R v Schuster
[2016] SASC 46
•1 April 2016
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 46Criminal: Application
SULAN J: This is an application by the Director of Public Prosecutions (‘the Director’) for reconsideration of an order authorising the release of Gavin Shaun Schuster on licence, pursuant to s 24 of the Criminal Law (Sentencing) Act 1988 (SA) (‘the Act’). Schedule 2 of the Act provides that the Supreme Court may, on application of the Director, cancel the release on licence or confirm the release on licence of a person who has been released on licence pursuant to s 24 of the Act. I will return to the relevant provisions of the Act later in these reasons.
The application
The present application was commenced after the Act was amended on 12 December 2013 to provide that, when determining an application for release on licence of a person detained in custody, the paramount consideration of the Supreme Court must be the safety of the community.
Mr Schuster had, on 27 March 2013, prior to the amendment, been released on licence by order of Kelly J. At that time, the Director had not opposed the order. Kelly J set the release date to be 1 July 2013 to enable the Parole Board to set the conditions of release.
On 1 July 2013, Mr Schuster was released. On 7 July 2013, Mr Schuster was taken back into custody through no fault of his own. The accommodation in which he was to reside under conditions set by the Parole Board was deemed to be no longer suitable.
On 18 December 2013, the Director issued this application. The Director sought a stay of the order of Kelly J, pending determination of this application. He also sought reports from Dr Ken O’Brien and Dr Narain Nambiar, both of whom had provided reports about Mr Schuster in the past. Further, he sought a report from the Parole Board. On 20 January 2014, the orders were made including an order that Kelly J’s order be stayed. The Director submits that the amendment changed the test when considering whether a person qualified for release on licence. It is concluded that Mr Schuster’s position requires reconsideration, having regard to his risk to the community, of re-offending. The application was referred to Kelly J. On 20 June 2014, Kelly J listed the application to be heard in August 2014.
The application proceeded before me on 14 and 15 August 2014. In considering the application, I received reports from consultant forensic psychiatrists, Drs Kenneth O’Brien and Narain Nambiar, and the Chairperson of the Parole Board, Ms Eleanor Frances Nelson QC. I also heard evidence from Dr Nambiar, Dr O’Brien, Ms Nelson QC and Mr May, the then regional director of Correctional Services. On 18 August 2014, I was advised that the accommodation which had been available for Mr Schuster was no longer available. The matter was adjourned. That position changed in 2015. The adjourned application was then listed for further hearing.
On 13 July 2015, I heard evidence from Ms Rachel McKay, the area manager for the Upper South area of the Department of Correctional Services, Brevet Sergeant Michael Bavey, a detective stationed with the ANCOR Unit within the Special Crime Investigation Branch of the South Australia Police Department, and Mr Peter Hall, the manager of the residential facility where it was proposed that Mr Schuster would reside. I visited the locality and inspected the facility. I received supplementary reports from the psychiatrists and Ms Nelson.
On 14 July 2015, I heard submissions from counsel for the Director and counsel for Mr Schuster. In short, the Director’s submission was that, having regard to the amendment to the legislation, being that the paramount consideration of the Supreme Court when determining an application under the section dealing with releases on licence of a person detained in custody in the circumstances of Mr Schuster must be the safety of the community,[1] the Court should revoke the licence.
[1] Criminal Law (Sentencing) Act 1988 (SA) s 24(1)(1b), as amended. It is to be noted that the provision was operational from 12 December 2013.
I reserved my decision.
After I had reserved my decision, the Director applied to re-open the application in order to adduce further evidence from a former prisoner who had shared a cell with Mr Schuster. This former prisoner will be referred to as ‘AB’. A statement of AB was provided in which he stated that while watching the television news on 13 July 2015, he had seen a report that Mr Schuster was possibly to be released from custody. AB’s statement outlined that, between September 2011 and August 2013, he had been in custody at Yatala Labour Prison and Mt Gambier Prison. At Mt Gambier, AB and Mr Schuster shared a cell. Mr Schuster told AB 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”. AB stated that Mr Schuster would often talk about his offending, and that he was very repetitious. AB stated that he was genuinely worried that Mr Schuster would commit further sexual offences against children if released from custody, especially in the northern suburbs.
As a result of that statement, counsel for Mr Schuster indicated that he would need to take instructions. The matter was adjourned until 21 August 2015. On that date, counsel for Mr Schuster indicated that Mr Schuster disputed aspects of AB’s statement, and disputed that the conversations with AB had taken place. As a result, I indicated that it would be necessary to hear evidence. Counsel for the Director stated that AB would be prepared to give evidence. This occurred on 21 October 2015. Both AB and Mr Schuster gave evidence.
