R v Smith - [2018] SASC 185

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v SMITH
[2018] SASC 185
Judgment of The Honourable Justice Hinton
11 December 2018
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS
Mr Smith was convicted in 2017 by a jury of two counts of rape. The rapes were committed in 1994. The victim was 14 years old at the time. Mr Smith had previously been detained in custody or imprisoned on numerous occasions, including being imprisoned for a rape committed in 1996.
At the conclusion of his trial in 2017, and before he was sentenced, the Director of Public Prosecutions filed an application in the Supreme Court seeking an order under s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (CL(S)A) that Mr Smith be detained in custody indeterminately on the grounds that he was unwilling to control his sexual instincts. The trial judge remanded Mr Smith in custody to appear in the Supreme Court under s 23(2) CL(S)A.
The Sentencing Act 2017 (SA), which came into operation on 30 April 2018, repealed the CL(S)A. The parties accepted that the Director’s application and related consequence for the sentencing of Mr Smith were governed by the Sentencing Act 2017 (SA). In any event there was no material difference between the relevant provisions of Part 2 Division 5 of the Sentencing Act 2017 (SA) and Part 2 Division 3 of the CL(S)A as they applied to Mr Smith.
Pursuant to s 57(12) of the Sentencing Act 2017 (SA) the Supreme Court was to deal with the question of sentencing Mr Smith for the 1994 rapes at the same time as dealing with the question of whether an order should be made detaining him indeterminately under s 57(7), and, if the Court decided to make such order, that order may be made in addition to, or instead of, the sentence of imprisonment.
Held:
1. It is appropriate to sentence Mr Smith for the 1994 rapes. Pursuant to s 26 of the Sentencing Act 2017 (SA), one sentence is imposed for both rapes, that sentence being imprisonment for 11 years, eight months and five days with a non-parole period of nine years, three months and 11 days. Both the head sentence and non-parole period are to be taken to have commenced on 18 February 2015.
2. The Director’s application is dismissed. Having regard to the period of time that Mr Smith will spend in prison serving the determinate sentence imposed for the 1994 rapes, to the protection that sentence affords the community, and to the likely assistance Mr Smith will get to rehabilitate himself, an order that he be detained indeterminately is presently of no utility.
Criminal Law (Sentencing) Act 1988 (SA) s 23; Sentencing Act 2017 (SA) ss 26, 53, 54, 57, referred to.
R v Smith (2017) 129 SASR 237, discussed.
R v Hoare [2017] SASC 7; R v Ainsworth (2008) 100 SASR 238, considered.

R v SMITH
[2018] SASC 185
Criminal
HINTON J:
Introduction

On 27 June 2017 after a trial in the District Court the respondent, Trevor Smith, was found guilty by a jury of two counts of rape. The following day the Director of Public Prosecutions filed an application in this Court seeking an order under s 23(4) of the Criminal Law (Sentencing) Act 1988 (SA) (CL(S)A) that Mr Smith be detained in custody until further order on the basis that he was either incapable or unwilling to control his sexual instincts. Under s 23(2) CL(S)A the making of that application obliged the trial judge to desist from proceeding to sentence Mr Smith for the rapes he had committed and, instead, remand him in custody or on bail to be dealt by this Court.[1] The judge remanded Mr Smith in custody.
[1] Criminal Law (Sentencing) Act 1988 (SA), s 23(2).
Since the application was filed the CL(S)A has been repealed and replaced by the Sentencing Act 2017 (SA) (the Sentencing Act).[2] Schedule 1, Part 2 of the Sentencing Act contained transitional provisions. Clause 2(1) of those transitional provisions provides:
Subject to this clause, this Act applies to the sentencing of a defendant after the commencement of this Act, regardless of whether the offence of which the defendant is being sentenced was committed before or after that commencement.
[2] The Sentencing Act 2017 (SA) came into operation on 30 April 2018.
Counsel were united in their opinion that the Sentencing Act applied to sentencing Mr Smith for the two counts of rape of which he was convicted and that the application was now to be treated as one made under s 57 of the Sentencing Act. That section only differs to s 23 CL(S)A in that it provides for interim orders where s 23 did not. For present purposes, s 23(2) is identical to s 57(2) and the related task of this Court under s 23(6) is identical to that prescribed in s 57(12), namely:
If a person to whom this section applies has not been sentenced for a relevant offence, the Supreme Court will deal with the question of sentence at the same time as it deals with the question whether an order is to be made under this section and, if the Court decides to make such an order, the order may be made in addition to, or instead of, a sentence of imprisonment.
Accordingly, it is for this Court to determine the Director’s application in addition to what sentences should be imposed for the rapes if, indeed, in the light of determining the application it is considered appropriate to impose sentences for the rapes.
Material received
For the purposes of sentencing Mr Smith and the application I received the following material:
·Victim impact statement of MAW dated 25 July 2018 (exhibit P1).
·Psychiatric report of Dr Pei Lim dated 16 July 2018 (exhibit P2).
·Psychiatric report of Dr Ian Jennings dated 29 January 2018 (exhibit P3).
·Antecedent report (exhibit P4).
·Forensic psychological assessment report of John Bell dated 22 December 1997 (exhibit P5).
·Sentencing remarks of Duggan J dated 15 November 2001 (exhibit P6).
·Statement of CPW dated 9 June 1996 (exhibit P7).
·Statement of VCT dated 12 July 1996 (exhibit P8).
·Statement of IMW dated 22 July 1996 (exhibit P9).
·Transcript of the cross-examination of MAW (exhibit P10).
·Apprehension report 11/C33616 (exhibit P11).
·Apprehension report 95/B02204 (exhibit P12).
·Report of Katherine Short dated 10 August 2018 (exhibit P13).
·Sexual behaviour clinic pre-treatment assessment report of the Rehabilitation Programs Branch dated 31 October 2006 (exhibit P14).
·Post-treatment assessment report of the Rehabilitation Programs Branch dated 6 December 2007 (exhibit P15).
·Sexual behaviour clinic progress report for the Parole Board dated 15 May 2009 (exhibit P16).
·Report of the Rehabilitation Programs Branch to the Sentence Management Unit dated 4 March 2011 (exhibit P17).
In addition, consultant psychiatrist, Dr Jennings, and forensic psychiatrist, Dr Lim, were called by the prosecutor to give evidence supplementing their reports. Both were cross-examined by counsel for Mr Smith.
The 1994 rapes
As mentioned, on 27 June 2017 Mr Smith was found guilty by a unanimous jury of two counts of rape. Those rapes took place on 25 January 1994. The victim was MAW. She was 14 years old at the time. Mr Smith vaginally raped her before forcing her to perform fellatio upon him. Mr Smith appealed unsuccessfully. The primary judgment in the Court of Criminal Appeal was delivered by Stanley J.[3] I adopt Stanley J’s summary of the circumstances of the offending. He said:[4]
[3] R v Smith (2017) 129 SASR 237.
[4] R v Smith (2017) 129 SASR 237 at [6]-[14].
The prosecution case was that near midnight on 25 January 1994 the complainant was raped by the appellant in a public toilet behind shops on Military Road, Largs North.
The prosecution case was that, at the time of the rapes, the complainant was 14 years old. On the night of the offending, she was walking from her home to the residence of her mother’s partner. She walked along Strathfield Terrace, Taperoo, and into Military Road. As she was walking, she observed a cream coloured Commodore sedan pass her three times. On the first occasion, the vehicle was on the other side of the road travelling quite slowly in the opposite direction. The interior light of the vehicle was on and she was able to observe the male driver. On the second occasion it came from the other direction. The interior light was still on. At the same time, there was another older man walking in the same direction on the footpath behind her. The car was travelling very slowly. As the vehicle passed, the driver appeared to look at the complainant and wave. By this time, the older man had passed the complainant and was slightly ahead of her.
