R v Stevens - [2015] SASC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Application)
R v STEVENS
[2015] SASC 79
Judgment of The Honourable Justice Bampton
27 May 2015
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
Application by Attorney-General for order pursuant to s 23 Criminal Law (Sentencing) Act 1988 (SA) that Mr Stevens be detained in custody until further order.
Held:
1. Mr Stevens is incapable of controlling his sexual instincts within the meaning of s 23 of the Act.
2. Mr Stevens to be detained in custody until further order.
Criminal Law (Sentencing) Act 1988 (SA) s 23, referred to.
R v Iwanczenko [2013] SASC 63; R v Ainsworth (2008) 100 SASR 238; R v Armfield (2005) 155 A Crim R 299; McGarry v The Queen (2001) 207 CLR 121; R v England (2004) 87 SASR 411; R v Kiltie (1986) 41 SASR 52; R v Modra (2009) 103 SASR 383; R v Whyte [2006] SASC 56, considered.

R v STEVENS
[2015] SASC 79
Criminal: Application

BAMPTON J: On 23 February 2015, the Attorney-General made application pursuant to s 23(2a) of the Criminal Law (Sentencing) Act 1988 (SA) (the Act) seeking an order declaring Mr Stevens incapable of controlling his sexual instincts and directing that he be detained in custody until further order.
The Attorney-General’s application first came on for hearing on 16 March 2015 at which time counsel for the Attorney-General sought and obtained an order that the Court direct two medical practitioners to enquire into the mental condition of Mr Stevens. The matter was adjourned to 27 April 2015. The Court received reports from the psychiatrists Dr Ian Jennings, dated 17 April 2015, and Dr Jules Begg, dated 10 April 2015.
As at 23 February, the date of the application, Mr Stevens was nearing the end of a four year, six month sentence imposed on 30 November 2010. Section 23(2a) provides that the Attorney-General may make an application while the person remains serving a sentence of imprisonment. As Mr Stevens’ sentence expired on Sunday 10 May 2015, the Department for Correctional Services (DCS) had advised the Attorney-General’s solicitor that Mr Stevens would be released on Friday 8 May 2015 and transferred to OARS accommodation unless the order sought by the Attorney-General was granted. Accordingly, the matter had to be determined quickly.
The matter came on for hearing before me in the arraignment list on 27 April at which time urgent arrangements were made to hear the evidence of Dr Jennings and Dr Begg. Their evidence was heard on 29 April 2015 and the application was adjourned for arrangements to be made for Mr Stevens’ Disability SA worker to give evidence.
Ms Helen Hambidge, a Senior Service Coordinator with Disability Services SA, gave evidence on 6 May 2015.
On 7 May, being satisfied that it was appropriate to make an order pursuant to s 23(4) of the Act, I ordered that Mr Stevens be detained in custody until further order. Upon making the order, Mr Stevens made an application for an order that he be released on licence pursuant to s 24 of the Act. Consequent upon this application, I sought reports from the Parole Board pursuant to s 24(1)(c) and two medical practitioners pursuant to s 24(1a) of the Act.
Concerns about delay in bringing the application
Before setting out my reasons for making the order, I raise the following concerns regarding the making of the application so close the expiry of Mr Stevens’ sentence.
The Court takes a serious and extraordinary step when it orders that a person who has served his or her sentence be detained indefinitely.[1] As such, it is imperative that applications pursuant to s 23 be initiated in a timely manner allowing for the procedure prescribed by s 23 to be undertaken in a procedurally fair manner.
[1] McGarry v The Queen (2001) 207 CLR 121, [59] (Kirby J).
Late applications impose great pressure on the already burdened Forensic Mental Health Service to provide reports in great haste. Pressure is put on those advising the Attorney-General and those advising the person to whom s 23 applies.