On 22 December 2015 I gave reasons concluding that I was satisfied that the conversations, as deposed to by AB, had taken place. I directed that the evidence of AB as to Mr Schuster’s expressed intentions to re-offend and Mr Schuster’s evidence denying those statements, together with my judgment, be referred to Dr Nambiar and Mr Elmer, both of whom had previously reported to the Court in respect of this matter. Dr Nambiar and Mr Elmer gave oral evidence on 29 February 2015. The content of their evidence at that hearing will be outlined later in these reasons.
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.
White J considered that Mr Schuster was at least a moderate risk of re‑offending. The Judge observed that the interests of the community in being protected from further offending was particularly important. He recognised that any release of Mr Schuster into the community would impose challenges, both to Mr Schuster and to those responsible for his supervision. The Judge recognised that there is some risk of re-offending in almost every case of a person who has been the subject of a s 23 declaration. The Judge had regard to the various risk factors, and determined to grant the application.
Mr Schuster was released on 1 June 2009. He was returned to custody on 27 August 2009, after he had made statements threatening to re-offend. His release on licence was cancelled by the Parole Board on 29 January 2010. He remained in custody until 1 July 2013, when he was again released on licence but, shortly thereafter, returned to custody through no fault of his own. The facility at which he had resided was no longer able to accommodate him.
Relevant principles
Before considering the application and the evidence, it is necessary to have regard to the Act. Section 23 of the Act provides that, upon a defendant being required to appear before the Supreme Court to determine whether the person is unable or unwilling to control his or her sexual instincts, the Court must first make an order that at least two legally-qualified medical practitioners inquire into the mental condition of the person and report to the Court whether the person is unable or unwilling to control his or her sexual instincts. If the Court determines that the person is unable or unwilling to control their sexual instincts, the Court may order that the person be detained in custody until further order. Before making an order, the Court is required to have regard to the psychiatric and other reports which have been furnished, a report from the Parole Board, any relevant evidence, any representations that the person may desire to put to the Court, and any other relevant matters.
A person who has been declared to be unable or unwilling to control their sexual instincts can apply to be released from custody on licence.
Section 24 of the Act provides:
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.
(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.
Upon the Supreme Court making an order releasing a person on licence, that person will be subject to conditions of release, including conditions determined by the Parole Board or the Training Centre Review Board, whichever is applicable.
Schedule 2 of the Act provides that the Supreme Court may, upon application of the Director, cancel the release on licence of a person who has been released on licence under s 24. The Schedule provides:[2]
[2] Criminal Law (Sentencing) Act 1988 (SA), Sch 2.
(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 relevant principles applicable to a release on licence were considered by White J in R v Schuster.[3]White J’s observations were made before the amendment requiring that paramount consideration be given to the safety of the community. Nevertheless, a number of the principles have application under the current provisions. They include:
· In order to obtain the discharge of an order for indefinite detention, it does not have to be established that the detainee is now capable of, or willing to, control his or her sexual instincts. Instead, the Court must be satisfied that the discharge is appropriate, after taking into account the interests of the person and of the community. However, if the Court is satisfied that the detainee has both the capacity and willingness to control his or her sexual instincts, that would ordinarily result in a discharge of the order. Both 23 and 24 operate in the context of community acceptance of some risk that some of its members may offend against the criminal law (O’Shea v DPP (No 2) at 289; O’Shea v DPP at 131).
· As the purpose of an order for indefinite detention is protective and not punitive, a very relevant matter to be considered on an application for a complete discharge, or on a release on licence, is the risk of further offending by the detainee (O’Shea (No 2) at 290). However, this does not mean that discharge of a detention order or release on licence will be appropriate only when the risk of re‑offending is slight (O’Shea (No 2) at 290; O’Shea v DPP at 138).
· The scheme in ss 23 and 24 contemplates that an offender should not be detained in custody any longer than is necessary for the protection of the public. Hence the provision for bi-annual reviews in s 23(9) and the power vested in the court to order discharge of an order or the release of an applicant on licence.
· A release on licence under s 24(1) is quite different from the discharge of an order under s 23(12). A release on licence which is subject to specified conditions enables the Parole Board to exercise significant control over a detainee’s activities. It is a means of testing the suitability of a detainee for release, whereas the discharge of an order puts the detainee beyond the control of the Parole Board altogether (O’Shea (No 2) at 291). It is also a means of preparing a detainee for a return to the community. That means that an order for release on licence may be appropriate even though an order for discharge would not be appropriate (O’Shea (No 2) at 291).
[3] [2008] SASC 367.
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].
In the Attorney-General for the State of Queensland v Henry,[10] Daubney J considered the Queensland provisions relevant to the sexual offenders contained in the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). He summarised the issue before him as follows:[11]
It was common ground that the real issue in the present case was whether, in the particular circumstances of this respondent, there should be a continuing detention order or whether the respondent should be released under a supervision order. The applicant’s contention was that release of this respondent subject to a supervision order would not meet the paramount consideration of needing to ensure the adequate protection of the community as required by s 13(6) of the Act.
