R v Scobie

R v SCOBIE
[2003] SASC
Gray J
Introduction

This matter commenced as an application to have Johnny Scobie detained until further order. He was said to be incapable of controlling his sexual instincts. The proceedings were extended to include the sentencing of Mr Scobie for a number of criminal offences.
The sentencing process involved a consideration and implementation of recommendations contained in the 1991 Royal Commission Report into Aboriginal Deaths in Custody. In these reasons reference is made to a number of the Royal Commission recommendations. Each recommendation referred to was supported by the South Australian Government as well as the Commonwealth and most of the other State Governments.
This judgment records the history of Mr Scobie’s case. It contains the reasons for the orders made during the course of the hearing and explains why appropriate protocols should be implemented to prevent the problems experienced from occurring in future cases.
Personal Antecedents
Mr Scobie, a traditional Pitjantjatjara man, was initiated when aged 16 or 17 years. He frequently called himself Johnny Scobie.[1] He was aged between 35 and 55 years.[2] His birthplace was unknown.[3] He had limited contact with his immediate family due to geographic dislocation. His parents separated when he was young. Mr Scobie’s mother remarried. She resided in Alice Springs. His father was no longer alive. Mr Scobie was raised by his maternal grandmother.
[1] The names John Scobie, Coopie Brown, Johnny Brown and Johnnie Scobie appear in the court documents.
[2] Birth dates used by the authorities include 1 February 1945, 1 January 1957, 8 April 1964, 25 June 1964 and 25 June 1965. At the time of the present proceedings it is probable that he was in his mid forties.
[3] The papers record the following as possibilities: Coober Pedy or Port Augusta in South Australia or Warburton in Western Australia.
Mr Scobie spent most of his life at Indulkana.[4] He attended school for a time. He was taught English but his ability was limited. He worked in indigenous communities and on outback stations.
[4] The papers also suggested that Mr Scobie was raised in Coober Pedy.
Mr Scobie experimented with petrol sniffing when aged 14 years. This continued for approximately five years. He had a long standing alcohol dependency. His problems with petrol sniffing and alcohol were said to reflect the socio-economic circumstances and environment in which he lived. It was accepted that there was a significant indigenous population on the Anangu Pitjantjatjara lands[5] spread through a number of communities. The Royal Commission reported in detail about these matters. The court in cases such as Fernando[6] recognised the importance of assessing the significance of socio-economic circumstances when sentencing.
[5] The Anangu Pitjantjatjara lands were proclaimed as the Pitjantjatjara lands by the Pitjantjatjara Land Rights Act 1981 (SA). The lands are situated in the far north of South Australia. Within the lands are a number of established and ‘non-transient’ communities including Fregon, Mimili and Ernabella. An administration centre has been established at Umuwa which includes a health care centre. The communities are the home of significant populations of indigenous persons. Others reside nearby in communities in the Northern Territory and Western Australia. Although there may be considerable contact between family groups and the communities their populations fluctuate as persons move between Port Augusta and other major centres such as Coober Pedy and Whyalla.
[6] (1992) 76 A Crim R 58
Criminal Antecedents
Mr Scobie had a lengthy criminal history that commenced in 1981.[7] He was involved in serious sexual offending towards a child in late 1988.[8] In late 1999 and early 2000 he engaged in further sexually related offending towards children. The Crown applied for a paedophile restraining order.[9] On 7 April 2000 this order was made ex parte, served on 11 April 2000 and confirmed inter partes on 17 April 2000.[10] Mr Scobie was granted bail. Less serious offending primarily of a sexual nature continued to occur.[11] This included a number of failures to comply with the paedophile restraining order and breaches of Mr Scobie’s bail agreements. Mr Scobie’s bail was revoked and he spent time in custody. Further periodic grants of bail occurred. All proceedings concerning Mr Scobie were referred to this court.
Section 23 Application
[7] Mr Scobie’s criminal history consists of some 70 offences. Many were property offences that were linked to his alcohol dependency.
[8] In the late 1980’s he was involved in serious sexual offending which involved abduction and indecent assault. Around this time he also pleaded guilty to assault with intent to rape.   These sexual offences were serious and involved a danger to young children. However this type of offending appears to have been confined to this period. Later offending during the mid 1990’s can be described as less serious sexual offending. It involved charges of gross indecency and indecent behaviour, behaving in an indecent manner and inciting the commission by a child of an indecent act.
[9] Section 99 AA of the Summary Procedure Act 1921 (SA) provides:
“(1) On a complaint under this Division, the Court may make a restraining order against the defendant if—
(a)     the defendant has been found loitering near children; and
(b)     —
(i) the defendant has been found guilty of a child sexual offence within the previous five years; or
(ii) the defendant, having been sentenced to imprisonment for a child sexual offence, has been released from prison within the previous five years; or
(iii) the defendant has been found loitering near children on at least one previous occasion and there is reason to think that the defendant may, unless restrained, again loiter near children; and
(c)     the Court is satisfied that the making of the order is appropriate in the circumstances.
(2) A restraining order under this section may restrain the defendant from—
(a)     loitering near children at or in the vicinity of a specified place or class of places or in specified circumstances; or
(b)     loitering near children in any circumstances.
(3) In considering whether or not to make a restraining order under this section and in considering the terms of the restraining order, the Court must have regard to the following:
(a)     whether the defendant's behaviour has aroused, or may arouse, reasonable apprehension or fear in a child or other person;
(b)    whether there is reason to think that the defendant may, unless restrained, commit a child sexual offence or otherwise act inappropriately in relation to a child;
(c)     the prior criminal record (if any) of the defendant;
(d)     any evidence of sexual dysfunction suffered by the defendant;
(e)     any apparent pattern in the defendant's behaviour, any apparent connection between the defendant's behaviour and the presence of children and any apparent justification for the defendant's behaviour;
(f) any other matter that, in the circumstances of the case, the Court considers relevant…”
[10] “The terms included restraining Mr Scobie from:
[11] On 14 July 2000 Mr Scobie and other local aboriginal people entered a clothing store. Mr Scobie selected a black and grey FILA brand jacket and left without paying. He was found wearing the jacket. Mr Scobie denied the offence. He was described as being “difficult to understand.” Due to his level of intoxication he was not formally interviewed. Mr Scobie was granted police bail. On 28 November 2000 he pleaded guilty to the offence.
On 8 August 2000 Mr Scobie attended at the Coober Pedy Area School between 2:15 –2:45 pm on four occasions. He was seen amongst junior primary children and arrested upon leaving the school on the last occasion.
The following facts pertain to the four allegations of failing to comply with a paedophile restraining order. On the first occasion there were a number of children nearby between the ages of five and seven years. Mr Scobie was asked to leave and then escorted off the school grounds by the deputy principal.
Mr Scobie then returned five minutes later via another entrance. This time he was looking at the children in the childcare centre adjacent to the school. All were under four years of age.   Again Mr Scobie was escorted from the school by the deputy principal.
Shortly after Mr Scobie re-entered the school through the same entrance. He walked towards children who were standing nearby. He was intercepted by the deputy principal who told him in no uncertain terms to leave and that he was not permitted on the school grounds. Mr Scobie then walked away from the school.
On the final occasion at 2.45 pm Mr Scobie was observed by a school employee standing on the school oval looking at children playing. He was about 20 metres from the nearest child. The police were called and at 2.50 pm they observed Mr Scobie leaving the school premises. He was arrested. He was described as being “moderately affected by liquor”. Due to his level of intoxication he was not formally interviewed. He said that he “took a wrong turn.”
On 2 June 2001 Mr Scobie attended at the home of a wheel-chair bound woman who was in the company of her three children aged three, five and seven years. She said that she heard a male voice coming from outside the front door. She said the voice was unknown and calling out in aboriginal language which she could not understand. She called for the man to leave. He did not and moved down the side of her home and into the backyard where he stood by the back door and continued to call out. She again told him to leave but he remained. The police were called.   They located Mr Scobie and arrested him. He was said to have been affected by alcohol. Mr Scobie said that he had gone to that home because he was looking for someone who owed him money. He was then granted police bail to appear before the Port Augusta magistrate’s court on 9 July 2001. On 8 August 2001 Mr Scobie pleaded guilty to the offence in the Port Augusta magistrate’s court. He was imprisoned for 7 days by the magistrate. The sentence commenced from 8 August 2001.
On 7 June 2001 Mr Scobie breached the conditions of his bail agreement. At about 8.55 pm Mr Scobie was located at the Davenport community in a grossly intoxicated state. He was conveyed to the Port Augusta police station for breath analysis as directed by his supervising correctional services officer. At 9.55 pm his breath analysis was recorded at 0.234 grams of alcohol per 100 ml of blood. Mr Scobie was arrested for breaching his bail conditions (the bail agreement entered into on 25 May 2001 was that he not exceed 0.05 grams of alcohol per 100 ml of blood.) Mr Scobie was refused police bail and remanded in custody. He was later granted bail by this court.
On 21 July 2001 Mr Scobie again failed to comply with a paedophile restraining order and bail agreement. At around midday he stopped a nine year old boy who was riding his bike at the beach at the rear of the Port Augusta Hospital. He showed him a magazine containing pictures of naked women. The boy rode home and complained to his grandmother who contacted the police. The boy and his grandmother later identified Mr Scobie from photos after Mr Scobie declined to participate in a line up. Mr Scobie was arrested on 8 August 2001. He exercised his right to silence. He was refused bail and remanded in custody. On 9 August 2001 Mr Scobie pleaded guilty to both charges in the Port Augusta Magistrate’s court. He was granted bail by this court on 14 September 2001. He was released from custody after signing the bail agreement on 18 September 2001.
On 1 November 2001 Mr Scobie again failed to comply with a paedophile restraining order and bail agreement. It was alleged that Mr Scobie attended a school disco that was held on the basketball courts at Fregon School. Approximately 30-40 children aged between seven and 15 years were in attendance. Between 7.45 pm and 8.00 pm Mr Scobie was observed standing in the shadows near the administration building in the school grounds. He appeared to be watching the children and was within six metres from where they were dancing. Mr Scobie was asked to leave but he remained. He was then approached by the principal and asked to leave. Mr Scobie left the school grounds via the front gate. Police attended and Mr Scobie was arrested at about 9.15 pm. He admitted being at the school and stated that he understood the terms of the paedophile restraining order and bail agreement and then exercised his right to silence. Mr Scobie was refused police bail and was remanded in custody. He was granted bail by this court on 5 December 2001 and released from Port Augusta prison after entering into his bail agreement on 6 December 2001.
In January 2001 the Crown made application to this court pursuant to section 23 of the Criminal Law (Sentencing)Act 1988 (SA). [12] It was submitted that Mr Scobie should be detained until further order because he was incapable of controlling his sexual instincts. There was concern about his repeat offending. The Crown sought to minimise Mr Scobie’s contact with children and alleviate the apparent threat that his behaviour posed to the community.
The Legislative Scheme
[12] Section 23 relevantly provides:
“…(2) Where a defendant is convicted of an offence to which this section applies by the District Court or the Magistrates Court, the court may, if of the opinion that the powers under this section should be exercised in relation to the defendant, remand the defendant in custody or on bail to appear for sentence before the Supreme Court.
(3) The Supreme Court may, in relation to—
(a) a defendant convicted of an offence to which this section applies by the Court; or
(b) a defendant remanded to appear for sentence before the Court pursuant to subsection (2),
before determining sentence, direct that at least two legally qualified medical practitioners, specified by the Court, inquire into the defendant's mental condition and report to the Court as to whether the defendant is incapable of controlling his or her sexual instincts.
…
(5) If—
(a)each of the medical practitioners reports to the Supreme Court, on oath, that the defendant is incapable of controlling his or her sexual instincts; and
(b)the Court, after hearing any evidence or representations adduced or made by the defendant, is satisfied that the defendant is so incapable,
the Court may declare accordingly and direct that the defendant be detained in custody until further order.”
Offenders incapable of controlling their sexual instincts were previously dealt with under section 77A of the Criminal Law Consolidation Act 1935 (SA). However that section was repealed by the Statutes Amendment and Repeal (Sentencing) Act 1988 (SA). Section 23 of the Sentencing Act provides this court with the power to order detention until further order if in the opinion of two medical practitioners a person is incapable of controlling their sexual instincts.
Section 23 is an example of preventative detention. It is a statutory exception to the fundamental common law principle of proportionality. It has been recognised that an indeterminate sentence may be desirable to enable an offender’s mental condition to be kept under review and treated. Indeterminate detention prevents a continuing danger to the public from an offender being at large. [13]
[13] Veen v The Queen (No 1) (1979) 143 CLR 458 at 467-468; Chester v The Queen (1988) 165 CLR 611 at 619
A successful section 23 application required each medical practitioner to report that Mr Scobie was incapable of controlling his sexual instincts. Reports were received from psychiatrists Dr Craig Raeside[14] and Dr Kenneth O’Brien[15]. Dr Raeside reported that Mr Scobie was incapable of controlling his sexual instincts.[16] He suggested that Mr Scobie may be suffering from brain damage as a result of petrol sniffing, marijuana and alcohol abuse. This led to Mr Scobie being assessed by a neuro-psychologist Dr John Bell. Dr Bell concluded that Mr Scobie had mild to moderate memory and frontal lobe functioning deficits. However he was of the view that these impairments alone were unlikely to impact upon Mr Scobie’s capacity to control his sexual instincts. Dr Bell said that if Mr Scobie was affected by alcohol further impairment of his frontal lobe functioning would occur. This would reduce his capacity for control. Dr Bell reported that it was critical that this problem be addressed.[17]
[14] Dr Raeside was employed by the Forensic Mental Health Service South Australia as a consultant forensic psychiatrist based at James Nash House, the state psychiatric inpatient unit for prisoners.
[15] Dr O’Brien was the acting director and clinical director of Forensic Mental Health Service South Australia.
[16] Dr Raeside was unable to diagnose Mr Scobie with any formal psychiatric disorder. However he was of the view that his previous offending showed poor impulse control and judgment and that there appeared to be a strong association, although not exclusively, between his offending and alcohol consumption. Dr Raeside reported on 3 April 2001:
“… I believe that there is sufficient evidence to suggest that [Mr Scobie] is unable to adequately control his sexual impulses as evidenced by his longstanding and ongoing sexual offending against young children. I believe that he represents a significant risk to the community and there is little to indicate that this is likely to change in the near future. I would therefore support the proposition that he is incapable of controlling his sexual instincts pursuant to section 23(3) of the Criminal Law (Sentencing) Act and would recommend that he be incarcerated indefinitely…”
Dr Raeside observed that the voices described by Mr Scobie were not in the form of auditory hallucinations. They were possibly associated with alcohol intoxication but may also have had their origins at his initiation and may have been associated with the procedures and punishment he received at that time. Dr Raeside noted that Mr Scobie had never received medical assessment or treatment for the voices or for his sexual behaviour, apart from assistance by local church people.
Dr Raeside recommended that whilst incarcerated, the voices Mr Scobie was hearing should be investigated and a trial of anti-psychotic medication implemented. However, he thought it was possible that the voices would improve “simply by being abstinent from alcohol.” He also suggested that a traditional healer might provide some assistance for Mr Scobie, although he did not feel qualified to elaborate further.
[17] Dr Bell was a Senior Clinical Psychologist (specialist neuro-psychologist) from Forensic Mental Health Service James Nash House. In his report dated 29 March 2001 he found that Mr Scobie as not suffering from a major illness or disorder:
“…Mr Scobie was assessed as having a premorbid intelligence which is likely to be within the borderline range. His current level of cognitive functioning was compared against this premorbid level. There was no evidence observed of the presence of aphasia, agnosia or apraxia in his performance on formal testing, or in observation of his behaviour throughout the interview. The neuropsychological screening battery implied that he demonstrated no evidence for visual perceptual deficits. He was seen to have mild to moderate memory deficits, and mild executive (frontal lobe) functioning deficits…
On a practical level, the impairments seen in Mr Scobie are in my respectful opinion mild to moderate, and are unlikely to impact significantly on his memory and frontal lobe functioning relative to his premorbid level of functioning. Further, it is my respectful opinion that his executive (frontal lobe) functioning was not found to be so significantly impaired as to be likely to impact upon his impulse control capacities, such as those governing his sexual instincts. This conclusion would apply only at times when Mr Scobie is unaffected by alcohol. Alcohol consumption is widely regarded as leading to temporary impairment of executive/frontal lobe functioning.”