When the vehicle passed her on the third occasion, it again came from the opposite direction to which she was walking. This time, the interior light was not on and the driver did not appear to look at her or gesture towards her. The vehicle was not travelling as slowly as before.
The complainant gave evidence that she did not see the vehicle stop or anyone get out of the vehicle at any point on Military Road. However, some time later she heard footsteps behind her and turned to look to see who was there.
The complainant gave evidence that she saw a male who she recognised as the driver of the vehicle walking towards her. She said this person caught up with her near a block of shops, which included the Regent deli behind which was located a toilet, grabbed her and dragged her down an alleyway into a toilet cubicle where he assaulted her and raped her. He then left.
The complainant made her way to a nearby public phone booth and telephoned her mother. Her mother arranged for somebody to pick her up. Once the complainant returned to her mother’s home, police were called and she was taken to the Queen Elizabeth Hospital and examined by a doctor.
The complainant described the rapist as being about 35 to 40 years old, about five feet 10 inches tall with dark, messy, straggly hair which was not very long. He had a small moustache, not quite shaven, dark hair on his chest with a little bit of grey in it, and a mediterranean olive complexion. He had a clear Australian voice with no accent. She did not recall any scars on his face.
At the appellant’s trial, it was an agreed fact that he was associated with a cream or white coloured Commodore, with a South Australian registration number SOV-484. Police had observed the appellant getting into this vehicle on 12 February 1994. On the following day, he was spoken to by police while sitting in the driver’s seat of this vehicle.
Importantly, testing on samples taken from the complainant showed strong support for the hypothesis that the appellant’s DNA was present in the mixed DNA profiles obtained in a low vaginal swab and a labial swab taken from the complainant.
I add; MAW was dragged backwards down the alleyway by Mr Smith. He had one arm around her waist and a hand over her mouth and nose. He hit her twice before opening the door to the toilet cubicle and shoving her inside. He then entered the cubicle himself and shut the door. Mr Smith then hit MAW to the side of the head and ripped her T-shirt over her head and off. Kneeling in front of her he then pushed his penis into her vagina. He then withdrew, stood and masturbated before moving toward MAW and, putting one hand on the back of her head, pushed his penis into her mouth. He ejaculated then grabbed hold of MAW’s chin and said, “swallow”, which she did. After instructing her to wipe herself with toilet paper and himself wiping the cubicle down where he had placed his hands, he told her to put the toilet paper in the bowl and flushed. Mr Smith told MAW to wait in the toilet for five minutes and not come out or else he would kill her. He then left.
In her victim impact statement MAW tells of the fear and shame she felt after being raped. She blamed herself. She lost self-confidence, expected only the worst from people, became self-destructive and did not return to school. For a long time she was angry. She received no counselling.
MAW found the task of trying to explain 24 years after the event the impact that being raped had had upon her difficult. She said:
I may have stayed in school. Had a better job or career. I could be an entirely different person or not.
Every experience we have, good or bad, changes us, has a ripple effect through our futures, subtlety, or not so subtlety altering our paths and perceptions.
I have no way to measure the impact of this trauma, nor can I assign blame to it for any poor choices I may have made, with such a span of intervening years, it is not tenable.
I’ve survived this crime for now 24 years. I will continue to survive this crime for the rest of my life.
Mr Smith’s other offending
Mr Smith first came into contact with the criminal justice system as a nine year old. He was charged with assault with intent to rob and two counts of larceny. He was dealt with in the Children’s Court. Convictions for those offences were not imposed but he was committed to the control of the Minister until age 18.
From that time Mr Smith appeared in the courts of the State each year, often on more than one occasion, until June 1995. In that period he was dealt with by the courts for 35 building breaks and regularly charged with larceny and the illegal use of motor vehicles. He was no stranger to the use of violence, having been charged with assault with intent to rob, causing grievous bodily harm with intent to do such harm, assault with intent to resist apprehension, resisting police, and, on six occasions, common assault. Property damage and driving and dishonesty related offences also frequently appear in his criminal history.
As might be expected, the courts quickly lost patience with Mr Smith. He was first incarcerated as a 13 year old in 1980. Throughout the 1980s imprisonment became common for him.
In the early 1990s drug offences first appear in Mr Smith’s criminal history. Between 1990 and 1995 he is imprisoned slightly less than in the latter part of the 1980s, but still frequently.
Up until 1995, whilst being imprisoned was common for Mr Smith, the periods of imprisonment he would have served, bearing in mind the old system of remissions, would generally have been in the months and perhaps only on one, possibly two occasions, extended to a year.
On 29 June 1995 Mr Smith was sentenced to imprisonment for nine months for building break, that sentence to be served cumulative on an unexpired sentence resulting in a total period of imprisonment of 18 months. A non-parole period of 12 months was fixed. That sentence was to run from 30 March 1995. Accordingly, on 30 March 1996 or thereabouts Mr Smith was eligible for release on parole and would remain on parole until 30 September 1996. I do not know precisely when Mr Smith was released on parole, but he was back in the community by May 1996. That much is plain because on 15 May 1996 he raped CPW, on 13 June 1996 he broke into the home of VCT and assaulted her, and on 20 June 1996 he broke into the home of IMW and assaulted her. He was sentenced for his 1996 offending by Duggan J on 15 November 2001.
In a report prepared in 1997 by Mr Bell, a clinical psychologist with the Forensic Mental Health Services, Mr Smith was said to deny strongly having committed the offences. Mr Bell expressed the opinion:
Mr Smith has had a lengthy criminal history which he makes no attempt to deny or minimise. He describes his criminal activities as being largely for material gain but with an addictive element which motivates further offending than is necessary for simple living needs. He has commendable intentions to find methods of avoiding returning to crime when he is released, however he has made such statements before without achieving the stated goal. He has few skills that would make him in demand in the employment market and he has a history of some successful lucrative criminal activities which, I estimate, would make “going straight” very difficult for him, even with his best intentions. Statistically speaking, such an extensive offending pattern is notoriously hard to break without intense input services and the co-operation of the offender.
The fact that Mr Smith did not admit his offending would have prevented the exploration of his motivation.
In sentencing Duggan J said:
Trevor John Smith, you have been found guilty by the verdicts of the jury in this court of the offences of rape and robbery with violence. Those offences were committed on 15 May 1996. The victim, … [CPW] …, was 61 years of age at the time of the offences.
In addition, you were found guilty of various offences after trial in the District Court. You were convicted of robbery with violence committed on 13 June 1996 and your victim on that occasion was … [VCT] …, then aged 80 years. You were also convicted in the District Court of assault occasioning actual bodily harm. The victim, … [IMW] …, was 86 years of age at the time of the offence.
…
At the relevant time … [CPW] … was living in a home unit. She saw you in the vicinity of an adjacent unit on the morning of the offence. She told you to get off the property but you took hold of her and dragged her inside her unit. Once inside the unit you raped her vaginally. You also stole $30 from her purse.
The victim in the next matter, … [VCT] …, was awakened from her sleep and saw you standing in the doorway of her bedroom. You put a towel over her head and tied it around her neck. You also tied her hands behind her back. You took a bracelet from her wrists and hit her about the face shortly afterwards. You began searching her flat and demanded to know her pin number. Eventually she passed out. Later she found $100 was missing from her apartment.
The victim in the final episode was … [IMW] … . She lived alone in her unit. On the evening of 20 June 1996 you broke and entered the unit and confronted her. You threw a blanket over her head. She sustained a swollen lip and bruising to her face as a result of the altercation with you. You stole property valued at $200 from her unit.
Mr Smith was 31 years old at the time he was convicted of these offences. Duggan J imposed one sentence for all of the offences committed against CPW, VCT and IMW. That sentence was imprisonment for 18 years, reduced to 15 years on account of the time Mr Smith had already spent in custody. A non-parole period of nine years and nine months was fixed. The head sentence and non-parole period commenced 25 July 1998.