Most significantly, the person who is the subject of the application must be afforded fairness in the proceedings. An order for indefinite detention is made because of a prediction of risk to the safety of the community largely based upon the opinions of psychologists and psychiatrists that a person may commit further crimes, not because he or she has. It is, therefore, essential that there be “very clear authority both of law and of fact, to deprive a person of their” most fundamental right, that of liberty, “particularly indefinitely”.[2]
[2] McGarry v The Queen (2001) 207 CLR 121, [61] (Kirby J).
This fundamental right must, of course, be balanced against the paramount consideration of the protection of the community. The balancing of these considerations implicitly demands that applications like this be subject to careful, timely and fair assessment. It is only where there is cogent and acceptable evidence justifying the making of the order,[3] that an order denying a person’s right to liberty will be made.
[3] R v England (2004) 87 SASR 411, 423-4 (Bleby J); R v Ainsworth (2008) 100 SASR 238, [56] (White J).
The provision of rehabilitative and therapeutic programs is a matter for DCS. However, it would facilitate the work of the examining medical practitioners and the determination of s 23 applications by the Court if sexual offenders serving custodial sentences were given an opportunity to participate in sexual behaviours programs at a time which optimises their therapeutic effect and with time for assessments of participation in such programs to be conducted in a timely manner. If that were done, any application which the Attorney-General might see fit to make pursuant to s 23 could be made well in advance of the expiry of the person’s sentence.
In that way, applications to the Supreme Court could be made allowing time for:
·the Court to direct pursuant to s 23(3) two medical practitioners inquire into the medical condition of the person and report to the Court on whether the person is incapable of controlling, or unwilling to control his or her sexual instincts.
·reports provided to the Court in accordance with s 23(3) to be considered by the Attorney-General and the offender and legal advice obtained.
·a hearing to be convened to hear evidence from the medical practitioners who provided the s 23(3) reports and any other evidence the parties wish to adduce.
·the Court to consider the matters it must take into consideration in determining whether to make an order for indefinite detention prescribed by s 23(5a), that is:
(a) the reports of the medical practitioners (as directed and nominated under s 23(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 s 25;
(d)    any other matter that the Court thinks relevant.
Section 23
The purpose of a s 23 order is the protection of the public from persons who are incapable of controlling or unwilling to control their sexual instincts. An order for indefinite detention is not a sentence and it is not imposed for punishment of the person.[4]
[4] R v England (2004) 87 SASR 411, [12]; R v Whyte [2006] SASC 56, [13].
Relevant offence
The aggravated indecent assaults and gross indecency committed by Mr Stevens, for which he was sentenced on 30 November 2010, are offences against s 56 and s 58 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) respectively. Offences against s 56 and s 58 of the CLCA are defined to be relevant offences for the purposes of s 23 by s 23(1).
Enquiry into the medical condition of the person
The Court must direct at least two legally qualified medical practitioners to enquire into the medical condition of the person and report to the Court on whether the person is capable of controlling or unwilling to control his or her sexual instincts before an order for indefinite detention can be made.
The medical practitioners are nominated by the Clinical Director, Forensic Mental Health Service.
The two medical practitioners who have provided reports as directed pursuant to s 23(3) are the psychiatrists Dr Jules Begg and Dr Ian Jennings.
Incapable of or unwilling to control sexual instincts
In R v Whyte, White J considered that it was implicit in s 23(3) that the Court be satisfied that the person was either incapable of or unwilling to control his or her sexual instincts:[5]
Although s 23(5) does not make it explicit that an order for indefinite detention is conditioned on the Court being satisfied that the person is either incapable of controlling, or unwilling to control, his or her sexual instincts, such a condition is, in my opinion, implicit in the section. That implication arises in particular from the requirement in sub‑s (3) that the Court direct at least two legally qualified medical practitioners to inquire into the mental condition of the offender and to report to the court on whether the offender is incapable of controlling, or unwilling to control, his or her sexual instincts; from the stipulations with respect to the inquiry by those practitioners contained in sub‑s (4); and from the stipulation in sub-s (5)(a) that the Court is to consider the medical practitioners’ reports (as well as any relevant evidence and representations from the offender) before being satisfied that the order is appropriate.