[10] [2014] QSC 108.
[11] [2014] QSC 108 at [3].
The Queensland Act was in similar terms to the South Australian Act. Section 13(6) of the Queensland Act provided:[12]
(6)In deciding whether to make an order under subsection (5)(a) or (b) –
(a)the paramount consideration is to be the need to ensure adequate protection of the community; and
(b)the court must consider whether –
(i)adequate protection of the community can be reasonably and practicably managed by a supervision order; and
(ii)requirements under section 16 can be reasonably and practicably managed by corrective services officers.
[12] Dangers Prisoners (Sexual Offenders) Act 2003 (Qld)
Daubney J referred to Attorney-General v Francis,[13] in which the Court of Appeal in Queensland observed:[14]
The Act does not contemplate that arrangements to prevent such a risk must be ‘watertight’; otherwise, orders under s 13(5)(b) would never be made. 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 could be constrained to no greater extend [sic] than is warranted by the statute which authorised such constraint.
[13] [2007] 1 Qd R 396.
[14] Attorney-General v Francis [2007] 1 Qd R 396 as quoted in Attorney-General for the State of Queensland v Henry [2014] QSC 108 at [43].
In my view, the approach to the current application should have regard to those principles. 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.
The evidence
The 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.
Dr Nambiar gave evidence that Mr Schuster is currently receiving psychological treatment from Mr Elmer, who has a long history and experience of working in this area. If Mr Schuster were released on licence, that treatment would continue and funding has been approved for it to continue. Mr Schuster has also engaged in programs which have reduced the risk to a degree.
Dr Nambiar was asked:
QWhat’s your opinion at this point in time in terms of the potential risk of his reoffending.
AIt is a very hard question to answer. If I had a crystal ball I could. As I have said, if you go only on historical factors alone the risk is high. If you then add in the fact that he has had treatment and that that will be reinforced and he will continue to have therapy, it goes towards managing that risk and lowering the risk, lowering the risk. If you then placed restrictions on him that again manages the risk and lowers the risk but there will never be a situation where you can, you know, with any certainty, say there is no risk.
...
QCan you explain what you have discussed with him in terms of things that might be put in place if he is released.
AYes. My understanding is that he will be placed in a supported residential facility and that he will be as I mentioned under electronic monitoring and that his movements will be monitored at all times, particularly if he wants to leave the premises he will have to seek permission and have a pass and that he will be escorted wherever he goes. He will also be supported through those escorts by, I believe, an Anglicare worker who will provide him with therefore, for want of a better word, the mentorship or colleague-al [sic] relationship. He will also be seeing the psychologist who will reinforce the therapy. He will also be seeing myself for the prescribing and monitoring of the antiandrogen medication. Antilibidinal was the other term. And that when it comes to making decisions about what activities he wants to pursue, that would have to be a discussion that he has with his Community Corrections officer who would then only approve it if it is seen to be appropriate.
QWhat has been his response to your direct conversations with him about those topics.
AHe appears to understand and accept those limitations, restrictions on his life and also accepts the fact that this still may cause him to become frustrated but he hopes he can manage it better and he has used the word ‘transparency’ to me. What he is saying is he hopes that any discussion about the options are that he is included in that discussion and that decisions aren’t made without his input.
Dr Nambiar indicated that he would continue to consult with Mr Schuster on a monthly basis.
Dr Nambiar observed that Mr Schuster has been quite frank and forthcoming about many aspects of his personal circumstances and his personal history. He has recently made connections with his mother.
Dr Kenneth O’Brien is the Clinical Director of the Forensic Mental Health Service. He has held that position for over 30 years. Dr O’Brien has had a lengthy involvement with Mr Schuster. He prepared a report in April 1995 which dealt with Mr Schuster’s ability to control his sexual instincts. He again reported to the Court in July 1999 and on 6 October 1999 in which he came to the conclusion that, on the balance of probabilities, it is more likely than not that Mr Schuster was unable to control his sexual instincts. He again reported on 21 July 2008 in which he concluded that Mr Schuster had made some gains from his association with Mr Elmer. He observed that, in 2006, when he had assessed Mr Schuster, he considered that it was premature to consider Mr Schuster was suitable for discharge from custody. In 2009, Dr O’Brien assessed Mr Schuster in the moderate to high risk of re-offending. He supported Mr Schuster’s release on licence.
On 20 May 2014, Dr O’Brien noted that in July 2013 it was considered appropriate to release Mr Schuster from custody. It was observed that his return to custody was not Mr Schuster’s fault. Dr O’Brien noted that the change in the legislation mandating the community safety considerations should, in future, be paramount with respect to release. Dr O’Brien confirmed that Mr Schuster’s release in 2013 was timely and appropriate. He considered that the amended legislation did not cause him to alter his opinion, and he supported Mr Schuster’s return to the community under strict conditions as to his supervision and movement.
