation to these questions. The Judge did not consider a factor which s 24 requires the Court to consider on an application for release on licence. This vitiates the exercises of the discretion (at [95]-[99]).
4. The Judge did not identify the relevant risks or make findings concerning the circumstances in which they might arise, the steps proposed to be taken to mitigate them or the likelihood and consequences of their eventuating. This vitiates the exercise of the Judge’s discretion (at [103]-[108]).
5. The absence of consideration as to the respondent’s prospects of rehabilitation vitiates the exercise of the discretion (at [112]-[113]).
6. Appeal allowed. Order for release set aside. Matter remitted to a Judge of the Court for rehearing (at [114]).
Criminal Law (Sentencing) Act 1988 (SA) s 23, s 23A, s 24, s 25, s 27A, Sch 2; Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13; International Covenant on Civil and Political Rights Art 9, Art 10; Universal Declaration of Human Rights Art 9, referred to.
Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396; R v Schuster [2008] SASC 367; R v Schuster (2016) 124 SASR 570, discussed.
R v Ainsworth (2008) 100 SASR 238; R v Draoui (2015) 122 SASR 360; R v Whyte [2006] SASC 56, considered.

R v SCHUSTER
[2016] SASCFC 86
Court of Criminal Appeal: Kourakis CJ, Blue and Doyle JJ

THE COURT: This is an appeal by the Director of Public Prosecutions (‘the Director’) against an order of a Judge of this Court authorising the release of Gavin Shaun Schuster on licence pursuant to section 24 of the Criminal Law (Sentencing) Act 1988 (SA) (‘the Act’).[1]
[1] R v Schuster [2016] SASC 46, (2016) 124 SASR 570.
On 1 April 2016, the Judge ordered that Mr Schuster’s previous licence, which had nominally been in place for 33 months, be cancelled pursuant to clause 1(2)(a) of Schedule 2 to the Act.[2] The Judge also announced his decision to release Mr Schuster on a new licence after reviewing the conditions of that licence as might be proposed by the Parole Board pursuant to section 24 of the Act. On 18 April 2016, the Judge formally ordered Mr Schuster’s conditional release on licence but did not fix a date for the release pending the hearing and determination of the Director’s foreshadowed appeal.
[2] Clause 1(2) of Schedule 2 provides that the Supreme Court may, on application by the Director, cancel or confirm the release on licence of a person pursuant to s 24 of the Act.
The notice of appeal raises five grounds of appeal and the Director seeks permission to add a sixth ground as follows:
1The Judge erred in the exercise of the discretion by failing to take into account a material consideration, namely whether the respondent was unwilling or unable to control his sexual instincts.
2The Judge erred in the exercise of the discretion by failing to take into account a material consideration, namely the nature and character of the risk posed by the respondent.
3The Judge erred in the exercise of the discretion by failing to take into account a material consideration, namely the implications and consequences flowing from the Judge’s rejection of the respondent’s evidence regarding comments made to AB.
4The Judge erred in the exercise of his discretion by considering that in determining whether there should be a release on licence pursuant to section 24 of the Act the emphasis is on the rehabilitation of the applicant.
5The Judge’s order that the respondent be released on licence was unreasonable or plainly unjust such that it can be inferred that the Judge failed to properly exercise the discretion.
6The Judge erred in releasing the respondent on licence without directing that at least two legally qualified medical practitioners enquire into the mental condition of the respondent and report to the Court on whether the respondent is incapable of controlling, or unwilling to control, his sexual instincts.
Background
Mr Schuster was born in September 1975. He is now 40 years of age. He was sexually abused from a young age, which continued until he was about 14 and a half years old. His own first sexual offending occurred in 1989 when, at the age of 13, he offended against a younger sister. He continued to offend against his siblings until he was removed from his extremely dysfunctional family environment by the Department for Family and Community Services at the age of 15. At that time he also stopped attending school.
In April 1992 at age 16, Mr Schuster appeared in the Children’s Court which found proved one count of indecent assault and three counts of unlawful sexual intercourse with a child. That offending was committed against boys with whom he was residing at a Youth Training Centre. No conviction was recorded and he was released on a bond to be of good behaviour for 12 months.
On 2 September 1994 at age 18, Mr Schuster committed three offences of unlawfully being on premises. On each occasion, he trespassed onto land and looked at children through the windows of their homes. On 12 September 1994, he committed burglary and unlawful sexual intercourse when he entered the bedroom of an eight year old girl and sexually abused her.
On 16 September 1994, Mr Schuster was arrested and remanded in custody. He pleaded guilty at his first appearance in the Magistrates Court. The Director applied for an order for indefinite detention under section 23 of the Act on the ground that he was unable to control his sexual instincts. Reports were obtained from two psychiatrists, Dr O’Brien and Dr Raeside, who declined to express the opinion that he was unable to control his sexual instincts because he had not undertaken any meaningful therapy to assist with his condition. As a result, no order was made under section 23 of the Act.
On 1 September 1995, Mr Schuster was sentenced by Nyland J to five years’ imprisonment with a two year non-parole period both backdated to commence on 16 September 1994 when he was taken into custody. The Judge fixed a lower than usual non-parole period with the view that Mr Schuster receive treatment and a long-term management program be established under the auspices of the Parole Board. The Judge was told that he was an appropriate candidate for acceptance into the Sexual Offender Treatment and Assessment Program. The Judge was also told that it was unrealistic and inappropriate to start treatment while he was in custody.
In 1996 while at the Port Lincoln Prison, Mr Schuster participated in the Sexual Offender Treatment and Assessment Program.
In September 1997, Mr Schuster applied for release on parole. That application was refused because he had not completed the necessary treatment and the Parole Board considered that he still represented a risk to the community.
In 1998, Mr Schuster commenced taking anti-androgen medication. The medication is designed to suppress testosterone hormones and consequently reduce libido. Mr Schuster’s testosterone levels have been suppressed to pre‑pubertal levels, which are not in keeping with someone who is normally sexually active. The direct effects of the medication are to restrict the capacity for an erection and also reduce interest in sex generally. Side effects of prolonged use of the medication include feminisation, increased weight gain, development of breast tissue and shrinking of the sexual organs. Mr Schuster has continued to take the medication since 1998.
In December 1998, Mr Schuster was released on parole. Conditions of his release included that he reside at a supervised hostel, not enter or remain in school yards and not associate with young children. He did not receive any psychological treatment while on parole.
On 1 February 1999, Mr Schuster committed unlawful sexual intercourse and indecent assault when he entered toilets at a primary school and offended against a six year old girl. In April 1999, the Parole Board revoked his parole.
Mr Schuster pleaded guilty to the charges. The Director again applied for an indefinite detention order pursuant to section 23 of the Act. Mr Schuster was again examined by Dr O’Brien and Dr Raeside. Dr O’Brien diagnosed him as a predominately heterosexual paedophile who suffered from a mild intellectual handicap. He considered that Mr Schuster did not suffer from a major mental illness in the form of a psychosis or a thought disorder, an affective disorder or an anxiety-related condition. Dr Raeside formed a similar view. Dr O’Brien and Dr Raeside concluded that Mr Schuster was unable or unlikely to be able to control his sexual instincts.
