R v Schuster

Case [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…

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R v Schuster [2016] SASCFC 86
Case
[2016] SASCFC 86
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CaseChat Overview and Summary

The Supreme Court of South Australia, constituted by Kourakis CJ, Blue and Doyle JJ, considered an appeal by the Director of Public Prosecutions against an order releasing Mr Schuster on licence. The Director sought to add a sixth ground of appeal, alleging the sentencing judge erred by failing to direct that medical practitioners inquire into Mr Schuster's mental condition and report on his ability to control his sexual instincts prior to making the release order. Mr Schuster had a history of sexual offending against children and siblings, commencing in his youth, and had previously been subject to applications for indefinite detention which were not granted.

The central legal issues before the Full Court were whether the sentencing judge had erred in the exercise of discretion by failing to consider material factors, including Mr Schuster's willingness or ability to control his sexual instincts, the nature and character of the risk he posed, and the implications of rejecting his evidence. Furthermore, the Court had to determine if the judge had wrongly emphasised rehabilitation over community safety in considering release on licence, and whether the release order was unreasonable or plainly unjust, indicating a failure to properly exercise discretion. A key question was also whether the specific legislative requirement for medical reports concerning the control of sexual instincts had been met.

The Court reasoned that the absence of consideration of Mr Schuster's prospects of rehabilitation vitiated the exercise of the sentencing judge's discretion. The Court found that errors of law had been established, leading to the conclusion that the discretion had not been properly exercised. The paramount consideration in such matters, particularly since 2013, is the safety of the community. The Court also noted that the legislative framework, specifically Schedule 2 of the Act, mandated that before determining an application for release on licence, the Supreme Court must direct at least two legally qualified medical practitioners to inquire into the person's mental condition and report on whether they are incapable of controlling, or unwilling to control, their sexual instincts.

Permission to amend the notice of appeal to include the ground concerning the failure to obtain medical reports was granted. The appeal was allowed, the order releasing Mr Schuster on licence was set aside, and the matter was remitted to a Judge of the Supreme Court for rehearing. The rehearing was directed to investigate Mr Schuster's prospects of rehabilitation, the likelihood and consequences of him absconding, and the effectiveness of measures to prevent him from absconding and offending.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.