Dr O’Brien gave evidence which generally confirmed Dr Nambiar’s opinion. Dr O’Brien was of the opinion that Mr Schuster has gained an insight over the time that Dr O’Brien has been involved with him, and that Mr Schuster’s participation in the sexual offender program has been of assistance. Dr O’Brien was asked:
QIn terms then of any proposed release in the future, obviously when one considers the issue in the past has been compliance with conditions and an acceptance of the level of supervision, what is your opinion now as to Mr Schuster’s ability to accept such a stringent level of supervision, what is your opinion now as to Mr Schuster’s ability to accept such a stringent level of supervision as would be suggested in this case.
AI would like to go back, if I may, to the rather unfortunate aborted release that he had. I think it was 2013 when there was quite a lot of support for his release into the community and, as you will recall, he was placed at Clifford House but unbeknown to anybody, the manageress of the house had a young boy who was frequently, if not always, in the house. So it became an impossible situation for Mr Schuster. Either the manageress had to leave or Mr Schuster had to go and the manageress chose to stay where she was which is understandable, that was her employment, and there being nowhere else for Mr Schuster to go, he was returned to custody. So he was ready, in my opinion, for release at that time and it wasn’t through any fault of his own that he returned to custody. He was then ready again to be released and I think probably would have been so, if I may say that, if it hadn’t been for the amendment to the s.23, s.24 legislation which again required a halt in the plan to release him until further reports were ordered, looking at the question of community safety being a paramount interest. So it seems to me there have been two recent occasions where there has been general acceptance that he was ready for release. I think the important question; that is whether the new test of community safety has changed things or not? Obviously that was one of the questions that was put to me and Dr Nambiar which we answered, both, in our most recent report. Clearly that has made it a more onerous test, there is no question about that. That community safety has got to be looked at very, very carefully. It is also true to say when we have done our reports, that when I have done my reports prior to that amendment, I have always looked at community safety and I have looked at it more stringently on this occasion and my view is that the situation has not altered and that he was ready for release 12 months ago and I believe that he’s ready for release again. It is on the basis of managed risk and whether that risk is an acceptable one or not. I think that depends very much on the preconditions and the restrictions and the licence conditions and all the other conditions that are put in place. I am satisfied that those conditions are very stringent and I think that the risk is acceptable. I would also say, if I can be permitted to say, if he were to stray even in the smallest possible way from those conditions and break them, even in a minor fashion, I would feel that he should be returned to custody. I don’t think it is a question of any interpretation or leniency or anything like that, it has got to be pretty black and white.
Dr O’Brien again reported on 7 April 2015. He concluded as follows:
As a result of my most recent interview with Mr Schuster, I have found that there has not been any change in his mental and behavioural state since I last reviewed him some twelve months ago. What has changed is that he is now receiving regular contact from a private Psychologist whilst the Exceptional Needs Unit continues to monitor his situation.
In previous reports, including my most recent one in 2014, I have supported the return of Mr Schuster into the community, provided that adequate treatment/managements and after-care arrangements are in place and that the accommodation provided for him is acceptable to all interested and relevant parties.
With respect, I see little purpose in Mr Schuster continuing to “mark time” in a maximum security facility, particularly at a time when he is seemingly motivated and compliant with proposed discharge arrangements.
Eleanor Frances Nelson QC is the Presiding Member of the Parole Board of South Australia. She has had a lengthy involvement with Mr Schuster, which commenced in about 1995. Ms Nelson gave evidence about Mr Schuster’s dealings with the Parole Board. Ms Nelson indicated that, if Mr Schuster was released into the community on licence, he would be allocated to a very senior experienced Community Corrections officer. Mr Schuster would have two Community Corrections officers assigned so there is always backup. She indicated that the officers who would be assigned would be very reliable, highly trained and very skilled in dealing with Mr Schuster’s type of offending. They would actually have face-to-face contact with Mr Schuster about twice a week.
Ms Nelson was of the opinion that, if Mr Schuster were released, his situation would have to be managed with extremely strict conditions of supervision. She regarded Mr Schuster as a significant risk for re-offending. She was unable to give an opinion as to what extent Mr Schuster could be assisted by ongoing psychological counselling. She indicated that the Board’s concern was that Mr Schuster is unlikely to function without being a risk to the community, save and except with ongoing, indefinite and very strict supervision.
Ms Nelson provided a supplementary report, dated 10 July 2015. She observed that the proposed facility to which Mr Schuster would be accommodated causes the Board some concern because of its location near parks. She recommended that Mr Schuster should wear a GPS tracking device. She regarded the proposed accommodation had the advantage that it would assist Mr Schuster with social integration and assist him to develop basic living skills, such as cooking and cleaning and with reintegration into the community through social programs. A care worker would be provided for Mr Schuster and continued psychological counselling would be provided by Mr Elmer. The Parole Board considered that the management plan proposed for Mr Schuster is appropriate.