I note here that VCT gave evidence that after handing her bracelet to her robber, after having her hands tied and after being assaulted, he demanded the PIN number for her bankcard. She gave him the number. He then tore the bedcovers away and ran his hand down her right breast. She sensed that he was doing something to his clothes. She panicked and claimed to have a heart condition for which she needed medication. He stopped, pushed a tablet into her mouth and did not resume his sexual advance.
In November 2009 Mr Smith was released on parole. Since then, and until his arrest on 13 November 2013 for the 1994 rapes, Mr Smith has committed a number of driving related offences. Further, in 2011 he was convicted for being unlawfully on premises, and in 2012, and again in 2014, he was imprisoned for the offence of serious criminal trespass.

This Court was provided with the apprehension report for the serious criminal trespass for which Mr Smith was sentenced in 2012. The offending concerned the forced entry into a retirement village causing damage and the theft therefrom of a television valued at $1500. A DNA profile obtained from a swab taken at the village linked Mr Smith to the offending.
Since 1996 Mr Smith’s offending has resulted in him spending the following periods in custody:
·5 July 1996 – 24 April 2008.
·31 July 2009 – 9 November 2009.
·7 April 2010 – 10 May 2010.
·9 March 2011 – 10 August 2012.
·23 November 2012 – 21 August 2013.
·21 November 2013 – present.
Mr Smith’s personal circumstances
Mr Smith was born in Adelaide on 12 December 1966. He was the third of four boys born to his parents. His mother was an Aboriginal woman and he identifies as an Aboriginal man.
Both Mr Smith’s parents were deaf making communication difficult.
As a child he was frequently exposed to domestic violence between his parents and recalls receiving regular physical punishment from both. He remembers living with his grandmother from an early age for periods of time. Mr Smith’s parents separated when he was young but they remained living in the same house, with his father doing most of the parenting.
Mr Smith has described his childhood as impoverished and as having to live at a subsistence level. He recalls having no electricity or food in the house and would often steal food from neighbouring houses and shops.
Due to the limited communication with his parents Mr Smith believes that he was not taught “right from wrong” or other moral values. From a young age he decided to follow his older brother’s lead into a life of crime. He recalls first stealing toy cars at age four from Target in the company of his brother. “Thieving” was the result of the family’s extreme poverty, as they “didn’t have nothing, only way to get stuff”.
Mr Smith would engage in fights with others and steal on a regular basis. His mother would place him and his siblings in cupboards in an attempt to prevent the authorities from removing them from her care, but despite these efforts, Mr Smith was in and out of boys’ homes and youth detention centres from the age of nine. At the age of 12 he was taken into foster care after which he did not spend much time with his parents. His mother died in her fifties and his father at the age of 76.
Mr Smith’s schooling was limited as he was frequently absent. He often missed school due to being required to accompany his parents as their interpreter. When he did attend he was disruptive, fought frequently with the other students and received poor grades. He attended multiple schools due to the family regularly moving house, and ultimately left school at age 13 with limited numeracy and literacy skills. He soon had the opportunity to continue his education in youth training facilities but was disruptive. He has been assessed as being of low to average intelligence.
In terms of employment, Mr Smith worked for a year as a butcher and later as a fisherman for a short period, but has “always [been] on the dole”. He reports that he found crime to be more lucrative than paid employment and would steal cars, fix them up and sell them for a higher price. He states, “doing crime was my thing from a young age”.
Mr Smith commenced using of cannabis in his teenage years, reporting that he “smoked all the time, day and night”. In approximately 2008-09, Mr Smith started using speed and crystal methamphetamines. He would use a few points on a Friday night but it escalated to daily use. He denies using any other illicit substances or drinking heavily.
Mr Smith has had four significant relationships in the past. The first was when he was approximately 18 years old and lasted for three years. He has a son aged in his late twenties from this relationship who visits him in prison every few weeks with his girlfriend and daughter. His second relationship was from the age of approximately 23 and lasted two years. The relationship was volatile, characterised by arguments and domestic violence. The relationship ended after Mr Smith was incarcerated. His third relationship was from the age of 27 years. This relationship, too, was turbulent and punctuated by domestic violence. Mr Smith and his partner separated and reconciled on several occasions over a period of two years. Mr Smith claims that he and his ex-partner were both violent towards one another and blamed his ex-partner for their conflict. Mr Smith has a daughter by this relationship, who is in her early twenties. She lives independently working as a secretary and only has phone contact with her father. His fourth relationship was “on and off” for approximately two years. It was characterised by less violence than his previous relationships. Mr Smith has a son from this relationship who works in the Navy. He has no ongoing contact with this son.
As previously mentioned Mr Smith has three brothers. He reports that all have been incarcerated at some stage in their life. The eldest is approximately 54 years old, in a de facto relationship with two children and has had at least one or two incarcerations. His next brother is approximately 52, has two children, has regularly been in prison and is currently in prison. His youngest brother is in his late forties, single with one child and in receipt of the Disability Support Pension for intellectual disabilities.
Treatment provided
The following is taken from exhibits P13-P17.
On 31 October 2006 a pre-treatment assessment report was prepared by Ms Rosalina Yuen, a senior clinician employed by the Department of Correctional Services (the Department). The purpose of the report was to assess Mr Smith’s suitability for participation in the Sexual Behaviour Clinic (SBC) program offered by the Department. At this point in time Mr Smith was in prison serving the sentence imposed by Duggan J in 2001.
Ms Yuen obtained a personal history from Mr Smith not materially different to his personal circumstances as set out above. In dealing with Mr Smith’s offending history she stated:
Mr Smith regarded stealing as his occupation. He recalled his very first shoplifting was at the age of 4 stealing toy cars from Target’s [sic] with his brother … [His brother] would also wake him up at night to go stealing which was easy to do due to his parents’ deafness. They would also skip school and break into houses around the area. He recalled how he and two of his brothers and another Aboriginal lad had gone to a school camp at Andamooka and broken into some trains resulting in their eviction. When the family moved to Croydon Park, they would go to the pub for family gatherings. While his parents were in the pub, the brothers would break into cars to get money to play on the pinball machines. They also went to the city and stole money to play on the machines in the fun parlours. He remembered when he was about 9 years old, going to a flat and threatening a woman with a knife demanding her money. He said he dropped the knife when she screamed. That was when he was committed into residential care.
As for his 1996 offending, Ms Yuen reports:
He maintained his innocence with regards to the index offences and then contradicted himself by making the following disclosure. He said he was using amphetamines heavily and that it clouded his memory. He said that he recalled being with an accomplice (male) and remembering “drag someone” and “argue with someone” who had said to him “what are you doing here?”. He could not remember how he got away.
With regards to one of the charges, he remembered being with a male accomplice, and conversing with the victim, asking her where the money was. He said that he did not tie the woman up. “I saw him tying her up. I wasn’t happy – we spoke, came to a decision”.
He remembered more of the final break and enter as he was alone. He said that he had gone in through a window, had seen the handbag across the room and went to get it when a lady got up. He said the purse was empty. He had taken two rings before coming into the room.
Ms Yuen administered the Static-99, an actuarial measure that uses static factors to assess the risk of sexual and violent re-offending among sex offenders, and the STABLE, an interview designed to measure stable dynamic risk factors that are amenable to change through treatment. The stable dynamic risk factors explored using the latter measure include significant social influences, intimacy deficits, sexual self-regulation, attitudes supportive of sexual assault, cooperation with supervision and general self-regulation. Both the Static-99 and STABLE assessed Mr Smith’s overall level of sexual re-offending as being in the high range. Mr Smith’s pre-treatment risk factors for sexual re-offending included deficits in sexual self-regulation, cooperation with supervision and general self-regulation, and he also held attitudes supportive of sexual assault. Given his high level of risk, Mr Smith was deemed appropriate to attend the moderate intensity SBC program but only if given additional support, such as attending adjunctive individual sessions.