[5] [2006] SASC 56, [10]. His Honour considered the section prior to amendment in 2013, discussed below. The requirements referred to in sub-s (4) referred to have subsequently been repealed, however the stipulation in sub-s (5)(a) is replicated in sub-s (5a) as amended. See also R v Ainsworth (2008) 100 SASR 238, [24] (White J, Doyle CJ agreeing); R v Iwanczenko [2013] SASC 63 [11] (Blue J).
“Mental condition” in the context of s 23(3) is to be read as “the condition of the offender’s mind” as to his or her capacity or willingness to control his or her sexual instincts.[6]
[6] R v Kiltie (1986) 41 SASR 52, 61 (King CJ), 71 (Johnson J) where the predecessor to s 23 was discussed; R v Whyte [2006] SASC 56, [16]-[17] (White J).
The Court’s discretion is enlivened pursuant to s 23 if it is established that the person is incapable of controlling or unwilling to control his or her sexual instincts.
“Incapacity” to control sexual instincts is not defined in s 23. In R v Kiltie, King CJ discussed the predecessor to section 23:[7]
… 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.
[7] (1986) 41 SASR 52, 62.
In R v England, Bleby J said:[8]
… 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 sub-section. 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.
[8] (2004) 87 SASR 411, [56].
Section 23 defines “unwilling” as:
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 held the definition was to be applied in the following way:[9]
… 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.
[9] [2006] SASC 56 [29].
As submitted by the Attorney-General, the risk that the person would, given the opportunity, fail to exercise appropriate control of his sexual instincts must be a significant risk. A significant risk is one where there is a good chance the event will occur.[10]
[10] R v Whyte [2006] SASC 56, [30]; R v Modra (2009) 103 SASR 383, [8] (Nyland J).
Mr Stevens’ personal circumstances and history of criminal offending
The many reports that have been prepared over the years contained in the Book of Documents prepared on behalf of the Attorney-General set out in detail Mr Stevens’ personal circumstances.
Mr Stevens is 49 years old. He has a well-documented history of a mild to moderate intellectual impairment with an IQ of less than 70, placing him in a functional level of a six to seven year old. The psychiatrist, Dr Jennings, notes this is in the context of evidence for an antisocial personality disorder. It is Dr Jennings’ opinion that both diagnoses would contribute to his poor academic performance, his poor work history, his poor relationship history, as well as his long history of criminal offending commencing from age 14. Mr Stevens had a very dysfunctional childhood living in a single parent home with an abusive alcoholic mother. Mr Stevens is very socially isolated with few structural daily activities and little support. He has very limited work history and, prior to being taken into custody, was in receipt of the disability support pension supervised by the Public Trustee.
On 3 October 1997, Mr Stevens was convicted and sentenced in the Adelaide Magistrates Court for indecent assault (committed March 1997), unlawful possession and breach of bond to 12 months’ imprisonment with a non‑parole period of six months.
Between 15 May 2006 and 24 January 2008, Mr Stevens committed six counts of aggravated indecent assault and one count of gross indecency. The charges relating to this sexual offending are set out in the District Court Information dated 23 March 2009 (the District Court Information).
On 8 October 2009, Mr Stevens was found in possession of child pornography.
On 16 December 2009, Judge Davey ordered Mr Stevens stand trial on the District Court Information having found that he was not mentally unfit to stand trial. This finding was made following a hearing of an application pursuant to s 269J(2)(a) of the CLCA that there be an investigation into Mr Stevens’ mental fitness to stand trial.
On 7 July 2010, the Court of Criminal Appeal dismissed an appeal from Judge Davey’s finding.
On 30 November 2010, Judge Davey sentenced Mr Stevens following his pleas of guilty to the sexual offending charged on the District Court Information.