Rachel Louise McKay is employed by the Department of Correctional Services. She has 19 years’ experience in the department. She has a Bachelor of Arts Degree with a psychology major, and a post-graduate degree in social work. She is the area manager for the Adelaide and Port Adelaide office of the Department of Correctional Services. Amongst her duties, she supervises a number of staff, including social workers and other staff who supervise offenders. She works in collaboration with South Australia Police and numerous government and non-government agencies which provide services to offenders who have been released on parole or licence.
She first supervised Mr Schuster in 2009 when he was released on licence. She also supervised him upon his brief release in 2013. She has extensive experience with sex offenders. She gave evidence that if Mr Schuster was released on licence, she would oversee his supervision and co-ordinate communications with South Australia Police ANCOR Unit, the Exceptional Needs Unit, Centrelink, the facility at which Mr Schuster would be housed and other agencies. She, together with a number of panel members including Dr Czechowicz, a psychiatrist, Ms Hayley Mills, a psychologist, a social worker and a number of others who are qualified in dealing with sex offenders, have prepared a comprehensive management plan if Mr Schuster were to be released. That plan acknowledges that, if Mr Schuster were to be released, there are certain risks which have been identified which would be managed with which all the agencies involved with Mr Schuster would be aware. In the plan, it is observed that Mr Schuster has been incarcerated since he was 15 years of age. Since then, he has been in the community for three short spells amounting to a little over six months. It is observed that he is now nearly 40. His release will always pose risks, but the Exceptional Needs Unit concluded that the plan is the best opportunity he may ever have.
Ms McKay, together with officers from SAPOL, conducted a risk assessment. That assessment involved inspecting the property and surrounds and assessing risk factors, including the security on the site, the appropriateness of the site, and the appropriate persons to be placed on the site. A comprehensive risk matrix was developed. Ms McKay identified public transport in the area, parks in the area, housing in the area, schools in the area and the security of the premises. She observed that, in any area in which offenders are housed, there will always be members of the public and children in the vicinity. The facility to which it is proposed that Mr Schuster be released is fenced. Mr Schuster would be subjected to GPS monitoring. There would be an inclusion zone within the premises ten metres in from the boundary, and Mr Schuster would not be permitted to exit that inclusion zone except with permission and under close supervision. Ms McKay explained how the GPS monitoring system worked:
HIS HONOUR
QCan you explain to me how they operate. The person has to wear it.
AYes, it is a small device attached to a rubber anklet that is attached to the defendant’s leg. They wear it 24 hours a day. They are required to charge that anklet and plug it into a power point once per day to keep the battery charged. That anklet then communicates with satellites and the GPS system and provides information as to the location of the offender.
QIf an offender breaches his conditions, his or her conditions, and leaves a particular locality how is that picked up because someone reports that they have left the locality or is it picked up automatically by someone monitoring the GPS.
AWhen we set an offender on a GPS system, where they reside we put what is called an inclusion zone. So, the property they reside in is where they must be unless they have a pass entered into the system that has been approved. If they leave the property at any time without a pass we have a 24 hour monitoring system within Correctional Services that is alerted within 20 seconds of the violation and they would then contact myself and South Australian Police.
QSo, it doesn’t require someone to report that he is missing.
ANo.
QAt the moment he leaves the inclusion zone it sounds an alarm, it sounds in the monitoring alert of GPS.
AYes, and also if the strap was to be cut and the anklet was to be removed, we would get an immediate alarm.
Ms McKay observed that, in the past, Mr Schuster had complied with restrictions upon his movements. She said on those occasions when he had been released, Mr Schuster was generally compliant. She confirmed that Mr Schuster would not be able to leave the property without being accompanied. She gave evidence about the risks that had been identified relating to the location of the facility. She said that if Mr Schuster violated any of the licence conditions there would be a rapid response, both from the department and from police.
Ms McKay and an officer of the South Australia Police prepared a risk assessment, having regard to the location of the facility and surrounding premises. The facility is situated in a residential area, but is set back from the street by a discrete laneway. There is a perimeter fence surrounding the facility and, although it is not intended to be a secure premises, arrangements can be made for the boundary to be secured so that if that boundary is breached the GPS monitoring base will immediately be informed and action can be taken forthwith to locate Mr Schuster. In the case of Mr Schuster, a condition of his release would require him to be GPS monitored at all times. It is proposed that the inclusion zone would be constructed ten metres within the boundary fence of the facility. If Mr Schuster were to breach that zone, the alarm would be activated. Furthermore, there are eight CCTV cameras on site, which include audio recording. There is a central office which monitors the CCTV cameras. Residents are not permitted mobile phones but, in the case of Mr Schuster, a mobile phone would be provided by the department and can be managed by the staff. The mobile phone would have no internet access and no ability to make phone calls. During the day there are four staff on duty and, at night, there are two active staff on duty. There is a comprehensive plan for Mr Schuster to engage in activities which will assist him in his social reintegration, life skills and rehabilitation. Mr Schuster would be subject to regular reporting conditions. Ms McKay will liaise regularly with ANCOR, the Police Sexual Reporting Unit, regarding Mr Schuster’s progress. Prior to Mr Schuster’s release, staff at the facility would be trained in relation to working with sexual offenders. The management plan is comprehensive and specifically tailored to managing Mr Schuster.