Dr O’Brien recognised that Mr Scobie had not previously had the advantage of medical assessment and reported that a closer investigation of his mental state and current circumstances was required. Dr O’Brien said that a process of “rigorous assessment” was necessary before he could express a definitive opinion.[18] He recommended that Mr Scobie undergo an assessment of his abnormal sexual proclivities, a determination of the control mechanisms that he has used if any over time with respect to the proclivities, the utility of the control mechanisms and the teaching of new control mechanisms. However Dr O’Brien cautioned that due to Mr Scobie’s background, educational history and level of “organic brain function” this approach may be of limited use. Dr O’Brien was of the view that if this was the case then consideration should then be given to the use of anti-libidinal agents.
[18] Dr O’Brien provided a provisional report dated 5 April 2001:
“Mr Scobie has a history of sexual offending…A variety of sanctions against him has not to date, apparently curtailed his offending sexual behaviour. To my knowledge, and confirmed by Mr Scobie, he has never been offered or provided with any professional assistance for, what appears to be an abnormal sexual interest in children. A review of Mr Scobie’s health history together with my psychiatric assessment of him does not reveal the presence of any major mental illness or disorder. He has a history of petrol sniffing and there is also evidence of intermittent alcohol abuse. He smokes marijuana daily. Furthermore and as a result of Mr Bell’s detailed neuropsychological testing, some deficits are revealed…I am satisfied that Mr Scobie suffers from a paedophilic disturbance, usually, though not exclusively, heterosexual in nature. From my interview with him, it would appear that at times he is able to control these urges. On other occasions he is unsuccessful furthermore, it is important to acknowledge that, to the best of my knowledge, Mr Scobie has never been offered professional assistance for his disorder. In conducting previous assessments pursuant to section 23(3) of the Criminal Law (Sentencing) Act I have taken this into account in proffering an opinion. In the absence of such services being provided to Mr Scobie to date, I consider that this is an additional reason to state that Mr Scobie has some capacity to control his sexual instincts. I cannot, therefore, at this juncture, support the current application on professional grounds.”
On 3 May 2001 Dr O’Brien provided a further report:
“Although a variety of legal sanctions has been attempted or directed against Mr Scobie, to the best of my knowledge, he has never been offered any treatment of rehabilitative services. Given the nature of his offending behaviour, I find this lack of offers of assistance surprising and troubling although the area in general is poorly resourced even for non indigenous, metropolitan based sexual offenders…
[Mr Scobie] has some awareness about [his] propensity [for sexual offending against children]. These abnormal urges do not appear to be present at all times. Even in the presence, or in the sight, of a young girl the urge in not necessarily present but only ‘sometimes’... When the urge is present, at least at times, he is able to consider the consequences of such unacceptable behaviour and sometimes these consequences frighten him and in that context he is able to resist the urge. On other occasions, he is less successful and acts on the urge. If he is using/abusing alcohol and/or drugs, the abnormal urge tends to be stronger and more intensive and, therefore, more difficult to resist…
As I stated in my earlier report, I believe that Mr Scobie has some ability although this is not always exercised in a regular or consistent fashion and in the past has failed him, leading to offences being committed. There may well be a capacity within Mr Scobie to improve his control (with respect to abnormal sexual urges) mechanisms. This has been untested, to date, given the absence of services offered or provided to Mr Scobie. This is an important omission, in my opinion, with respect to his capacity to control or otherwise. As I stated in my previous report until such services are offered to him, a reasonable trial of their efficacy is conducted and the outcome monitored, then it is impossible to label him as “uncontrollable” with respect to those self-same urges. In imparting this opinion, I am not in any sense underestimating the very real barriers that undoubtedly exist with respect to making available to Mr Scobie such services as I have described. Nonetheless, previous courts have taken the question of availability and provision of services into account and the current court may wish to further consider this particular perspective.”
Given that the opinions of the psychiatrists differed, the section 23 application could not succeed. Counsel for the Crown accepted this in May 2001:
“…it is the Director’s position that it is quite clear that it has not been satisfied in the circumstances of this matter, so your Honour is now left in the position of, in fact, sentencing Mr Scobie in relation to the various matters before you.”
The section 23 application was dismissed.
The Sentencing Process
During the course of proceedings it became apparent that Mr Scobie’s personal circumstances and the cause of his sexually related offending required further investigation. A lengthy course of medical assessment and treatment followed. Given the lack of information about Mr Scobie and the ongoing investigations and treatment counsel agreed that it would be premature to immediately sentence Mr Scobie. Over two years a program was devised. The interests of community protection and Mr Scobie’s rehabilitation were addressed.[19] The program included an ongoing course of regular anti libidinal injections. Arrangements were made for Mr Scobie’s treatment at Fregon a community on the Anangu Pitjantjatjara lands. This community eventually agreed to accept Mr Scobie. He was ultimately sentenced within that community.
Bail
[19] Dr O’Brien’s progress report dated 2 April 2002 provided:
“I had previously advised the court, that given the failure of non-pharmacological methods of treatment, the use of anti-libidinal medication ought to be considered. Only two medications were available, one a tablet and the other an injection. Anticipating possible problems with compliance it was my view that a regular depot preparation should be considered. In that respect, I elected to consider the drug Depo-Provera. Initially, I arranged for Mr Scobie to have an endocrinological examination at the Royal Adelaide Hospital less there be any contra-indications, on health grounds, for the administration of this preparation. I was advised by the Endocrinology Department that no such contra-indication was identified…on 24 October 2001 I explained to him in detail my proposed action …He appeared to understand my explanation and gave me permission to proceed.
I elected to commence him on 400 mg intramuscularly every four weeks with regular blood tests (measuring his serum testosterone and related levels) at regular intervals…I should add that the giving of the medication is the responsibility of the nurse at the Fregon Health Centre whilst his general medical supervision, the ordering of the blood tests etc is the responsibility of his general medical practitioner Dr Gell.
The prescribing of medication (and associated blood testing) should be regarded as adjunctive only. However, taking into account the blood levels to date and the information I have received about his progress (particularly from Ms Tait), it would seem to me that the present management plan, in supervisory and psychiatric terms, is progressing reasonably well. I caution, however, that it is far to early to draw any intermediate or particularly any long term conclusions about these findings other than to state that at this early stage of his management matters are progressing as well as I could have expected.
Regarding his ultimate disposition, should Mr Scobie be given a non-custodial sentence and particularly one that requires him to remain in his present geographical location then it would be my intention to see him at regular intervals. I will continue to liase with Ms Tait and with Dr Gell. I am hopeful that an arrangement can be made with the Department of Community Corrections, Port Augusta, to enable me to see Mr Scobie on future occasions at Port Augusta. As it happens, I visit the town on a monthly basis but it would be difficult to accommodate me seeing Mr Scobie on those days (given my other commitments). However, I am prepared to make an extended visit to Port Augusta from time to time and on such occasions to see Mr Scobie, possibly, at the community corrections office at Port Augusta.”
As the sentencing process was delayed it was necessary to deal with problems that arose concerning bail.Section 10 of the Bail Act 1988 (SA) provides a presumption in favour of bail. Fixing terms that were appropriate to Mr Scobie posed considerable difficulties. Without assessment and treatment it was initially impossible to fairly consider the issue of Mr Scobie’s release.
Almost from the outset of these proceedings Mr Scobie found himself in custody because of breaches of his paedophile restraining order and his bail agreement. On a number of occasions counsel for Mr Scobie did not make application for bail. Both counsel agreed that it would be unwise to release Mr Scobie without ensuring that suitable accommodation was available and that he had an adequate support network. It was submitted that to do otherwise would be “setting up” Mr Scobie for failure thereby perpetuating his cycle of offending.
Mr Scobie would seemingly commit an offence and then remain in custody for a period of weeks without this court being informed. By May 2001 Mr Scobie had been “in and out of” custody for a total of seven months[20] awaiting the resolution of his outstanding charges. The principle that a term of imprisonment should be a sentence of last resort was rapidly losing relevance. This situation was of grave concern given the nature of Mr Scobie’s offending and the recommendations of the Royal Commission. Recommendation 89 is of particular relevance:
“That, the operation of bail legislation should be closely monitored by each Government to ensure that the entitlement to bail, as set out in the legislation, is being recognised in practice. Furthermore the Commission recommends that the factors highlighted in this report as relevant to the granting of bail be closely considered by police administrators.”
[20] Mr Scobie was in custody during the periods August 2000 to January 2001 and March 2001 to May 2001.
It was accepted that further imprisonment was counter productive and would not address the primary issue. The question was how to address Mr Scobie’s problems in the short term and at the same time provide community protection. Counsel for the Crown observed:
“The Director’s submission is that this matter has got to be come to grips with and not [allowed] to drift as it appears to have been probably over the last 10 years. The Director is certainly anxious to see or hear of a suitable regime and structure in relation to what is obviously - I mean Mr Scobie ultimately is to be released from prison and we can’t get away from that.”
Eventually an arrangement was reached whereby prompt notice would be given to this court if Mr Scobie was taken into custody. This enabled the court to immediately re-appraise the situation and where appropriate adjust the terms of bail. Whilst residing at Port Augusta prison it was said to be necessary for Mr Scobie’s own protection that he be kept in solitary confinement. This was unsatisfactory and inappropriate. Recommendations 144 and 181 are as follows:
“That in all cases, unless there are substantial grounds for believing that the wellbeing of the detainee or other persons detained would be prejudiced, an Aboriginal detainee should not be placed alone in a police cell. Wherever possible an Aboriginal detainee should be accommodated with another Aboriginal person. The views of the Aboriginal detainee and other such detainee as may be affected should be sought. Where placement in a cell alone is the only alternative the detainee should thereafter be treated as a person who requires careful surveillance.”
“That Corrective Services should recognise that it is undesirable in the highest degree that an Aboriginal prisoner should be placed in segregation or isolated detention. In any event, Corrective Services authorities should provide certain minimum standards for segregation including fresh air, lighting, daily exercise, adequate clothing and heating, adequate food, water and sanitation facilities and some access to visitors.”
The prison unit manager expressed concern that because of the nature of Mr Scobie’s offending no other area in the prison was available. The conditions were equivalent to a high security division. They dictated that Mr Scobie spend 23 hours a day in his cell. It was recommended that Mr Scobie should not remain in these conditions. Regrettably these recommendations could not be complied with at Port Augusta. The prison was not designed to house an offender of this type with traditional needs. It was said that a transfer to Yatala would be an alternative as Mr Scobie could be released from his cell for a more extended period. However this suggestion could have created further problems. Mr Scobie was unfamiliar with the Adelaide environs and would be even more remote from his traditional homeland. Recommendations 168 and 173 are as follows:
“That Corrective Services effect the placement and transfer of Aboriginal prisoners according to the principle that, where possible, an Aboriginal prisoner should be placed in an institution as close as possible to the place of residence of his or her family. Where an Aboriginal prisoner is subject to a transfer to an institution further away from his or her family the prisoner should be given the right to appeal that decision.”
“That initiatives directed to providing a more humane environment through introducing shared accommodation facilities for community living, and other means should be supported, and pursued in accordance with experience and subject to security requirements.”
However there was no evidence before the court as to whether Pt Augusta was in fact preferable to Yatala in Mr Scobie’s case.
It was accepted by the Crown that it was inappropriate for Mr Scobie to remain in custody whilst the assessment and sentencing process was completed. However counsel submitted that Dr O’Brien’s preliminary report:
“holds out some light for Mr Scobie which is better than the alternative. I am anticipating it is going to be a difficult road ahead because obviously he is in a fairly tragic position given his personal circumstances.”
Dr O’Brien observed that the opportunities for sexual offenders to access and undergo treatment and rehabilitative services varied depending on their culture, creed, gender, occupation and social class. He said that members of the indigenous community, particularly traditional Aboriginals such as Mr Scobie were disadvantaged. Where could Mr Scobie reside so that the chance of him re-offending was minimised and he could be adequately supervised? Where would he be welcome or at least not received with hostility by both the indigenous and wider community? Where best to facilitate his medical assessment and treatment?
Evidence was given by a number of experts and Departmental officers. The court was informed that it was unlikely that Mr Scobie could be transferred to James Nash House[21] to undergo the assessment process as he was not suffering from an active psychiatric disorder. Residence on outback stations proved difficult to arrange as children were generally present. Mr Scobies’ relatives were either too elderly, unwilling or unable to have him reside with them. In the light of these difficulties Mimili and the Offenders Aid and Rehabilitation Services’ hostels at Port Augusta were investigated. Should Mr Scobie reside in Port Augusta? This was more convenient for the purposes of facilitating his ongoing assessment but less appropriate for his traditional lifestyle and cultural needs. The hostels at Port Augusta were home to families with children and there were schools in close proximity.[22] Mr Scobie’s ability to abstain from alcohol would prove problematic given the ease with which it could be obtained at Port Augusta. Mr Scobie did not have family at Port Augusta. Others persons known to him were unwilling to have him reside with them.
[21] James Nash House is proximate to Yatala Prison.
[22] There are two OARS hostels at Port Augusta one a men’s hostel and the other for resident families. The family hostel was inappropriate for Mr Scobie and the men’s hostel had no vacancies.
It was suggested by counsel for Mr Scobie that it would be more appropriate for him to reside in an indigenous community. Mr Scobie had previously resided on the Anangu Pitjantjatjara lands. Mimili was said to be appropriate.[23] It was also said that the Mimili community was willing to re-accept Mr Scobie. It was a small community and its members could “keep their eye” on him. Counsel submitted that alcohol was not permitted on the Anangu Pitjantjatjara lands. This was said to reduce the likelihood of alcohol being readily accessible. If Mr Scobie returned he would not be subjected to “pay-back”. Supervision was possible. A community corrections officer and field officer from Marla visited weekly.
[23] Mimili is a small, kin based community approximately 70 kilometres east of the Stuart highway situated in the Everard ranges. The buildings or structures that make up the community are spread out around the rocky outcrop of hills that form part of the Everard ranges. Mimili community is made up of a number of families who have separate and interlocking relationships through marriage. The people and families who make up Mimili are closely related to the communities of Indulkana and Coober Pedy who have rejected Mr Scobie. They are largely Yankunytjatjara speakers. Mimili has a store; community office; school situated in the middle of the community; a health clinic staffed by nurses and indigenous health workers and serviced by the medical officer based at Fregon.
It was the Crown submission that Port Augusta was the “best option”:
“...the concern of the director at Mimili is there would be no professional assistance in the sense of trained psychologists, trained psychiatrists.”
This raised the issue of the availability of medical treatment in remote South Australia. Mimili was closer to Alice Springs than Port Augusta. There was no police or police aid presence. Marla, the town with the closest police station, was a minimum of a two hour 4 wheel drive trip away.
Departmental officers were concerned about Mimili as the proposed place of residence. The geographic location of the community meant that supervision was difficult to effect particularly in the absence of police.[24] A report from the Department provided[25]:
“Mr Scobie presents as something of a therapeutic dilemma. It seems clear on the information presented thus far that he represents a genuine threat to young children. Whether this risk is heightened or caused by alcohol misuse is a matter of conjecture, but it can be assumed that alcohol misuse does increase the risk of re-offending. Unfortunately, Mr Scobie does not seem disposed to reducing his alcohol use. Cognitive behavioural therapy is unlikely to present a practical therapeutic option. Drug therapy, for all the very realistic limitations explained in a previous hearing by Dr O’Brien, may be worthy of consideration. Risk management of Mr Scobie might be best served by managing his environment. In this respect if the current (and still incomplete) psychological assessment process determines that cognitive therapy is not realistic, then the sentencing options should shift to a consideration of where his overall circumstances can best be managed. Ultimately wherever Mr Scobie is placed a local community will be asked to share in the risk of his presence. Taking into account Mr Scobies’s cultural identity and the relative unavailability of alcohol the court may again wish to consider Mimili when this case is finally determined.”
[24] A report from the Parole Board dated 28 February 2001 provided:
“[Mr Scobie] was first released on parole on 11 March, 1987 having served six months imprisonment of an eighteenmonth head sentence for offences of drive without consent. He served only five months of this parole term prior to the cancellation of parole as a consequence of his further imprisonment for the offences of illegal use and drive under the influence committed whilst on parole.
On 2 March, 1992 [Mr Scobie] was released on parole in respect of a sentence of imprisonment imposed by the Supreme Court on 22 November 1989.
On 6 December, 1994 [Mr Scobie’s] parole was cancelled as a result of his imprisonment for the offences of gross indecency and indecent behaviour committed on 28 October 1994. He was not further released on parole.
During his parole release in 1992-94, [ Mr Scobie] was supervised in the Pitjantjatjara Lands (Mimili) through the Marla office of the Department of Correctional Services….His supervising parole officer at the time considered that there might well be a link between his isolation and his offending behaviour coupled with his abuse of alcohol and/or petrol sniffing …
Parole supervision in the Pitjantjatjara Lands is restricted to contact with a community corrections (parole) officer based at Marla. That officer travels through the community each week. There is limited opportunity for any therapeutic intervention to address offending behaviour due to the remoteness of the area. The local community police officers and police aids provide a level of oversight in cooperation with the community corrections officers and report those breaches of parole that are apparent.”
[25] The report was dated 1 July 2001.

