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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Schuster

Details

AGLC: R v Schuster [2008] SASC 367
Case: [2008] SASC 367
Decision Date: 23 December 2008

CaseChat Overview and Summary

In the matter of R v Schuster, the applicant, who had been convicted of unlawful sexual intercourse with a person under 12 and indecent assault, was sentenced to imprisonment for seven years with a non-parole period of five years. Given the applicant's history of sexual offending against children, the sentencing judge imposed an indefinite detention order under section 23 of the Criminal Law (Sentencing) Act 1988 (CLSA). The applicant completed the head sentence on 23 September 2006 and is currently in custody solely by reason of the indefinite detention order. The applicant now applies for release on licence under section 24(1) CLSA.

The primary legal issues before the court were whether the applicant met the criteria for release on licence and, if so, what conditions should be imposed to ensure the community's protection. The court had to consider the opinions of medical practitioners, the recommendations of the Parole Board, the treatment programs available to the applicant, and his progress within those programs. Additionally, the risk of the applicant re-offending was a crucial consideration. The court noted that the criteria for an indefinite detention order had been amended in 2005 to include offenders who, while capable of controlling their sexual instincts, were unwilling to do so. This amendment meant that both criteria had to be considered in the context of the application.

The court found that while the applicant was at least at moderate risk of re-offending, and some regarded him as being at moderate to high risk, there was general agreement on the need for further treatment and high levels of supervision. The static factors present in the applicant's circumstances made it unlikely that his risk level would reduce below the low to moderate classification. However, the court also acknowledged the applicant's participation in available treatment programs and his efforts to engage with those programs. The court concluded that the applicant should not be released before 1 May 2009 to allow him to complete a therapy program related to his own sexual abuse while in custody. The court imposed conditions to ensure the applicant's participation in a community-based program and the enforcement of anti-libidinal medication if he were released.

The court granted the application for release on licence, effective from 1 May 2009, subject to specific conditions to ensure the applicant's supervision and participation in treatment programs. These conditions included a requirement for the applicant to engage in a community-based maintenance program and to continue with prescribed anti-libidinal medication. The court's decision balanced the risk of re-offending against the applicant's efforts to engage with treatment and the potential benefits of his release under strict supervision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

WHITE J

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Ratio Decidendi

Legal Principle Established

Established by: WHITE J

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.