Ms McKay confirmed that in 2013, when Mr Schuster was released, he was compliant, but the accommodation became unavailable as a consequence of a change of staff. The new staff member was not prepared to continue Mr Schuster’s accommodation, due to that staff member’s personal situation. That situation no longer pertains. Ms McKay confirmed that the Exceptional Needs Unit of the department, which is part of the Department of Communities and Social Inclusion, had committed to providing funding for Mr Schuster’s treatment with Mr Elmer and also for a support worker. It was through the Exceptional Needs Unit that the facility in which Mr Schuster would reside became available.
Detective Brevet Sergeant Michael Bavey is attached to the ANCOR Unit within the Special Crime Investigation Branch of the South Australia Police Department. Predominantly, ANCOR monitors child sex offenders after they have been placed on the ANCOR register. Detective Bavey’s section of the police is aware of Mr Schuster and the proposal that he be released on licence. Sergeant Bavey has attended the facility and identified all the risk factors relating to the facility. One particular risk factor was identified by police relating to a person who may, at some stage, be resident at the facility. At the present time, that person is not at the facility. Detective Bavey said that if that risk crystallises then special conditions will need to be put in place to limit that risk. He also indicated that it would be desirable that there be a condition of the licence that Mr Schuster be monitored, both by ANCOR and by Corrections. Detective Bavey indicated that if Mr Schuster were to breach his licence conditions and the GPS monitoring was activated, the normal response time from police would be five to ten minutes. The nearest police station would be briefed about Mr Schuster and where he is residing.
The manager of the facility gave evidence that the facility is a supported residential facility. He gave evidence that there are no restrictions upon visitors attending. However, there is a register kept of those people who attend, when they arrive and when they leave. Arrangements would be made that if a child was visiting a resident, then Mr Schuster would be restricted in his movements around the premises so that he could not come into contact with that child. He gave evidence that the proposed management plan could be accommodated within the facility.
Re-opening of prosecution case for further evidence
AB gave evidence that, during the period that they were sharing a cell, Mr Schuster spoke to AB about his sexual urges towards children who Mr Schuster observed on television. AB gave evidence that when they were watching television and there were advertisements involving children, Mr Schuster told him that he had sexual urges towards children.
AB gave evidence that Mr Schuster discussed with him his previous offending and, in particular, the offence when he had entered the school toilets and sexually abused a young girl. They spoke about Mr Schuster’s intentions if and when he was released. AB gave the following evidence:
QDid he speak with you at all about what he intended to do when he was released on licence.
AYes, he did.
QWhat did he say, using his words.
AFirstly, I should say he was hoping he would not be as restricted as he was once before. He doesn’t like a lot of the restrictions that would be placed on him by whoever is in charge of him and if he could have some freedom of movement then he would in fact go back again and see if he could get another victim or victims and do exactly what he did before.
QWas that one conversation or multiple.
AThat’s multiple.
QDid he say where he might go to look for another victim.
ADavoren Park.
QDid he use that suburb namely specifically.
AYes.
QDid he say why Davoren park.
ANot only just Davoren Park, he did speak of other places than that. Davoren Park was because it’s a low socioeconomic area, kids wandering around all over the place and they are easily lured so it would be easy for him to pick another person.
QIs that something that he said to you or is that your summation.
ANo, he said it wouldn’t take much to get kids away from their parents.
QIn that area or any area.
AIn that area, he was quite specific about the northern area.
QDid he speak to you about what sorts of locations he would like to visit when he is released.
AYes, he spoke of places which I don’t think exist now, they are like go-kart places or laser places where games are played. I think it’s mixed places like for adults for kids, they were. But also back to places like shopping centres.
In cross-examination, AB admitted that he had been convicted of persistent sexual exploitation and that he was subject to the ANCOR provisions and was on the sexual offenders’ register. Although AB was reluctant at first to discuss his own offending, under cross-examination he was frank about his conviction and he accepted responsibility for having been a sex offender.
Mr Schuster gave evidence. He is 40 years of age and has an intellectual disability. He agreed that he had shared a cell with AB and that he and AB had conversations about Mr Schuster’s offending. He denied that he had told AB that he had sexual fantasies with young girls being depicted on television commercials. He denied that he had told AB that he found having sex with children to be a challenge. He denied that he had told AB that he could not wait to get out of prison so that he could have sex with children. He denied that he would find ways of avoiding the conditions of his release once he was released. He denied speaking to anyone whilst at Mount Gambier Prison about young girls on television programs and what he wanted to do with him. He denied having any sexual interest in doing sexual things with young girls.