The victims of his offending were children aged seven, eight and nine. Mr Stevens was a family friend of the children’s parents for about eight years. He was entrusted with babysitting the children on a number of occasions. He also lived with or stayed with the family from time to time. He was often involved in the children’s day to day care including bathing, sleeping arrangements and playing with them. The sexual offending involved touching a victim, aged 10, on her vagina; putting his hand between the legs and rubbing the genital area of another victim, aged eight, whilst she was bathing; placing his penis between the legs and rubbing his penis against that victim; masturbating in front of the third victim, aged seven or eight, and ejaculating onto the carpet whilst the child was playing an Xbox game; and placing his penis between the legs of the that child and rubbing his penis against him.
Judge Davey imposed a sentence pursuant to s 18A of the Act of four and a half years’ imprisonment. Her Honour said she imposed a lower than normal non-parole period so that Mr Stevens could spend a significant period of time on parole. Her Honour noted that a non‑parole period is also relevant to deterrence but in this case she gave high prominence to Mr Stevens’ difficulties and disabilities when fixing a much lower than usual non-parole period of 16 months. Her Honour expressed her hope and expectation that a condition of his parole would include a requirement that he actively participate in counselling at Owenia House. Her Honour did not make a restraining order pursuant to s 19A of the Act. Her Honour considered that, in light of the sentence she imposed, the lengthy period on parole and the likely conditions while on parole, that it was not necessary.
Thereafter, on 13 December 2012, following a concession by the prosecution, Mr Stevens was found unfit to stand trial in relation to the offending committed 8 October 2009 namely two counts of aggravated possessing child pornography and one count of possessing child pornography.
Mr Stevens was committed to detention under s 269O of the CLCA and a limiting term of one year and six months was imposed. The limiting term was ordered to run concurrently with the sentence imposed on 30 November 2010.
The Parole Board
Mr Stevens’ non-parole period in respect of the sentence imposed on 30 November 2010 expired on 10 March 2012.
By reference to a letter from the Parole Board dated 29 October 2012, the Board considered an application for parole from Mr Stevens on 21 February 2012. The Board noted that a senior DCS psychologist had assessed him to be at very high risk of sexual reoffending should he not receive treatment. Mr Stevens was found suitable for involvement in the Sexual Behaviours Clinic – Me program (SBC-Me), a program designed for offenders with lower levels of cognitive functioning, with additional one to one counselling. The Parole Board deferred consideration of the parole application pending advice as to Mr Stevens’ participation in the SBC-Me program at Mt Gambier prison.

Mr Stevens was interviewed by the Parole Board on 19 June 2012. It was noted that Mr Stevens had not been offered the opportunity to undertake the program as the initial pilot SBC-Me program had already commenced earlier in the year. The Board further deferred its consideration of Mr Stevens’ application pending advice from DCS with regard to the next available program.
On 26 October 2012, the Parole Board received the following advice from the DCS Director of Programs:
Mr Stevens was assessed by the sentence management unit in November 2011 and found to be at very high risk of sexual reoffending. Due to Mr Stevens’ well-documented intellectual impairment (he was found unsuitable for the mainstream SBC program, but was recommended for the Sexual Behaviour Clinic-Me program (a program targeted at offenders with lower levels of cognitive functioning).
The Director of Programs advised that a further SBC-Me program would not be conducted until a full evaluation of the current pilot program had been undertaken. It was therefore not possible to advise Mr Stevens when he was likely to receive treatment until the program evaluation had taken place.
In the 2013 annual psychological report prepared by Dr Tim Connell, it was noted that Mr Stevens’ social interaction and relationship skills appeared to need considerable improvement and that he was very isolated at a personal level and his problem solving was quite limited. It was further noted that unless he achieved major changes he would require extensive support to avoid likely difficulties on release, for example boredom, social isolation and depression. Dr Connell reported that he was yet to demonstrate in a convincing way responsibility for his offending and victim empathy and that it was very positive that he wanted to join the SBC-Me program which was designed to help him improve in these areas.
