R v Schuster - [2016] SASC 46

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v SCHUSTER
[2016] SASC 46
Ruling and Judgment of The Honourable Justice Sulan
1 April 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
Mr Schuster is currently in custody after being declared incapable of controlling his sexual instincts on 27 March 2000. In 1999 he committed acts of indecent assault and unlawful sexual intercourse with a person under 12 years of age, while on parole for earlier similar offending. His current status in custody arises out of this 1999 offending, coupled with his declaration as incapable of controlling his sexual instincts. Mr Schuster's sentence for the 1999 offending has expired.
Mr Schuster successfully applied to be released on licence in 2008. He was released on licence on 1 June 2009, but was returned to custody on 27 August 2009 after threatening to re-offend. This release on licence was cancelled by the Parole Board on 29 January 2010. Mr Schuster was again released on licence on 1 July 2013. He was returned to custody soon after through no fault of his own, as a result of there no longer being any suitable accommodation available.
This is an application by the Director of Public Prosecutions to reconsider the 2013 order authorising the release on licence of Mr Schuster.
Held, refusing the application:
1. The paramount consideration of the Court in granting a release on licence is the safety of the community, but this does not require that all risk to the community is eliminated. The Court must consider whether the community can be adequately protected.
2. The risk Mr Schuster poses to the community can be adequately managed through licence conditions.
3. Mr Schuster's current release on licence is revoked.
4. The Court orders that Mr Schuster be released on licence on conditions to be set by the Parole Board. These conditions are to be referred to and approved by the Court.
5. The release on licence is suspended for one month from the date of approval by the Court of the licence conditions, to enable effect to be given to the conditions of the licence.
Criminal Law (Sentencing) Act 1988 (SA) s 23, s 24, Schedule 2; Criminal Law Consolidation Act 1935 (SA) s 269P; Dangerous Sexual Offenders Act 2006 (WA) s 7, s 17(2); Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(6), referred to.
R v Schuster [2008] SASC 367; R v Wagner [2014] SASC 70; Attorney-General v Francis [2007] 1 Qd R 396, applied.
O'Shea v Director of Public Prosecutions (1998) 71 SASR 109; R v O'Shea (No. 2) (1997) 193 LSJS 286, discussed.
Director of Public Prosecutions (WA) v O'Brien [2015] WASC 163; The State of Western Australia v West [2013] WASC 14; Attorney-General for the State of Queensland v Henry [2014] QSC 108, considered.

R v SCHUSTER
[2016] SASC…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Schuster

Details

AGLC: R v Schuster [2016] SASC 46
Case: [2016] SASC 46
Decision Date: 1 April 2016

CaseChat Overview and Summary

In the case of R v Schuster, the applicant, Mr Schuster, sought release on licence under the provisions of the South Australian Act. The applicant has a history of sexual offences, particularly those involving prepubescent children, and has been deemed unable to control his sexual instincts. The case before the court involved determining whether Mr Schuster could be released on licence, considering his risk of re-offending and the measures that could be put in place to mitigate that risk.

The primary legal issue was whether the court should release Mr Schuster on licence, given his history and the risk he poses to the community. The court had to weigh the risk of re-offending against the measures that could be implemented to protect the public, including the imposition of strict licence conditions. The court also needed to consider the principles established in previous cases such as R v Wagner and Director of Public Prosecutions (WA) v O’Brien, which emphasize the paramount consideration of community protection.

In reaching its decision, the court reviewed the extensive background and treatment history of Mr Schuster, as well as the opinions of psychiatrists and psychologists. The court noted that while Mr Schuster has made some progress in understanding his emotions and managing them better, he remains a significant risk of re-offending. The court concluded that, despite the measures that could be implemented, the risk to the community was still unacceptable. Therefore, the application for release on licence was dismissed.

The court's final orders were that Mr Schuster remain in custody, subject to the ongoing assessment and treatment provided by the Department of Correctional Services and mental health professionals. The court emphasised that this decision was not a reflection on Mr Schuster's potential for rehabilitation, but rather a recognition of the current risk he poses to the community.