Mr Smith commenced the SBC program on 22 September 2006 and completed it on 7 June 2007. A post-treatment assessment report dated 6 December 2007 was prepared by Robert Elmer, psychologist and senior clinician with the Department. The report states that Mr Smith had attended all the sessions available other than when absent due to medical conditions, and his general level of involvement and engagement in the program was “good”. More importantly, post-treatment administration of the STABLE revealed that Mr Smith’s risk for sexual re-offending had decreased to the moderate range, and in combination with his historical high static risk factors, the risk was at a moderate to high level. Notably, Mr Smith’s responses no longer indicated a risk of re-offending arising from his having an attitude supportive of sexual assault and being adverse to cooperation with supervision.
Among other things, Mr Smith reported that the SBC program helped him gain insight into his previous use of sex as a coping mechanism, stating that “it doesn’t interest me at this point”. He indicated that he was now aware of the role of drug abuse in his sexual offending cycle and also referred to his previous deviant sexual activity stating that he “didn’t like it and will never do something like that again”. Mr Smith appeared to have developed new pro-social attitudes towards rape.
In assessing Mr Smith’s responses to the STABLE Mr Elmer recorded:
… Mr Smith had a learned pattern of behaviour due in part to his cognitive deficiencies, his parents’ communication deficits and his criminal developmental environment. He reported that his previous lack of social skills to make new friends and an existing criminal peer group resulted in his being coerced by them in his previous parole periods to take drugs and re-offend. Mr Smith had previously justified his cycle of offending by claiming that it was a way of providing for his family, it was what he was good at and provided him with monetary excitement while offending. Mr Smith’s sexual offending mirrors his break and enter offending. He had developed an attitude that his offending was a job that he was skilled at doing. This ‘professional’ approach acted to objectify the barriers to offending that would have been in place if [he] had considered the feelings of his victims. This objectification of others may have grown out of developmental years in an uncommunicative household and his alienation due to cognitive deficiencies.
Mr Smith had made some significant changes in his attitude to offending and gained insight into his offending behaviour and its impact on others. He indicated that he had come to enjoy the benefits of increased confidence in social relationships and now wished to generalise that experience into the normal working community.
Due to his long history of an offending lifestyle, Mr Smith will need considerable support to maintain his declared objectives of not re-offending. …
In drawing his report to a close, Mr Elmer recommended that whilst incarcerated Mr Smith attend a maintenance group to consolidate and increase any benefits arising from his participation in the SBC program and be referred to a Departmental psychologist. If Mr Smith were released on parole it was recommended that he be assigned to a Community Corrections Officer with experience in supervising sex offenders and that he attend a community maintenance program.
A report by the Department’s Rehabilitation Programs Branch dated 15 May 2009 prepared by Artemicia Nisyrios, Senior Social Worker, on the request of the Parole Board of South Australia, indicates that Mr Smith began attending SBC maintenance on 1 August 2007. A number of ongoing issues were identified including: Mr Smith’s lack of compliance with attending maintenance regularly and on time, his unsatisfactory attitude toward the program and its facilitators, his minimisation of his risk factors, ongoing drug abuse, his association with other group members, and his aggression and alleged intimidation of other SBC group members. As a consequence of these issues, the Rehabilitation Programs Branch made the decision to preclude Mr Smith from future maintenance sessions unless he made significant changes to his behaviour.
Mr Smith subsequently resumed attendance at SBC maintenance. As at 4 March 2011 he had attended 50 sessions.
The Rehabilitation Programs Branch has not had contact with Mr Smith since October 2010. The last word written was:
Mr. Smiths’ [sic] risk factors that might increase his likelihood of offending in a similar manner in the future include drug and alcohol abuse, increased feelings of rejection and loneliness, cognitive distortions, lack of significant positive social influences, and disregarding his emotional responses to stress. Should those factors be observed during his supervision, assistance in the form of highlighting the need or contacting the RPB would be appropriate.
Lastly, it must be borne in mind that the exhibits P13-P17 were prepared before Mr Smith’s arrest for the 1994 rape and in ignorance of the circumstances of that offending and, indeed, in ignorance of his offending post 2009.
The psychiatric evidence
As previously stated reports from Dr Lim and Dr Jennings were tendered (exhibits P2-P3).
In her report of 16 July 2018 Dr Lim details a personal history for Mr Smith and a relationship history not materially different to that set out above. Further she provides details of Mr Smith’s use of drugs and alcohol, his medical history and his psychiatric history in addition to recounting his forensic history. Dr Lim then turns to focus upon Mr Smith’s history of sexual offending. With respect to the 1996 rape she notes that he remained adamant that he was innocent, and yet supposedly not having committed a sexual offence, he completed the SBC program. When asked why he did the course he admitted that his purpose was to get out of jail and added that he would repeat the SBC program if required. When questioned by Dr Lim about the program he was unable to recall any therapeutic benefit other than to say that it taught him where he went wrong with people. Dr Lim observed that Mr Smith’s attitude (denial) toward his sexual offending in 1996 had not shifted despite his completion of the SBC program.
When questioned about the 1994 offending Mr Smith again denied he committed the rapes. He admitted he had been to the shops behind which the rapes occurred, but was unable to recall what he was doing in the area on the night of the offences. He denied being attracted to children. He admitted he was on parole at the time of the offences. When asked by Dr Lim about victim empathy, his response was superficial. He thought that the victim would suffer “psychological problems, become fearful of people”.
When asked why he had been convicted of three counts of rape if he was innocent, he said “I don’t agree with DNA anymore … it is clutching at straws”. He asserted that in relation to the 1994 rape the DNA was contaminated and made similar assertions about the inaccuracy of the DNA evidence in relation to the 1996 offences. He denied being aroused by non-consensual sex or rape. He denied being angry towards women in general. When asked why his first two significant relationships were characterised by violence, he either blamed his ex-partner, his drug use or the sub-optimal parenting he received as a child.
Mr Smith was annoyed at the current application for indeterminate detention and maintained his innocence in relation to the rapes. He was adamant that the only crimes he had committed were breaking and entering offences for which he had served his time.
Dr Lim observed that Mr Smith had spent most of his adult life going in and out of prison. She noted that he blamed his parents for not teaching him “right from wrong” during his formative years. Dr Lim expressed the opinion that Mr Smith’s longitudinal history was consistent with him possessing an anti-social personality disorder characterised by the failure to conform to social norms as evidenced by his repeated conflict with the law, a conduct disorder in childhood, irritability and the use of instrumental violence or threats (e.g. to subdue victims), conning others for personal profit and a lack of remorse. She also considered that he had a substance disorder which was currently in remission by virtue of his incarceration.
Dr Lim did not think that Mr Smith had an intellectual disability. Rather she considered he came across as streetwise and resourceful.
In assessing Mr Smith’s risk for sexual violence in the future Dr Lim utilised the “Risk for Sexual Violence Protocol”. The protocol consists of both static and dynamic factors which can be categorised into five domains, namely, sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. Dynamic factors, she notes, are amenable to intervention.
Under the heading “Sexual Violence History”, Dr Lim notes that the three rapes committed by Mr Smith were brutal, involving physical violence and threats to kill. In addition to physical coercion, some psychological taunting was used to further humiliate the victim. In each case the victim was a stranger. Dr Lim also notes that but for VCT alerting Mr Smith to her physical frailty she too may have been sexually assaulted.
Under the heading “Psychological Adjustment” Dr Lim notes that Mr Smith is in “extreme denial” in relation to all the sexual offences for which he has been convicted. His staunch denial has persisted despite previously completing the SBC program. Denial enables offenders to distance themselves from responsibility, thereby hindering genuine reflection and change. Denial will also impact adversely on adherence to orders designed to minimise the risk of re-offending.
Dr Lim considered that Mr Smith had limited meaningful understanding of his sexual offence cycle and the factors that would increase his risk.