The court was advised that there was considerable fear and apprehension within the community about Mr Scobie’s proposed release.[26] Members of the indigenous community did not want Mr Scobie residing with or near them. There was the added difficulty of the close proximity of children as they resided in all of the communities on the Anangu Pitjantjatjara lands. The school at Mimili was said to be in the centre of the community. In its report the Ngaanyatjarra Pitjantjatjara Yunkunytjatjara Women’s Council Aboriginal Corporation (NPYWC) emphasised the court’s role in the protection of women and children.[27] It was submitted that sending Mr Scobie to Mimili would be “setting him up to fail”.
Release on Bail
[26] Ms Taite’s report of 2 November 2001 provided:
“All traditional persons residing in Fregon including the two community police aids stated to the writer that Mr Scobie had been staying away from children, was always in an responsible adult’s presence and that [Mr Scobie] had been working hard…
Community members also stressed to the writer that [Mr Scobie] is having traditional counselling etc and the offender did not want to get into any trouble stating ‘Johnie wants to stay on the lands and have a happy life and live like all of the Anangu people.’ All persons residing within the Pitjantjatjara Lands are now aware of the offences that [Mr Scobie] has committed and most persons the writer has spoken to are willing to support Mr Scobie. The strong (traditional men) in the community have stated to the writer the importance of them helping [Mr Scobie] and [Mr Scobie] appears happy enough to accept their support.
The writer did experience a lot of difficulty in regards to the offender being placed within the proximity of the Fregon community. All concerns were from the European community that were apparently privy to information in regards to Mr Scobie being a sexual offender, having a paedophile restraining order and being placed on supervised bail under the Department of Correctional Services.
This caused a lot of concern to the offender and on one occasion he threatened to commit suicide. He appeared to be under a lot of pressure in regards to him ‘not being welcome in his own country within the Pitjantjatjara Lands’. However Mr Scobie was able to accept the fact that certain persons were aware of his previous offences and continued participating with his officer and Ngangkari in regards to rehabilitation and complying with both orders he had been placed on.”
[27] The NPYWC’s report dated 26 November 2001 provided:
“There is no way that anyone subject to a paedophile restraining order could be allowed to live at a small community like Mimili. Within the community there are no delineated spaces separating the adult world from the children’s world. The community is made up of adults and children who are kin. Obligations, familiarity, trust, shared living spaces, contact and demand sharing are some of the features of kin relationships. Loyalties to kin dominate over other issues such as child protection. There is no fence surrounding the school from the rest of the community. Adults enter and move through the school as easily as children move about the community unaccompanied by adults. The school is directly opposite the health clinic. There are play areas and walking tracks that children use crisscrossing the community. Not all the spaces that children use can be observed by adults. Mr Scobie would have unrestricted access to children at Mimili…
Despite the evidence given in court, our experience of the Department of Correctional Services supervision of offenders from Marla is particularly poor. We would question that a probation officer would visit Mimili on a weekly basis. Even after repeated notifications of breaches they have failed to act until we have notified Port Augusta…
Dr Kerry Gell the senior medical officer based at Fregon visits Mimili on a regular basis. She said that they had no capacity to support Mr Scobie. There are no trained psychologists or psychiatrists who visit Mimili. Patients requiring specialist psychiatric or psychological treatment are sent to Adelaide or Alice Springs...
Ngangkari work for Anangu people living on the cross boarder region of the Ngaanyatjarra Pitjantjatjara and Yankunytjatjara lands. They describe themselves as spirit doctors and they are in great demand for a wide range of emotional and physical complaints. However, they say that they are unable to make any impact on the health of people whose bodies are saturated with modern drugs such as petrol fumes, marijuana smoke, or alcohol…
The ngankari…described the behaviour of a paedophile as being essentially outside of traditional understandings and traditional codes of morality and acceptable behaviour. They say [Mr Scobie] has his “own ideas” which they are unable to change through ngankari healing treatments.”
Eventually the Crown did not oppose bail:
“Obviously during the course of this matter, it is quite clear that the director’s position is that Mr Scobie can’t be kept in gaol for ever. The issue has to be addressed and he has certainly spent quite a considerable time in custody already so in that regard no [opposition to bail].”
After further investigations Mr Scobie was granted bail on strict conditions to reside at Port Augusta.[28] The court fashioned bail terms which provided sufficient community protection and allowed Mr Scobie to be released from custody. However his release created several practical difficulties. Departmental officers and the police were conscious of his previous sexual offending. They were quick to strictly enforce the bail conditions. The Crown submitted:
“It is general knowledge with the uniformed police who [Mr Scobie] is, what he looks like and to keep an eye out for him.”
There were acknowledged breaches of both the bail agreement and the paedophile restraining order. A number of breaches could fairly be described as technical. Mr Scobie spent time in custody at Port Augusta and Adelaide as a result of these breaches.
[28] The Crown did not oppose this arrangement.
The terms of Mr Scobie’s bail agreement and the paedophile restraining order were varied on a number of occasions. The terms were relaxed to enable reasonable compliance to be effected. Abstinence from the use of alcohol was one such condition. Another was the distance that Mr Scobie was allowed to be from children and schools. At one time Mr Scobie’s place of residence also had to be changed after the family with whom he was residing at Port Augusta unexpectedly returned to the Anangu Pitjantjatjara lands.[29]
[29] The Department reported on 21 February 2002:
“Mr Scobie was released to bail on the 6^th December 2001, the offender was taken to Fregon community via Marla and placed in the care of RK, who facilitated his taking up residence at Westbore homeland. Mr Scobie’s nominated place of residence. Mr Scobie initially resided at Westbore homeland however, it was jointly agreed by his supervising officer, Mr Scobie and Mr RK that he relocate into the Fregon community…the reason for Mr Scobie’s relocation related to a family with young children taking up residence at the homeland…Marla community correctional centre has conducted weekly field trips to Fregon community for the purpose of monitoring Mr Scobie, checking on his well being and addressing any concerns/issues that may have arisen in relation to the offender, traditional community members or European persons residing in the community…
The writer has constant contact with YS, community police constable at Fregon, Mr RK, chairperson at Fregon and elders in the community and clinic staff. The following information has been provided:
‘Mr Scobie is not a concern and they have not sighted the offender in the presence of children. He is also attending and participating in Ngangkari traditional medicine
The staff at the Fregon clinic have advised, Mr Scobie has visited the clinic on a weekly basis to collect his prescription medicine for his hypertension, and once a month has attended for his Depo-Provera…Mr Scobie has not needed to be reminded to attend the clinic and has acted in a responsible manner in regards to his medical needs.
…In February 2002 Mr Scobie made himself available for and participated in the aboriginal ending offending program held on the Pitjantjatjara lands, facilitated by a social worker from Whyalla and community correctional services officers from Marla. The writer attended the program and noted the offender participated well and interacted appropriately with his peers. He stated, ‘He was looking forward to the next program in April-May 2002’.
…The sexual offenders treatment program has not been implemented with Mr Scobie at this point in time. It is hoped to commence this program following sentencing.
…In summary, the offender has adjusted well to life in the Fregon community. He attends church on a regular basis, collects fire wood for the old persons in the community, attends hunting trips with Mr RK and other elders, has grown a vegetable garden at his place of residence, keeps appointments at the clinic and has apparently adhered to the conditions of both orders. Mr Scobie has also gained part time employment cleaning up the oval, collecting rubbish etc, for which he was paid with purchase orders (for food) from the Fregon community council office.”
It must be recognised that extensive efforts were made to fashion appropriate terms of bail and monitor the effectiveness of those terms. However it was a struggle in this case to give effect to the Bail Act and the presumption in favour of bail. This struggle was ongoing and originated from the difficulties and delays associated with having Mr Scobie assessed. The fear and discontent expressed by the wider community compounded the problem.
Reports were given by videolink from Port Augusta to Adelaide. The court sat at Adelaide and Port Augusta frequently to take evidence and facilitate the assessment and sentencing processes. On a number of occasions Mr Scobie’s release from custody had to be delayed so that the necessary support was available to enable him to reach his required destination.
At the time of sentencing Mr Scobie had spent a total of more than 10 months in custody. This occurred because there had been no assessment or apparent understanding of Mr Scobie’s personal circumstances over the preceding two decades. The failure to address his problems at an earlier time might have allowed his offending behaviour to continue. The only available control mechanism previously used was a blunt instrument - the criminal law. Implementation of some of the Royal Commission recommendations might have assisted Mr Scobie and might have prevented his further offending. Had the Royal Commission recommendations been implemented sooner then it is likely that Mr Scobie’s problems could have been addressed earlier thereby eliminating the need for the section 23 application. What has occurred in Mr Scobie’s case demonstrates the need for the close monitoring referred to in Royal Commission recommendation 89.
The terms of bail and their modification had a fortuitous result. Mr Scobie’s problems were assessed and treatment commenced before sentencing. This proved beneficial to Mr Scobie as ultimately when he was sentenced his course of treatment was underway. This allowed the court to be satisfied that a real measure of community protection was already in existence.
The Royal Commission Recommendations
During the early 1980’s many Aboriginal people died in police or prison custody. In response to widespread national concern, the Royal Commission into Aboriginal Deaths in Custody was jointly commissioned in October 1987 by the Commonwealth, the States and the Northern Territory. In January 1988 investigations into deaths in custody commenced. An interim report was presented by the Commissioner in December 1988 although the investigations continued thereafter for more than three years. The mandate of the Commission was broadened to incorporate a wide-ranging inquiry into the involvement of Aboriginal persons in the criminal justice system. The circumstances of 99 deaths in custody were investigated and analysed. The final report was presented in April 1991. The Royal Commission found that underlying each of the deaths was the “historic structural inequality” of Aboriginal people within the broader society. Disadvantage was seen to be the primary cause of the high indigenous imprisonment rate. Aboriginal people throughout Australia suffered “systemic socio-economic marginalisation”. This was said to be the result of “post-colonial dispossession, cultural fragmentation and disempowerment.” The final report comprised 11 volumes, some 5000 pages and included 339 recommendations. Those recommendations covered law reform, justice issues and measures to address endemic disadvantage. They included measures to empower Aboriginal persons through self-determination and to implement urgent reforms within the criminal justice, juvenile justice and custodial systems. It was also recommended that imprisonment be a sanction of last resort.
As earlier observed many of the difficulties and delays encountered in this case occurred because of the need for the rigorous assessment of Mr Scobie. This process took more than 18 months. His treatment continues. However the assessment process was necessary because of the lack of information about Mr Scobie and his offending. Without this information the issue of community protection could not be addressed.
Although much of Mr Scobie’s offending occurred prior to the making of the Royal Commission recommendations, a passage of transcript from 1989[30] highlights that the issues of assessment and treatment were only superficially canvassed and were not advanced:
[30] 17 November 1989 Port Augusta Supreme Court Circuit per Millhouse J
“Judge:
I wonder if there is any question of a mental problem. ...
Counsel for Mr Scobie:
There is certainly a possibility that there may be some damage as a result of the petrol sniffing and our office was certainly concerned about that. But we are certainly not in a position to say categorically that he has brain damage…
Judge:
I wonder whether he needs any psychiatric treatment.
Counsel for Mr Scobie:
It is certainly a possibility that he may need some treatment.
Judge:
I don’t know if a person of his race is a good enough candidate for psychiatric treatment but it is almost a course of conduct isn’t it.
Counsel for Mr Scobie:
I can’t see really whether the assessment could go past a clinical assessment of whether he has any residual damage, and then of course the issue arises whether what is happening is related to these other matters that he has raised through my interpreter, or whether it is just a matter of through the petrol sniffing, so it actually becomes quite a complicated issue.
Judge:
What do you think, you haven’t suggested it, and I have originally raised it. Are you asking that he should be assessed psychiatrically?
Counsel for Mr Scobie:
Perhaps I hadn’t made myself clear. I just feel that if he was assessed I just don’t know that it would take us that further.
Judge:
You don’t think it is worth it?
Counsel for Mr Scobie:
I certainly would like to think that it was worth him receiving some sort of treatment while he is custody, whether that treatment can occur without an assessment, I just don’t know.
Judge:
I wonder if I were to simply deal with him, whether once he was in prison, he is now any way, whether an assessment would be carried out. I suppose officer you can’t tell me that. Do people get assessed once they are in custody, once they are in prison?
Prison Officer:
Psychiatric assessment?
Judge:
Yes
Prison Officer:
Not to my knowledge.
Counsel for the Crown:
It is my understanding that it doesn’t occur spontaneously without an order or some initiation from outside.
Judge:
Not even if I mentioned it in the sentencing remarks? … May be the best thing is for me to mention it despite what I said a minute ago, mention it in the sentencing remarks and hope that between what I say and what you can do, something will come of it because it sounds to me that the man who is doing this sort of thing needs some medical help.…
Counsel for the Crown:
…The matter your Honour has raised in terms of the psychiatric considerations are of some concern and if your Honour was in any doubt, then I would support any application my friend wants to make to get a psychiatric assessment.”
In his sentencing remarks[31] the judge observed:
“That you have done much the same dreadful thing twice within a little over three months makes me think that you may need psychiatric help, the help of a doctor. [Your counsel] did not apply for psychiatric assessment, but after discussion it was agreed that I should say that you may need psychiatric help and [your counsel] will talk to the authorities in gaol about it. I hope indeed that you will now be assessed and given any psychiatric treatment which may help you to get over what looks to be a very un-healthy attitude towards little girls.”
[31] 22 November 1989 Port Augusta Supreme Court. It appears from Dr O’Brien’s reports that there is no record that any psychiatric follow up occurred in response to these remarks.
There has been tension in this case between the need to protect the community and the need to cater for Mr Scobie’s interests. Mr Scobie was overlooked by a system designed for non indigenous offenders. Perhaps he has been a victim of circumstances, language difficulties, differing cultural ideals and expectations. Whatever the reasons, he has spent the majority of his adult life in institutions. Mr Scobie’s successful rehabilitation is the best protection the community could have.
In this case the Royal Commission recommendations were eventually implemented. The proceedings tested their effectiveness. The end result is that after two years, Mr Scobie has been assessed, released from custody, treated, supervised and sentenced. He has been sentenced within his geographically remote community. The community has been protected but at what cost?
The Royal Commission recommendations were made with a view to ensuring that Aboriginal persons involved in the criminal justice system were properly protected by that system. The recommendations contemplate that the benefits be readily available. However in this case the recommendations were only complied with on an ad hoc basis because of the court’s directions. The full range of sentencing options only became available to the court after considerable effort and perseverance. It is probable that Mr Scobie would have spent less time in custody and that his rehabilitation would have progressed more rapidly if protocols facilitating compliance with the recommendations as a matter of course, rather than on an ad hoc basis, had been established. This was accepted by the Crown. A report from the Justice Strategy Unit of the Attorney General’s Department[32] formed part of the Crown’s submissions. This report provided:
“It is evident that there is a need to explore more comprehensive strategies at a whole of Government level for the effective treatment, support and the provision of services to people on the Anangu Pitjantjatjara lands, including those in contact with the Criminal Justice system.
Cases such as Mr Scobie’s highlight the complexity of problems experienced by people with special needs in the criminal justice system and the need for an individually based case management approach involving all parties concerned.
The Prisoner and Offender Health Services Memorandum Of Understanding is valuable to the extent that it outlines the broad principles of duty of care and good faith that underpin the collaboration that is required between Department for Human Services and Department for Correctional Services in relation to the provision of services. It also carries the potential for service integration and co-ordination around the case management requirements of offenders on the Anangu Pitjantjatjara lands.
Department for Human Services has begun re-examining the case management plan of Mr Scobie. Through the Exceptional Needs Program, all relevant DHS agencies are participating in reviewing the adequacy and appropriateness of Mr Scobie’s specific service support arrangements.
The government is examining mechanisms to better respond to the needs of Anangu on the Anangu Pitjantjatjara lands through the Anangu Pitjantjatjara Inter-Government Inter-Agency Collaboration Committee. This committee, chaired by the Chief Executive of Department for Human Services engages a number of Chief Executives and Senior Executives and Advisors in both State and Commonwealth governments.
It also carries the potential for service integration and co-ordination around the case management requirements of offenders on the Anangu Pitjantjatjara lands.”
[32] The Attorney-General’s Department’s 2001-2003 Strategic Plan provides that the Justice Strategy Unit is a division of the Attorney General’s Department. It provides strategic policy advice to the Department and the Justice Portfolio.
The 2000-2001 Annual Report provides that the goal of the Justice Strategy Unit is to work in partnership with justice agencies and the community to ensure a justice system that is fair, affordable, effective and accessible, and to promote an understanding of contemporary issues in the provision of justice in South Australia. The role of the Justice Strategy Unit provides executive support to the Chief Executive, the Deputy Chief Executive and the Ministers in:
- strategic planning and policy development;
- reviewing current operations and assessing the impact of legislation;
- reviewing and developing new strategies and initiatives;
- monitoring the implementation of strategies and initiatives, in particular the Justice Portfolio Strategic Directions.
The Justice Strategy Unit’s focus is on a collaborative and consultative approach to issues that impact across the portfolio as well as issues spanning the Justice Portfolio and other government agencies. The Aboriginal Justice Plan includes:
“A priority for Action for the Justice Portfolio is to ensure a fair and just outcome for aboriginal people. The Justice Strategy Unit has commenced working with agencies within the Justice Portfolio and the aboriginal community to develop an Aboriginal Justice Plan and a Justice Portfolio Aboriginal Reconciliation Statement.”