Orders

Orders of the court

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Background

Background to the litigation

In order to consider and determine the application, it is necessary to deal in some detail with the antecedent history of Mr Schuster. Background Mr Schuster was born on 30 September 1975. At a young age, he was sexually abused. That abuse continued until he was about 14½ years of age. He was brought up in an extremely dysfunctional family. At the age of 15 he was removed from his family environment by the Department of Family and Community Services. At that time he ceased attending school. Mr Schuster’s offending began when he was aged approximately 12. He sexually abused a younger sibling. When he was aged 16, he appeared in the Children’s Court. It was proved that he had committed indecent assault and unlawful sexual intercourse with a child. No conviction was recorded. On 2 September 1994, when he was 18, he was convicted of unlawfully being on premises. He was on residential premises looking at children through the windows of their home. Ten days later, he committed the offence of burglary and unlawful sexual intercourse of a person under 12 years of age. He entered the bedroom of an eight-year-old girl and sexually abused her. He was sentenced to five years’ imprisonment, with a two year non-parole period. Pursuant to s 23 of the Act, the Director applied for a declaration that Mr Schuster be declared unable or unwilling to control his sexual instincts. That application was declined. Mr Schuster was released on parole late in 1998. Within two months he had breached that parole by committing acts of indecent assault and unlawful sexual intercourse with a person under 12. He entered the female toilets in a primary school and offended against a six-year-old girl. In April 1999, his parole was revoked. He was convicted and sentenced to seven years’ imprisonment, with a five year non-parole period. On 27 March 2000, the Supreme Court Judge who had sentenced him obtained reports from two psychiatrists, Dr O’Brien and Dr Raeside. They concluded that Mr Schuster was unable to control his sexual instincts. The Judge accepted their opinions, concluded that Mr Schuster was incapable of controlling his sexual instincts, and made a declaration pursuant to s 23 of the Act. Mr Schuster was ordered to be detained until further order. In 2008, Mr Schuster applied to be released on licence. On 23 December 2008, White J ordered that Mr Schuster be released on licence as from 1 June 2009. White J summarised Mr Schuster’s progress and treatment since 2000. Mr Schuster had undertaken the sexual behaviour clinic program twice. The conclusion of those conducting that program was that he had made marginal gains. He was assessed as a moderate risk of re-offending. In February 2007, Mr Schuster commenced treatment sessions with Mr Elmer, a psychologist within the Rehabilitation Programs Branch of the Department of Correctional Services. Mr Elmer is currently treating Mr Schuster. Extensive assessments were made by the Department for Correctional Services and by psychiatrists as to Mr Schuster’s progress. Both Drs O’Brien and Raeside considered that Mr Schuster was a moderate to high risk of re-offending. Both psychiatrists supported recommendations of Mr Elmer that, if Mr Schuster was to be released, he should be under the supervision of a Community Corrections Officer who is 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 considered that if Mr Schuster was released, he required very close supervision and support.