Under the heading “Mental Disorder”, Dr Lim states that Mr Smith does not have a mental disorder but does have an antisocial personality disorder. He does not have a psychiatric illness that renders him wholly incapable of controlling his sexual instincts.
With respect to “Social Adjustment”, Dr Lim observes that Mr Smith’s intimate relationships have been unstable. He has a history of perpetrating domestic violence against his ex-partners. He deflects responsibility for violence within those relationships by blaming his ex-partner, drug abuse or the parenting he received as a child.
Mr Smith admitted that he did not see the point in engaging in gainful employment given that criminal activities were more lucrative. He justified his offending as necessary to provide for himself and his family. Dr Lim observed that he continued his pattern of general offending after his release from prison for the 1996 offences.

Under the heading, “Manageability”, Dr Lim noted that there was a history of supervision failure in relation to Mr Smith. In particular the sexual offences he committed occurred when he was on parole.
In drawing her report to a close Dr Lim states:
I understand that a person is regarded as unwilling to control his sexual instincts if there is “a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of the person’s sexual instincts”. Mr Smith has a history of being violent to his partners, perpetrating physical and sexual violence against defenceless elderly women in their own homes. He is dismissive, flatly denies responsibility for his sexual offences and demonstrates tokenistic victim empathy. The pattern of his sexual offences is suggestive of opportunistic sexual gratification in circumstances where he believes he is unlikely to be apprehended. I believe that if the opportunity presented itself again, eg. if he was intoxicated, broke into a home of an elderly female living on her own, it is likely that he would fail to exercise appropriate control of his sexual instincts.
Dr Lim was of the opinion that Mr Smith is at a high risk of sexual re-offending as he is unwilling to control his sexual instincts.
In her oral evidence Dr Lim was asked about the importance of an offender’s denial of his or her having committed offences. She considered it very important because denial increased the risk of sexual re-offending. As to Mr Smith’s general criminality, Dr Lim advised the Court that the research shows that non-sexual criminality is a risk factor that can predict future sexual offending. Further, she said that the research shows that people who target strangers are more likely to offend sexually because, first, they are less likely to be recognised and less likely to be caught, which emboldens them to offend. Secondly, in attacking a stranger they show that they are capable of overcoming greater inhibition. She added that offenders who target strangers are more likely to use a disproportionate amount of violence to subdue the victim as opposed to a perpetrator who offends against someone they know.
In the course of writing her report Dr Lim did not have the benefit of the various reports from the Rehabilitation Programs Branch to which reference has been made above. Prior to giving her evidence, however, she read those reports. She said none of them caused her to change her opinion. In particular she was struck by Mr Smith’s staunch denial of his sexual offending. Now having read his progress in the SBC program, and the subsequent maintenance sessions, she was of the belief that he was paying lip-service to the program and that it would seem to her that he was only engaging in it to secure an early release.
Dr Lim agreed that Mr Smith’s major criminal motivation was “thieving”. Her assessment of his risk of sexual re-offending was to be understood in the context of him breaking into someone’s house. She considered that it was likely that Mr Smith would sexually re-offend because he had limited skills having spent most of his life in prison and was largely institutionalised with the consequence that his ability to plan and implement measures for a prosocial life were greatly diminished.
In cross-examination Dr Lim was asked about the influence of Mr Smith’s age on the likelihood of him sexually re-offending in the future. She said that the research in relation to age was mixed. Generally, one would assume that as a person ages their risk reduces. However, that depended on the person’s physical capabilities and the motivation for their sexual offending. Age may not prevent a person sexually offending if the motivation for such offending was anger or constituted a dysfunctional way of coping with stress as in the case of Mr Smith. Dr Lim gave a number of reasons for this. First, she pointed to CPW’s witness statement, and the reference to Mr Smith becoming angry and enraged when he discovered that she had only $30 in her house and when he found her bankbook that showed she had a lot more money that he was not able to access. At that point he proceeded to rape her and threatened to use a rolling pin on her. Fortunately, she did not have a rolling pin and so, even if, with age, he was able to rape a person, Dr Lim thought that there was a possibility he might in anger use objects to commit sexual assaults. Secondly, the reason why she thought his assaults were motivated by rage was linked to the history of domestic violence perpetrated against all of his previous partners as recounted in the SBC reports. Particularly the pre-treatment assessment report where Mr Smith states he would use violence quite readily as a means to resolve conflict and that his partners had no say in the relationship. Thirdly, Dr Lim considered Mr Smith’s presentation during his interview and formed the opinion that he had no awareness of his anger. For example, he became angry when he talked about the sexual offences of which he had been convicted. Even though he was able to compose himself, he was unaware of how quickly he became angry and was not able to talk through what he had perceived was a disagreement. Fourthly, Mr Smith had witnessed domestic violence between his parents frequently when he was growing up and would view that as a means of conflict resolution.
When pressed about Mr Smith now being over 20 years older than the man who perpetrated the 1994 and 1996 rapes, Dr Lim said that she did not consider the passing of years to reduce his risk. She considered him still physically able to commit sexual offences. In this regard it is important to note that the victims of his 1994 and 1996 offending were elderly females and a young girl.
Dr Lim did not consider the natural decline in libido that generally comes with age undermined her opinion. That was because she considered anger to be the potential motivation behind Mr Smith’s sexual offending.
Dr Lim acknowledged that Mr Smith had spent about three years in the community since 1996. Whilst that period was not continuous it remained the case that he had spent three years in the community without committing a sexual offence. Whilst as much was conceded, Dr Lim pointed to the literature suggesting that the risk of recidivism is measured in terms longer than three years, more often five to 10 years. Nonetheless, three years was a relevant factor to be taken into account in terms of assessing his risk of re-offending.
In the course of her evidence being brought to a close Dr Lim was taken back to the importance of an offender accepting responsibility for their actions. She repeated that acknowledgement and acceptance of responsibility is the first step toward developing internal controls. The SBC program was designed to help Mr Smith identify the thoughts and emotions that preceded his offending and to develop ways of managing unhelpful thoughts and feelings so as to strengthen his internal controls and reduce his risk of re-offending. Just because he had not offended in the three years he had spent in the community did not mean he would not go on to offend. If he had been out of prison for 10 years and not re-offended the risk assessment would have looked quite different. She concluded by saying that his non-sexual offending was also a risk factor because it marked a step back on the road of antisocial behaviour and a step away from leading a prosocial life. She noted that in the three years Mr Smith was in the community he did re-offend.
In his report of 29 January 2018 Dr Jennings expressed the opinion:
Mr Smith does not have an extended history of sexual offences, and I understand the current charges relate to offences allegedly committed in 1994. The charges that he was sentenced for the 12 years were all serious offences against elderly women living on their own, and these offences occurred in their homes. I believe this history suggests that Mr Smith having difficulties to control his offending behaviour. Although his offending is not particularly focused on sexual offences, his inability to control his offending behaviour would result in further sexual offences if the opportunity presented itself.
If opportunities were to present for future sexual offending, I believe Mr Smith has demonstrated a history indicative of him being incapable of controlling his reoffending behaviour and sexual instincts.
In his evidence Dr Jennings also expressed the view that the failure to acknowledge offending presented as an obstacle to behaviour modification.
Dr Jennings agreed with Dr Lim that Mr Smith did not have a mental illness contributing to his inability to control his sexual impulses; the question was one of his willingness to do so.
When the SBC program reports were drawn to his attention Dr Jennings stated that what concerned him was the failure of the further maintenance program and the lack of further assessments by the SBC since the completion of the last report. He did concede that the SBC program reports suggested a reduction in Mr Smith’s risk of re-offending.