In cross-examination, he agreed that he had told Dr Nambiar during a meeting on 4 March 2013 that he continued to have sexual urges towards young girls. He accepted that he told Dr Nambiar that advertisements on the television aroused him. He denied ever having said that to AB.
I accepted AB’s evidence. As a result of the evidence of AB, as to Mr Schuster’s expressed intention to re-offend in 2012, Dr Nambiar and Mr Elmer were ordered to provide further reports. These reports were dated 8 February 2016 and 19 February 2016 respectively. Dr Nambiar and Mr Elmer gave evidence on 29 February 2016.
Both Dr Nambiar and Mr Elmer agreed that the fact Mr Schuster denied the conversations with AB is a matter for concern, but that it does not change the position with regards to the potential release on licence of Mr Schuster.
Dr Nambiar stated that since the conversations with AB, occurring at some point between 2012 and 2013, he had further dealt with Mr Schuster. Mr Schuster had expressed a desire and willingness to change. It is to be noted that Mr Schuster had been released on licence in 2013 after he had spoken to AB.
Dr Nambiar stated that in his opinion “Mr Schuster’s risks has always been and will always be high”. Dr Nambiar did agree that the risk would be elevated if Mr Schuster was possessing an intention to re-offend as opposed to attempting control of his impulses. However, Dr Nambiar expressed that, despite the evidence of AB, the risk remained manageable:
QWhen you gave evidence in August of 2014, you expressed an opinion that Mr Schuster’s risk was capable of being monitored and reduced by virtue of the regime that is intended. Is that still your position in light of the court’s finding.
AIt’s still my position, yes.
Mr Elmer stated in his report of 19 February 2016 that Mr Schuster accepted and understood that he was a high risk offender. This is considered therapeutically important, so that offenders may be vigilant in responding to “risky situations” and respond accordingly.
Both Dr Nambiar and Mr Elmer were of the opinion that Mr Schuster would not progress in his rehabilitation in prison, and may in fact regress.
Dr Nambiar expressed his opinion that a potential release was a matter of trying to progress the rehabilitation of Mr Schuster. Dr Nambiar stated:
At the moment as I’ve said in my report, he’s currently in a custodial setting which means that in terms of his rehabilitation, the opportunities are very limited. He’s done the [SBC‑Me] program. His world view is now very constricted, his opportunity to change what’s going on in his head in response to the environment is very restricted so the only way to progress that in a safe way would be to allow him to move to a different environment that is normalised, taking into account the fact of course that it will never be completely normal because he will be supervised.
The SBC-Me program referred to by Dr Nambiar is the Sexual Behaviour Clinic – Me program (‘SBC-Me’), a psychotherapeutic treatment program run within the prison system for adult male sexual offenders with a mild to borderline level of intellectual functioning. The aim of the program is to reduce re-offending rates by teaching the offenders to understand and recognise their offending patterns and behaviours, and teaching skills to assist in ceasing offending behaviour in the future. The program runs for approximately 14 months. Mr Schuster has successfully completed the SBC-Me program.
Dr Nambiar spoke to Mr Schuster’s rehabilitation should he remain in custody:
QIf Mr Schuster were not to be released on licence what is proposed in terms of his treatment in a custodial setting.
AIn the custodial setting the only option he would have would be to repeat the course that he already has done. That wouldn’t really provide much in terms of any progression because that’s a theoretical course. It’s really been an opportunity to test him under certain conditions that are controlled conditions, so really that’s the only option available to him, so really it’s a custodial program and, as I said, with limited environment, really to test how he copes with stress and opportunity.
HIS HONOUR
QAnd if he’s not released now the chances are he’s not going to be in any different position by a year’s time.
AThat’s correct, that would be my opinion.
QAs I understand your evidence he has reached the point now where, if the court is going to release him on licence, now is the optimum time to do it.
AYes.
QOtherwise you’re condemning him to incarceration for his foreseeable future.
AYes.
Mr Elmer also gave evidence about a possible regression should Mr Schuster remain indefinitely in custody. Mr Elmer stated that Mr Schuster had demonstrated a willingness to rehabilitate himself, and that he had reached the limits of rehabilitation possible whilst incarcerated. Mr Elmer was of the opinion that if Mr Schuster were to remain in custody, he could be approaching the point of “overtreatment”:
QIn your opinion had he reached the end of those limits of rehabilitation whilst he’s incarcerated.