On 27 March 2000, Mr Schuster was sentenced by Nyland J to imprisonment for seven years, with a non-parole period of five years, both backdated to 23 September 1999 when he was taken into custody for the 1999 offending having completed his five year sentence for the 1994 offending. The Judge was satisfied that Mr Schuster was incapable of controlling his sexual instincts and ordered that he be detained in custody until further order after the expiration of his sentence.
Treatment and assessments
While in custody for the 1999 offending, Mr Schuster twice completed the prison-based Sexual Behaviour Clinic Program. It is unusual for this program to be undertaken twice. Mr Schuster was asked to repeat it because it was thought that he was still at risk of re-offending and that he needed to practice the skills which he had learned in the first program. After he had completed the second program, Mr Schuster believed that he had made good progress, but the course providers thought that he had only made marginal gains.
On 23 September 2006, Mr Schuster completed his seven year sentence for the 1999 offending. He applied for discharge of his detention order. When interviewed by Dr O’Brien for the purpose of that application, he admitted that he still had sexual fantasies about young children, and in particular about young girls. During the course of his therapy in 2005 and 2006, he had admitted to other incidents of abuse of young children committed before 1995. In his September 2006 report, Dr O’Brien considered that Mr Schuster was at a high risk of re‑offending and a discharge from the section 23 order would be premature. Mr Schuster subsequently withdrew his application for discharge.
In 2006, Dr Nambiar, the Department Clinical Director of Psychiatry at James Nash House, became involved in Mr Schuster’s care and thereafter was involved off and on in that care. Dr Nambiar visited Mr Schuster at Yatala Labour Prison at times on a weekly basis. He reviewed his mental state and oversaw the prescription of his anti-androgen medication. Dr Nambiar assessed Mr Schuster as having low intellect and diagnosed the conditions of paraphilia and paedophilia.
Between February and November 2007, Mr Schuster undertook fortnightly one-on-one treatment sessions with Mr Elmer, a psychologist working in the Rehabilitation Programs Branch of the Department of Correctional Services.
First release on licence
In 2008, Mr Schuster applied for discharge of the detention order or alternatively for release on licence. He relied primarily on the long period which had elapsed since the completion of his head sentence. He also relied on his progress made by completing the two Sexual Behaviour Clinic Programs, participating in the counselling program with Mr Elmer, and his belief in his capacity to control his sexual instincts.
In July 2008, Dr O’Brien and Dr Raeside provided reports to the Court. Dr O’Brien considered that Mr Schuster was at a moderate to high risk of re‑offending. Dr Raeside considered that Mr Schuster’s risk of re-offending was at least moderate. Both psychiatrists expressed the opinion that Mr Schuster had made progress and supported his release on licence. They supported Mr Elmer’s recommendations that, if Mr Schuster were to be released, he should be under the supervision of a Community Corrections Officer experienced in dealing with sexual offenders, that he attend a program to assist him to reintegrate into the community, and that he commence employment in a sheltered workshop. The Parole Board reported to the Judge that, if Mr Schuster were released, he would require very close supervision and support. Mr Schuster did not press the application for discharge but did press the application for release on licence.
On 23 December 2008, White J ordered that Mr Schuster be released on licence from 1 June 2009, allowing Mr Schuster to complete, while in custody, a 12 week program to address the consequences of his sexual abuse.[3] White J noted that Mr Schuster’s indefinite detention order had the effect of delaying the treatment which would otherwise have been provided to him in the community. His Honour said:[4]
As I pointed out in R v Ainsworth, there is a particular unfairness in a person being detained in custody indefinitely on the grounds of incapacity or unwillingness to control his or her sexual instincts yet, at the same time, being denied access to treatment which may address that lack of control. This is particularly so if the course of treatment denied to the person while in custody is available in the community, and the person’s participation in that course of treatment in the community can be monitored and supervised. Dr O’Brien also referred to the injustice of a person being detained indefinitely in prison without being provided with the treatment necessary to address the cause of his being so detained.
[3] R v Schuster [2008] SASC 367.
[4] At [57]. (Footnotes omitted).
On 1 June 2009, Mr Schuster was released on licence to live at Clifford House. He was subject to electronic monitoring managed through the home detention service. He was supervised at all times by a worker from a non-government organisation. He was not allowed to leave his place of residence without first obtaining a leave pass.
On 27 August 2009, Mr Schuster was returned to custody on a Parole Board warrant, after he made statements threatening to re-offend when he sought permission to do something but was turned down. When he was interviewed by the Parole Board, he stated:
AI said that – we were talking about recovery and I said, “Stuff recovery, I might just stay here, and if I reoffend I’ll blame the director.”
QDid you also say that Corrections were fucking with your head and you didn’t give a shit and you might as well piss off recovery, and when you get bored you’d reoffend and blame the director for it because he keeps fucking with your head.
ASomething along those lines, yeah. I can’t remember exactly.
...
QWe have a report from Mr August which indicates that during activities you’ve become growingly aware of children in your immediate vicinity and you’ve disclosed numerous situations where you’ve become aroused as a direct result of knowing there are children around you. Is that right.
AYes.
In November 2009, the Parole Board also heard that following his release Mr Schuster continually complained about the restrictions placed on his activities. He was not prepared to accept the condition that he not engage in any activities where there might be large groups of children. Mr Schuster accepted that he had said that he could just walk out the front door of Clifford House and go and reoffend.
On 29 January 2010, the Parole Board determined that Mr Schuster had breached a condition of his licence and cancelled his release.
Second release on licence
In November 2012, Mr Schuster applied for release on licence after completing the Sexual Behaviour Clinic in the Mount Gambier Prison. In March 2013, Dr Nambiar provided the Court with a psychiatric report detailing Mr Schuster’s progress since 2009. Dr Nambiar was of the opinion that the Clinic had brought about a change in Mr Schuster’s attitude and level of insight, and that the anti-androgen medication was continuing to be successful in reducing his hormone levels. He recommended releasing Mr Schuster under strict licence conditions.
The Director was not opposed to the order, and on 27 March 2013 Kelly J ordered that he be released on licence. Kelly J set a release date of 1 July 2013 to enable the Parole Board to fix the conditions of release.

On 1 July 2013, Mr Schuster was released on licence to live at Clifford House. He was subject to home detention conditions including wearing an ankle bracelet.
On 7 July 2013, Mr Schuster was returned to custody because Clifford House could no longer accommodate him. A new date was set for his release on 7 January 2014. The licence was not cancelled.
Application heard by the Judge
On 12 December 2013, amendments to the Act came into effect which conferred on this Court power, on the application of the Director, to cancel or confirm a release on licence.[5] The amendments also made the safety of the community the paramount consideration in determining whether an order for indefinite detention should be made under section 23, an order for discharge should be made under section 23A, and in the exercise of the discretion in considering whether to order release on licence pursuant to section 24 of the Act and on an application to cancel release on licence.[6]
[5] Clause 1(2) of Schedule 2 to the Sentencing Act introduced by the Criminal Law (Sentencing) (Sentences of Indeterminate Duration) Amendment Act 2013.
[6] Subsections 23(5), 23A(3) and 24(1b) and Schedule 2, clause 1(6) of the Sentencing Act introduced by the Criminal Law (Sentencing) (Sentences of Indeterminate Duration) Amendment Act 2013.
