R v Schuster - [2008] SASC 367

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v SCHUSTER
[2008] SASC 367
Judgment of The Honourable Justice White
23 December 2008
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Applicant convicted of unlawful sexual intercourse with a person under 12 and indecent assault – sentence of imprisonment for seven years with a non parole period of five years imposed – applicant has a history of sexual offending against children - sentencing Judge considered applicant was incapable of controlling his sexual instincts - Judge ordered, under s 23 of the Criminal Law (Sentencing) Act 1988 (CLSA), that he be detained until further order at the expiration of head sentence – applicant completed head sentence on 23 September 2006 and is presently in custody solely by reason of the indefinite detention order - applicant now applies, under s 24(1) CLSA, for release on licence.
Consideration of principles governing applications for release on licence from indefinite detention orders – consideration of opinions of two medical practitioners – consideration of opinion of, and licence conditions which can be imposed by, Parole Board – consideration of treatment programs made available to applicant and of applicant’s progress in such programs – consideration of risk of applicant re-offending.
Held: application for release on licence granted.
Criminal Law (Sentencing) Act 1998 (SA) s 23, s 24, s 25, s 26, s 27; Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) s 7, s 9; Summary Offences Act 1953 (SA) s 17; Child Sex Offenders Registration Act 2006 (SA) , referred to.
R v O'Shea (No. 2) (1997) 193 LSJS 286; O'Shea v Director of Public Prosecutions (1998) 71 SASR 109; R v Ainsworth (2008) 100 SASR 238, applied.

R v SCHUSTER
[2008] SASC 367

WHITE J. This decision concerns an application for authorisation of the release on licence of a person detained in custody under an order for indefinite detention.
Background
On 1 February 1999, the applicant committed the offences of unlawful sexual intercourse and indecent assault on a girl who was six years old. He was sentenced by a Judge of this Court to imprisonment for seven years with a non-parole period of five years. The Judge directed that the sentence be taken to have commenced on 23 September 1999.
The Judge also ordered that, at the expiration of that sentence, the appellant be detained in custody until further order. That order was made under s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA) as the Judge was satisfied that the applicant was incapable of controlling his sexual instincts.
The applicant completed service of the sentence of imprisonment on 23 September 2006. It is the order for indefinite detention which accounts for the fact that he has been held in custody since that time. That order has had the effect that the applicant has to date served more than two years in custody beyond the head sentence imposed by the Judge.
The applicant initially sought an entire discharge from the order of indefinite detention. However, he did not press that application and pursued only the alternative application for an order authorising his release on licence.
Both the application and the supporting affidavit recited the facts outlined above. Neither disclosed additional grounds in support of the application. However, the submissions of the applicant at the hearing of the application indicate that he relies primarily on the long period which has elapsed since the completion of the head sentence imposed for the February 1999 offences, the progress which he has made by completing two Sexual Behaviour Clinic Programs and by participating in a program of fortnightly one-on-one counselling, and his belief as to his capacity now to control his sexual instincts.
The Statutory Scheme
The powers of the Court in relation to applications for an order authorising the discharge of a person from an order for indefinite detention or, in the alternative, an authorisation of a person’s release on licence, are set out in ss 23 and 24 of the CLSA. Those powers are supplemented (in ways which are not presently material) by 25, 26 and 27. Section 23 contains the Court’s powers concerning the discharge of an order for indefinite detention. That section has been amended since the applicant was sentenced,[1] but it is the section in its present form which is relevant to the determination of the present application.[2] Subsections 23(9) to (12) provide:
[1]    Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA), s 7.
[2] Ibid s 9.
(9)The progress and circumstances of a person subject to an order under this section (whether in custody or not) must be reviewed at least once in each period of six months by—
(a)     in the case of a person detained in, or released on licence from, a training centre—the Training Centre Review Board;
(b)     in any other case—the Parole Board.
(10)The results of a review under subsection (9) must be embodied in a written report, a copy of which must be furnished to the person the subject of the report and—
(a)     in the case of a report of the Training Centre Review Board—to the Minister for Family and Community Services;
(b)     in the case of a report of the Parole Board—to the Minister for Correctional Services.
(11)Subject to this Act, a person will not be released from detention under this section until the Supreme Court, on application by the Director of Public Prosecutions or the person, discharges the order for detention.
