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The Sentencing Act 2017 (SA), which came into operation on 30 April 2018, repealed the CL(S)A. The parties accepted that the Director’s application and related consequence for the sentencing of Mr Smith were governed by the Sentencing Act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)…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Smith

Details

AGLC: R v Smith [2018] SASC 185
Case: [2018] SASC 185
Decision Date: 11 December 2018

CaseChat Overview and Summary

The case of R v Smith involved the appellant, Smith, who was convicted of two counts of rape committed in 1994 and one count of rape committed in 1996. The matter was heard in the Supreme Court of a state in Australia. Smith sought an order under the Sentencing Act to be detained indefinitely as a dangerous sexual offender. The legal issues before the court were whether Smith met the criteria for being classified as a dangerous sexual offender and whether the exceptional measure of indefinite detention was justified in the circumstances.

The court considered the psychiatric evidence and Smith's history of sexual offending and other criminal conduct. The court found that Smith had a history of violent offending, including sexual offences, and had not engaged meaningfully in treatment programs. The court was satisfied that Smith had an anti-social personality disorder and a substance disorder in remission. However, the court determined that Smith had over five years to serve on his current sentence, during which time he could engage in treatment and begin to develop a structured life outside of prison. The court concluded that the application for indefinite detention was exceptional and refused the application.

The court ordered that Smith be imprisoned for 11 years, eight months and five days for the two rapes committed in 1994, with a non-parole period of nine years, three months and 11 days. The head sentence and non-parole period were to commence on 18 February 2015. The application under s 57 of the Sentencing Act was refused.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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