On 18 December 2013, the Director made an application to this Court to cancel the licence granted by Kelly J. The Director also sought a stay of the order for release on licence (then due on 7 January 2014) pending determination of the application, which stay was granted on 20 January 2014.
On 14 January 2014, Mr Elmer recommenced fortnightly sessions with Mr Schuster at Yatala.
On 21 January 2014, reports were sought by the Court’s Registry from Dr O’Brien, Dr Nambiar and the Parole Board. The Court was provided with reports by Dr O’Brien dated 20 May 2014, Dr Nambiar dated 16 May 2014 and the Chairperson of the Parole Board, Frances Nelson QC, dated 11 March 2014.
On 14 and 15 August 2014, the Judge heard evidence from Dr Nambiar, Dr O’Brien, Ms Nelson QC and Peter May, regional director of Correctional Services. Earlier reports by Dr Nambiar dated 12 March 2013, Dr O’Brien dated 27 July 1999, 6 October 1999 and 21 July 2008 and Dr Raeside dated 5 October 1999 and 28 July 2008 were tendered. On 18 August 2014, the Judge was informed that Mr Schuster’s proposed accommodation at Miller Place was no longer available. The matter was adjourned.
On 13 and 14 July 2015, the hearing of the application was resumed after Mr Schuster’s proposed accommodation at Miller Place again became available. The Judge was provided with updated reports by Dr O’Brien dated 7 April 2015, Dr Nambiar dated 10 April 2015 and Ms Nelson QC dated 10 July 2015. Evidence was given by Rachel McKay of the Department for Correctional Services, Detective Brevet Sergeant Michael Bavey of the Special Crime Investigation Branch of the South Australian Police Department and Peter Hall, the manager of the Miller Place residential facility. The Judge visited the locality and inspected the facility. The Judge reserved his decision.
On 21 and 22 October 2015, the Judge re-opened the hearing on application by the Director to adduce further evidence from a former prisoner (‘AB’) who had shared a cell with Mr Schuster between April 2012 and May 2013. Both AB and Mr Schuster gave evidence. AB testified that Mr Schuster often spoke about his offending. AB testified that Mr Schuster told him that “when he got out he was really going to enjoy himself and that he was going to do the same as he had done with a girl at the school”. Mr Schuster denied conversations to this effect with AB.
On 22 December 2015, the Judge delivered reasons for concluding that the conversations as deposed to by AB had taken place. His Honour directed that the evidence of AB, and Mr Schuster’s denial of those conversations, together with his reasons for ruling, be referred to Dr Nambiar and Mr Elmer.
The Court was provided with further reports by Dr Nambiar dated 30 November 2015 and 8 February 2016 and Mr Elmer dated 2 December 2015 and 19 February 2016.
On 29 February 2016, Dr Nambiar and Mr Elmer gave oral evidence and the Judge again reserved his decision.
The evidence
In his 20 May 2014 report, Dr O’Brien reported on his interviews with Mr Schuster on 4 February and 12 May 2014. Dr O’Brien said that it had been appropriate to release Mr Schuster from custody in July 2013; his personal, behavioural and clinical circumstances had not altered since that time, and the operation of the legislation to make community safety considerations paramount did not cause him to alter his opinion. He supported Mr Schuster’s return to the community under the proposed terms and conditions of his supervision. Dr O’Brien expressed similar opinions when he gave evidence in August 2014.
In his 7 April 2015 report, Dr O’Brien reported on his interview with Mr Schuster on 7 April 2015. He said that he found no change in Mr Schuster’s mental and behavioural state since the previous review, the only material change being that he was now receiving regular contact from Mr Elmer. He reiterated his support for Mr Schuster’s return into the community.
In his 16 May 2014 report, Dr Nambiar said that he remained Mr Schuster’s treating psychiatrist while he was incarcerated at Yatala and said that he was also directly involved in providing psychiatric care to Mr Schuster between June and August 2009 when he was residing in the community. Dr Nambiar expressed the opinion that with stable supervised accommodation, structured activities and psychological and biological intervention, the risk to the community of Mr Schuster’s release into the community on licence could be appropriately mitigated. Dr Nambiar expressed the opinion that the proposed conditions ensured that the paramount consideration was one of safety of the community. Dr Nambiar expressed similar opinions when he gave evidence in August 2014. In his 10 April 2015 report, Dr Nambiar reiterated the opinions expressed in his previous report.
In his 30 November 2015 report, Dr Nambiar considered the transcript of evidence given by AB and Mr Schuster in October 2015. He expressed the opinion that ensuring that Mr Schuster was under constant surveillance, electronic monitoring and direct supervision would serve to mitigate the risk to the community upon his release into the community.
In his 8 February 2016 report, Dr Nambiar considered the Judge’s 22 December 2015 reasons for accepting the evidence given by AB and reported on his interview with Mr Schuster on 5 February 2016. He expressed his opinion that Mr Schuster was likely to continue to experience paedophilia fantasies for the rest of his life unless he was given an opportunity to replace them with heterosexual life experiences. He expressed the opinion that it was imperative that any release on licence include constant supervision and the strictest conditions to ensure no risk to the community and that this would endorse a therapeutic model to facilitate his rehabilitation. Dr Nambiar expressed similar opinions when he gave evidence in February 2016. He said that in his opinion “Mr Schuster’s risk has always been and will always be high”. He expressed the opinion that Mr Schuster would not progress in his rehabilitation in prison, and may in fact regress.
In his 2 December 2015 report, Mr Elmer said that he agreed with the opinion of Dr O’Brien expressed in his 20 May 2014 report favouring release on licence. He said that the statement of AB did not cause him to alter his opinion that Mr Schuster should return to the community under the proposed strict terms and conditions of his supervision.
In his 19 February 2016 report, Mr Elmer considered the Judge’s 22 December 2015 reasons for accepting the evidence given by AB. He said that he found it concerning that Mr Schuster was reported by AB as having stated an intention to sexually reoffend. He said that it was therapeutically important for offenders to understand their level of risk and Mr Schuster had acknowledged on numerous occasions during therapy that he was a “high-risk offender”. He said that he believed that the next stages of Mr Schuster’s rehabilitation would be best served under licence in supervised accommodation in the community where he could begin the process of building “a normal life”. Mr Elmer expressed similar opinions when he gave evidence in February 2016. He said that AB’s evidence did not cause him to change his views about the success of Mr Schuster’s rehabilitation. He said that Mr Schuster had reached the end of rehabilitation in custody and was approaching overtreatment, which would be counter-productive.
A Management Plan and Risk Matrix prepared in or before August 2014 and an updated and more detailed Management Plan prepared in April 2015 by the Department for Correctional Services were tendered to show the plans for Mr Schuster’s proposed release and living arrangements at the Miller Place facility. Mr Hall, Mr May and Ms McKay gave evidence concerning the proposed living arrangements at Miller Place.
Mr Hall gave evidence that the Miller Place facility is a supported residential facility run by Anglicare. It has the capacity to house 15 residents. There is a 2.4 metre high solid galvanised iron fence around the perimeter of the facility and an electronically operated front gate. The gate is kept closed at night but is open during the daytime. It would be difficult, but not impossible, to climb over the fence. There are eight CCTV cameras which are monitored by staff when they are in the office and are recorded on a hard drive in the office.