Whilst Mr Stevens was waiting to participate in the SBC-Me Program, he was referred to and received individual criminogenic intervention with the forensic psychologist Leyna Bruggeman. In her report dated 5 December 2013, Ms Bruggeman stated that Mr Stevens was reluctant to discuss particulars of his offending and background. Ms Bruggeman suggested that, having regard to his criminogenic need, Mr Stevens engage in the sexual offender treatment targeting his needs, re-engage with Disability SA following release, and be monitored through case management processes.
Sexual Behaviour Clinic – Me
Mr Stevens was found suitable for the SBC–Me program on 18 October 2013. Mr Stevens completed the program held from 26 November 2013 to 2 March 2015.
The authors of the SBC-Me Post Treatment Report stated in their report dated 27 March 2015 (the Post Treatment Report) that, at the end of the program, Mr Stevens was assessed as being at high risk of sexual reoffending. The authors considered that Mr Stevens had a developing awareness of the impact of his offending upon his victims and was developing insight regarding its antecedents to some of his offending episodes following completion of the program:
It should be noted however that there are existing concerns regarding the nature of deviant arousal with respect to Mr Stevens. His insistence to not discuss past sexual offending provided a minimum amount of information regarding the deviant arousal that occurred prior to his most recent sexual offending episodes within a family environment. It is noted that the latter sexual offending was also conduct over 1 year period and included 3 victims. Mr Stevens’ continued avoidant style of approaching problematic areas of his life including his sexual offending contributes to his high risk level.
The authors of the Post Treatment Report recommended that Mr Stevens have ongoing management monitoring and treatment in maintaining appropriate relationships, assistance with problem solving skills and have continued exploration of his sexual orientation and any deviant sexual arousal in order to assist in enhancing a safety plan while living in the community. The Post Treatment Report concluded that Mr Stevens’ risk factors had reduced from very high to the high risk level.
The very clear inference to be drawn from the Post Treatment Report is that, in order to give Mr Stevens the best possible chance of reintegration into the community and to minimise his risk of reoffending, he needs to participate in a structured program incorporating the recommendations at the conclusion of the Post Treatment Report. These recommendations are:
·transfer as soon as possible to the pre-release centre in order that his needs be carefully planned prior to his release date including coordination between the release institution and his Disability SA social worker;
·that he be referred to the Exceptional Needs Unit Management Assessment Panel to assist with the coordination and/or funding of the following:
-       assistance to obtain suitable OARS or Housing SA accommodation as soon as possible to minimise last resort hostel accommodation becoming his release address;
-       that he be encouraged to engage in employment in the community and assistance given to find suitable employment opportunities whether that be of a paid or voluntary capacity;
-       that he be provided with regular access to a support worker to assist him with graduated responsibility for his finances including regular reviews to monitor his success as well as role modelling and practice experience in assertive communication and problem solving skills;
-       that he be encouraged to engage in a minimum of social activities with adults that would enable him to develop friendships alongside his need to maintain his preference for social isolation;
-       upon his release he be referred to a psychologist and or a social worker experienced in dealing with persons with intellectual disability with a sexual offending history. Treatment suggestions include:
·trauma counselling;
·consideration of assessment for autism spectrum disorder followed by referral to intervention if found appropriate in order to enhance his community living skills;
·regular review of his SBC-Me safety plan and his sense of efficacy in his chosen good life domains;
·Mr Stevens’ disability social worker to be encouraged to contact the SBC-Me treating clinicians or other therapists within the community should Mr Stevens enact his safety plan and alert her about unwanted sexual thoughts;
·Mr Stevens may also be considered as a candidate for inclusion in the newly announced Circles of Support and Accountability to be run by OARS.
Evidence of Lucy Boulger
Ms Bougler is the Director, Offender Rehabilitation Services of the Offender Directorate in DCS. Ms Boulger gave evidence that she believed it likely that Mr Stevens would be offered further weekly individual treatment by a senior clinician or prison psychologist having completed the SBC-Me program. She said that a treatment plan could be devised very quickly if Mr Stevens were detained beyond his expected release date. She said that, in addition to reducing the risk of his sexual reoffending, any treatment plan would involve preparing him for life in the community.