Significant difficulties were encountered throughout the course of proceedings. As earlier observed, some could be attributed to the lack of information about Mr Scobie’s personal circumstances and the cause of his previous sexual offending. Many details were inherently inconsistent and difficult to piece together. Constant judicial monitoring was necessary at every stage of the process. Proactive directions had to be given by the court. At times, to produce a just result, it was necessary for the court with the consent of counsel to act in an interventionist and inquisitorial manner. On occasions the court operated “nunga style”.[33] The court was involved in this case in a way that a court would not normally be involved. There has been a significant difficulty in creating a management plan that provided a satisfactory level of protection to the community whilst at the same time catering for the needs of a traditional Aboriginal man with limited English and impaired cognitive functioning.
[33] The nunga court has been operating as a specialist part of the magistrates court in Port Adelaide since June 1999. In March 2001 a nunga court began operating regularly in Murray Bridge. Nunga court practices are also adopted during the magistrate’s circuits on the Anangu Pitjantjatjara lands and other places.
The nunga court sits to sentence aboriginal offenders who plead guilty to offences. The magistrate sits off the bench at the same level as the offender. An aboriginal justice officer is responsible for educating the aboriginal community in the operation of the court and the criminal justice system. They assist aboriginal people with bail conditions and court outcomes and foster links between the aboriginal community and the court. They act as consultants on aboriginal issues and cultural awareness. A senior aboriginal person may sit beside the magistrate to advise on cultural and community matters. The offender sits at the bar table. Legal representatives sit alongside the offender and relatives or friends are also permitted to sit alongside and participate in the proceedings. Once the police prosecutor and defence counsel have put submissions the family and community members or the victims can engage in discussion with the magistrate. The magistrate takes on an inquisitorial role often asking a number of questions to clarify matters or to assist in determining the most appropriate sentencing outcome for the particular offender. Family and community members are encouraged by the court to attend. The court is staffed by aboriginal court orderlies. They are often called upon to assist in proceedings.
Anecdotally it is said that the attendance rate of offenders is over 80 per cent. This is considerably more than the attendance in other courts by Aboriginal persons.
The Crown acknowledged that Mr Scobie's particular needs were only met in this case on an ad hoc basis in response to the court’s directions. The Royal Commission recommendations were not intended to apply on a reactive, "knee-jerk" basis. The recommendations were intended to ensure that members of indigenous communities had the benefit of the recommendations as a matter of course.
In response to the court’s requests, extensive information was provided by counsel and others. However it appeared that prior to the section 23 application a detailed history of Mr Scobie’s offending and his personal circumstances had not been compiled. Mr Scobie had been “in and out” of the criminal justice system for several decades without any form of proper medical or personal assessment being undertaken or any rehabilitation plan made.[34] This is of concern. As earlier observed, one effect was to delay Mr Scobie's assessment and release from custody.
Consideration of the Recommendations
[34] As a juvenile Mr Scobie entered into a bond in 1982. In 1997 another 12 month bond was imposed by a magistrate sitting at Port Augusta the terms of which were:
-to be of good behaviour and comply with all the conditions of this bond
-to be under the supervision of a probation officer for a period of 12 months and obey all the lawful directions given by the probation officer.
-to report within two working days of having signed this bond at the offices of the department of correctional services probation and parole branch in Port Augusta
-to undertake psychological assessment and any psychological counselling considered appropriate in the light of his prior convictions re his sexually deviant behaviour.
-To participate in any alcohol abuse treatment programmes or counselling also considered appropriate and any other programmes or counselling considered appropriate to his particular circumstances.
It appears that although the conditions were designed to assist Mr Scobie and prevent further offending there is no evidence that any rehabilitative procedures were undertaken or followed through.
The relevant Royal Commission recommendations covered a variety of areas including the conditions of custody, the use of interpreters, the use and implementation of non-custodial sentencing options in rural and remote areas of significant Aboriginal population, community consultation in sentencing, the use and implementation of community service orders, the monitoring of parole and probation, the need to involve Aboriginal communities in the correctional process, the delivery of services, access to health care services, Aboriginal mental health, consequences of alcohol consumption and petrol sniffing. These recommendations were addressed in this case. However their implementation was protracted. Significant difficulties were encountered. The court's level of involvement was of a nature one would not normally expect.
The Justice Strategy Unit report acknowledged that in this case there was an inadequacy of resources:
“The case of R v John Scobie highlights a number of difficulties with regard to the respective roles and responsibilities of the Department of Correctional Services (DCS) and the Department of Human Services (DHS) relating to the provision of treatment and services for an offender pursuant to a Court order.
The case also raises further questions about the capacity of DCS, DHS, Aboriginal communities and the non-Government sector to provide services and support for offenders with exceptional needs on the Anangu Pitjantjatjara Lands.
It further highlights that access to and nature and availability of therapeutic services are limited and problematic and such services further constrained in scope by provision within existing memoranda of understanding.”
This was an important acknowledgment by counsel for the Crown. It demonstrates that the South Australian Government accepted its responsibilities, was aware of the inadequacy in the deployment of resources and recognised the need to properly implement the Royal Commission recommendations.
Remand on Bail
The relevant recommendations have been discussed earlier.
Health Services
Recommendations 198 and 251 are in the following terms:
“That Governments commit themselves to achieving the objective that aboriginal people are not discriminated against in the delivery of essential services and, in particular, are not disadvantaged by the fact that the low levels of income received by aboriginal people reduce their ability to contribute to the provision of such services to the same extent as would be possible by non-aboriginal Australians living in similar circumstances and locations.”
“That access to health care services and facilities, including specialised diagnostic facilities, in areas of aboriginal population should be brought up to community standards. The greater needs, for the time being, of aboriginal people should be fully recognised by the responsible authorities in their consideration of the allocation of staff and equipment.”
Considerable resources are directed towards the provision of Aboriginal health care. The Justice Strategy Unit report noted:
“Nganampa Health Council is the Aboriginal community-controlled health service on the [Anangu Pitjantjatjara] Lands. Nganampa Health provides primary clinical care services, public health programs and an aged and disability care program. The total Government funding to Nganampa Health Council is almost $9M. About $1.9M comes from the Department of Human Services and the remainder mostly from the Commonwealth. There are areas of service delivery which are not being adequately addressed at present, this includes the needs of young adults who have acquired brain injury through petrol sniffing and youth health programs, which the review of Nganampa Health identified as a priority area for action.”
From the outset problems were encountered in giving effect to these recommendations. The need for an initial assessment by Drs Raeside and O’Brien raised the issue of whether Mr Scobie should be reviewed in Port Augusta or be brought to Adelaide. Later when it was established that he required regular injections of an anti-libidinal drug similar difficulties were encountered. The availability of doctors and medical staff on the Anangu Pitjantjatjara lands to administer and monitor Mr Scobie's treatment program was problematic. Mr Scobie’s participation in programs for sexual offenders was also hampered by cultural factors, geographic location, staffing and supervision difficulties. The Department was unable to accommodate Mr Scobie's specific needs.
Recommendations 264, 265 and 266 relevantly are as follows:
“That there be a substantial expansion in Aboriginal mental health services within the framework of the development, on the basis of community consultation, of a new national mental health policy…”
“That as an immediate step towards overcoming the poorly developed level of mental health services for Aboriginal people, priority should be given to complementing the training of psychiatrists and other non-Aboriginal mental health professionals with the development of a cadre of Aboriginal health workers with appropriate mental health training, as well as their general mental health training. The integration of the two groups, both in their training and in mental health service delivery, should receive close attention. In addition, resources should be allocated for the training and employment of Aboriginal mental health workers by aboriginal health services.”
“That the linking or integrating of mental health services for Aboriginal people with local health and other support services be a feature of current and expanded Aboriginal mental health services.”
Generally no psychiatrists or psychologists attend the Anangu Pitjantjatjara lands for diagnostic and treatment purposes. This is unsatisfactory and needs to be rectified to enable recommendations 264, 265 and 266 to be fully implemented. If these services had been available to Mr Scobie his ongoing management could have been more easily effected. The Justice Strategy Unit report observed:
“Where available, Aboriginal community controlled health services will be engaged for the provision of culturally appropriate health care to Aboriginal people in Correctional Services care and control. The inclusion of Nganampa Health Council in the current review of the [memorandum of understanding] between [the Department of Correctional Services] and [the Department of Human Services].
To date the provision of Prisoner and Offender Health Care Services and the redevelopment of the [memorandum of understanding] has been considered an internal matter between [the Department of Human Services] and [the Department of Correctional Services]. The Scobie case has highlighted that the issues are broader than those internal to [the Department of Human Services] and [the Department of Correctional Services]. A Justice approach on this matter will be adopted.”
As earlier observed Mr Scobie had not been medically or psychiatrically assessed prior to the section 23 application. It was proposed that Mr Scobie be transported to Adelaide to facilitate the assessment process. The difficulties encountered were with a traditional Aboriginal man with limited cognitive capacity managing in Adelaide. Who would accompany him? Where would he reside? Who would ensure that he attended necessary appointments? Who would ensure that he kept out of trouble? Similar questions arose on a number of occasions. Eventually the necessary funding and support was provided. However as earlier observed this was a response to the court’s specific directions rather than Mr Scobie accessing routinely available resources. The Justice Strategy Unit acknowledged this unsatisfactory state of affairs:
“There is lack of clarity in relation to which agency is responsible for costs associated with Mr Scobie’s transport and accommodation to attend specialists appointments, therapeutic assessments, treatment and review in Adelaide. The service response to date has been adhoc and involved support from [the] Department of Correctional Services Community Corrections, Patient Assistance Transport Scheme, Aboriginal Legal Rights Movement and the Aboriginal Prisoner & Offender Support Services.
It is suggested that the issue of transport and associated accommodation costs for offenders to meet the treatment and rehabilitation requirements of a court order would best be resolved in principle for future cases rather than relying on the issue being dealt with on a case by case basis. This would provide both the offender and the Court with a degree of certainty that is not unreasonable to expect.”
If an offender is in custody at Port Augusta it is desirable that any necessary psychiatric review be undertaken promptly. A protocol should be in place for when offenders are required to travel to Adelaide for specialist medical assessment and treatment. Transport to Adelaide from the Anangu Pitjantjatjara lands should be available for the offender and a designated friend. Food, accommodation, transport to and from the appointments and a return trip to the lands should also be provided. This eventually occurred in this case. Initially the Department said that it could not provide such services.[35] The court was left, in effect, to arbitrate a departmental dispute as to who should meet these costs. The court was left to resolve matters in what appeared to be a case of the government’s inability to provide. This was unsatisfactory. It also brought into play the Royal Commission recommendations that deal with the provision of medical treatment and services in remote locations.
[35] The manager Department of Correctional Services office at Marla dated 12 September 2001 reported:
“The writer has been advised of the court’s expectation that Correctional Services will bear the cost of transporting Mr Scobie to Port Augusta or Adelaide on the occasions that he will be required for assessment. The Department is not funded for these services and it would not be possible to provide this in Mr Scobie’s case.
I understand that the court has in mind the recommendations of the Royal Commission into Aboriginal Deaths in Custody, in particular the need for medical services to not be denied to residents in remote areas.
The lack of clarity as to which government department has responsibility for services in aboriginal communities is a longstanding one, and not one I wish to reignite here. However, Mr Scobie is not a sentenced prisoner. If granted bail, it is assumed the court will require his compliance with bail conditions to be supervised by community corrections. It is difficult to see how this renders this Department responsible for funding his compliance.
That said, Mr Scobie might be eligible for the financial assistance offered by the SA Health Commission to people in remote areas to attend specialist services. His allocated case-worker would certainly advocate for this on Mr Scobie’s behalf.”
The Justice Strategy Unit report acknowledged the need to address the court’s concerns and concluded:
“As a component of the Mental Health Action Plan for the Reform of Mental Health Services, Department of Human Services are working through Aboriginal Health Partnership to progress the development of an Aboriginal mental health strategy within the context of social and emotional well being, which includes:
increasing Aboriginal community access to mental health services
involving non-aboriginal care providers to be aware of Aboriginal holistic concepts of health and mental health
developing the capacity of the primary care sector (including Aboriginal Health Workers) in the provision of mental health services, through skill development, specialist support and increased partnership development
developing the capacity of specialist mental health services to provide appropriate consultation and liaison services to service providers
increasing early intervention through better awareness, detection and referral of Aboriginal people with mental health problems
maintaining 24 hour Emergency Triage and Liaison Service and Telepsychiatry and Teleconferencing services to rural areas
recognising the role of traditional healers in Mental Health and programs dealing with suicide prevention.
…
Department of Community Services is currently involved in recruiting a Principal Psychologist who will provide strategic leadership around the provision of psychological services to prisoners and offenders. Although having an extensive background in sex offender treatment this will not be the sole domain of his proposed role. A second initiative underway [as at May 2002] relates to the recruitment of a senior psychologist to work with aboriginal prisoners in Port Augusta. Department of Community Services is also preparing a submission to government for prison based sex offender treatment programs. However it is noted that none of these initiatives will bring immediate impact on Mr Scobie’s current treatment requirements.
…
Mental Health funding totalling $150,000 is directed to the Ngaanyatjarra Pitjantjatjara Yunkunytjatjara Women’s Council Aboriginal Corporation for the provision of traditional healers (Ngankaris) and $30,000 is also provided to Nganampa Health for the same purpose in the Anangu Pitjantjatjara lands.”
Non-Custodial Sentencing Options
Recommendation 112 is in the following terms:
“That adequate resources be made available to provide support by way of personnel and infrastructure so as to ensure that non-custodial sentencing options which are made available by legislation are capable of implementation in practice. It is particularly important that such support be provided in rural and remote areas of significant Aboriginal population.”
In the past Mr Scobie had been dealt with by the courts frequently with orders for imprisonment. The breaches of the paedophile restraining order and his bail conditions, although serious breaches of court orders, were not of a nature that any sentence other than imprisonment was inappropriate. As earlier observed Mr Scobie spent over 10 months in custody whilst these matters were pending.[36] The medical and treatment process was ongoing. It was critical that sentencing options other than imprisonment be explored. The court was again frustrated in its attempts to find a workable solution to address Mr Scobie’s difficulties.
[36] Much of Mr Scobie’s time in custody was spent awaiting matters to be heard in court. He would be arrested, come before the magistrate at Port Augusta and plead guilty. Eventually the matters were referred to the Supreme Court. Then after further delay Mr Scobie would either be transported to Adelaide or the court would attend Port Augusta. While the court did everything it could to minimise the effect of these delays they occurred primarily because of an inability to find a suitable residence for Mr Scobie, the difficulties encountered in the assessment process and the submissions made that there was insufficient information on which to sentence Mr Scobie without the assessment and treatment regime being put in place. Given the lengthy period served in custody and the circumstances of the breaches (caused by alcohol and lack of support) the court was of the view that Mr Scobie ultimately merited different treatment. In substance however, the implementation of a non-custodial treatment option was hampered by resources not being available.