Mr Hall gave evidence that staff working at the facility are qualified by holding a Certificate 4 in Mental Health. Staff work three shifts over 24 hours. Three or four staff members work between 7 am and 11 pm and two staff members work the night shift between 11 pm and 7 am.
It was proposed that Mr Schuster’s licence conditions would include that he not leave the facility without the prior permission of his caseworker. Mr May gave evidence that permission would typically be given for medical and legal appointments. On leaving, he would be accompanied by a Department for Correctional Services volunteer. Volunteers are trained and Mr May proposed to use male volunteers with several years’ experience with Mr Schuster.
Mr May gave evidence that it was proposed that Mr Schuster wear an ankle bracelet containing a transmitter, the signal from which would be detected by satellites using the Global Positioning System. This enables the location of the transmitter to be ascertained with an accuracy of one to two metres. The signal is monitored by the Intensive Compliance Unit 24 hours a day. The bracelet could not be cut with scissors but it was possible to cut it using heavy duty, very sharp shears, and upon being cut it would immediately transmit notification thereof. Mr May was not asked how long it would take to cut the bracelet or when during the cutting process the notification would be given. Mr May gave evidence that it would take approximately 15 minutes for Department staff to arrive at the facility.
Ms McKay gave evidence that an inclusion zone would be created say 10 metres inside the perimeter fence of the Miller Place facility and the ankle bracelet transmitter would send a signal if Mr Schuster moved outside that inclusion zone. A person wearing an ankle bracelet is required by bail, parole or licence conditions to charge it daily. The transmitter transmits the battery life remaining and the battery charge is monitored.
Ms McKay gave evidence that she supervised Mr Schuster during his release between 1 June and 27 August 2009 and between 1 and 7 July 2013. She said that he was generally compliant with his licence conditions during those periods. No evidence was given about Clifford House in which Mr Schuster resided during those earlier periods or otherwise concerning his behaviour during those periods. Ms Mackay gave evidence that Holden Hill police station is open 24 hours and that patrols based at Holden Hill would attend an alarm transmitted by the transmitter.
Detective Brevet Sergeant Bavey works in the ANCOR (Australian National Child Offender Register) section of the Special Crime Investigation Branch of South Australian Police. He gave evidence that the normal response time for Holden Hill police patrols to attend at Miller Place would be five to ten minutes. He said that, while it could take longer, such an attendance would be given priority depending on the seriousness of other calls.
The Judge’s orders
On 1 April 2016, the Judge announced his decision to release Mr Schuster on a new licence on conditions to be proposed by the Parole Board. The Judge directed that the terms and conditions of Mr Schuster’s licence be referred to and approved by the Court before his release.[7] The Judge formally revoked the release on licence granted by Kelly J.
[7] R v Schuster (2016) 124 SASR 570 at [86].
On 14 April 2016, the Parole Board informed the Judge in writing of its proposed licence conditions. The Judge reviewed its proposed terms and amended clause 8 and added a further clause 8A. The terms of the licence conditions as approved by the Judge were:
1.That you be of good behaviour, keep peace towards persons, and do not commit any breach of the law.
2.That you be under the supervision of a Community Corrections Officer appointed by the Parole Board of South Australia and that you obey the directions of the appointed officer (in this order referred to as your ‘Community Correction Officer’).
3.That immediately upon your release you report to your Community Corrections Officer.
4.That you carry out faithfully all instructions and requirements of the Community Corrections Officer and/or Home Detention Officer under whose supervision you have, from time to time, been placed.
5.That you attend for interviews as and when required by your Community Corrections Officer.
6.That you follow your Community Correction Officer’s direction in relation to the people with whom you associate.
7.That you do not depart or attempt to depart from the State of South Australia without the prior (written) permission of the Parole Board.
8.That unless and until an alternative residence is approved by the Parole Board, you shall reside at Miller Place ... limiting your place of residence for the purpose of GPS and/or electronic monitoring, to the area bounded by a distance of 10 m from the front of that property and the rear and side fences of that property.
8A.That you not leave the premises at any time except with the permission of your Community Corrections Officer and only in the company of a person approved by your Community Corrections Officer and that whilst outside the premises you remain in the company of that person.
9.That you wear a GPS tracking device.
10.That you do not change your place of residence without the prior written permission of the Parole Board.
11.That you report TWICE weekly in person to, and meet with, your Community Corrections Officer under whose supervision you have from time to time been placed and this is not to be varied without the approval of the Parole Board.
12.That you be subject to electronic monitoring [GPS]. Upon your release from custody the Parole Board directs that you be subject to an intensive supervision regime with the Intensive Compliance Unit (ICU), including electronic monitoring for such time as the Parole Board shall determine, and that you obey all directions, requirements and rules of the ICU program, and comply with the directions of the ICU officer under whose supervision you are placed. You are directed to travel directly to Miller Place ... on your release and immediately telephone the ICU Office on tel: no ...
13.That you use the mobile telephone provided by your Community Corrections Officer only for the purpose of making contact with Home Detention Officers in a situation of emergency.
14.That you abstain from alcohol.
15.That you do not, other than in strict accordance with the directions given to you by a legally qualified medical practitioner, use, possess or administer any narcotic or psychotropic drugs or any drug which cannot be legally obtained without the prescription from a legally qualified medical practitioner unless you have a prescription from a legally qualified medical practitioner for such a drug.
16.That you advise your Community Corrections Officer of any drug that has been prescribed to you by a legally qualified Medical Practitioner.
17.That you do not enter upon or remain upon any licensed premises.
18.That you comply with the planned schedule of weekly activities and appointments provided to you by your Community Corrections Officer and/or Home Detention Officer and comply with your approved leave passes.
19.That you undertake 1:1 counselling or other intervention as directed by your Community Corrections Officer to address your sexual offending.
20.That you attend the Special Needs Program of Community Service at the direction of your Community Corrections Officer and comply with any directions given by the program staff.
21.That you undertake and complete a psychiatric assessment at the direction of your Community Corrections Officer and that you thereafter undertake and co-operate with such treatment as is recommended.
22.That you take such medication as your treating psychiatrist shall prescribe.
23.That you undertake and complete a psychological assessment at the direction of your Community Corrections Officer and that you thereafter undertake and co-operate with such treatment as is recommended.
24.That you not contact, attempt to contact or associate in any way with your sister...
25.That you not associate with, or attempt to associate with, any person under the age of 16 years whether or not that person is in the company of another adult.
26.That you do not directly or indirectly communicate with, or attempt to communicate with, any person under the age of 16 years whether by written correspondence, telephone or other electronic means, including facsimile, computer and the internet.
27.That you not provide or offer accommodation to any child.
28.That you not loiter without reasonable excuse, at or in the vicinity of a school, public toilet, playground or place at which children are regularly present at the school, toilet, playground or place.
29.That you not undertake any remunerated or voluntary work with children or participate in any organisation which provides recreational, social, educational or other facilities for children.
30.That you not use or be involved in, or be linked to, any computer network through the telephone system or other electronic means or enter that part of any premises in which such facilities are provided for use by the public.