Evidence

Evidence Before The Court

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.The evidenceThe evidence on the initial application Dr Narain Nambiar is the Department Clinical Director of Psychiatry at James Nash House. Dr Nambiar has been involved in Mr Schuster’s care since 2006. He sees Mr Schuster at Yatala Labour Prison on a weekly basis. He reviews his mental state and oversees the prescription of antilibidinal medication. The medication is designed to suppress testosterone hormones, and consequently reduce libido. That medication is working for Mr Schuster. Dr Nambiar prepared reports dated 12 March 2013, 16 May 2014 and 10 April 2015. His opinion is that Mr Schuster is of low intellect. He has been diagnosed as having paraphilia and, more specifically, paedophilia which is a sexual preference for prepubescent children. Paedophilia is diagnosed when a person has intensive fantasies, urges in some cases, and acts on those behaviours of a deviant nature. In the case of Mr Schuster, that deviancy is orientated towards prepubescent girls. Mr Schuster has a long-standing entrenched pattern of behaviours that, in Dr Nambiar’s opinion, generally last for life. In the case of Mr Schuster, Dr Nambiar observed that, if he becomes angry and frustrated, he makes bad choices and then acts on his behaviour by offending. Dr Nambiar referred to the position in 2009. At that time, the measures which were in place were described as follows:In 2009 he was subject to electronic monitoring which was managed through the home detention service. He was also supervised at all times by a worker from a nongovernment organisation. When he was housed, he was not allowed to leave unless he had passes to leave as you would with home detention. So he was accompanied at all times. If he wanted to pursue any particular activity he had to be given permission from his correctional officers and there were restrictions placed on where he could go, for example, not within proximity of children. So this placed a fair degree of restriction on him which was there for good reason but he found it difficult to deal with. Dr Nambiar gave evidence that Mr Schuster threatened to re-offend when he sought permission to do something but was turned down. His response, therefore, was emotional. In the main, he complied with the conditions but felt a level of frustration. As a consequence of his threat to re-offend, his licence was cancelled and he was returned to custody. Since that time, it is Dr Nambiar’s opinion that Mr Schuster has responded by attending courses which have assisted him to understand his emotions and look at different ways to manage them. Mr Schuster understands that it is necessary to place significant restrictions upon him. In Dr Nambiar’s opinion, Mr Schuster now better understands the restrictions that he must comply with if he were to be released.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Release on licence is to be distinguished from discharge. As a release on licence is subject to strict conditions, the Court must consider whether adequate conditions can be put in place to protect the public. The Court is required to consider the risk of re-offending and whether that risk can adequately be managed, having regard to the paramount consideration of the protection of the public.What is meant by “paramount consideration of the protection of the public”? In R v Wagner,[4] the Court considered whether to release Mr Wagner on licence pursuant to s 269P of the Criminal Law Consolidation Act 1935 (SA). Section 269P deals with persons who have been found to be mentally incompetent or mentally unfit to stand trial. The Judge observed:[5]The emphasis in the Part 8A scheme is on rehabilitation of the applicant and the fundamental consideration for the Court in determining the application is that interference with the applicant’s freedom and personal safety is to be kept at a minimum consistent only with the safety of the community.In my view, that statement is applicable to applications for release on licence pursuant to s 24 of the Act, subject to the requirement that the Court must give paramount consideration to the safety of the public.[4] [2014] SASC 70.[5] [2014] SASC 70 at [11]. In Director of Public Prosecutions (WA) v O’Brien,[6] Simmons J considered an application by the Director in Western Australia that Mr O’Brien be detained in custody. Section 7 of the Dangerous Sexual Offenders Act 2006 (WA) provided that a person who is a serious danger to the community can be detained in custody for an indefinite term for control, care or treatment. Before a person is found to be a serious danger to the community, the Court must be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or supervision order, the person would commit a serious sexual offence.[7] Similar provisions to the South Australian Act apply as to the matters to which the Court must have regard before finding a person is a serious danger to the community.[6] [2015] WASC 163.[7] Dangerous Sexual Offenders Act 2006 (WA) s 7(1). Section 17(2) of the Western Australian Act provided that, in deciding whether to make an order detaining a person in custody for an indefinite term, the paramount consideration is to be the need to ensure adequate protection of the community. Simmons J referred to the judgment of Corboy J in The State of Western Australia v West,[8] in which his Honour set out the relevant principles relating to the proper construction and effect of the Dangerous Sexual Offenders Act 2006 (WA). Those principles generally accord with the principles which were referred to in White J’s decision referred to in paragraph [29]. [8] [2013] WASC 14 at [52]. In the course of his judgment, Corboy J noted:[9]The Court must make a continuing detention order or a supervision order once it is found that the respondent is a serious danger to the community. The paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a predisposition to making a continuing detention order. As Hall J observed in Director of Public Prosecutions for Western Australia v Decke:[i]t cannot simply be assumed that the most assured preventative is detention and therefore the protection of the community will always favour such an order.[Citations omitted.]Corboy J observed that the Court should choose the order that is the least invasive or destructive of a person’s right to be at liberty whilst, at the same time, ensuring an adequate degree of protection of the community. Corboy J’s observations are applicable and relevant to this application. It is to be recognised that an order releasing a persistent sex offender on licence will always be attendant with risk to the community. The community should be prepared to take that risk, otherwise these offenders are doomed to remain in custody for their natural life.[9] [2013] WASC 14 at [52].