R v Spurr - [2008] SASC 336

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v SPURR
[2008] SASC 336
Judgment of The Honourable Justice White
28 November 2008
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE
Following a jury trial in the District Court, the defendant was convicted of eight offences of indecent assault. On application by the Director of Public Prosecutions for an order for indefinite detention under s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA), defendant remanded to Supreme Court for sentencing.
Whether defendant incapable of controlling, or unwilling to control, his sexual instincts for the purposes of s 23 of the CLSA – Whether appropriate in the circumstances of the defendant’s case to make an order for indefinite detention.
Held: Defendant not shown to be incapable of controlling, or unwilling to control, his sexual instincts – Order for indefinite detention not appropriate in the circumstances of the case – Defendant sentenced for offences of indecent assault.
Criminal Law Consolidation Act 1935 (SA) s 56; Criminal Law (Sentencing) Act 1988 (SA) s 23; Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) ss 7, 9, referred to.
R v England (2003) 86 SASR 273; R v England (2004) 89 SASR 316; R v Kiltie (1985) 41 SASR 52; R v Ainsworth (2008) 100 SASR 238, applied.
R v Armfield (2005) 155 A Crim R 299; R v Whyte [2006] SASC 56; R v Wichen (2005) 92 SASR 528; R v England (2004) 87 SASR 411, considered.

R v SPURR
[2008] SASC 336
Criminal

WHITE J. On 28 September 2007, the defendant was found guilty by a District Court jury of eight offences of indecent assault.[1] Because of an application by the Director of Public Prosecutions to have the defendant dealt with under s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA), the District Court Judge remanded him to appear before this Court.[2] The Director wished this Court to consider whether the defendant was incapable of controlling, or unwilling to control, his sexual instincts and whether an order for his indefinite detention was appropriate.
[1] Criminal Law Consolidation Act 1935 (SA) s 56.
[2] Criminal Law (Sentencing) Act 1988 (SA) s 23(2).
I am satisfied that an order for the indefinite detention of the defendant is not appropriate. My reasons for that conclusion follow.
The defendant has a history of sexual offences. In September 1984 (when he was 17 years old) he was dealt with in the Elizabeth Childrens Court for two offences of unlawful sexual intercourse with a person under the age of 12 years and one offence of indecent assault. He was placed on a bond to be of good behaviour for a period of 12 months.
In June 1993 the defendant was found guilty by a District Court jury of three counts of indecent assault and one count of common assault. Those offences were committed in May 1992 and involved a boy aged 14 years. The offences occurred when the boy was, by arrangement with his parents, staying in the defendant’s unit. The indecent assaults consisted of the indecent touching of the boy. A District Court judge imposed a sentence of imprisonment of 12 months and fixed a non-parole period of eight months.
The offending which was the subject of the jury’s verdicts on 28 September 2007 occurred over a nine month period commencing in May 2004 and concluding in January 2005. On six separate occasions the defendant touched or fondled the penis of a boy who was, at relevant times, aged 14 and 15. I shall call him L. On two occasions the defendant also touched or fondled the penis of L’s brother J who was 13 years old. All of the offences occurred in the defendant’s home. Some occurred at times when the defendant and his housemate had been entrusted with the care of the boys. Others occurred on occasions when the boys had been invited into the home. The defendant maintains his innocence and asserts that in both 1993 and 2007 he was wrongly convicted.
The powers of the Court under s 23 which are presently relevant are set out in subsections (3), (5) and (6) of the CLSA. Those subsections provide:
(3)The Supreme Court will direct at least 2 legally qualified medical practitioners nominated by the Court to inquire into the mental condition of a person to whom this section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, his or her sexual instincts.
…
(5)The Court may order that a person to whom this section applies be detained in custody until further order if—
(a)     the Court, after considering the medical practitioners' reports and any relevant evidence or representations that the person may desire to put to the Court, is satisfied that the order is appropriate; or
(b)     the person refuses to cooperate with an inquiry or examination under this section and the Court, after considering any relevant evidence and representations that the person may desire to put to the Court, is satisfied that the order is appropriate.
(6)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.