Mr Scobie’s case was again before the court in February 2003. On this occasion a further report from Ms Taite was received.[52] Mr Scobie’s rehabilitation was continuing without incident. The court was informed that with the assistance of the Public Advocate Mr Scobie would be making application on the expiration of the bond for a guardianship order to enable him to receive ongoing assistance. A letter from the Exceptional Needs Unit of the Department for Human Services dated 25 February 2003 provided:
“We are aware that the court has concerns about Mr Scobie once his bond expires. Whatever supports are available to him will continue to be offered to Mr Scobie subject to his desire to take them up.” [53]
A considerable period has now passed since Mr Scobie last offended. He has a good prognosis.
ANNEXURE A
[52] The Department’s report dated 21 February 2003 states:
“[Mr Scobie] is still being supervised by the writer, he continues to report weekly, has held employment with the Community Development program since 26 June 2002…The co-ordinator states Mr Scobie is by far the best worker he has seen on the Pitjantjatjara Lands. He advised that Mr Scobie works on machinery, general maintenance ct on the cemetery. Johney Scobie has been classed as a “consistent worker, who stands out within the Fregon Community.”…Mr Scobie stated to the writer he had “traditional medicine” [on the recent men’s business between November 2002 and February 2003] and the problem was in his stomach, he is healed from the medicine and the “sickness”. He indicated the sickness from his stomach had gone over the hill into the sun…There have been no adverse reports from the European persons residing within the Fregon community or from the Marla police… The writer has monitored strictly [the condition that Mr Scobie is not to be in the presence of children under the age of 16 years without another adult]...Johney is abiding with his order.
[53] The letter from the Exceptional Needs Unit of 25 February 2003 continued:
“In relation to Mr Scobie’s particular situation the Exceptional Needs Unit will continue to liase with Disabilities and Mental Health Services to endeavour to deliver any relevant services to Mr Scobie on the lands…”
Johnny Scobie you have pleaded guilty to seven counts of failing to comply with a paedophile restraining order and three counts of failing to comply with your bail agreement. You have also pleaded guilty to exhibiting indecent material to a minor and the offence of larceny.
In July 2000 the offence of larceny of a jacket occurred in Coober Pedy. You have little memory of what occurred. You were intoxicated but believed that you were given the jacket.
On 8 August 2000 you were charged with four counts of failing to comply with a paedophile restraining order. These were all aspects of what could be described as an ongoing course of conduct. In each case your conduct did not go beyond approaching children. It appears that alcohol was a factor.
The next offence was exhibiting indecent or offensive material to a minor. This involved a breach of your restraining order but was also offence in itself. The incident involved you showing a pornographic photograph to a child. There was no suggestion of touching.
On 9 February 2001 you approached children at a discotheque. You engaged them in conversation. Your counsel submitted that you only asked the children for money and food and I proceed on that basis.
In June 2001 you committed a breach of the non alcohol condition of your bail agreement. In July 2001 you breached your paedophile restraining order and your bail agreement. These later breaches arose out of the same incident. You approached a boy on a bike and showed him a picture of a naked woman from a magazine.
In November 2001 you were in the presence of school children. You were present on school premises. You refused to leave when requested.
The maximum penalty for a breach of paedophile restraining order is two years imprisonment. The maximum penalty for exhibiting indecent or offensive material is a fine of $15,000 or six months imprisonment. The maximum penalty for a breach of bail is a fine of $10,000 or two years imprisonment. Larceny attracts a maximum penalty of five years imprisonment.
I am satisfied that you are remorseful and contrite. You wish to cease offending and are prepared to follow advice and treatment. I have regard to your pleas of guilty and co-operation with the authorities. These are mitigatory matters.
You are a middle aged traditional aboriginal man living in Fregon. You have lived in a number of indigenous communities. You have worked on outback stations and in communities on the Anangu Pitjantjatjara lands. I have heard from your community corrections officer that you have commenced working for the community at Fregon.
I am told that you were taught English as a child but that your understanding is limited. You have limited intellectual capacity. It is said that you have the mental age of a six to eight year old. You have abused alcohol and have a longstanding dependency. You engaged in petrol sniffing for a number of years. This may have affected your intellectual functioning. There has been a suggestion that the use of marijuana has been a problem. It is very much in your interests that you avoid substance abuse.
You have a long history of criminal offending. This commenced in the early 1980’s. You committed a number of serious sexual offences. You spent lengthy periods in custody. You also committed property offences and offences of dishonesty. It is the more recent continuation of your sexually related offending that led to the making of a paedophile restraining order. That order restrained you from having contact with children. You have breached that paedophile restraining order on a number of occasions. You have also breached the terms of your bail agreements. Disobeying court orders is serious. General deterrence is important. However in your case your conduct was primarily the result of alcohol abuse and problems associated with the early implementation of your treatment regime.
Over the last 21 months you have spent some ten and a half months in custody. Part of that time has been spent in solitary confinement in Port Augusta jail. You have also spent time at Yatala. This has been difficult for you. It represents substantial punishment.
You have been involved in several incidents which suggest that you do not wish to return to jail. One occurred today when you fled the courtroom.[54] Another was an occasion when you crawled under a police vehicle, spread eagled yourself and refused to come out. It is important that you recognise that if you misbehave you will go to jail.
[54] During the course of submissions and when counsel for the Crown spoke of “jail” albeit in the context of a suspended term Mr Scobie began speaking very loudly. He then held his wrists together as if to make a handcuff gesture. He shook his head. One of the elders next to him attempted to calm him however he continued speaking loudly and then stood up and walked quickly out of the room. Court was adjourned for 10 minutes to locate Mr Scobie. The community corrections officer took off her shoes and ran after Mr Scobie across an open area. Counsel for Mr Scobie also took off his wig and ran after Mr Scobie still in his robes. The courtroom quickly emptied and the elders also followed Mr Scobie and brought him back in one of their vehicles. Court resumed and counsel for Mr Scobie advised that Mr Scobie had a great fear of being “locked up again” and that he had heard the term “jail” and believed that he was to be given an immediate custodial sentence. Given the lack of appropriate interpreters he had misunderstood the context of the Crown submissions. He then was given assistance from another elder who seemingly translated more of the proceedings for him. It was carefully and slowly explained to Mr Scobie that the Crown was not seeking an immediate custodial order and that he would not be “locked up”. He was told that he was to remain in court until the court business was concluded. Mr Scobie appeared to be more relaxed after this explanation.
In your special circumstances leniency can be afforded when imposing penalty. One reason permitting leniency is the fact that you are undergoing medical treatment in an effort to advance your rehabilitation. You understand the importance of this treatment. You have followed your community corrections officer’s instruction. You have kept your medical appointments.
Over the last 21 months you have had a change of circumstance. When I first dealt with your case you had little or no support from your community. You had no support from the Department. They saw no “positives” for your future. Medical advisors were pessimistic. But time has brought change. The departmental officers have now provided positive reports about your conduct. It was submitted by your counsel that your intoxication was an explanation for your criminal offending. However the submission went further. It was said to be mitigatory. It was submitted that the context in which you came to engage in alcohol and other substance abuse was a direct result of the poor socio-economic conditions in which you have lived. I accept that this is so and treat these factors as mitigatory.
A review of your files discloses that although bonds had been imposed in the past there was no indication that the underlying causes of your offending were identified or any course of treatment and management embarked upon. This is the first occasion that the cause of your criminal conduct has been investigated and addressed. This is what has changed. The results of the recent rigorous assessment process and your consequent treatment allow this court to extend leniency to you.
The medical reports indicate that your treatment is progressing. These reports suggest that the cause of your problem lies in your limited intelligence and alcohol abuse. A course of injective treatment with ongoing supervision has been recommended and you are following that course of treatment. You receive a course of three weekly injections. You provide blood for analysis. This course of treatment will need to continue for a number of years. You have indicated a determination to follow through with this course of treatment. It is to your credit that you are prepared to address your problem in this way.
I have requested that the indigenous and non indigenous members of the Fregon community attend court today. It is the members of the community as a whole who have been supporting you. Their understanding of your problems and continued support will assist your rehabilitation. I have heard today from two elders about the support that you now receive from your community. This is significant. It is important that you do not let your community down. It is vital that your community continues to support you. The best protection for them is found in your continuing treatment. It is your successful treatment that will lead to your ultimate rehabilitation.
I propose to invoke the provisions of section 18A of the Criminal Law (Sentencing) Act 1988 (SA) and impose the one sentence for your offending. You will be released without conviction. The terms of your bond will mirror the terms of your paedophile restraining order and will also contain terms for your treatment and rehabilitation. I do not consider a community service order to be appropriate. You are to be released on a bond for three years on the conditions that you:
-be of good behaviour
-undergo medical treatment as directed or recommended by Dr O’Brien
-be under the supervision of a community corrections officer for a period of three years
-obey the lawful directions of that community corrections officer
-be subject to the usual reporting conditions and attend within 2 working days of signing the bond at the office of Coober Pedy Corrections unless subject to other directions
-be under the supervision of William Garside, manager, correctional services North West Region
-reside at West Bore unless otherwise directed
-not enter or be within a school, kindergarten or childcare facility as previously ordered.
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
1 The names John Scobie, Coopie Brown, Johnny Brown and Johnnie Scobie appear in the court documents.
2 Birth dates used by the authorities include 1 February 1945, 1 January 1957, 8 April 1964, 25 June 1964 and 25 June 1965. At the time of the present proceedings it is probable that he was in his mid forties.
3 The papers record the following as possibilities: Coober Pedy or Port Augusta in South Australia or Warburton in Western Australia.
4 The papers also suggested that Mr Scobie was raised in Coober Pedy.
5 The Anangu Pitjantjatjara lands were proclaimed as the Pitjantjatjara lands by the Pitjantjatjara Land Rights Act 1981 (SA). The lands are situated in the far north of South Australia. Within the lands are a number of established and ‘non-transient’ communities including Fregon, Mimili and Ernabella. An administration centre has been established at Umuwa which includes a health care centre. The communities are the home of significant populations of indigenous persons. Others reside nearby in communities in the Northern Territory and Western Australia. Although there may be considerable contact between family groups and the communities their populations fluctuate as persons move between Port Augusta and other major centres such as Coober Pedy and Whyalla.
6 (1992) 76 A Crim R 58
7 Mr Scobie’s criminal history consists of some 70 offences. Many were property offences that were linked to his alcohol dependency.
8 In the late 1980’s he was involved in serious sexual offending which involved abduction and indecent assault. Around this time he also pleaded guilty to assault with intent to rape.   These sexual offences were serious and involved a danger to young children. However this type of offending appears to have been confined to this period. Later offending during the mid 1990’s can be described as less serious sexual offending. It involved charges of gross indecency and indecent behaviour, behaving in an indecent manner and inciting the commission by a child of an indecent act.
9 Section 99 AA of the Summary Procedure Act 1921 (SA) provides:
“(1) On a complaint under this Division, the Court may make a restraining order against the defendant if—
         (a)     the defendant has been found loitering near children; and
         (b)     —
(i) the defendant has been found guilty of a child sexual offence within the previous five years; or
(ii) the defendant, having been sentenced to imprisonment for a child sexual offence, has been released from prison within the previous five years; or
(iii) the defendant has been found loitering near children on at least one previous occasion and there is reason to think that the defendant may, unless restrained, again loiter near children; and
(c)     the Court is satisfied that the making of the order is appropriate in the circumstances.
(2) A restraining order under this section may restrain the defendant from—
(a)     loitering near children at or in the vicinity of a specified place or class of places or in specified circumstances; or
         (b)     loitering near children in any circumstances.
(3) In considering whether or not to make a restraining order under this section and in considering the terms of the restraining order, the Court must have regard to the following:
(a)     whether the defendant's behaviour has aroused, or may arouse, reasonable apprehension or fear in a child or other person;
(b)     whether there is reason to think that the defendant may, unless restrained, commit a child sexual offence or otherwise act inappropriately in relation to a child;
         (c)     the prior criminal record (if any) of the defendant;
         (d)     any evidence of sexual dysfunction suffered by the defendant;
         (e)     any apparent pattern in the defendant's behaviour, any apparent connection between the defendant's behaviour and the presence of children and any apparent justification for the defendant's behaviour;
    (f)       any other matter that, in the circumstances of the case, the Court considers relevant…”
10 “The terms included restraining Mr Scobie from:
- loitering near or in the vicinity of children.
- remaining on any premises occupied by him, if any person under the age of 16 years comes within those premises.
- associating with or attempting to associate with any person under the age of 16 years, whether or not that person is in the company of any adults.
- attending at or approaching within 100 metres of any school, kindergarten or child care centre.”
11     14 July 2000 Mr Scobie and other local aboriginal people entered a clothing store. Mr Scobie selected a black and grey FILA brand jacket and left without paying. He was found wearing the jacket. Mr Scobie denied the offence. He was described as being “difficult to understand.” Due to his level of intoxication he was not formally interviewed. Mr Scobie was granted police bail. On 28 November 2000 he pleaded guilty to the offence.
On 8 August 2000 Mr Scobie attended at the Coober Pedy Area School between 2:15 –2:45 pm on four occasions. He was seen amongst junior primary children and arrested upon leaving the school on the last occasion.
The following facts pertain to the four allegations of failing to comply with a paedophile restraining order. On the first occasion there were a number of children nearby between the ages of five and seven years. Mr Scobie was asked to leave and then escorted off the school grounds by the deputy principal.
Mr Scobie then returned five minutes later via another entrance. This time he was looking at the children in the childcare centre adjacent to the school. All were under four years of age.   Again Mr Scobie was escorted from the school by the deputy principal.
Shortly after Mr Scobie re-entered the school through the same entrance. He walked towards children who were standing nearby. He was intercepted by the deputy principal who told him in no uncertain terms to leave and that he was not permitted on the school grounds. Mr Scobie then walked away from the school.
On the final occasion at 2.45 pm Mr Scobie was observed by a school employee standing on the school oval looking at children playing. He was about 20 metres from the nearest child. The police were called and at 2.50 pm they observed Mr Scobie leaving the school premises. He was arrested. He was described as being “moderately affected by liquor”. Due to his level of intoxication he was not formally interviewed. He said that he “took a wrong turn.”
On 2 June 2001 Mr Scobie attended at the home of a wheel-chair bound woman who was in the company of her three children aged three, five and seven years. She said that she heard a male voice coming from outside the front door. She said the voice was unknown and calling out in aboriginal language which she could not understand. She called for the man to leave. He did not and moved down the side of her home and into the backyard where he stood by the back door and continued to call out. She again told him to leave but he remained. The police were called.   They located Mr Scobie and arrested him. He was said to have been affected by alcohol. Mr Scobie said that he had gone to that home because he was looking for someone who owed him money. He was then granted police bail to appear before the Port Augusta magistrate’s court on 9 July 2001. On 8 August 2001 Mr Scobie pleaded guilty to the offence in the Port Augusta magistrate’s court. He was imprisoned for 7 days by the magistrate. The sentence commenced from 8 August 2001.
On 7 June 2001 Mr Scobie breached the conditions of his bail agreement. At about 8.55 pm Mr Scobie was located at the Davenport community in a grossly intoxicated state. He was conveyed to the Port Augusta police station for breath analysis as directed by his supervising correctional services officer. At 9.55 pm his breath analysis was recorded at 0.234 grams of alcohol per 100 ml of blood. Mr Scobie was arrested for breaching his bail conditions (the bail agreement entered into on 25 May 2001 was that he not exceed 0.05 grams of alcohol per 100 ml of blood.) Mr Scobie was refused police bail and remanded in custody. He was later granted bail by this court.
On 21 July 2001 Mr Scobie again failed to comply with a paedophile restraining order and bail agreement. At around midday he stopped a nine year old boy who was riding his bike at the beach at the rear of the Port Augusta Hospital. He showed him a magazine containing pictures of naked women. The boy rode home and complained to his grandmother who contacted the police. The boy and his grandmother later identified Mr Scobie from photos after Mr Scobie declined to participate in a line up. Mr Scobie was arrested on 8 August 2001. He exercised his right to silence. He was refused bail and remanded in custody. On 9 August 2001 Mr Scobie pleaded guilty to both charges in the Port Augusta Magistrate’s court. He was granted bail by this court on 14 September 2001. He was released from custody after signing the bail agreement on 18 September 2001.
On 1 November 2001 Mr Scobie again failed to comply with a paedophile restraining order and bail agreement. It was alleged that Mr Scobie attended a school disco that was held on the basketball courts at Fregon School. Approximately 30-40 children aged between seven and 15 years were in attendance. Between 7.45 pm and 8.00 pm Mr Scobie was observed standing in the shadows near the administration building in the school grounds. He appeared to be watching the children and was within six metres from where they were dancing. Mr Scobie was asked to leave but he remained. He was then approached by the principal and asked to leave. Mr Scobie left the school grounds via the front gate. Police attended and Mr Scobie was arrested at about 9.15 pm. He admitted being at the school and stated that he understood the terms of the paedophile restraining order and bail agreement and then exercised his right to silence. Mr Scobie was refused police bail and was remanded in custody. He was granted bail by this court on 5 December 2001 and released from Port Augusta prison after entering into his bail agreement on 6 December 2001.
