R v Schuster

The Supreme Court of South Australia, constituted by Kourakis CJ, Blue and Doyle JJ, considered an appeal by the Director of Public Prosecutions against an order releasing Mr Schuster on licence. The Director sought to add a sixth ground of appeal, alleging the sentencing judge erred by failing to direct that medical practitioners inquire into Mr Schuster's mental condition and report on his ability to control his sexual instincts prior to making the release order. Mr Schuster had a history of sexual offending against children and siblings, commencing in his youth, and had previously been subject to applications for indefinite detention which were not granted.

The central legal issues before the Full Court were whether the sentencing judge had erred in the exercise of discretion by failing to consider material factors, including Mr Schuster's willingness or ability to control his sexual instincts, the nature and character of the risk he posed, and the implications of rejecting his evidence. Furthermore, the Court had to determine if the judge had wrongly emphasised rehabilitation over community safety in considering release on licence, and whether the release order was unreasonable or plainly unjust, indicating a failure to properly exercise discretion. A key question was also whether the specific legislative requirement for medical reports concerning the control of sexual instincts had been met.

The Court reasoned that the absence of consideration of Mr Schuster's prospects of rehabilitation vitiated the exercise of the sentencing judge's discretion. The Court found that errors of law had been established, leading to the conclusion that the discretion had not been properly exercised. The paramount consideration in such matters, particularly since 2013, is the safety of the community. The Court also noted that the legislative framework, specifically Schedule 2 of the Act, mandated that before determining an application for release on licence, the Supreme Court must direct at least two legally qualified medical practitioners to inquire into the person's mental condition and report on whether they are incapable of controlling, or unwilling to control, their sexual instincts.

Permission to amend the notice of appeal to include the ground concerning the failure to obtain medical reports was granted. The appeal was allowed, the order releasing Mr Schuster on licence was set aside, and the matter was remitted to a Judge of the Supreme Court for rehearing. The rehearing was directed to investigate Mr Schuster's prospects of rehabilitation, the likelihood and consequences of him absconding, and the effectiveness of measures to prevent him from absconding and offending.