R v Schuster

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.