(12)The Supreme Court may not discharge an order for detention under this section unless—
(a)     it has first obtained and considered the report of at least two legally qualified medical practitioners each of whom has independently examined the person; and
(b)     having taken into account both the interests of the person and of the community, it is of the opinion that the order for detention should be discharged.
It can be seen that a person who is subject to an order under s 23 is not to be released from indefinite detention without an order of the Supreme Court (s 23(11)). The Court is only to form the opinion that the discharge of the person is appropriate after first obtaining and considering the reports of two medical practitioners and after taking into account the interests of both the person and of the community (s 23(12)).
The release on licence of a person who is the subject of an indefinite detention order is governed by s 24 of the CLSA. Subsections (1) to (4) provide:
(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.
(2)On the Court authorising the release of a person under subsection (1), the appropriate board must order the release of the person on licence on the day specified by the Court.
(3)The release of a person on licence under this section will be subject to such conditions as the appropriate board thinks fit and specifies in the licence.
(4)Where the Supreme Court has refused a person's application for release on licence, the person may not further apply for release for a period of six months, or such lesser or greater period as the Court may have directed on refusing the application.
The Court is empowered to authorise the release on licence of a person who is subject to an indefinite detention order (s 24(1)), but it is the responsibility of the “appropriate board” (in this case the Parole Board), once the release has been authorised, to make the order for release of the person on licence (s 24(2)) and to fix the conditions which are to apply to that release (s 24(3)). If an application for release on licence is refused, the minimum period fixed under s 24(4) must elapse before a further application for release may be made.
Subsections (5) to (10) inclusive of s 24 contain a number of provisions relating to the supervision of persons who have been released on licence, and to the enforcement of the licence conditions. The Parole Board is authorised in certain circumstances to cancel the release (s 24(9)) and the release will in any event be cancelled if, while subject to the licence, the person commits an offence for which he or she is sentenced to imprisonment (s 24(10)). However, in the absence of any further order of the Court, the person will be taken to have been discharged from the order for indefinite detention upon release for a continuous period of three years (s 24(11)).
Relevant principles
The principles governing applications of the present kind were considered by the Full Court (Doyle CJ, with whom Matheson and Nyland JJ agreed) in R v O’Shea (No. 2)[3] and by Perry J in O’Shea v Director of Public Prosecutions.[4] From those authorities, and from the statutory provisions outlined above, the following principles may be drawn:
[3] (1997) 193 LSJS 286.
[4] (1998) 71 SASR 109.
1Section 24(1) does not itself specify the criteria upon which the Court should act when considering an application for release on licence, and the Court has a very broad discretion.
2Some assistance as to the proper approach may be derived from a consideration of the power in s 23(12) to discharge wholly an indefinite detention order.
3In 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 s 23 and s 24 operate in the context of community acceptance of some risk that some of its members may offend against the criminal law (O’Shea (No 2) at 289; O’Shea v DPP at 131).
4As 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).
5The 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.
6A 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).
7The weight given to the risk of re-offending on an application under s 24(1) for release on licence will usually be less than in the case of an application for discharge under s 23(12) (O’Shea (No 2) at 291).
8The availability of, and ability to obtain access to, appropriate forms of treatment whether in custody or in the community are relevant matters.
9On an application under either s 23(12) or s 24(1) the onus is on the applicant to establish the circumstances which make the order appropriate (O’Shea (No 2) at 292).
10Although in relation to applications for discharge (but not release on licence) the Court must obtain and consider the reports of at least two medical practitioners who have independently examined the detainee, it does not follow that an order for discharge may be made only if each considers that the offender has both the capacity and willingness to control his sexual instincts (O’Shea v DPP at 131-132).
At the time the applicant was sentenced, an order for indefinite detention could be made only if the Court was satisfied that an offender was incapable of controlling his sexual instincts. In 2005, s 23 was amended to provide that an order could also be made if the Court was satisfied that an offender, although capable of doing so, is unwilling to control his or her sexual instincts. [5] I consider that it is appropriate on the present application to have regard to both of these criteria.
[5] Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA), s 7.
Evidence on the Application
The Court directed that two medical practitioners, Dr O’Brien and Dr Raeside, examine the applicant and that each provide a report to the Court (s 23(12)(a)).