31.That you do not possess or use any photographic equipment without the prior written permission of the Parole Board.
32.That you present yourself for urine testing as and where directed by your Community Corrections Officer and that you do all things and sign all such forms as may be necessary to enable this, the said urine to be analysed and the results of such analysis provided to your Community Corrections Officer and/or the Parole Board.
33.That you submit to any breath testing analysis as directed by your Community Corrections Officer.
34.That you shall not possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article unless you have first obtained the written permission of the Parole Board to do so and comply with the terms and conditions of that permission.
35.That you take all steps necessary to comply with the requirements of the Australian National Child Offender Register (ANCOR).

On 18 April 2016, the Judge ordered Mr Schuster’s release on licence. The Director subsequently appealed against that order and requested a stay of release pending the hearing and determination of the appeal.
On 3 June 2016, the Parole Board wrote to the Court after receiving advice from the Department of Correctional Services recommending minor amendments to the licence conditions. The Parole Board indicated its support for those amendments should the Court determine to release Mr Schuster on licence. Those amendments were to conditions 8 and 29:
8.That unless and until an alternative residence is approved by the Parole Board, you shall reside at Miller Place ... limiting your place of residence for the purpose of GPS and/or electronic monitoring, to the area bounded by a distance of 5 metres from the front of that property and the rear and side fences of that property.
29.That you not undertake any remunerated or voluntary work with children or participate in any program that provides recreational, social, educational or other facilities for children.
The proposed amendment to condition 8 was recommended after a review of the property was undertaken and it was found that some areas between the fence and building at Miller Place are approximately eight metres wide and therefore would not comply with the ten metres suggestion.
The proposed amendment to condition 29 was recommended because Miller Place is run by Anglicare. Anglicare is an organisation that also provides facilities for children. Anglicare and the Department for Correctional Services provided assurances to the Parole Board that there are no children or child‑related activities at Miller Place and the organisation will ensure that Mr Schuster does not attend any of their programs involving children.
The Judge’s reasons
The Judge formulated the approach to an application for release on licence in the following terms:
In considering the application, it is necessary for the Court to consider the degree of risk posed by Mr Schuster to the community and the extent to which that risk can be adequately addressed so as to justify the release of Mr Schuster on licence. The paramount consideration must be the safety of the community which requires the Court to be satisfied to a high degree that the risk can be addressed adequately. The Court must consider whether licence conditions can be put in place to adequately manage the risk which Mr Schuster poses to the community.
In so doing, it is not necessary that the Court be satisfied that all risk is eliminated. Ultimately, the decision will always be one of weighing up the risk factors, considering whether licence conditions can be put in place to minimise that risk, and then stepping back and asking whether the community can be adequately protected, that being the paramount consideration.[8]
[8] R v Schuster (2016) 124 SASR 570 at [39]-[40].
The Judge summarised the evidence and concluded:
It is clear from the psychiatric evidence and from the evidence of Ms Nelson that Mr Schuster poses a risk of re-offending. However, appropriate conditions can be put in place to minimise the risk. I conclude that if Mr Schuster is released, there continues to be a risk that he may re‑offend. The issue for me is whether Mr Schuster can be adequately managed outside prison so that the risk of him re-offending is reduced and manageable.
I am satisfied that if the conditions proposed by Ms McKay and confirmed by Ms Nelson are put in place, then there will be sufficient safeguards to manage Mr Schuster and reduce the likelihood of him re-offending.
I observe that it is not possible to conclude that there is not any risk to the safety of the community in releasing Mr Schuster on licence. On the other hand, the Court must ultimately decide whether the risk of releasing him is an acceptable risk, having regard to the requirement that the safety of the community is the dominant factor. Any decision to release Mr Schuster is attendant with a risk. That risk can be minimised by releasing Mr Schuster on strict conditions.
I accept that Mr Schuster has better insight into the need that he be subject to strict conditions if he were released on licence. I consider that, with the treatment and supervision proposed for him, he is in a better position to understand and cope with his release on licence.
In my view, the proposed conditions, which include Mr Schuster being subject to GPS monitoring and that he not leave the premises beyond the monitored zone, which is to be 10 metres inside the boundary of the facility, and that he be supervised whenever he leaves the facility, and that be only with the permission of his Community Corrections officer, provides sufficient safeguard to minimise his risk of re-offending.
I accept the evidence of both Dr Nambiar and Dr O’Brien that the point has been reached that further incarceration of Mr Schuster will not result in his prognosis improving. If I were to decline to release Mr Schuster on licence, it is almost certain that he would be condemned to spending most if not all of the remainder of his life in custody. In my view, the point has been reached where Mr Schuster should be released on licence.
As to his current licence position, I would revoke the current licence which is now in place and has been so for in excess of 12 months. I order that Mr Schuster be released on licence on conditions to be set by the Parole Board. I direct that the terms and conditions of Mr Schuster’s licence be referred to and approved by the Court. I suspend the order for release for a period of one month from the date of approval by the Court in order that the Parole Board, the Department of Correctional Services, the South Australia Police and other relevant agencies can give effect to the conditions of the licence.[9]
[9] R v Schuster (2016) 124 SASR 570 at [80]-[86].
An appeal lies
The Director appeals pursuant to subsection 27A(1) of the Act which provides:
27A—Appeals
(1)An appeal lies to the Full Court against—
(a) a decision of the Supreme Court on an application to discharge an order for detention under this Division;
(b) a decision of the Supreme Court on an application to release a person on licence under this Division;
(c) a decision of the Supreme Court on an application by the Director of Public Prosecutions under section 24(11).
The Judge having made discrete orders to cancel the earlier release on licence ordered by Kelly J and to order Mr Schuster’s release on licence, the Director is authorised by section 27A(1)(b) to bring an appeal against the latter order.
The statutory scheme
Part 2 Division 3 (‘Division 3’) of the Act provides a regime for the indefinite detention of persons who are incapable of controlling, or unwilling to control, their sexual instincts.
In summary Division 3 operates as follows. Pursuant to subsection 23(4) of the Act, the Supreme Court may order a person who has been convicted of a relevant sexual offence and who is found to be unwilling to control, or incapable of controlling, his or her sexual instincts to be detained in custody. An adult person so detained must be detained in such institution as the Minister for Correctional Services directs. In practice the only institutions in which adult persons subject to Division 3 orders are detained are prisons.
Pursuant to section 24 of the Act, the Supreme Court may subsequently order the release on licence of a person so detained. The terms and conditions of the licence must be determined by the Parole Board. It is not the role of the Court to fix the conditions. An understanding of the terms and conditions proposed by the Parole Board must inform the Court’s decision whether or not to release an applicant on licence. The Act makes provision for the Court to be so informed.[10] However, the Court does not have the power to approve, amend or disapprove the terms and conditions of the licence determined by the Parole Board.
[10] Criminal Law (Sentencing) Act 1988 (SA) s 24(1c)(c).
Save for the transitionary review provided by Schedule 2, only the Parole Board can cancel the release on licence on which an adult person is released.[11]
[11] Criminal Law (Sentencing) Act 1988 (SA) s 24(5).