AI think so. It’s the case of we could be approaching overtreatment. I think this last program, SBC ME program was specifically dedicated to his abilities to comprehend of course and I think he did in fact gain more insight into his behaviours because it was a very simple course, in the sense of a very concrete‑based course, but also that course focussed on something else that hadn’t been addressed before sufficiently and I made a note of that in my 2007 report, in that Mr Schuster is one who was convicted [sic] of sexual abuse for quite a period of his youth, so carries around a great deal of shame and humiliation about that, which is part of his vulnerability. Most of the offending work is focussed on his perpetrating of sexual abuse and fair enough, that’s what we’ve got to work on. What the SBC program did towards the end of the course, I think modules 6-8, were looking at his, what we call a good life: ‘what would be a good life for you in the future. What would be a good normal life for you in the future’, and I think that addresses something really important about his self‑respect, which is a real core thing, where he’s treated not just as an offender – he is certainly a person who has sexual offending behaviour – and also as a human being, who wants to live a normal life and what would that look like and how would we get there, and how would old prognoses, old patterns, get in the way of that. I think that was quite an insight for him, according to the report.
QCan you explain what may be the consequences of overtreatment.
AIncreasing frustration, that ‘nobody is listening to me. I’ve done these courses, I’m quite aware of my offending cycles, I’ve done them again and there is also a part of me that needs treatment’.
QIs that likely to hinder any progress of his rehabilitation insight, overtreatment that is.
AOvertreatment, that’s exactly what overtreatment would do, would increase – I mean there’s a point at which I think that we can move on and the client/patient/prisoner wants to move on and put things into practice and start to say to himself things like ‘I’m doing pretty good now, I’m actually making a move here, I’m making some progress. People are starting to trust me, I’m starting to feel good about me’. I think that’s really the stage we need to get at now, after all that work is done.
Mr Elmer expressed the opinion that the only real hope for rehabilitation was continuation of Mr Schuster’s treatment in a non‑custodial setting:
HIS HONOUR
QCan I put it in probably a non‑technical psychological language, that if we destroy his hope, his only hope that’s left now is that the court will relax his position, release him on licence, give him an opportunity to move towards a more normalised life.
AYes.
QAs I understand your evidence that will help his self‑esteem.
AYes.
QAnd any recognition by the court, that the court will trust him –
AIs also important.
Q– will help his self-esteem.
AAbsolutely.
QOn the other hand, if the court doesn’t release him then his position is really, no hope, no future hope and that could have a detrimental effect upon –
AI’m afraid that’s – yes.
Q– upon his position; is that a fair summary of the position.
AI’m afraid it is. I say I’m afraid it is because I understand the circumstances.
QSo it’s really – if I say it in these terms, it’s now or never, as far as he’s concerned.
AI think so but we can’t tell; but really, that’s what it’s feeling like, that really if we look at what is the best thing to do or better thing to do of two options, one route is towards rehabilitation and the other is really just a custodial matter, where he doesn’t get to progress himself as a human being. He’s been a prisoner for a long time.
Mr Elmer was asked:
HIS HONOUR
QHow do you deal with that when he’s in an environment, as is proposed, where he’s monitored. He becomes extraordinarily frustrated by something that’s occurring within that facility.
AYes.
QHow is he going to cope with that.
AWe could work in with coping with frustration in the facility he’s now in.
QYes. The facility is now he can’t move, there’s nothing he can do.
AThat’s right.
QEffectively.
AThat’s right, he can’t offend.
QHe’s going to be in a position, if I were to release him on licence –
AYes.
Q– where he can do something.
AThat’s right.
QSo how does one deal with that.
AWe would train staff in looking at his overt behaviours. Mr Schuster, if he gets frustrated will let you know he’s frustrated; he’s not an infant to that extent. He used to fly off the handle and that was observed in the SBC ME program, that he was starting to change, that is really important stuff and that’s what I’ve been observing, how he can still get frustrated now, he can break down and cry, he is showing his emotions and about frustration and disappointment. So yes, his emotions are quite clear really.
QSo if I were to release him, would you spend some time with the people who would be in charge of supervising him –
AThat is my –
Q– and give them some direction as to what signs to look for and how to deal with them.
AThat is my intention and also building on what we did before when he was going to be released, we had training days with the staff, both myself and the co-facilitator in the last program, to train staff what to look for, what the risks factors were, I would do that again.
[Emphasis added.]
As Mr Schuster’s offending is often motivated by emotions, including frustration, it is imperative that the people charged with supervising Mr Schuster are aware of Mr Schuster’s emotional triggers and the outward manifestations on those emotional triggers, that they know how to recognise them, and finally that they know how to deal with them in a manner that will reduce any risks associated with those emotional triggers. Mr Elmer will work with those charged with Mr Schuster’s supervision in order to ensure they are adequately equipped to assist Mr Schuster in dealing with his emotional triggers.
Consideration
I have had regard to the evidence. I was impressed by all the witnesses who gave evidence. I am satisfied that those who would be charged with the supervision of Mr Schuster, should he be released on licence, have given detailed consideration to the necessary restrictions that should be placed on him upon his release from custody.
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.
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