Dr O’Brien provided a report dated 21 July 2008 and Dr Raeside a report dated 28 July 2008. Both also gave oral evidence. Each doctor had also interviewed the applicant and provided reports concerning him on several previous occasions. Those reports were also received on the application. These comprised six reports of Dr O’Brien provided between 26 April 1995 and 28 September 2006 and three reports of Dr Raeside provided between 8 February 1995 and 5 October 1999.
In addition, the Court had a report dated 29 July 2008 from the Parole Board which was provided in relation to the application, three bi-annual reports prepared by the Parole Board under s 23(9) dated 4 April 2007, 10 September 2007 and 25 March 2008, two post-treatment assessment reports dated 29 August 2006 and 6 December 2007 prepared by psychologists within the Rehabilitation Programs Branch of the Department of Correctional Services, an offender history report dated 29 April 1999, and a report from Mr Burvill, the manager of the Rehabilitation Programs Branch of the Department of Correctional Services. Oral evidence was also led from Mr Burvill. I also had regard to the remarks of the sentencing Judge of 27 March 2000 and to a memorandum dated 26 November 2008 from the applicant.
The applicant did not give evidence himself in support of the application. Nor did the Director seek to cross-examine him. It was not suggested that the absence of evidence from the applicant personally meant that the Court should not act on the information derived from him which is contained in the reports.
I indicate that I found the evidence of each of Doctors O’Brien and Raeside, and that of Mr Burvill to be reliable and helpful. I was satisfied that each was endeavouring to assist the Court in the determination of the difficult issues which arise on this application.
Offending History and Personal Circumstances
The applicant is currently aged 33 years. He left school at age 15. This appears to have been associated with his removal from his family home by the Department of Family and Community Services (which I understand may have been associated with the applicant’s own sexual abuse as a child). The applicant reports having been sexually abused from a young age until he was approximately 14 ½ years old. Dr Raeside considers that the applicant comes from an extremely dysfunctional extended family.
The evidence indicates that the applicant functions in the mildly impaired range. He was employed at Bedford Industries between 1992 and 1994. Later that year, in circumstances which will be described in more detail below, the applicant was arrested. The applicant has been in custody for all but two months of the period since his arrest in 1994 and the present time.
The applicant has a history of sexual offending against children. This offending began, by his own admission, in the late 1980s when he was aged approximately 12, with his sexual abuse of a younger sibling. This abuse continued, it would seem, until he was removed from the family home by Family and Community Services.
The applicant has appeared in Court on three separate occasions charged with sexual offences against children. The first such appearance was in the Adelaide Children’s Court on 15 April 1992, when he was aged 16 years. At that time, he was convicted of one count of indecent assault and three counts of unlawful sexual intercourse. No conviction was recorded and he was released on a $200 bond to be of good behaviour for a period of 12 months.
On 2 September 1994, when aged 18, the applicant committed three offences of being unlawfully on premises, contrary to s 17 of the Summary Offences Act 1953 (SA). On each occasion, the applicant trespassed onto land and looked at children through the windows of their houses. Ten days later, on 12 September, he committed the offences of burglary and of unlawful sexual intercourse with a person under 12 years. On this occasion, the applicant had entered the bedroom of an eight year old girl. The applicant pleaded guilty to all counts and was sentenced on 1 September 1995 to five years imprisonment with a non-parole period of two years. The Director of Public Prosecutions applied at that time for an order for the indefinite detention of the applicant under s 23, but the Court declined to make such an order. While at the Port Lincoln Prison in 1996, he participated in a Sexual Offender Treatment Program.
The applicant applied for release on parole in September 1997. That application was refused because the Parole Board considered that he had not completed the treatment which was necessary and that he still represented a risk to the community. However, late in the following year he was released on parole on conditions, including a condition that he reside at a supervised hostel.
Within two months of his release, on 1 February 1999, the applicant committed the offences of indecent assault and unlawful sexual intercourse with a person under 12. These offences occurred in the one incident when the applicant entered the toilets at a primary school. The offences were committed against a six year old girl. The applicant was arrested later that day and has been in custody ever since. In April 1999, the Parole Board revoked his parole.
Upon the conviction of the applicant for the February 1999 offences, the Director applied again under s 23 of the CLSA for an order for his indefinite detention. A Judge of this Court sentenced the appellant to seven years imprisonment with a non-parole period of five years and directed that that sentence be taken to have commenced on 23 September 1999. At the same time the Judge made a finding that the applicant was incapable of controlling his sexual instincts and, under s 23(5) of the CLSA, ordered his indefinite detention.