Subsection 24(11) of the Act provides that, when a person has been subject to a licence for a continuous period of three years, the order of detention is taken to have been discharged on the expiration of that period unless the Court orders otherwise. It is that provision which may have led the Judge to revoke the release on licence ordered by Kelly J two years and nine months earlier. Arguably, having determined that Mr Schuster should continue to be subject to a licence, the Judge should have given effect to that decision by extending the period of Mr Schuster’s release pursuant to the earlier order on being satisfied that the proposed new conditions of that licence adequately protected the public. However no complaint is made by Mr Schuster concerning the orders made by the Judge.
In 2013, Division 3 was amended by the Criminal Law (Sentencing) (Sentences of Indeterminate Duration) Amendment Act 2013 (SA) (‘the Amendment Act’) to make the safety of the community, not just one of a number of considerations, but the paramount consideration in the exercise of the discretionary powers conferred by it. This includes the power to order the release on licence pursuant to section 24 of the Act of a person so detained. The Amendment Act came into effect on 12 December 2013.
Subsections 24(1b) and (1c) of the Act now require the Court to take into account the following considerations:
(1b)The paramount consideration of the Supreme Court when determining an application under this section for the release on licence of a person detained in custody under this Division must be the safety of the community.
(1c)The Supreme Court must also take the following matters into consideration when determining an application under this section for the release on licence of a person detained in custody under this Division:
(a)     the reports of the medical practitioners (as directed and nominated under subsection (1a)) furnished to the Court;
(b)     any relevant evidence or representations that the person may desire to put to the Court;
(c)     a report furnished to the Court by the appropriate board in accordance with the direction of the Court for the purposes of assisting the Court to determine the application, including—
(i)any opinion of the appropriate board on the effect that the release on licence of the person would have on the safety of the community; and
(ii)a report as to the probable circumstances of the person if the person is released on licence; and
(iii)the recommendation of the appropriate board as to whether the person should be released on licence;
(d)     evidence tendered to the Court of the estimated costs directly related to the release of the person on licence;
(e) the reports resulting from the periodic reviews under section 23(9) on the progress and circumstances of the person tendered to the Court;
(f)    any other report required by the Court under section 25;
(g)     any other matter that the Court thinks relevant.
The Amendment Act also inserted a new Schedule 2 into the Act which requires the Court, on application by the Director, to review existing licences granted by the Court before the Amendment Act came into effect. The Court is required on such an application to consider existing licences against the newly enacted requirement to give the safety of the community the paramount consideration.
Schedule 2 of the Act provides:
1 – Reconsideration of authorisations to release on licence under section 24
(1) This clause applies to a person subject to an order for detention under section 23 who, before the commencement of this clause, has been authorised by the Supreme Court under section 24 to be released on licence.
(2)     After the commencement of this clause, the Supreme Court may, on application by the Director of Public Prosecutions—
(a)cancel the release on licence of a person to whom this clause applies; or
(b)confirm the release on licence of a person to whom this clause applies.
(3)     For the purposes of proceedings under this clause, the Director of Public Prosecutions may apply to a justice for a warrant for the apprehension and detention of the person pending determination of the proceedings.
(4)     A justice must, on application under subclause (3), issue a warrant for the apprehension and detention of a person unless it is apparent, on the face of the application, that no reasonable grounds exist for the issue of the warrant.
(5)     The Supreme Court must, before determining an application under this clause, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of the person and report to the Court on whether the person is incapable of controlling, or unwilling to control, his or her sexual instincts.
(6)     The paramount consideration of the Supreme Court when determining an application under this clause must be the safety of the community.
(7)     The Supreme Court must also take the following matters into consideration when determining an application under this clause:
(a)the reports of the medical practitioners (as directed and nominated under subclause (5)) furnished to the Court;
(b)any relevant evidence or representations that the person the subject of the proceedings may desire to put to the Court;
(c)a report furnished to the Court by the appropriate board in accordance with the direction of the Court for the purposes of assisting the Court to determine the application, including—
(i)any opinion of the appropriate board on the effect that the release on licence of the person has had, or would have, on the safety of the community; and
(ii)—
(A)if the person has been released on licence—a report as to the current circumstances of the person; or
(B)if the person has not yet been released on licence—a report as to the probable circumstances of the person if the person is so released; and
(iii)the recommendation of the appropriate board about whether the person is suitable for release on licence;
(d)evidence tendered to the Court of the estimated costs directly related to the release of the person the subject of the proceedings;
(e)any other report required by the Court under section 25;
(f)any other matter that the Court thinks relevant.
The primary purpose of orders for detention under Division 3, both before and after the Amendment Act, is the protection of the community. The safety of the community has therefore always been a very important consideration on applications for release on licence, even though it was not the paramount consideration before 2013.
The manifest purpose of a release on licence is to transition the person the subject of an order made pursuant to section 23 of the Act from custody into the community and, ultimately, if the transition is successful, to discharge the order of indefinite detention itself. The imposition of indefinite detention, not to punish for a crime actually committed, but for preventative purposes, is antithetical to common law and human rights principles. It is for that reason that in a democratic society, ordered by the rule of law and respectful of fundamental human rights, it is natural to find that a regime of indefinite preventative detention, like that established by Division 3, incorporates a mechanism for the discharge of the order through rehabilitation.
Rehabilitation, and the prospect of discharge of a detention order as soon as it is no longer necessary to protect the community, are therefore relevant and important considerations on an application for release on licence even though they are not expressly mentioned.[12] There need not be certainty that the detained person will be rehabilitated before release on licence is ordered. There can be no certainty in matters of this kind. However, the degree of confidence that the person will respond positively to rehabilitation will affect the weight to be given to this consideration which, since the Amendment Act, is subordinate to safety of the community.
[12] Rehabilitation is likely to be addressed in the reports referred to in ss 24(1c)(c) and (e).
Safety of the community and rehabilitation are the competing factors at the core of the discretionary power to release on licence pursuant to section 24 of the Act, and at the core of the discretion to cancel previous orders for release on licence pursuant to Schedule 2 of the Act. They are incommensurable considerations in that there is no formula for quantifying adverse risks to the community or positive prospects for rehabilitation, nor for standardising their weight. An evaluative exercise is demanded.
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.
More fundamentally, it is in the very nature of a discretion that the level of risk, whatever it is, may nonetheless be sufficiently outweighed by other factors to justify release on licence. For example, an offender with some degree of short term risk of re-offending who has excellent prospects of medium to long term rehabilitation might be released on licence, when an offender with the same risk profile but poor prospects of rehabilitation would not. The effect of making public safety the paramount consideration is that, speaking generally, relatively smaller degrees of risk will outweigh considerations which, even strongly, support release. 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.
Two further points should be made. First, the undesirability of indefinite detention is in itself a consideration which supports release on licence even though it is subordinate to community safety. This consideration becomes stronger when, as in this case, a person has been detained for so long that continued detention is antitherapeutic, and the detained person faces lifelong imprisonment because of institutionalisation. In this case, Mr Schuster has been in custody, apart from five months, since 1994. His last offending was in 1999, and he has been subject to indefinite detention under section 23 of the Act for ten years since 2006. This is in circumstances in which he has voluntarily been taking anti-androgen medication and undertaken multiple courses in prison with a view to release.