12     Section 23 relevantly provides:
“       …(2) Where a defendant is convicted of an offence to which this section applies by the District Court or the Magistrates Court, the court may, if of the opinion that the powers under this section should be exercised in relation to the defendant, remand the defendant in custody or on bail to appear for sentence before the Supreme Court.
   (3) The Supreme Court may, in relation to—
(a)    a defendant convicted of an offence to which this section applies by the Court; or
(b)    a defendant remanded to appear for sentence before the Court pursuant to   subsection (2),
before determining sentence, direct that at least two legally qualified medical practitioners, specified by the Court, inquire into the defendant's mental condition and report to the Court as to whether the defendant is incapable of controlling his or her sexual instincts.
…
     (5) If—
(a)     each of the medical practitioners reports to the Supreme Court, on oath, that the defendant is incapable of controlling his or her sexual instincts; and
(b)     the Court, after hearing any evidence or representations adduced or made by the defendant, is satisfied that the defendant is so incapable,
the Court may declare accordingly and direct that the defendant be detained in custody until further order.”
13 Veen v The Queen (No 1) (1979) 143 CLR 458 at 467-468; Chester v The Queen (1988) 165 CLR 611 at 619
14 Dr Raeside was employed by the Forensic Mental Health Service South Australia as a consultant forensic psychiatrist based at James Nash House, the state psychiatric inpatient unit for prisoners.
15     Dr O’Brien was the acting director and clinical director of Forensic Mental Health Service South Australia.
16     Dr Raeside was unable to diagnose Mr Scobie with any formal psychiatric disorder. However he was of the view that his previous offending showed poor impulse control and judgment and that there appeared to be a strong association, although not exclusively, between his offending and alcohol consumption. Dr Raeside reported on 3 April 2001:
“… I believe that there is sufficient evidence to suggest that [Mr Scobie] is unable to adequately control his sexual impulses as evidenced by his longstanding and ongoing sexual offending against young children. I believe that he represents a significant risk to the community and there is little to indicate that this is likely to change in the near future. I would therefore support the proposition that he is incapable of controlling his sexual instincts pursuant to section 23(3) of the Criminal Law (Sentencing) Act and would recommend that he be incarcerated indefinitely…”
Dr Raeside observed that the voices described by Mr Scobie were not in the form of auditory hallucinations. They were possibly associated with alcohol intoxication but may also have had their origins at his initiation and may have been associated with the procedures and punishment he received at that time. Dr Raeside noted that Mr Scobie had never received medical assessment or treatment for the voices or for his sexual behaviour, apart from assistance by local church people.
Dr Raeside recommended that whilst incarcerated, the voices Mr Scobie was hearing should be investigated and a trial of anti-psychotic medication implemented. However, he thought it was possible that the voices would improve “simply by being abstinent from alcohol.” He also suggested that a traditional healer might provide some assistance for Mr Scobie, although he did not feel qualified to elaborate further.
17     Dr Bell was a Senior Clinical Psychologist (specialist neuro-psychologist) from Forensic Mental Health Service James Nash House. In his report dated 29 March 2001 he found that Mr Scobie as not suffering from a major illness or disorder:
“…Mr Scobie was assessed as having a premorbid intelligence which is likely to be within the borderline range. His current level of cognitive functioning was compared against this premorbid level. There was no evidence observed of the presence of aphasia, agnosia or apraxia in his performance on formal testing, or in observation of his behaviour throughout the interview. The neuropsychological screening battery implied that he demonstrated no evidence for visual perceptual deficits. He was seen to have mild to moderate memory deficits, and mild executive (frontal lobe) functioning deficits…
On a practical level, the impairments seen in Mr Scobie are in my respectful opinion mild to moderate, and are unlikely to impact significantly on his memory and frontal lobe functioning relative to his premorbid level of functioning. Further, it is my respectful opinion that his executive (frontal lobe) functioning was not found to be so significantly impaired as to be likely to impact upon his impulse control capacities, such as those governing his sexual instincts. This conclusion would apply only at times when Mr Scobie is unaffected by alcohol. Alcohol consumption is widely regarded as leading to temporary impairment of executive/frontal lobe functioning.”
18     Dr O’Brien provided a provisional report dated 5 April 2001:
“Mr Scobie has a history of sexual offending…A variety of sanctions against him has not to date, apparently curtailed his offending sexual behaviour. To my knowledge, and confirmed by Mr Scobie, he has never been offered or provided with any professional assistance for, what appears to be an abnormal sexual interest in children. A review of Mr Scobie’s health history together with my psychiatric assessment of him does not reveal the presence of any major mental illness or disorder. He has a history of petrol sniffing and there is also evidence of intermittent alcohol abuse. He smokes marijuana daily. Furthermore and as a result of Mr Bell’s detailed neuropsychological testing, some deficits are revealed…I am satisfied that Mr Scobie suffers from a paedophilic disturbance, usually, though not exclusively, heterosexual in nature. From my interview with him, it would appear that at times he is able to control these urges. On other occasions he is unsuccessful furthermore, it is important to acknowledge that, to the best of my knowledge, Mr Scobie has never been offered professional assistance for his disorder. In conducting previous assessments pursuant to section 23(3) of the Criminal Law (Sentencing) Act I have taken this into account in proffering an opinion. In the absence of such services being provided to Mr Scobie to date, I consider that this is an additional reason to state that Mr Scobie has some capacity to control his sexual instincts. I cannot, therefore, at this juncture, support the current application on professional grounds.”
On 3 May 2001 Dr O’Brien provided a further report:
“Although a variety of legal sanctions has been attempted or directed against Mr Scobie, to the best of my knowledge, he has never been offered any treatment of rehabilitative services. Given the nature of his offending behaviour, I find this lack of offers of assistance surprising and troubling although the area in general is poorly resourced even for non indigenous, metropolitan based sexual offenders…
[Mr Scobie] has some awareness about [his] propensity [for sexual offending against children]. These abnormal urges do not appear to be present at all times. Even in the presence, or in the sight, of a young girl the urge in not necessarily present but only ‘sometimes’... When the urge is present, at least at times, he is able to consider the consequences of such unacceptable behaviour and sometimes these consequences frighten him and in that context he is able to resist the urge. On other occasions, he is less successful and acts on the urge. If he is using/abusing alcohol and/or drugs, the abnormal urge tends to be stronger and more intensive and, therefore, more difficult to resist…
As I stated in my earlier report, I believe that Mr Scobie has some ability although this is not always exercised in a regular or consistent fashion and in the past has failed him, leading to offences being committed. There may well be a capacity within Mr Scobie to improve his control (with respect to abnormal sexual urges) mechanisms. This has been untested, to date, given the absence of services offered or provided to Mr Scobie. This is an important omission, in my opinion, with respect to his capacity to control or otherwise. As I stated in my previous report until such services are offered to him, a reasonable trial of their efficacy is conducted and the outcome monitored, then it is impossible to label him as “uncontrollable” with respect to those self-same urges. In imparting this opinion, I am not in any sense underestimating the very real barriers that undoubtedly exist with respect to making available to Mr Scobie such services as I have described. Nonetheless, previous courts have taken the question of availability and provision of services into account and the current court may wish to further consider this particular perspective.”
19     Dr O’Brien’s progress report dated 2 April 2002 provided:
“I had previously advised the court, that given the failure of non-pharmacological methods of treatment, the use of anti-libidinal medication ought to be considered. Only two medications were available, one a tablet and the other an injection. Anticipating possible problems with compliance it was my view that a regular depot preparation should be considered. In that respect, I elected to consider the drug Depo-Provera. Initially, I arranged for Mr Scobie to have an endocrinological examination at the Royal Adelaide Hospital less there be any contra-indications, on health grounds, for the administration of this preparation. I was advised by the Endocrinology Department that no such contra-indication was identified…on 24 October 2001 I explained to him in detail my proposed action …He appeared to understand my explanation and gave me permission to proceed.
I elected to commence him on 400 mg intramuscularly every four weeks with regular blood tests (measuring his serum testosterone and related levels) at regular intervals…I should add that the giving of the medication is the responsibility of the nurse at the Fregon Health Centre whilst his general medical supervision, the ordering of the blood tests etc is the responsibility of his general medical practitioner Dr Gell.
The prescribing of medication (and associated blood testing) should be regarded as adjunctive only. However, taking into account the blood levels to date and the information I have received about his progress (particularly from Ms Tait), it would seem to me that the present management plan, in supervisory and psychiatric terms, is progressing reasonably well. I caution, however, that it is far to early to draw any intermediate or particularly any long term conclusions about these findings other than to state that at this early stage of his management matters are progressing as well as I could have expected.
Regarding his ultimate disposition, should Mr Scobie be given a non-custodial sentence and particularly one that requires him to remain in his present geographical location then it would be my intention to see him at regular intervals. I will continue to liase with Ms Tait and with Dr Gell. I am hopeful that an arrangement can be made with the Department of Community Corrections, Port Augusta, to enable me to see Mr Scobie on future occasions at Port Augusta. As it happens, I visit the town on a monthly basis but it would be difficult to accommodate me seeing Mr Scobie on those days (given my other commitments). However, I am prepared to make an extended visit to Port Augusta from time to time and on such occasions to see Mr Scobie, possibly, at the community corrections office at Port Augusta.”
20     Mr Scobie was in custody during the periods August 2000 to January 2001 and March 2001 to May 2001.
21     James Nash House is proximate to Yatala Prison.
22     here are two OARS hostels at Port Augusta one a men’s hostel and the other for resident families. The family hostel was inappropriate for Mr Scobie and the men’s hostel had no vacancies.
23     Mimili is a small, kin based community approximately 70 kilometres east of the Stuart highway situated in the Everard ranges. The buildings or structures that make up the community are spread out around the rocky outcrop of hills that form part of the Everard ranges. Mimili community is made up of a number of families who have separate and interlocking relationships through marriage. The people and families who make up Mimili are closely related to the communities of Indulkana and Coober Pedy who have rejected Mr Scobie. They are largely Yankunytjatjara speakers. Mimili has a store; community office; school situated in the middle of the community; a health clinic staffed by nurses and indigenous health workers and serviced by the medical officer based at Fregon.
24     A report from the Parole Board dated 28 February 2001 provided:
“[Mr Scobie] was first released on parole on 11 March, 1987 having served six months imprisonment of an eighteenmonth head sentence for offences of drive without consent. He served only five months of this parole term prior to the cancellation of parole as a consequence of his further imprisonment for the offences of illegal use and drive under the influence committed whilst on parole.
On 2 March, 1992 [Mr Scobie] was released on parole in respect of a sentence of imprisonment imposed by the Supreme Court on 22 November 1989.
On 6 December, 1994 [Mr Scobie’s] parole was cancelled as a result of his imprisonment for the offences of gross indecency and indecent behaviour committed on 28 October 1994. He was not further released on parole.
During his parole release in 1992-94, [ Mr Scobie] was supervised in the Pitjantjatjara Lands (Mimili) through the Marla office of the Department of Correctional Services….His supervising parole officer at the time considered that there might well be a link between his isolation and his offending behaviour coupled with his abuse of alcohol and/or petrol sniffing …
Parole supervision in the Pitjantjatjara Lands is restricted to contact with a community corrections (parole) officer based at Marla. That officer travels through the community each week. There is limited opportunity for any therapeutic intervention to address offending behaviour due to the remoteness of the area. The local community police officers and police aids provide a level of oversight in cooperation with the community corrections officers and report those breaches of parole that are apparent.”
25     The report was dated 1 July 2001.
26     Ms Taite’s report of 2 November 2001 provided:
“All traditional persons residing in Fregon including the two community police aids stated to the writer that Mr Scobie had been staying away from children, was always in an responsible adult’s presence and that [Mr Scobie] had been working hard…
Community members also stressed to the writer that [Mr Scobie] is having traditional counselling etc and the offender did not want to get into any trouble stating ‘Johnie wants to stay on the lands and have a happy life and live like all of the Anangu people.’ All persons residing within the Pitjantjatjara Lands are now aware of the offences that [Mr Scobie] has committed and most persons the writer has spoken to are willing to support Mr Scobie. The strong (traditional men) in the community have stated to the writer the importance of them helping [Mr Scobie] and [Mr Scobie] appears happy enough to accept their support.
The writer did experience a lot of difficulty in regards to the offender being placed within the proximity of the Fregon community. All concerns were from the European community that were apparently privy to information in regards to Mr Scobie being a sexual offender, having a paedophile restraining order and being placed on supervised bail under the Department of Correctional Services.
This caused a lot of concern to the offender and on one occasion he threatened to commit suicide. He appeared to be under a lot of pressure in regards to him ‘not being welcome in his own country within the Pitjantjatjara Lands’. However Mr Scobie was able to accept the fact that certain persons were aware of his previous offences and continued participating with his officer and Ngangkari in regards to rehabilitation and complying with both orders he had been placed on.”
27     The NPYWC’s report dated 26 November 2001 provided:
“There is no way that anyone subject to a paedophile restraining order could be allowed to live at a small community like Mimili. Within the community there are no delineated spaces separating the adult world from the children’s world. The community is made up of adults and children who are kin. Obligations, familiarity, trust, shared living spaces, contact and demand sharing are some of the features of kin relationships. Loyalties to kin dominate over other issues such as child protection. There is no fence surrounding the school from the rest of the community. Adults enter and move through the school as easily as children move about the community unaccompanied by adults. The school is directly opposite the health clinic. There are play areas and walking tracks that children use crisscrossing the community. Not all the spaces that children use can be observed by adults. Mr Scobie would have unrestricted access to children at Mimili…
Despite the evidence given in court, our experience of the Department of Correctional Services supervision of offenders from Marla is particularly poor. We would question that a probation officer would visit Mimili on a weekly basis. Even after repeated notifications of breaches they have failed to act until we have notified Port Augusta…
Dr Kerry Gell the senior medical officer based at Fregon visits Mimili on a regular basis. She said that they had no capacity to support Mr Scobie. There are no trained psychologists or psychiatrists who visit Mimili. Patients requiring specialist psychiatric or psychological treatment are sent to Adelaide or Alice Springs...
Ngangkari work for Anangu people living on the cross boarder region of the Ngaanyatjarra Pitjantjatjara and Yankunytjatjara lands. They describe themselves as spirit doctors and they are in great demand for a wide range of emotional and physical complaints. However, they say that they are unable to make any impact on the health of people whose bodies are saturated with modern drugs such as petrol fumes, marijuana smoke, or alcohol…
The ngankari…described the behaviour of a paedophile as being essentially outside of traditional understandings and traditional codes of morality and acceptable behaviour. They say [Mr Scobie] has his “own ideas” which they are unable to change through ngankari healing treatments.”
28     The Crown did not oppose this arrangement.
29     The Department reported on 21 February 2002:
“Mr Scobie was released to bail on the 6^th December 2001, the offender was taken to Fregon community via Marla and placed in the care of RK, who facilitated his taking up residence at Westbore homeland. Mr Scobie’s nominated place of residence. Mr Scobie initially resided at Westbore homeland however, it was jointly agreed by his supervising officer, Mr Scobie and Mr RK that he relocate into the Fregon community…the reason for Mr Scobie’s relocation related to a family with young children taking up residence at the homeland…Marla community correctional centre has conducted weekly field trips to Fregon community for the purpose of monitoring Mr Scobie, checking on his well being and addressing any concerns/issues that may have arisen in relation to the offender, traditional community members or European persons residing in the community…
The writer has constant contact with YS, community police constable at Fregon, Mr RK, chairperson at Fregon and elders in the community and clinic staff. The following information has been provided:
‘Mr Scobie is not a concern and they have not sighted the offender in the presence of children. He is also attending and participating in Ngangkari traditional medicine
The staff at the Fregon clinic have advised, Mr Scobie has visited the clinic on a weekly basis to collect his prescription medicine for his hypertension, and once a month has attended for his Depo-Provera…Mr Scobie has not needed to be reminded to attend the clinic and has acted in a responsible manner in regards to his medical needs.
…In February 2002 Mr Scobie made himself available for and participated in the aboriginal ending offending program held on the Pitjantjatjara lands, facilitated by a social worker from Whyalla and community correctional services officers from Marla. The writer attended the program and noted the offender participated well and interacted appropriately with his peers. He stated, ‘He was looking forward to the next program in April-May 2002’.
…The sexual offenders treatment program has not been implemented with Mr Scobie at this point in time. It is hoped to commence this program following sentencing.
…In summary, the offender has adjusted well to life in the Fregon community. He attends church on a regular basis, collects fire wood for the old persons in the community, attends hunting trips with Mr RK and other elders, has grown a vegetable garden at his place of residence, keeps appointments at the clinic and has apparently adhered to the conditions of both orders. Mr Scobie has also gained part time employment cleaning up the oval, collecting rubbish etc, for which he was paid with purchase orders (for food) from the Fregon community council office.”
30     17 November 1989 Port Augusta Supreme Court Circuit per Millhouse J
31     22 November 1989 Port Augusta Supreme Court. It appears from Dr O’Brien’s reports that there is no record that any psychiatric follow up occurred in response to these remarks.
32     The Attorney-General’s Department’s 2001-2003 Strategic Plan provides that the Justice Strategy Unit is a division of the Attorney General’s Department. It provides strategic policy advice to the Department and the Justice Portfolio.