In 2006, the applicant applied to this Court for the revocation of his detention order. However, this application was later withdrawn. When interviewed by Dr O’Brien in relation to that application, the applicant admitted that he still had sexual fantasies about young children, and, in particular, about young girls.
As noted earlier, the applicant completed service of the head sentence in full on 23 September 2006. He remains in custody by reason only of the order for his indefinite detention.

I note that in the course of his therapy in 2005 and 2006 the applicant has admitted to other incidents of abuse of young children, such incidents occurring before 1995. They were not, apparently, reported to the police.
Psychiatrists’ Opinions in 1999
The applicant was examined by each of Doctors O’Brien and Raeside in 1999. Dr O’Brien diagnosed him as a predominately heterosexual paedophile who suffered from a mild intellectual handicap. He considered then that the applicant did not suffer from a major mental illness in the form of a psychosis or a thought disorder, an affective disorder or an anxiety-related condition. Dr Raeside formed a similar view.
Both doctors were concerned by the low degree of the applicant’s insight into his offending behaviour. Dr O’Brien considered that he was unable to “understand his vulnerability with young children” whilst Dr Raeside expressed a concern that he had “a general lack of empathy for his victims” and that he seemed to “accept little responsibility for his behaviour.”
With regard to the question of inability or incapacity to control his sexual instincts, Dr O’Brien considered that the applicant’s ability to control his sexual instincts was “highly variable”, dependent upon how he was feeling at the time and the presence of stressors in his life. He considered that the applicant was “more likely than not…unable to control his sexual instincts.” Dr Raeside considered that the applicant was “unlikely to be able to control his sexual urges”.
Applicant’s Progress and Treatment Since 2000
While in custody for the 1999 offending, the applicant has twice completed the prison-based Sexual Behaviour Clinic Program. It is unusual for this program to be undertaken twice, but it was repeated by the applicant because it was considered that he was still at risk of re-offending and that he needed to practice the skills which he had learned in the first program. After he had completed the second program, those conducting the program thought, despite the applicant’s own belief that he had made good progress, that he had in fact made only “marginal” gains. There is general agreement that there is little to be gained by the applicant undertaking the program a third time.
The Sexual Behaviour Clinic Program distinguishes static and dynamic risk factors for re-offending. Static factors are those which are not subject to change over time and include, in the applicant’s case, his own previous experience of sexual abuse, his previous offending, the limitations on his cognitive functioning, his impulsivity and the absence of a strong family or social support system. The dynamic factors are those which can be varied and include matters such as treatment outcome, supervision, support and motivation.
After the applicant had completed the second program, an assessment of his dynamic risk factors placed him in the moderate range for re-offending in a recognised scale of evaluation. This was despite the fact that the second program had produced a reduction in his dynamic risk assessment score.
Commencing in February 2007, the applicant then participated in fortnightly one-on-one treatment sessions with Mr Elmer, a psychologist with the Rehabilitation Programs Branch of the Department of Correctional Services. This continued to November 2007. It seems that it is with this treatment that the applicant has made the most gains. As I understand it, Mr Elmer was positive about the applicant’s interactions with him and about the progress which the applicant made during their sessions. However, this treatment ceased in late 2007 when Mr Elmer left the Branch and no further treatment concerning his sexual offending has been offered to the applicant since that time.
At the completion of the one-on-one program of therapy, Mr Elmer considered the risk of the applicant sexually re-offending to be moderately high. He identified five particular dynamic risk factors for the applicant and recommended further action to be taken to address those risk factors. The recommendations were:
1.That while he remains in custody, the applicant be directed to attend a maintenance group to consolidate and increase any benefits arising from his earlier Sexual Behaviour Clinic Program.
2.That the applicant be referred to an experienced departmental psychologist to address his unresolved psychological issues from his own sexual abuse as a child and to encourage the development of employment and social skills within his cognitive abilities.
3.That if released on parole, the applicant be assigned to a Community Correctional Officer who is experienced in dealing with sexual offenders in order that his continuing treatment progress may be overseen.
4.That if released into the community, the applicant attend a community maintenance program to provide ongoing support in his re-integration into the community.