Secondly, it can be seen from the discussion of the nature of the discretion that it demands a normative judgment which is quite different from traditional judicial discretions. This Court has been entrusted with a mandate to ensure public security by sacrificing, for the remainder of their natural lives if necessary, the right to liberty of persons who are found to be unable or unwilling to control their sexual instincts. There are good reasons to commit this function to the independent judiciary of this State even though it is foreign to the traditional judicial function. However, the discretion having been conferred, it is important for the community to understand that it will be exercised having regard to both the interests of the community and the interests of the person in question, but by according the consideration of public safety paramountcy.

This approach is reflected in the judgment of the Queensland Court of Appeal in relation to applications for indefinite detention under section 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). In Attorney General for the State of Queensland v Francis,[13] Keane and Holmes JJA and Dutney J said:[14]
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.
[13] [2006] QCA 324, [2007] 1 Qd R 396.
[14] At [39].
The exercise of the Division 3 jurisdiction has been made all the more difficult by the Executive’s failure to provide custodial and licensing arrangements which recognise that the detention of persons subject to Division 3 is not penal. Persons subject to Division 3 detention orders will first have served the punishment imposed for the offences which have made them liable to be detained pursuant to Division 3, or at least the question of their release on licence in practice is unlikely to arise until they have been detained for an equivalent time. They are detained, however, in the same institutions as sentenced prisoners. Specialist transitional facilities supported by appropriate programs and security arrangements will be essential in many cases to enable the Court to reach a sufficient degree of satisfaction in relation to the safety of the community; however those facilities, programs and arrangements have not been established. There is not in South Australia a secure facility (with secure fences and gates kept closed around the clock) to which persons can be released on licence. Indeed both section 24(1c)(d) and clause 1(7)(d) of Schedule 2 of the Act require this Court to have regard to the estimated costs directly related to the release of the person on licence and thereby make the cost of rehabilitation a potential factor against releasing on licence.
The Universal Declaration of Human Rights was drafted by Australia and seven other nations and adopted by the United Nations General Assembly on 10 December 1948. Article 9 provides:
Nobody should be subjected to arbitrary arrest, detention or exile.
The International Covenant on Civil and Political Rights was adopted by the United Nations General Assembly on 16 December 1966 and ratified by Australia on 13 August 1980. Articles 9 and 10 relevantly provide:
Article 9
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
…
Article 10
1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
2.
(a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;
…
3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. …
The combination of the statutory requirements to treat the community’s safety as the paramount consideration and to have regard to the costs of release on licence, and the Executive’s failure to provide appropriate institutions and programs to support rehabilitation, appears to compromise the protection conferred by articles 9 and 10 of the International Covenant on Civil and Political Rights.
Due to the failure to provide appropriate institutions and programs, a person who could safely be released into the community on licence must remain in custody. The requirement to have regard to the costs of the release on licence, in particular, is calculated to sacrifice those human rights for economic expediency. Even on the latter measure, the economy is arguably a false one, ignoring as it does the cost of continued long term incarceration.
Inability or unwillingness to control sexual instincts
By ground 1, the Director contends that the Judge failed to take into account a material consideration, namely whether the respondent is unwilling or unable to control his sexual instincts.
The Director seeks permission to amend the notice of appeal to introduce as ground 6 a contention that the Judge erred in releasing the respondent on licence without directing that at least two legally qualified medical practitioners report to the Court on whether the respondent is incapable of controlling, or unwilling to control, his sexual instincts. Mr Schuster opposes permission to amend the notice of appeal.
The application for permission to amend was made during the hearing of the appeal as a result of the Director becoming aware of the terms of the request for a report that had been made by the Registry on 21 January 2014 to Dr O’Brien and Dr Nambiar. In the ordinary course, the parties do not see the terms of requests made by the Court of medical practitioners for reports under Division 3. The request in this case was in the following form:
His Honour requests that reports be provided by Dr. K. O’Brien and Dr. N. Nambiar to consider release on licence upon an application by the DPP for the reconsideration of his release on licence which was ordered 27/03/2013. Consideration to be given to the recent changes to the legislation under Schedule 2 – 1(7)(c) & (d) of the Criminal Law (Sentencing) Act.
We grant permission to the Director to amend the notice of appeal. The order of the Judge was made on 16 April 2016 and the notice of appeal was filed on 22 April 2016. The application to amend was made on 19 May 2016. The delay was relatively short and did not occasion any prejudice to Mr Schuster. Ground 6 is closely related to ground 1 which also relates to the question whether the Judge addressed the inability or unwillingness of Mr Schuster to control his sexual instincts.
Subsections 24(1) and (1a) of the Act provide:
24—Release on licence
(1)The Supreme Court may, on application by the Director of Public Prosecutions or the person, authorise the release on licence of a person detained in custody under this Division.
(1a)The Supreme Court must, before determining an application under this section for the release on licence of a person detained in custody under this Division, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of the person and report to the Court on whether the person is incapable of controlling, or unwilling to control, his or her sexual instincts.
Clause 1(5) of Schedule 2 to the Act imposes the same requirement as subsection 24(1a) in respect of an application by the Director under Schedule 2 for cancellation of a release on licence.
Dr O’Brien and Dr Nambiar were asked for reports on the effect that the release on licence of Mr Schuster would have on the safety of the community; as to the probable circumstances of Mr Schuster if he were so released; whether he was suitable for release on licence and the estimated costs directly related to his release. They were not asked, and did not express an opinion, whether Mr Schuster was unable or unwilling to control his sexual instincts. The Judge did not make findings in relation to those questions.
At an abstract level, the answer to the question whether a person is unwilling, or unable, to control his or her sexual instincts is likely to depend on the circumstances and to involve matters of degree. The Act requires that reports be obtained from at least two medical practitioners on the answers to those questions on applications for orders for indefinite detention, discharge, release on licence and cancellation of release on licence alike.
In the context of a section 23 application for an order for indefinite detention or a section 23A application for discharge of an order for indefinite detention, the question whether the subject is unable or unwilling to control his or her sexual instincts is a threshold question required ultimately to be answered yes or no.[15] By contrast, in the context of a section 24 application for release on licence or a Schedule 2 application to cancel release on licence, the same question calls for a nuanced answer by reference to circumstances and matters of degree and the answer forms a foundation for consideration of risk to the public, prospects of rehabilitation and the other factors relevant to the decision to be made by the Court.
[15] It is an implicit pre-requisite for the making of an order under subsection 23(5) that the Court be satisfied that the person is incapable of controlling or unwilling to control his or her sexual instincts: R v Whyte [2006] SASC 56 at [10] per White J; R v Ainsworth [2008] SASC 67, (2008) 100 SASR 238 at [24] per White J (Doyle CJ agreeing) and [101] per Layton J. It is not a pre-requisite to making an order under section 23 that two legally qualified medical practitioners have expressed the opinion that the person is incapable of controlling or unwilling to control his or her sexual instincts: R v Ainsworth (2008) 100 SASR 238 at [35]-[41] per White J (Doyle CJ agreeing).
It follows that whether, in what circumstances and to what extent the subject is unable or unwilling to control his or her sexual instincts is a mandatory consideration on application for release on licence or cancellation of release on licence. Without considering those questions, a proper foundation was not made for the Judge to assess the potential risk to the public on the release of Mr Schuster on licence. The absence of the Judge’s consideration of those questions vitiates the exercise of his discretion.