Dr Jennings was asked questions about the relevance of the three-year period that Mr Smith had spent in the community without committing a sexual offence. He considered that a fairly short period. He expressed the opinion that most people who have been convicted of serious charges are able to control their instincts for a period of time following their release. He observed that the three years was a period broken up into five periods which together did not cause him to think that Mr Smith had shown a willingness to control his sexual instincts. He did agree that the failure to commit a sexual offence in that period in the community did indicate that there was a growing willingness not to sexually offend, however, he still considered that it was difficult to assess the weight to be given to that time in the community as in reality most of the period had been spent in prison. Further, the fact that he had several subsequent imprisonments since being released after undertaking the SBC program was a cause for concern.
Dr Jennings did agree that age resulted in a decrease in libido and a reduction in the inclination to offend. He also agreed that supervision and supports could be provided that would reduce Mr Smith’s risk of re-offending. He lamented, however, that the sort of services required were not generally available. He said:
The reality is when people are released from prison they tend to be motivated to prevent activities that resulted in them going into prison, and that’s whatever offences they commit. Now, as time goes on, and they are dealing with increasing stressors of just returning into the community, it makes it – and, you know, the risk of using recreational drugs to cope with those stressors, that makes the risk of reoffending increasing. Now, if it was a full three year interval, I think that would be a far more positive assessment of Mr Smith’s willingness to control his instincts. The fact that it was broken up into five year intervals, for most of which was about one year limits that. People are able to control their motivation for several years after, certainly after a significant incarceration like it was 12 years I think, but then, yeah, it depends, on, again, coming back to social supports and the supervision and the help available for him to deal with any stressors that he may have to face.
The 1994 rapes and the appropriate sentence
It is appropriate to impose a sentence for the 1994 rapes for four reasons. First, to do so serves the important function of vindicating the worth of MAW. It acknowledges publicly the value that she means to the community and contributes to the affirmation of her dignity as a member of the community. Second, a sentence is an important public manifestation of the community’s total intolerance for the specific conduct. Third, I think it important that it be made known to Mr Smith the precise consequence that his particular conduct has brought upon him. Fourth, and related to the third, if an order is made under s 57, it is important that Mr Smith realise that every day that passes after he has completed his sentence for raping MAW is the consequence of the risk he poses to the community and his unpreparedness to act to reduce that risk to the point where he can be released. That is to say, in a way it provides him with incentive to change and to persuade the community that he has changed. Even if an order under s 57 is not made, the threat of a second application in future should provide the same incentive.
The prosecutor submitted that Mr Smith was a serious repeat offender within the meaning of s 53(1)(b) of the Sentencing Act 2017. I accept that submission. In the circumstances I am satisfied that s 54(1) is enlivened. It provides:
(1) The following provisions apply in relation to the sentencing of a person who is a serious repeat offender for an offence (including an offence that resulted in the person being a serious repeat offender):
(a)the court sentencing the person is not bound to ensure that the sentence it imposes for the offence is proportional to the offence;
(b)any non‑parole period fixed in relation to the sentence must be at least four‑fifths the length of the sentence.
I return to the application of s 54(1) below.
The maximum penalty for the offence of rape in 1994 was life imprisonment. It is an example of a maximum that provides only the most general assistance as a yardstick and then only as an indicator of the seriousness with which Parliament views the offence. The circumstances in which the offence of rape may be committed vary greatly with the consequence that there can be no discernible penalty range within which sentences for rape will ordinarily fall.
The rapes perpetrated against MAW were particularly serious. If they do not fall into the worst category, they are close to doing so. MAW was only 14 years old. She was alone, vulnerable and defenceless. She must have been terrified.
Mr Smith’s treatment of MAW lacked any hint of humanity. To him she was a thing to be used, that he defiled and degraded. Her only value was the immediate pleasure that she could provide him.
I do not overlook the fact that the rapes were premeditated. It is plain that Mr Smith tracked MAW as she made her way through Taperoo. It was an area that he knew, so much so that he knew where the laneway was that he dragged MAW down and where the toilet was where he could rape her.
I also do not overlook the steps taken to avoid detection. He did not ejaculate in her, but in her mouth and forced her to swallow. He then made her wipe herself and wiped down where he had placed his hands. This was calculated conduct undertaken upon assessing the risk of being caught.
The psychological damage that rape causes a person may be difficult to observe, but generally speaking it is very real, ever present and frequently debilitating in some ongoing respect and often pervasively. The rape of the very young means the suffering caused must be endured even longer and, as MAW has eloquently stated, has a ripple effect in the individual’s life and in the lives of those close to him or her.
I note that Mr Smith was on parole at the time he raped MAW.
Mr Smith maintains that he is innocent of these offences. He cannot then be afforded any credit for remorse or contrition. Further, his non-acceptance of responsibility provides an obstacle to his rehabilitation and to any assessment of his likely rehabilitation.
Clearly, any sentence imposed must be of sufficient severity to deter others generally. Equally, clearly, any sentence imposed must serve to deter Mr Smith specifically.
I have reminded myself of Mr Smith’s personal circumstances as set out above. There is nothing that mitigates his offending.
I return to s 54(1). It is an exceptional step for a court to impose a sentence that is not bounded by proportionality. Where s 54 is enlivened it can be expected that a sentencing court will impose a disproportionate sentence if the risk of re-offending is particularly high such that the community cannot be adequately protected by a proportionate sentence and the likely offence that may be committed is one that calls for the offender’s incapacitation. Such case is one where the offender will not likely respond to a proportionate sentence calling for a more severe approach. I do not intend to be exhaustive here.
In the present case I am satisfied that the risk of Mr Smith re-offending is very high. Mr Smith remains committed to “thieving”. Any treatment gain in the past is now diminished. I am also satisfied that his risk of committing a sexual offence in the future if released is high. “Thieving” is a first step on the road to his sexual offending. In all the circumstances utilising s 26 of the Sentencing Act, I impose one sentence for the two 1994 rapes. That sentence is imprisonment for 12 years.
I do not think 12 years is a disproportionate sentence. I do not think that a disproportionate sentence is necessary to protect the public. I consider the proportionate sentence I have imposed is sufficient to serve the purposes of punishment and sufficient to protect the community bearing in mind Mr Smith’s age, his age upon release, and the incentive he has to conform in order that he might avoid an order that he be detained indeterminately or have such order discharged.
Section 54(1)(b) mandates that the non-parole period I impose be at least four-fifths the length of the sentence. Accordingly, I fix a non-parole period of nine years, seven months and six days. I indicate that s 54(1)(b) aside, a non-parole period approaching four-fifths of the head sentence was in all the circumstances appropriate in any event. It is only the effect of age and prison burnout that suggests a period less than the head sentence may achieve the purposes of the head sentence.
The fact that s 54 is engaged excludes the operation of the totality principle.
As of today Mr Smith has spent 1508 days or four years, one month and 18 days in custody on the present matter. There is no reason not to give him credit for the entirety of that period. Since 18 February 2015 he has been in custody solely on the 1994 rapes. Prior to that period he was in custody for 117 days on the 1994 matters in and amongst serving time for other matters. It follows that it is appropriate to deduct 117 days (being the period between 21 November 2013 and 17 March 2014 spent in custody on the 1994 rapes) from the head sentence and non-parole period I have imposed, resulting in a head sentence of 11 years, eight months and five days, and a non-parole period of nine years, three months and 11 days and otherwise order that the head sentence and the non-parole period be taken to have commenced on 18 February 2015.
The s 57 application
a. The statutory scheme and applicable legal principles
In R v Hoare,[5] I considered the statutory scheme established by s 23 CL(S)A. I said:[6]
[5] [2017] SASC 7.
[6]    R v Hoare [2017] SASC 7 at [62]-[73].
Pursuant to s 23(4) of the Sentencing Act this Court may order that a person subject of an application made by the Attorney-General under s 23(2a) of the same Act be detained in custody until further order. As mentioned the Attorney-General may only make an application under s 23(2a) in relation to a person who has been convicted of a relevant offence and is in prison. Section 23(3) conditions the power conferred by s 23(4) upon this Court first directing that at least two legally qualified medical practitioners inquire into the medical condition of a person to whom this section applies and report to the Court on whether the person subject of the application is incapable of controlling, or unwilling to control, his or her sexual instincts. Thereafter ss 23(5) and (5a) govern the exercise of the discretion conferred by s 23(4). They provide:
(5)The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be the safety of the community.