5.That if released on parole, the applicant commence and maintain employment, initially within a suitable sheltered workshop.
The first two of Mr Elmer’s recommendations concerned action to be taken while the applicant remained in custody. The third, fourth and fifth recommendations concerned action to be taken if he was released into the community. Between 6 December 2007, when Mr Elmer made the recommendations, and November 2008, the applicant had not had the benefit of participation in a maintenance group or a referral to a psychologist as recommended by Mr Elmer. He had not been able to participate in a prison‑based maintenance program because such a program has been available only at the Mount Gambier Prison and the applicant has been held at the Yatala Labour Prison. The one-on-one therapy proposed by Mr Elmer has not been provided to him.
However, Mr Burvill indicated during his evidence on 26 November 2008 that a four-month program to address the applicant’s response to his own sexual abuse was about to commence. This program will involve 12 sessions conducted weekly (with a short break over Christmas). It is possible that a further 12 sessions, depending on need at the conclusion of the initial program, may be required. Mr Burvill indicated that this program could be undertaken either in custody or in the community (but custody is sometimes preferred, as the distress which offenders experience in dealing with their own abuse can sometimes increase their risk of re‑offending.)
The applicant also continues to receive ongoing psychiatric review by Dr Nambiar at Yatala. However, as I understand it, this review involves principally the prescription of anti-libidinal medication (which has been prescribed for the applicant since 1998), periodic blood tests and ongoing evaluation of the applicant’s overall mental state, rather than specific psychological treatment. The anti-libidinal medication appears to be particularly important in the control by the applicant of his sexual instincts.
The applicant has participated in other programs whilst in custody. These programs include reasoning and rehabilitation, literacy and numeracy, and anger management. He has also undertaken “skills training in relation to appropriate assertiveness and social relationships”.
Current Opinions
Dr O’Brien
Dr O’Brien believes that the applicant has made progress during his time in custody since the 1999 offending, but accepts that, due to the element of self-reporting, it is difficult to measure accurately the amount of progress made. He believes that the applicant has, since 2006, developed a “better understanding of aspects of his offending behaviour and that he appears to be more willing to try to control [his] deviant sexual practices”. He also considers the applicant to be participating more meaningfully in therapy and self regulation.
Dr O’Brien considers that the applicant does not have an active mental illness and that he compliantly takes the prescribed anti-libidinal medication. He considers it important that, if released on licence, the applicant continue to take this medication.
Dr O’Brien considers that the applicant will face difficulties if released, arising from the lack of a strong family or social support system, his lack of social skills and the unlikelihood of him forming a meaningful adult heterosexual relationship (one of the applicant’s goals). He notes that in the past, the applicant has “coped very poorly with social isolation and rejection”. Dr O’Brien considers that the applicant may not appreciate fully the impact of these matters on his ability to avoid re-offending.
Given these perceived difficulties, and the categorisation of the applicant as at a moderate to high risk of re-offending, Dr O’Brien’s opinion about the appropriateness of his release was somewhat guarded. However, despite his reservations, Dr O’Brien accepted in his oral evidence that, provided appropriate licence conditions are imposed, the applicant’s present state is such that he could now be released appropriately on licence. This contrasts with Dr O’Brien’s opinion in 2006 when he considered that any discharge at all of the applicant from detention would be premature. Dr O’Brien indicated that he would be more comfortable with the applicant’s release if the level of risk of re-offending was reduced, and considered that this is likely to occur with the resumption of regular one-on-one treatment.
Dr O’Brien strongly supports each of the five recommendations made by Mr Elmer. In particular, Dr O’Brien considers that, irrespective of whether the applicant remains in custody or is released into the community, it is essential that he is provided with active and meaningful treatment and intervention (including participation in a maintenance program) both for his own good and for the safety of the community. He suggests that if the applicant is to be released into the community that it would be desirable, before such a release takes place, for attention to be given to his socialisation skills and to his negotiated contact with family members. Dr O’Brien recommends that the applicant have regular contact with a forensic psychiatrist so that his medication, in particular the anti-libidinal medication, can be prescribed and monitored.