Although subsections (5) and (6) were inserted into the CLSA after the offences committed by the defendant,[3] they apply in his case. Section 9 of the Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) provides that an amendment made by that Act to the CLSA applies whether the relevant offence occurred before or after the commencement of the amendment.
[3]    Statutes Amendment (Sentencing of Sex Offenders) Act 2005 (SA) s 7.
The concept of “unwillingness” for the purpose of s 23 is to be determined by reference to the statutory definition of “unwilling” in s 23(1):
"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.
The approach to be adopted by this Court in applying s 23 has been considered in a number of decisions including R v England;[4] R v England;[5] R v England;[6] R v Wichen;[7] R v Armfield;[8] R v Whyte;[9] and R v Ainsworth.[10] It is not necessary, for the purposes of the present decision, to review the relevant principles in detail. In it is sufficient to note that the purpose of the powers vested in this Court by s 23 is the protection of the public. The community is to be protected from persons who are either incapable of controlling, or unwilling to control, their sexual instincts.[11] That protection is to be obtained by the detention for an indefinite period of such persons. The detention is not imposed for the punishment of the person.
[4] [2003] SASC 321; (2003) 86 SASR 273.
[5] [2004] SASC 20; (2004) 87 SASR 411.
[6] [2004] SASC 254; (2004) 89 SASR 316.
[7] [2005] SASC 323; (2005) 92 SASR 528.
[8] [2005] SASC 108; (2005) 155 A Crim R 299.
[9] [2006] SASC 56.
[10] [2008] SASC 67; (2008) 100 SASR 238.
[11] R v Kiltie (1985) 41 SASR 52 at 61; R v England [2003] SASC 321 at [11], [51]; (2003) 86 SASR 273 at 276, 283; R v England [2004] SASC 254 at [35]; (2004) 89 SASR 316 at 327.
An order resulting in the deprivation of the liberty of a person for an indefinite period is a serious matter and it is well recognised that such an order is not to be made lightly. Cogent evidence is required. That evidence must establish that the offender is either incapable of controlling, or unwilling to control, his or her sexual instincts and, further, that it is appropriate in the circumstances of the case for an order for indefinite detention to be made.[12]
[12] R v Ainsworth [2008] SASC 67 at [77]; (2008) 100 SASR 238 at 258-59.
As required by s 23(3) of the CLSA, the Court directed two psychiatrists, Drs Raeside and Czechowicz, to inquire into the defendant’s mental condition and to provide reports to the Court concerning his capacity and willingness to control his sexual instincts. Drs Raeside and Czechowicz provided reports to the Court dated 22 July 2008 and 14 August 2008 respectively. In addition, the Court had a report from Dr Louis, the psychologist who is the Director of Owenia House.
Dr Louis interviewed the defendant on 21 February 2008. She noted that he had been referred to the Sexual Offenders Treatment and Assessment Program (SOTAP) in 1994 but had been rejected for treatment because of his strong denial of his offending behaviour, his failure to take responsibility for his actions, and his low level of motivation for treatment. Dr Louis concluded:
Mr Spurr presented at interview as a reasonably co-operative man who had a slightly aggressive challenging manner. His answers to questions indicated he was less than honest, either omitting significant detail (see above) or denying facts for which he has been judged. His past history of offending and denial indicate that he is at high risk of re-offending. His risk could be reduced with treatment but he is not ready for treatment at this stage.
Dr Czechowicz interviewed the defendant on 24 July 2008. He noted that, despite the sentence of imprisonment imposed in June 1993, the defendant had again offended. Dr Czechowicz noted in particular that the defendant had in 2004 and 2005 engaged in activities which were likely to lead to the kind of offences which he committed, namely, the stocking of his house with a number of games and other devices likely to be of interest to children and his failure to take steps to avoid “risky” sleepovers of adolescents at his home. Dr Czechowicz concluded that the defendant had demonstrated that he was either incapable of controlling, or unwilling to control, his sexual instincts. I have the impression that Dr Czechowicz was influenced in reaching his opinion by the report of Dr Louis.