The 2000-2001 Annual Report provides that the goal of the Justice Strategy Unit is to work in partnership with justice agencies and the community to ensure a justice system that is fair, affordable, effective and accessible, and to promote an understanding of contemporary issues in the provision of justice in South Australia. The role of the Justice Strategy Unit provides executive support to the Chief Executive, the Deputy Chief Executive and the Ministers in:
- strategic planning and policy development;
- reviewing current operations and assessing the impact of legislation;
- reviewing and developing new strategies and initiatives;
- monitoring the implementation of strategies and initiatives, in particular the Justice Portfolio Strategic Directions.
The Justice Strategy Unit’s focus is on a collaborative and consultative approach to issues that impact across the portfolio as well as issues spanning the Justice Portfolio and other government agencies.   The Aboriginal Justice Plan includes:
“A priority for Action for the Justice Portfolio is to ensure a fair and just outcome for aboriginal people. The Justice Strategy Unit has commenced working with agencies within the Justice Portfolio and the aboriginal community to develop an Aboriginal Justice Plan and a Justice Portfolio Aboriginal Reconciliation Statement.”
33     The nunga court has been operating as a specialist part of the magistrates court in Port Adelaide since June 1999. In March 2001 a nunga court began operating regularly in Murray Bridge. Nunga court practices are also adopted during the magistrate’s circuits on the Anangu Pitjantjatjara lands and other places.
The nunga court sits to sentence aboriginal offenders who plead guilty to offences. The magistrate sits off the bench at the same level as the offender. An aboriginal justice officer is responsible for educating the aboriginal community in the operation of the court and the criminal justice system. They assist aboriginal people with bail conditions and court outcomes and foster links between the aboriginal community and the court. They act as consultants on aboriginal issues and cultural awareness. A senior aboriginal person may sit beside the magistrate to advise on cultural and community matters.   The offender sits at the bar table. Legal representatives sit alongside the offender and relatives or friends are also permitted to sit alongside and participate in the proceedings. Once the police prosecutor and defence counsel have put submissions the family and community members or the victims can engage in discussion with the magistrate. The magistrate takes on an inquisitorial role often asking a number of questions to clarify matters or to assist in determining the most appropriate sentencing outcome for the particular offender. Family and community members are encouraged by the court to attend. The court is staffed by aboriginal court orderlies. They are often called upon to assist in proceedings.
Anecdotally it is said that the attendance rate of offenders is over 80 per cent. This is considerably more than the attendance in other courts by Aboriginal persons.
34     As a juvenile Mr Scobie entered into a bond in 1982. In 1997 another 12 month bond was imposed by a magistrate sitting at Port Augusta the terms of which were:
to be of good behaviour and comply with all the conditions of this bond
to be under the supervision of a probation officer for a period of 12 months and obey all the lawful directions given by the probation officer.
to report within two working days of having signed this bond at the offices of the department of correctional services probation and parole branch in Port Augusta
to undertake psychological assessment and any psychological counselling considered appropriate in the light of his prior convictions re his sexually deviant behaviour.
To participate in any alcohol abuse treatment programmes or counselling also considered appropriate and any other programmes or counselling considered appropriate to his particular circumstances.
It appears that although the conditions were designed to assist Mr Scobie and prevent further offending there is no evidence that any rehabilitative procedures were undertaken or followed through.
35 The Manager Department of Correctional Services office at Marla dated 12 September 2001 reported:
“The writer has been advised of the court’s expectation that Correctional Services will bear the cost of transporting Mr Scobie to Port Augusta or Adelaide on the occasions that he will be required for assessment. The Department is not funded for these services and it would not be possible to provide this in Mr Scobie’s case.
I understand that the court has in mind the recommendations of the Royal Commission into Aboriginal Deaths in Custody, in particular the need for medical services to not be denied to residents in remote areas.
The lack of clarity as to which government department has responsibility for services in aboriginal communities is a longstanding one, and not one I wish to reignite here. However, Mr Scobie is not a sentenced prisoner. If granted bail, it is assumed the court will require his compliance with bail conditions to be supervised by community corrections. It is difficult to see how this renders this Department responsible for funding his compliance.
That said, Mr Scobie might be eligible for the financial assistance offered by the SA Health Commission to people in remote areas to attend specialist services. His allocated case-worker would certainly advocate for this on Mr Scobie’s behalf.”
36     Much of Mr Scobie’s time in custody was spent awaiting matters to be heard in court. He would be arrested, come before the magistrate at Port Augusta and plead guilty. Eventually the matters were referred to the Supreme Court. Then after further delay Mr Scobie would either be transported to Adelaide or the court would attend Port Augusta. While the court did everything it could to minimise the effect of these delays they occurred primarily because of an inability to find a suitable residence for Mr Scobie, the difficulties encountered in the assessment process and the submissions made that there was insufficient information on which to sentence Mr Scobie without the assessment and treatment regime being put in place. Given the lengthy period served in custody and the circumstances of the breaches (caused by alcohol and lack of support) the court was of the view that Mr Scobie ultimately merited different treatment. In substance however, the implementation of a non-custodial treatment option was hampered by resources not being available.
37     50 per cent of clients are mandated with the remainder voluntary and referred to SOTAP by other agencies. SOTAP services have been referred to earlier in these reasons. As earlier observed SOTAP does not provide treatment services for persons in prison. SOTAP services only operate communitybased programs in Norwood, Murray Bridge and Port Augusta one day per fortnight. No accommodation or transport is provided. SOTAP provides support to Department on an ongoing basis. The co-ordinator of SOTAP has visited Port Augusta to discuss a general plan of service for Mr Scobie and has provided ongoing telephone support for him. This is not a service that SOTAP ordinarily provides.
38     First incorporated in 1971 Nunkuwarrin Yunti of South Australia Inc’s purpose is:
“to promote and deliver improvement in the health and well being of all Aboriginal and Torres Straight Islander people in the greater metropolitan area of Adelaide to advance their health, social, cultural and economic status.”
Its vision is:
“a centre of excellence operating in a culturally appropriate environment to deliver services which will instil a sense of belonging and provide for the enrichment of the Aboriginal and Torres Strait Islander identity, traditions and cultural beliefs. The organisation is community controlled and managed by an all Aboriginal and Torres Strait Islander Board whose members are chosen by the Aboriginal and Torres Straight Islander community.”
39     Following the sentencing of Mr Scobie but whilst the court continued its process of review.
40 Sentencing Remarks delivered 17 December 2002 at [17-19], [23] and [14-15]
41 (1992) 76 A Crim R 58
42     Recommendations 88, 113, 195, 238, 265 and 286
43 (1998) 194 CLR 444 at [26] and [27]
44     See for example P Vines and O McFarlane “Investigating to Save Lives: Coroners and Aboriginal Deaths in Custody” (2000) 4(27) Indigenous Law Bulletin 8 at 12:
“At present, governments show signs of complacency about their response to the Royal Commission. Senator Aden Ridgeway drew attention to this in December 1999 when he said:
‘We as senators of the Australian Parliament have a responsibility to all Australians, aboriginal and non aboriginal, to truly give effect to all of the recommendations of the Royal Commission. Hansard 9 December 1999.’”
T Balgi “Moving Beyond Royal Commission” (2001) 5(8) Indigenous Law Bulletin 24 at 25:
“The Royal Commission thoroughly examined why aboriginal people are over-represented in the justice system and stands as probably the most intense research on aboriginal justice issues ever done. However there have been a number of problems with its recommendations. Many of them are process oriented, some are hard to define and there is a range of issues not addressed by the Royal Commission or that have arisen since it handed down its findings. There have been some significant changes since the Royal Commission but there remain many issues that have not changed or have in fact become worse. We have had a real struggle in getting government agencies to report against their responsibility to implement the recommendations pertinent to their portfolio. They were just regurgitating initiatives that fitted under headings. It was not an actuality of that agency addressing the recommendations and coming up with findings that were reflective of that recommendation. We want to move from simply reporting on Royal Commission recommendations to focus more directly on the issues that the Royal Commission identified. It’s about identifying a more qualitative way to actually ensure that the problems it identified are addressed.”
45     The Department reported on 3 May 2002:
“Up until last year (2001) when [Mr Scobie] was placed under supervision of the Department for Correctional Services on the Anangu Pitjantjatjara Lands pending court appearances. It appears that this has been the only time in his life where he has been supported by extended family, traditional elders, ngangkaris and other Anangu persons residing on the Anangu Pitjantjatjara Lands. Other departments have also been involved in Mr Scobie’s possible rehabilitation to curb his offending behaviour…
The strict supervision by the Department for Correctional Service, along with specific medication has appeared to put him in a lower position of reoffending. With ongoing support from Forensic Mental Health, the Anangu Pitjantjatjara persons, ngangkaris, Department for Correctional Services and SOTAP, I feel confident that the offender may successfully complete a period of supervision with the possibility of Mr Scobie not reoffending.”
46     Dr O’Brien’s report dated 6 November 2002 provided:
“Since I last reported on Mr Scobie on 24/4/02, I have continued to be involved in his psychiatric treatment. Primarily, this has been through regular telephone communication with Dr Kerrie Gell, who visits Fregon from Sydney on an intermittent basis, Mr Brad Smith nurse at Fregon and Ms Elaine Tait community corrections officer, Marla. I am kept informed of his progress whilst Dr Gell sends me copies of his blood results which I review and, if necessary, discuss further with her.…
I would like to draw to the court’s attention an issue that may have to be addressed at a later date. It is my understanding that local aboriginal elders consider that in due course a wife/partner should be found for him. I believe that Mr Scobie would be interested in such an arrangement. At such time, he may well have sexual performance difficulties by virtue of his current anti-libidinal medication which could in turn interfere with or damage such a relationship. Indeed such a relationship might well, in its own right, be therapeutic for him and in turn reduce potential risk to children. As I say, it is not necessarily an issue that needs to be addressed at this juncture but may have to be. Finally, there is the question about the maintenance of his treatment once his current supervision expires in, I believe, May 2005. Certainly consideration could be given to the making of an application to the Guardianship Board. Whilst I am prepared to make such an application at an appropriate time, I am by no means confident that the Board will entertain such an application in the absence of specific mental illness or intellectual difficulties. ”
47     The report of Mr Scobie’s supervising community corrections officer and the Department for Correctional Services dated 6 November 2002 provided:
“…Mr Scobie has gained full time employment [with Fregon Community Development Program], attends work five days a week and has been classed by the CDEP Coordinator as a ‘star worker, always keen to lend a hand and carry out all tasks required of him.’…
Mr Scobie was directed to attend the Fregon Community Health clinic on a weekly basis for medical checks in regards to hypertension, every three weeks [for his depo-provera injections. Mr Scobie] has attended as and when directed.
Mr Scobie has attended programs facilitated by a social worker from Whyalla. The programs were Aboriginal Ending Offending, Alcohol other Drugs and Crime…[Mr Scobie] participated well, he advised he gained knowledge/awareness from the programs and appeared to enjoy the interaction with other clients present at the program.
Mr Scobie…has attended both appointments with [Dr O’Brien for the monitoring of his depo-provera medication].
The Ngangkari’s (traditional healers) at Fregon community play a big role in Mr Scobie’s life, he attends cultural business with the doctors on a monthly basis. [Mr Scobie] has a strong relationship with all elders…within and around the community of Fregon, he respects their decisions in regards to his general well being and traditional medicine.
The european persons residing in the Fregon community appear to have a lot of respect for [Mr Scobie] now, they advised the writer he is not a concern and is always willing to have input into the community’s well being…
The Ngangkari’s have also decided the time is near for [Mr Scobie] to marry a girl, move into his own house…the writer is unsure of when this will take place.
The writer has noted that within the time she has supervised [Mr Scobie] he has achieved most goals set by him and his supervising officer, [Mr Scobie] has built strong relationships with his extended family and european persons, he is an outstanding person within the community of Fregon. The writer commends Mr Scobie in regards to responding so well to case management and compliance towards his order…All reports from european persons, Marla police …and Anangu persons have been of a positive nature.”
48     Dr O’Brien’s opinion as at 6 November 2002 was that:
“[Mr Scobie] denied any particular problems, including sexual problems and informed me that he was keeping out of trouble…He confirmed that he was having his regular injections and blood tests and seemed quite happy with these arrangements…His blood tests indicate that his depot medication is having the desired psysiological effect, namely a drop in the level of the male sex hormone and associated indicators. Furthermore, Mr Scobie denies having any particular sexual problems or arousal difficulties at the present time…I am satisfied with the progress of Mr Scobie’s management/treatment. The present supervisory/treatment measures, should therefore, continue unchanged.”
49     Dr O’Brien’s report dated 24 April 2002 provided:
“Returning to the question of Mr Scobie’s supervision, I would argue that it is both in the interest of society, and Mr Scobie, that his supervision should be for an extended period of time. I further understand that conditions of supervision (including medical treatment) are necessarily tied to the length of any bond period and will automatically cease at the end of that period. However, an order such as a paedophilia restraining order allows both greater flexibility and longevity. That being so, I would favour the latter over the former although it may well be possible for both to operate concurrently for a period of time.”
50     A letter dated 20 November 2002 from the Aboriginal Project Officer in the Exceptional Needs Unit Department of Human Services states:
“As previously stated the Exceptional Needs Unit received the referral on 12^th November 2002 from the Department for Correctional Services. The next step is to collate all existing information and to talk with the agencies involved about what they can/have offered Mr Scobie.
The Role of the Unit is to provide independent facilitation of the range of Department of Human Services and other services that are relevant to the needs of the individual. Where there are gaps in service provision or difficulties in accessing services due to the remote location of the client, we can work with senior levels within the Department of Human Services to try and ensure an adequate level of response.
The responsibility for service provision remains with the agencies involved the Unit’s role is around facilitation and advice. We are now merged into one Unit with the Management Assessment Panel, which has worked extensively with the Courts for many years.
Late January or early February it is anticipated that a multi agency service plan could be submitted to the court describing the outcomes from the process.”
51 Section 3 of the Guardianship and Administration Act 1993 (SA) defines:
"mental incapacity" as the inability of a person to look after his or her
         own health, safety or welfare or to manage his or her own affairs, as a result
         of-
(a) any damage to, or any illness, disorder, imperfect or delayed
             development, impairment or deterioration, of the brain or mind...”
Section 29 provides:
“(1) If the Board is satisfied, on an application made under this Division-
(a) that the person the subject of the application has a
            mental incapacity; and
(b) that the person the subject of the application does not have an
               enduring guardian; and
(c) that an order under this section should be made in respect of the
             person, the Board may, by order, place the person under-
(d) the limited guardianship; or
(e) if satisfied that an order under paragraph (d) would not be
             appropriate, the full guardianship, of such person or persons as the
            Board considers, in all the circumstances of the case, to be the most
            suitable for the purpose.
(2) A limited guardianship order is an order by which the Board specifies the
         particular aspects of the protected person’s care or welfare that are to be
         the responsibility of the appointed guardian or guardians.
         …
         (4) The Public Advocate may be appointed as the guardian, or one of the
         guardians, of the person, but only if the Board considers that no other order
         under this section would be appropriate.
         …
         (6) A guardianship order may be subject to such conditions or limitations
         (including a limitation as to the duration of the order) as the Board thinks
         fit and specifies in the order.”
52     The Department’s report dated 21 February 2003 states:
“[Mr Scobie] is still being supervised by the writer, he continues to report weekly, has held employment with the Community Development program since 26 June 2002…The co-ordinator states Mr Scobie is by far the best worker he has seen on the Pitjantjatjara Lands. He advised that Mr Scobie works on machinery, general maintenance ct on the cemetery. Johney Scobie has been classed as a “consistent worker, who stands out within the Fregon Community.”…Mr Scobie stated to the writer he had “traditional medicine” [on the recent men’s business between November 2002 and February 2003] and the problem was in his stomach, he is healed from the medicine and the “sickness”. He indicated the sickness from his stomach had gone over the hill into the sun…There have been no adverse reports from the European persons residing within the Fregon community or from the Marla police… The writer has monitored strictly [the condition that Mr Scobie is not to be in the presence of children under the age of 16 years without another adult]...Johney is abiding with his order.
53     The letter from the Exceptional Needs Unit of 25 February 2003 continued:
“In relation to Mr Scobie’s particular situation the Exceptional Needs Unit will continue to liase with Disabilities and Mental Health Services to endeavour to deliver any relevant services to Mr Scobie on the lands…”
54     During the course of submissions and when counsel for the Crown spoke of “jail” albeit in the context of a suspended term Mr Scobie began speaking very loudly. He then held his wrists together as if to make a handcuff gesture. He shook his head. One of the elders next to him attempted to calm him however he continued speaking loudly and then stood up and walked quickly out of the room.   Court was adjourned for 10 minutes to locate Mr Scobie. The community corrections officer took off her shoes and ran after Mr Scobie across an open area. Counsel for Mr Scobie also took off his wig and ran after Mr Scobie still in his robes. The courtroom quickly emptied and the elders also followed Mr Scobie and brought him back in one of their vehicles. Court resumed and counsel for Mr Scobie advised that Mr Scobie had a great fear of being “locked up again” and that he had heard the term “jail” and believed that he was to be given an immediate custodial sentence. Given the lack of appropriate interpreters he had misunderstood the context of the Crown submissions. He then was given assistance from another elder who seemingly translated more of the proceedings for him. It was carefully and slowly explained to Mr Scobie that the Crown was not seeking an immediate custodial order and that he would not be “locked up”. He was told that he was to remain in court until the court business was concluded. Mr Scobie appeared to be more relaxed after this explanation.