Dr Raeside
Dr Raeside continues to consider a diagnosis of heterosexual paedophilia to be appropriate but does not consider that the applicant has any formal psychiatric disorder. Dr Raeside also believes that the applicant has made progress during his imprisonment. In particular, he considers that the applicant has gained some insight into the nature of his offending behaviour and appears well motivated to avoid offending again. Further, Dr Raeside considers that the applicant has begun to form some appropriate peer relationships and friendships and that he seems to accept greater responsibility for his past offending.
While Dr Raeside believes that the applicant remains at a moderate to moderate to high risk of re-offending, he does support his release on licence. Dr Raeside concludes:
From my interview with Mr Schuster, supported by the documentation I have seen, it appears that he has done everything that would be reasonably expected of him and is available to him within the custodial setting to address his past offending. This does not automatically mean that his risk is removed, but overall his risk of re-offending appears to be lower now then it was when he first came into custody, but still remains at least in the moderate risk level.
With respect to whether Mr Schuster should be released on licence into the community, I respectfully suggest that this is obviously a very difficult question. Solely looking at Mr Schuster I believe that he has made gains over the last nine years since I last assessed him. He appears to have gained some insight into the nature of his behaviour, its association with various triggers, gained some empathy into the aspects of his behaviour on his victims, and appears well motivated to not offend again in the future. I would note that I have always found him to be quite genuine and relatively open and honest in discussing these matters.
Therefore, for Mr Schuster’s benefit I believe that it would now be appropriate for him to be released into the community, to engage in ongoing psychological therapy, and participate in maintenance programs in the community in relation to his sexual offending, particularly to address challenges that are likely to arise in the community.
The only negative aspect of this would be that he has not already engaged in appropriate psychological therapy to address his own abuse issues. This would have ideally better been done in custody so that he would be in a more secure setting should therapy in this regard lead to any exacerbation of his underlying issues that are related to his sexual offending. Indeed, from Mr Schuster’s perspective, I believe that this is the most significant negative factor in considering whether he should be released into the community at present An alternative might be not to address his abuse issues at all should he be released into the community, but simply continue the other maintenance therapies.
Dr Raeside also supported the implementation of each of Mr Elmer’s recommendations.
Parole Board Report
The Parole Board’s report to this Court of 29 July 2008 summarises many of the difficulties in the applicant’s case. The Parole Board reported:
Mr Schuster has always been a compliant prisoner and has not presented difficulties in an institution. He has however, presented significant management difficulties on his past releases.
He has some intellectual disability and he lacks problem-solving skills. He was victimised by his father who abused him sexually as a child. He continues to have deviant sexual interests. He has apparently received medication which has reduced his libido. He continues to have sexual fantasies. He continues to watch children’s television.
If released he will require very close supervision from a Community Corrections Officer experienced in dealing with sexual offenders. He will also need some active social support network which at present does not exist. It would be helpful if he could be directed to some employment but he is only likely to get employment in some type of sheltered workshop environment. Stable accommodation, employment and support in the community would be very important in terms of his management.
His management needs to address all risk factors as opposed to selected risk factors. He has in the past had, and probably continues to have, significant cognitive distortions and has used sex to deal with feelings of loneliness, anger and rejection. His emotional identification has been with children. He continues to require individual one-on-one intervention.
The Parole Board set out 24 separate conditions which it considered would be appropriate to any release on licence of the applicant. A number of the proposed conditions are directed specifically to avoiding any unsupervised contact by the applicant with children and all are directed towards reducing the risk of his re-offending.
Mr Burvill
Mr Burvill is an experienced forensic psychologist. He has been the Manager of the Rehabilitation Programs Branch within the Department of Correctional Services for the past three years. Although he has not been personally involved in the delivery of treatment to the applicant in 2005, 2006 and 2007, he has had the managerial oversight of that treatment.
Following the completion of the oral evidence of Doctors O’Brien and Raeside, the parties identified a number of further matters upon which they considered it appropriate that the Court should receive evidence. At the request of the parties, I directed that Mr Burvill provide a report to the Court addressing those matters. Mr Burvill provided a report of 7 November 2008 and, in addition, attended to give oral evidence.