Dr Raeside, on the other hand, found little evidence to suggest that the defendant is either incapable of controlling, or unwilling to control, his sexual instincts. He did not consider that the defendant suffers from any psychiatric condition and was not prepared to make a diagnosis of paedophilia. Dr Raeside said:
If guilty as charged and convicted then clearly Mr Spurr’s offending represents efforts to engage young adolescent boys in sexual activity, with sexual gratification being the most obvious motivation. Whilst primary sexual attraction to this age group and gender might be likely, an alternative explanation is that Mr Spurr is a somewhat socially isolated man given his physical health and appearance, in which he has had difficulty establishing satisfying relationships with peer appropriate females. It may be that he finds it easier to engage in sexually gratifying behaviour with young teenage boys and therefore his behaviour is somewhat opportunistic but with efforts on his part to encourage the boys to engage in this behaviour with him.
None of Drs Louis, Czechowicz or Raeside gave oral evidence before me. This was because the Director of Public Prosecutions, after seeing the reports of Drs Czechowicz and Raeside, did not ask the Court to carry out a full inquiry. The Director took the view that it would be more appropriate, if an application under s 23 is to be pursued in this case, for that to occur towards the end of the sentence of imprisonment which the defendant will have to serve for his substantive offences.[13]
[13] Section 23(2a) permits the Attorney-General to apply to the Court, whilst the defendant remains in prison serving a sentence of imprisonment, for an order under the section.
The attitude of the Director, although very relevant, is not conclusive of the Court’s consideration of s 23 in the circumstances of this case. As I read s 23, once this Court embarks upon a consideration of the application of the section, it should complete it. It may also be said that fairness to the defendant requires that, having been put at jeopardy of an order for indefinite detention, a determination of the issue should be made.
In addition to the three reports to which I have referred, I have reviewed the entire transcript of the September 2007 District Court trial.
In my opinion, a review of all the evidence does not support the conclusion that the applicant is incapable of controlling his sexual instincts. Nor does it support the conclusion that the defendant is unwilling to control his sexual instincts in such a way as to make an order for indefinite detention appropriate.
A number of considerations incline me to that view. First, I consider it relevant that although the defendant’s offending history is serious, long periods have elapsed between each of his three groups of offences. Eight years elapsed after the offence committed in 1984 before the offending in June 1992. Nearly 12 years elapsed after the offending in June 1992 before the first of the offending in May 2004. The length of these periods suggest that the defendant was both able and willing to control his sexual instincts at those times.
Secondly, it does not seem to be the case that the defendant suffers from a psychiatric condition or a condition such as paedophilia.
Thirdly, I consider the fact that the defendant has, for a number of years, been living with a housemate to be relevant. This is not a case of a defendant living alone importuning children into his home so as to gain access to them in an entirely unsupervised way. I think it likely that the presence of another adult in the home would operate as a restraint on the defendant. In saying that, I am not overlooking that a number of the offences in 2004 and 2005 were committed while the housemate was present in the home.
Fourthly, although there are a number of features indicating that the defendant’s home has items which would be attractive to children (from which it may be inferred that he was seeking to entice the boys into his home), the circumstances of his offending do not have the indicia of predatory conduct commonly seen in offences of this type. In some respects, the defendant’s conduct appears to have been opportunistic rather than premeditated.
Finally, I prefer Dr Raeside’s assessment to that of Dr Czechowicz. The latter may be correct in concluding that the defendant’s history reveals a certain unwillingness to control his sexual instincts, but it does not, in my opinion indicate the kind of unwillingness (in the sense defined) which would require the extreme sanction of an order for indefinite detention in order to provide protection to the community.
In identifying the above features, I do not wish to be understood as underestimating the seriousness of the defendant’s conduct or the effects which it may have on his victims. His conduct is serious and that will have to be reflected in the sentence which is imposed on him.
In my opinion the evidence presently before the Court does not warrant the conclusion that the defendant is either incapable of controlling, or unwilling to control, his sexual instincts. That means that the discretion to make an order of indefinite detention under s 23(5) has not been enlivened.
For these reasons, I conclude that an order for the indefinite detention of the defendant is not appropriate. Instead, he should be sentenced for the offences which he committed in 2004 and 2005.