- loitering near or in the vicinity of children.

- remaining on any premises occupied by him, if any person under the age of 16 years comes within those premises.

- associating with or attempting to associate with any person under the age of 16 years, whether or not that person is in the company of any adults.

- attending at or approaching within 100 metres of any school, kindergarten or child care centre.”

"mental incapacity" as the inability of a person to look after his or her
own health, safety or welfare or to manage his or her own affairs, as a result
of-

(a) any damage to, or any illness, disorder, imperfect or delayed
development, impairment or deterioration, of the brain or mind...”

Section 29 provides:

“(1) If the Board is satisfied, on an application made under this Division-

(a) that the person the subject of the application has a
mental incapacity; and

(b) that the person the subject of the application does not have an
enduring guardian; and

(c) that an order under this section should be made in respect of the
person, the Board may, by order, place the person under-

(d) the limited guardianship; or

(e) if satisfied that an order under paragraph (d) would not be
           appropriate, the full guardianship, of such person or persons as the
          Board considers, in all the circumstances of the case, to be the most
         suitable for the purpose.

(2) A limited guardianship order is an order by which the Board specifies the
              particular aspects of the protected person’s care or welfare that are to be
              the responsibility of the appointed guardian or guardians.
              …
              (4) The Public Advocate may be appointed as the guardian, or one of the
              guardians, of the person, but only if the Board considers that no other order
              under this section would be appropriate.
              …
              (6) A guardianship order may be subject to such conditions or limitations
              (including a limitation as to the duration of the order) as the Board thinks
              fit and specifies in the order.”

[2003] SASC 85

24 March 2003