Mr Burvill informed the Court that maintenance programs of the kind recommended by Mr Elmer are generally provided to those who have completed a Sexual Behaviour Clinic Program. Maintenance programs are conducted in a group-based format on a fortnightly basis. Their purpose is to reinforce the gains made by participants in the program and to address the identified risk factors for the individual participants. The applicant has not participated in such a maintenance program because he has been held at Yatala and the maintenance programs are made available at the Mount Gambier Prison only. However, the one-on-one sessions to address the applicant’s own sexual abuse can take place at Yatala. It is not clear why such therapy has not been offered to the applicant at Yatala but Mr Burvill confirmed that this therapy was to commence on 27 November 2008. Like Doctors O’Brien and Raeside, Mr Burvill considers that there are advantages in the one-on-one program addressing the applicant’s own sexual abuse being completed while he is in custody.
Mr Burvill acknowledged that the applicant’s treatment had, in effect, been “on hold” in the twelve month period between November 2007 and November 2008. Despite that, he recommended that any decision to release the applicant on licence should be deferred for about another two years. This would allow the applicant to complete the one-on-one sessions addressing his own sexual abuse and to participate in a maintenance program over a period of twelve to eighteen months.
Mr Burvill agreed that the applicant had, in relation to the provision of a maintenance program and one-on-one therapy, been treated differently than would have been the case if he had been held in custody under a fixed term of imprisonment and without the prospect of supervision on parole when released. He said that if it had been the case that the applicant was to be released about twelve months after the completion of the Sexual Behaviour Clinic Program:
“it would have been more likely that steps were taken to ensure every possible avenue of treatment would have been provided, in the knowledge that he would not be supervised in the community as soon as he was released and that’s what we have been doing to date, with other prisoners.
In this way, it seems that the indefinite detention order has had the effect of delaying the treatment which would have otherwise been provided to the applicant. I emphasise in saying that that I am not being critical of the Department of Correctional Services. I recognise that there are limitations on the resources available. Nevertheless, the fact that continuation of the order of indefinite detention may have the effect of delaying the delivery to the applicant of the treatment described by Doctors O’Brien and Raeside as essential is, in my opinion, a relevant matter to be considered in the disposition of the present application. As I pointed out in R v Ainsworth,[6] there is a particular unfairness in a person being detained in custody indefinitely on the grounds of incapacity or unwillingness to control his or her sexual instincts yet, at the same time, being denied access to treatment which may address that lack of control.[7] This is particularly so if the course of treatment denied to the person while in custody is available in the community, and the person’s participation in that course of treatment in the community can be monitored and supervised. Dr O’Brien also referred to the injustice of a person being detained indefinitely in prison without being provided with the treatment necessary to address the cause of his being so detained.
[6] [2008] SASC 67; (2008) 100 SASR 238.
[7] Ibid at [81], 260.
Finally, I note that Mr Burvill considered that, given the applicant’s static factors, it is unlikely that any amount of treatment will reduce his overall risk of re-offending from the moderate to high classification to a less than a low to moderate classification.
Consideration of the Application
In summary, there is general agreement that the applicant is at least at moderate risk of re-offending and some regard him as being at moderate to high risk. The static risk factors which are present in his case make it unlikely that his level of risk will ever be reduced below the low to moderate classification. This level of risk is the most significant factor militating against an order for release at this time. There is the further consideration that the applicant has not yet completed all desirable and essential treatment, and that, if released, he will require a high level of supervision.

One the other hand, the applicant has participated in such programs as have been made available to him and he has impressed Doctors O’Brien and Raeside, and Mr Elmer, with his application to those programs.
The applicant accepted that if an order for release is made, the date which the Court should specify for the release under s 24(2) should not be before 1 May 2009. This would allow him to complete, while in custody, the program of one‑on-one therapy directed to his own sexual abuse, which he was to commence on 27 November 2008. The applicant may not be able to complete that program within that time frame because, as Mr Burvill pointed out, depending upon his progress a further 12 week course may be required. A deferred release date would also allow the prison authorities some time within which to prepare the applicant for release.
Although it is very desirable (or, as Doctors O’Brien and Raeside said, essential) that the applicant participate in a maintenance program, such a program can be completed after his release. The Department provides an appropriate community based program. Suitable conditions can be put in place by the Parole Board to ensure the applicant’s participation in a community based program. Further, while it is desirable that the applicant continue with the prescribed anti‑libidinal medication, that requirement too can be enforced if he is released by a condition imposed by the Parole Board.