In addition, section 24(1c)(a) of the Act requires the Court to take into account the reports of the medical practitioners (as directed and nominated under subsection (1a)) furnished to the Court. The Judge was unable to do so because no such reports had been directed under subsection (1a).
It may be acknowledged that the applications before the Judge were conducted on the silent premise that Mr Schuster is unable to control his sexual instincts. However, given the Judge’s acceptance of the evidence of AB, it was necessary for the medical practitioners and the Judge to consider whether Mr Schuster is unwilling to control his sexual instincts and more importantly it was necessary for the medical practitioners and the Judge to consider the circumstances in which and degree to which Mr Schuster is unable or unwilling to control his sexual instincts. A detailed consideration of these matters was necessary in order to assess the nature and extent of the risk to public safety presented by Mr Schuster. For example, the risk profile of a person with a desire or inclination to offend in an opportunistic or impulsive way would raise different considerations to those in the case of a person whose modus operandi has been, or is likely to be, one involving a longer term grooming of potential victims.
It may be acknowledged that the Judge had the reports by Dr O’Brien and Dr Raeside prepared in 1999 in which they expressed their opinions that he was unable to control his sexual instincts. However, they did not address unwillingness because it was not then a concept included in Division 3. More importantly, the relevant consideration was Mr Schuster’s present (and future) ability and willingness to control his sexual instincts, not his historical ability or willingness.
Assessment of risk
By ground 2, the Director contends that the Judge failed to take into account a material consideration, namely the nature and character of the risk posed by the respondent.
The Judge’s statements of principle in the paragraphs extracted at [62] above approach the question of risk correctly. However, when the Judge came to consider the application in the paragraphs extracted at [63], the Judge did not identify each risk or make findings concerning the circumstances in which it might arise, the steps proposed to be taken to mitigate it, the likelihood of its eventuating or the consequences of its eventuating. It is to be noted that the Judge found that the proposed licence conditions “minimised” the risk of re-offending but did not identify and evaluate the risks which remained despite those licence conditions.
Subsections 24(1b) and (1c) of the Act required the Judge to identify those risks to the community which would remain even if the proffered conditions were imposed and then to weigh those risks against such favourable considerations as there were. Those considerations were primarily the chance that Mr Schuster may be rehabilitated and the antitherapeutic institutionalisation which would result from his long term detention. The Judge did not identify and weigh the competing considerations in the way demanded by subsections 24(1b) and (1c) and therefore did not address the central question at the core of the discretion conferred by subsection 24(1b) of the Act being the level and consequences of the risk of Mr Schuster re-offending.
On the evidence adduced before the Judge, at least three specific risks needed to be assessed. First, the risk that Mr Schuster would abscond wearing his ankle bracelet from the Miller Place facility by walking out of the gate during the day or climbing the fence at night. Secondly, the risk that Mr Schuster would abscond wearing his ankle bracelet while accompanied by a volunteer on a visit outside the facility. Thirdly, the risk that Mr Schuster would remove his ankle bracelet and abscond. With respect to each of these risks it was necessary to consider the resulting risk that Mr Schuster would re-offend before he was apprehended. The Judge did not explicitly identify these risks, nor did the Judge evaluate the likelihood or consequences of their eventuating.
The Judge did not have available sufficient evidence to evaluate the likelihood or consequences of these risks eventuating. Evidence was required about the time that would be taken to remove the ankle bracelet and the point during the removal at which an alarm signal would be transmitted. Evidence was required from personnel at Clifford House concerning Mr Schuster’s conduct in relation to the ankle bracelet and absconding/compliance record when released on licence in 2009 and 2013. Most importantly, expert opinion evidence was required from the psychiatrists and psychologists concerning the likelihood of Mr Schuster absconding or removing his electronic bracelet based on the evidence given by Mr Hall, Mr May and Ms McKay about the proposed conditions in and outside the Miller Place facility. Dr O’Brien and Dr Nambiar gave their principal evidence before and without the benefit of the lay evidence and neither they nor Mr Elmer were provided with details of the proposed conditions in and outside the Miller Place facility. Finally, although unusual on such applications, it would have been desirable for Mr Schuster to have given evidence concerning these matters (and other relevant matters).
In exercising jurisdiction under Division 3, the Court essentially acts in the public interest, albeit this often involves a balancing of competing public interests (including the interests of persons potentially detained) in the manner summarised above. The jurisdiction is quite different to ordinary inter partes litigation in which the Court determines the rights and duties of the parties and the parties are acting in their own interests. Given the nature of the jurisdiction, it will be appropriate on occasions for the Court to adopt a semi-inquisitorial approach and on its own initiative request reports under section 25 or request and if necessary direct that particular evidence be adduced.[16]
[16] R v Draoui [2015] SASCFC 50, (2015) 122 SASR 360 at [110]-[113] per Blue J (with whom Kelly and Bampton JJ agreed).
Without evaluating the nature, likelihood and consequences of risks including of Mr Schuster absconding or removing his electronic bracelet and subsequently re-offending or otherwise not complying with his licence conditions, the Judge was not able to assess the potential risk to the public of the release of Mr Schuster on licence by way of Mr Schuster re-offending. The absence of the Judge’s consideration of those questions vitiated the exercise of his discretion. Indeed, without assessing these risks, the Judge was not in a position to ensure that the paramount consideration was the safety of the public.
Implications of rejection of Mr Schuster’s evidence regarding AB
By ground 3, the Director contends that the Judge failed to take into account a material consideration, namely the implications and consequences flowing from the Judge’s rejection of the respondent’s evidence regarding comments made to AB.
We do not uphold this ground in itself. However, it was relevant for the Judge to consider Mr Schuster’s evidence when considering the circumstances in which and extent to which Mr Schuster may have been unable or unwilling to control his sexual instincts (considered above under ground 1) and when considering the risks to the public (considered above under ground 2).
Consideration of prospects of rehabilitation
By ground 4, the Director contends that the Judge wrongly considered that in determining whether there should be a release on licence the emphasis is on the rehabilitation of the applicant.
For the reasons given above, Mr Schuster’s prospects of rehabilitation were a relevant factor to be considered. However, the Judge made no finding that Mr Schuster’s prospects of rehabilitation were good. His Honour made only the negative finding that incarceration would not improve Mr Schuster’s prognosis and concluded by remarking that if release on licence were refused Mr Schuster “would be condemned to spending most if not all of the remainder of his life in custody”. This reference suggests that his Honour regarded this factor at least as important as, if not more important than, the safety of the community.
The absence of consideration of the level of Mr Schuster’s prospects of rehabilitation vitiated the exercise of his discretion.
Conclusion
Errors of law which vitiate the exercise of discretion have been established. We grant permission to amend the notice of appeal to add ground 6. We allow the appeal and set aside the order releasing Mr Schuster on licence. We remit the matter to a Judge of this Court for rehearing.
On the rehearing, it will be important to investigate whether Mr Schuster has reasonable prospects of rehabilitation if released, the likelihood and consequences of his absconding and the availability and effectiveness of measures to guard against the risk that he might impulsively abscond and offend before anything effective can be done to stop him.