(5a)The Supreme Court must also take the following matters into consideration in determining whether to make an order that a person to whom this section applies be detained in custody until further order:
(a)   The reports of the medical practitioners (as directed and nominated under subsection (3)) furnished to the Court;
(b)   Any relevant evidence or representations that the person may desire to put to the Court;
(c)   Any report required by the Court under section 25;
(d)   Any other matter that the Court thinks relevant.
Whilst the exercise of the power contained in s 23(4) is not expressly conditioned upon the Court finding that the offender subject of an application is incapable of controlling, or unwilling to control, his or her sexual instincts, the Full Court has stated that the question whether the subject is incapable or unwilling to control his or her sexual instincts is a threshold question that must be answered yes or no, otherwise, bearing in mind the scheme created by Part 2 Division 3 of the Sentencing Act, no proper foundation exists for the Court to consider the risk that the offender poses to the safety of the community. Having answered the threshold question, there remains vested in the Court a residual discretion – despite the Court finding that a person to whom the section applies is incapable or unwilling to control his or her sexual instincts, it may be inappropriate that an order for indeterminate detention be made. Here it is important to bear in mind, for example, that the application may be made well in advance of the completion of an offender’s determinate sentence, when there is much time remaining for the offender to take advantage of courses and programs offered by the Department for Correctional Services.
While a conviction for a “relevant offence” is a precondition to the engagement of the scheme, the scheme’s purpose is not punitive. Rather, it is concerned with preventing recidivist sexual offending through incapacitation and rehabilitation. The scheme does not punish an offender twice for the same offences or increase the punishment for those offences. While it operates by reference to an offender’s status as a person convicted of a relevant offence, it sets up its own normative structure. The purpose of an order of indeterminate detention is to protect the community from sexual offenders where the risk posed by such a person is such that it is inappropriate that they be released, even when they have completed what would otherwise be their period of imprisonment for the offences that they have committed. Additionally it is to ensure that the person “receives appropriate treatment, review and supervision”.
An order for indeterminate detention should only be made where there is cogent and reliable evidence justifying the making of the order. In this regard Bleby J’s observations in R v England made in relation to a prior version of s 23 remain apposite. He said:
... satisfaction as to the inability of a person to control their sexual instincts is a matter of assessing the opinions to that effect, their strengths and their weaknesses, to a point where the court can be satisfied that the incapacity is present. In doing so, the court will need to take account of the seriousness of the declaration it is asked to make and the gravity of the consequences of giving the direction. To borrow the words of Dixon J in Briginshaw v Briginshaw, the necessary degree of satisfaction cannot be produced “by inexact proofs, indefinite testimony or indirect inferences”. It will require cogent and acceptable evidence in order to justify the making of the declaration and the giving of the direction. But even then, there is a residual discretion conferred by the use of the word “may” in the subsection. In that respect it may also be appropriate to consider, as in the case of R v Fahey and R v Riley whether, if a sentence is also imposed, the defendant is likely, at the end of the custodial period, to resume similar sexual activities. This will, in turn, require consideration, among other things, of the defendant’s access to and the likely effect of various regimes of treatment, and whether they can be effected in the prison setting or in some other institution contemplated by the section.
(footnotes omitted).
What amounts to an incapacity to control one’s sexual instincts is not defined. King CJ considered what amounted to incapacity in R v Kiltie in the context of discussing a progenitor of s 23. He said:
... The incapacity referred to in the section is an incapacity to exercise control resulting from innate mental characteristics. It is not that temporary incapacity to exercise self-control which results from the paralysis of will power caused by the ingestion of alcoholic liquor or drugs. Nor is it a strong inclination towards sexual offending resulting from deprivation of the means of satisfying sexual desire unless there is, in addition, an innate incapacity to control that inclination.
Unwilling is defined in s 23(1) as follows:
unwilling – a person to whom this section applies will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts.
In R v Whyte White J recorded that the two forensic psychiatrists who provided reports in that matter “...recognised that the statutory definition of the word “unwilling” required consideration of matters going beyond an assessment of his present state of mind”. White J added:
In my opinion, the definition is to be applied in the following way: the Court must assess the risk that the offender would, given the opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts. That assessment is to take account of all factors bearing on that risk. The Court’s assessment of the person’s state of mind will usually be very relevant to the assessment of the risk, but it is not the only matter to be considered. The opinions of the medical practitioners who have examined the offender and reported to the Court on the offender’s mental condition will be relevant to the assessment of the offender’s state of mind, but the opinions which those practitioners are able to express based on their field of expertise will not ordinarily encompass all the matters relevant to the Court’s assessment. That is to say, it will be necessary in some cases for the court to consider a range of factors which are not particularly within the field of expertise of, say, a forensic psychiatrist.
In R v Schuster the Full Court observed:
...more importantly it was necessary for the medical practitioners and the judge to consider the circumstances in which and degree to which Mr Schuster is unable or unwilling to control his sexual instincts. A detailed consideration of these matters was necessary in order to assess the nature and extent of the risk to public safety presented by Mr Schuster. For example, the risk profile of a person with a desire or inclination to offend in an opportunistic or impulsive way would raise different considerations to those in the case of a person whose modus operandi has been, or is likely to be, one involving a longer term grooming of potential victims.
Whilst these observations were made in the context of an appeal against an application for release on licence under s 24 of the Sentencing Act they are, in my view, equally applicable to an application made under s 23.
Something more should be said here as to the significance of s 23(5). In R v Schuster the Full Court tackled the question of the significance of making the public safety the paramount consideration in the context of an application for release on licence. It said:
What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility.
I think these observations apply equally to s 23(5). So too the observation that the “exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety”. The Court quoted from the judgment of the Queensland Court of Appeal in Attorney-General (Qld) v Francis as reflecting the approach to be adopted. In that case Keane and Holmes JJA and Dutney J said:
The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.
Again such approach may be seen to apply equally to an application made under s 23. If the Court is satisfied that the offender is incapable or unwilling to control his or her sexual instincts, the question is whether an order for indeterminate detention is apt to ensure adequate protection of the community, having regard to the risk to the community posed by the offender.
[footnotes omitted]

Bearing in mind that the Sentencing Act has in the main re-enacted s 23 CL(S)A without amendment, save the inclusion of a power to make an interim detention order, I adopt the same approach in the present case as that applied in R v Hoare.
b. Should an order be made under s 57 of the Sentencing Act?
Both Drs Jennings and Lim were of the opinion that Mr Smith was unwilling to control his sexual instincts in the relevant sense. That is, they considered that there is a significant risk that, given the opportunity to commit a relevant offence, Mr Smith would fail to exercise the appropriate control of his sexual instincts. The opportunity contemplated is one where, intending to steal, Mr Smith breaks into the home of a vulnerable woman and in anger decides to assault her sexually or rape her. The risk is high because of the propensity Mr Smith has for breaking into and entering homes in order to steel money and goods that can be turned into money. Breaking and entering and “thieving” is his chosen means of providing for himself and others. The likelihood that he will return to doing so is considered very high. His history of offending bears out this likelihood. Mr Bell predicted as much in 1997 and in 2012 and 2014 Mr Smith was convicted yet again of serious criminal trespass. Once Mr Smith returns to breaking and entering homes, the risk of his engaging in a sexual offending rises.
No reason arises to reject the opinions expressed by Drs Lim and Jennings. I accept those opinions.