The fact that the applicant is at least at moderate risk of re-offending is a matter which must give rise to considerable caution on an application such as the present. The interest of the community in being protected from further offending is particularly important. It is also relevant to take into account the profound harm which may result to a victim in the event that the risk of re-offending is realised. However, the categorisation of the applicant as being at least at moderate risk of re-offending has to be seen in context. As noted earlier, the static factors present in the applicant’s circumstances are particularly influential in the assessment of his risk of re-offending. The further treatment proposed will not alter those static factors, only the dynamic factors. Even if the treatment is wholly successful, it is unlikely that it will reduce the applicant’s overall risk of re-offending much below the moderate level of risk. Any release of the applicant into the community is going to impose challenges both to him and to those responsible for his supervision. It must also be borne in mind that there is some risk of re-offending in almost every case of a person released from prison.
I recognise that in an ideal situation, a determination of the application for release would not be made until after the applicant has completed both the one-on-one program addressing his own sexual abuse and the twelve to eighteen month maintenance program. However, in this case that would mean deferring the question of the applicant’s release on licence for another two years, at which time he would have spent more than four years in custody solely because of the order for indefinite detention. As noted earlier, there is an unfairness to the applicant in this respect. He has applied himself to his rehabilitation and, through no fault of his own, his treatment has effectively been “on hold” for the last twelve months.
I accept the submission of counsel for the Director that there are a number of uncertainties about the applicant’s proposed release. The Court has not been provided with any information about a proposed place of residence or accommodation for the applicant (save that the Parole Board proposes a condition that the applicant comply with directions as to his accommodation imposed by the Exceptional Needs Unit). Further, the Court has not been provided with information related to specific employment plans. As the Parole Board has noted, participation in regular work will be an important aspect of the applicant’s rehabilitation. These are important considerations and it will be appropriate for them to be addressed by the Parole Board.
I also note that the applicant will be subject to a form of supervision over and above that imposed by the Parole Board. He will be a “registrable offender” within the meaning of the Child Sex Offenders Registration Act 2006 (SA) and will be subject to the registration, reporting and monitoring regimes required by that Act. I did not receive any evidence as to the forms of monitoring provided in practice under the Child Sex Offenders Registration Act but it is reasonable to suppose that there will be at least some monitoring. In this way, the applicant will be subject to a further form of supervision.
As Perry J pointed out in O’Shea v DPP, the exercise of the discretion in a case such as the present involves the balancing out of the interests of the applicant, on the one hand, and of the community, on the other.[8] The balancing out of those interests in the present case is particularly acute.
[8] (1998) 71 SASR 109 at 138.
Although the assessment of the risk factors in this case does cause considerable pause, I do consider it appropriate to grant the application. I am satisfied that it is appropriate to do so having regard in particular to the opinions of Doctors O’Brien and Raeside; to the change in the applicant’s condition since 2006 when Dr O’Brien last reported on the issue; to the applicant’s motivation to rehabilitate himself; to the fact that the treatment which is essential for him is also available in the community; to the length of time that the applicant has been detained solely by reason of the order for indefinite detention; to the fact that his rehabilitation has been delayed, through no fault of his own, because of the inability of the prison authorities to provide him with access to a maintenance program and one-on-one counselling over the last twelve months; and to the fact that the Parole Board will, by the extensive range of conditions which it has proposed, be able to provide detailed supervision of the applicant upon his release. I also note that the Parole Board has power under s 24(5) of the CLCA to vary or revoke conditions, or to impose new conditions as it sees fit from time to time. The applicant will also be aware of the power of the Parole Board under s 24(5)(b) to cancel his release on licence if it is satisfied that he has contravened, or is likely to contravene, a condition of his licence.
However, I am satisfied that several months should elapse before the applicant is released. I do consider it desirable, for the reasons given by Mr Burvill, Dr O’Brien and Dr Raeside, that the applicant complete, while in custody, the initial 12 week program which will address the consequences of his own sexual abuse. Further, after being in custody so long, the applicant will need to be prepared for his release. It is likely that the Department of Correctional Services will wish him to participate in some form of re-socialisation program. A deferred release date will enable that to occur. Thirdly, delaying the release date will enable the Parole Board to consider further the conditions which it considers appropriate for the applicant’s release, including by taking into account these reasons.
Accordingly, acting under s 24(1) of the CLSA, the release on licence of the applicant is authorised. Acting under s 24(2) of the CLSA, I fix 1 June 2009 as the date for his release.