It was over 20 years ago that Mr Smith last committed a sexual offence. Since completing the sentence Duggan J imposed for his 1996 offending Mr Smith has spent in total approximately three years in the community. That said, he has not spent a continuous period in the community of greater than 16 months. Whilst he completed the SBC program in custody and appeared to make positive gains, I accept the opinions of Drs Lim and Jennings that it cannot be said that he has demonstrated by not committing a sexual offence that he is no longer a risk of doing so. I accept the opinion that persons who are released from prison generally manage to avoid repeat offending for a period of time until the stressors of life in the community become too great. I also accept that, because of this, it is generally thought that five or more years must pass without a person re-offending before it will be considered that they have reformed. Mr Smith did not manage to avoid re-offending. True he did not commit a sexual offence, but he did commit serious criminal trespasses in places of residence and thus recommenced on the road to doing so.
I also accept that there is evidence that Mr Smith made some gains after undertaking the SBC program. However, those gains must be viewed with a degree of circumspection; the SBC program report writers did not know of the 1994 rapes, and Dr Lim suspects Mr Smith paid lip-service to the program, only completing it with a view to improving his release date without truly being committed. Dr Lim’s opinion is strengthened by Mr Smith’s attitude to the program maintenance sessions that he attended once in the community. Then, of course, as Dr Jennings said, there is the fact of the cessation of the maintenance sessions and, indeed, Mr Smith’s re-offending. In the circumstances it is most unlikely that Mr Smith has made any lasting gain as a consequence of his undertaking the SBC program.
For these reasons I accept the opinion that even though over 20 years has passed since Mr Smith last committed a sexual offence, he remains a significant risk of doing so again if given the opportunity. I add here that if Mr Smith were released today there is no evidence of anything in the way of structural factors present in his life that would serve to protect him from the temptation to re-offend.
To my mind the real question in this case is whether the exceptional step of ordering that Mr Smith be detained in custody indeterminately should be taken now when he has over five years to serve on his sentence for the 1994 rapes. In R v Ainsworth (Ainsworth) White J, with whom Doyle CJ agreed, said:[7]
In my opinion, once the judge had decided that a sentence of imprisonment of 15 years was appropriate, the utility of an order for indefinite detention needed to be considered. As already noted, a principal purpose of an order for indefinite detention is the protection of the public. While the appellant remains incarcerated under the sentence imposed by the judge, the community is protected from him. The order for indefinite detention does not presently enhance that protection. It will not operate in practice until the expiry of this term of imprisonment on 17 December 2019. The protective effect of the 15-year term of imprisonment should not be ignored as the following passage from Buckley v The Queen makes plain:
In R v Leitch the New Zealand Court of Appeal said that, when considering the exercise of its discretion, a sentencing court “will ordinarily consider whether the protective purpose of preventative detention could reasonably be met by an available finite sentence of imprisonment”. Similarly, in the recent Victorian case of R v Davies, Charles and Nettle JJA said that, before answering the critical question whether the case was of such exceptional rarity that an indefinite sentence should be imposed, it was necessary first to consider what fixed term of imprisonment would have been appropriate. The Queensland legislation applied in the present case requires a judge to specify a nominal sentence, which becomes relevant for purposes of review and for the consequences of decisions made on review. The significance of the nominal sentence, however, goes beyond that. In the first place, where a judge, sentencing a dangerous offender, is deciding whether the protection of society requires an indefinite sentence, the protective effect of a finite sentence, fixed according to ordinary sentencing principles, including the need to protect the public, is a matter to be weighed carefully. An indefinite sentence is not merely another sentencing option. Much less is it a default option. It is exceptional, and the necessity for its application is to be considered in the light of the protective effect of a finite sentence. Second, the available finite sentence sets the time frame by reference to which the temporal issues earlier mentioned are to be examined.
(Citations omitted. Emphasis added.)
Another matter which bears upon the utility of the order is that an application for an order for indefinite detention under s 23 can be made by the Attorney-General while the appellant is serving his sentence.The future protection of the public does not require the matter to be addressed at this stage.
While subject to an order for indefinite detention under the Sentencing Act, the progress and circumstances of an adult offender must be reviewed at least once every six months by the Parole Board (s 23(9)). The Parole Board must, following each review, provide a written report to the Minister for Correctional Services and to the offender (s 23(10)). Procedures of this kind are clearly appropriate when the order for indefinite detention is the only reason for the detention of the person in custody. They are less obviously appropriate for a person who is, independently of such an order, serving a lengthy term of imprisonment.
Although the principal purpose of an order for indefinite detention is the protection of society, another purpose is to ensure the offender receives appropriate treatment, review and supervision. If the making of the order would secure for the appellant appropriate assistance to control his sexual instincts, that would be a factor indicating some present utility to the order. However, at least on the evidence in this case, that will not occur. Correspondence from the Rehabilitation Program Branch of the Department of Correctional Services indicates that, by reason of limited resources, sexual behaviour rehabilitation programs are directed to those who are close to the end of their sentence. While the order for indefinite detention stands, the appellant can never be in that category. The prospect that the appellant will receive any assistance in the control of his sexual instincts in the short to medium term while in prison therefore seems unlikely. In my opinion, there is a particular unfairness in the appellant being detained in custody indefinitely on the ground that he is unwilling to control his sexual instincts, yet, at the same time, being denied access to treatment which may address his lack of control.
For these reasons, I consider that, at the time of the sentencing, even if the appellant was properly found to be unwilling to control his sexual instincts, the power to order indefinite detention could not reasonably have been exercised in favour of making such an order.
[footnotes omitted]
[7] (2008) 100 SASR 238 at [78]-[82].
Much can happen in the time that Mr Smith must serve as part of the determinate sentence I impose; Mr Smith will be approximately 57 years of age, upon the expiration of his non-parole period it will be almost 30 years since he committed a sexual offence, in the meantime he can repeat the SBC program, he can undertake maintenance sessions, he can improve his education and skills, he will likely suffer prison burnout, he can attempt to engage with his children and grandchildren and with his Aboriginal relatives and culture. Knowing that the Director may make a further application in time which, if successful, will result in him being detained indeterminately, he has every incentive to do these things and to satisfy the authorities that given the opportunity to commit a sexual offence he will control his sexual instincts and desist. Five years is not 15, but it is nonetheless a long time.
In answer to a question from the Court counsel for the Director submitted that a further application under s 57 could made if the current application did not succeed. At that time the authorities could assess whether Mr Smith has done the sorts of things to which I have referred and, in the light thereof, the risk he poses if released. If this is right, and Ainsworth suggests it is, what is to be gained by making an order under s 57 now? It has the consequence that Mr Smith becomes immediately subject to the review regime contained in s 57. Implicitly, it burdens the executive with the responsibility of providing him with assistance to reform immediately. However, I would have expected the executive to offer him that sort of assistance in any event as, indeed, it has previously done.
When the prosecutor was asked what is to be gained by making the order sought bearing in mind the likely length of the sentence to be imposed he answered, “[w]e have seen what happens”. Mr Smith has had all the time in the world to change his ways, it was submitted.
Importantly, Mr Smith has never accepted his responsibility for the rapes of either VCT or MAW. As both Drs Lim and Jennings made clear, denial impedes rehabilitation. It obstructs behaviour modification. Mr Smith has been staunch in his denial. Any treatment gain and any claim on the part of Mr Smith to being a different person must be viewed in this light. Even now he maintains his innocence.
This is a difficult case. Were it not for the fact that Mr Smith has over five years to serve on his current sentence, I would be inclined to grant the application. However, the order that is sought is exceptional and he does have over five years in which to acknowledge his offending, engage genuinely in treatment programs, and begin to develop relationships and interests which will provide structure to his life when in the community and protect him from the temptation of re-offending. In the meantime the community is protected from him. I refuse the application.
Conclusion and orders
For the two rapes committed on 25 January 1994 the appellant is sentenced to imprisonment for 11 years, eight months and five days. I fix a non-parole period of nine years, three months and 11 days. Both the head sentence and non-parole period are to be taken as having commenced on 18 February 2015.
The application under s 57 of the Sentencing Act is refused.