Ms Boulger explained the reason that the SBC-Me program was not available until November 2013 was that there is a preference to provide treatment towards the latter part of a person’s sentence as research indicates it is most effective closer to the release time of a person.
Evidence of Dr Jennings
Dr Jennings interviewed Mr Stevens on 1 April 2015 and prepared a report dated 17 April 2015. Dr Jennings had not previously assessed nor treated Mr Stevens.
Dr Jennings reported that Mr Stevens appeared to have participated well in the SBC-Me program with evidence of positive attitudinal and behavioural changes, developing victim awareness and some insight into his offending.
Dr Jennings said it was of “significant concern that Mr Stevens refused to discuss past sexual offending and provided minimal information about deviant thoughts or arousal prior to his sexual offending, and tends to deal with problems in his life by avoidance and denial”. He said that Mr Stevens, in denying any sexual thoughts or fantasies, stated to him “not one bit, and I never had them before” and that his approach to avoiding future offending was to “keep well away from families”. He believed this made Mr Stevens a higher risk for reoffending.
Dr Jennings noted that the Post Treatment Report recommended the need for ongoing management, monitoring and treatment.
Dr Jennings concluded that Mr Stevens was in a high risk category of reoffending. In the context of his intellectual impairment and his antisocial personality, Dr Jennings considered that this “would make it difficult for him to not be able to control any sexual urges should they arise in the future”. Dr Jennings stated that “his intellectual age of 6 to 7 years, lack of adequate adult relationships, and his social isolation, with little prospect of these changing significantly on his release, along with his past sexual offences over almost 20 years, must make him at risk for having recurrent paedophilic sexual urges in the future”. Dr Jennings said that Mr Stevens either denies or does not recognise his previous sexual thoughts for what they are. It was Dr Jennings’ opinion that Mr Stevens’ intellectual impairment and antisocial personality will make it difficult for him to control his sexual urges and he is, in the circumstances, at serious risk of reoffending. Dr Jennings said that Mr Stevens is not currently capable of controlling his sexual instincts “because he is not identifying or not accepting those preceding deviant arousals”.
Evidence of Dr Begg
Dr Begg interviewed Mr Stevens on 10 April 2015 and provided a report on the same day. Dr Begg, like Dr Jennings, had not previously met or treated Mr Stevens. He noted that Mr Stevens was angered at having to answer questions about his past and referred to some matters that were not to be talked about at the behest of his lawyers. Dr Begg stated that it all appeared to be a defensive manoeuvre to avoid talking about the past.
Dr Begg said that Mr Stevens became angered at his inability to answer questions. He found that by gently persisting despite his protests, he would give answers which appeared to be genuine and to the best of his ability. Dr Begg agreed that Mr Stevens had an affinity or sexual attraction towards children. Dr Begg was of the opinion that the offending Mr Stevens had pleaded guilty to on the District Court Information arose in circumstances where he felt used, putdown or inadequate by the victim’s mother. Dr Begg considered that where previous offences did not indicate evidence of conflict it would suggest a perceived conflict by Mr Stevens, even if it did not exist.
Although Dr Begg considered that Mr Stevens had the capacity to control his sexual instincts, he considered that Mr Stevens’ risk of reoffending was high if he was released unconditionally without mandated structured rehabilitation mechanisms.
Dr Begg considered that Mr Stevens’ “escape plan” whereby Mr Stevens told Dr Begg ways that he could avoid situations in which there might be a temptation to offend, such as crossing the road if he saw a family approaching on the same side of the road he was walking on, were practical. Dr Begg agreed that the effectiveness of Mr Stevens’ escape plan was of limited use in the context of accessing child pornography. He agreed that his risk of reoffending would be increased in circumstances where he had no meaningful activities for example employment or community engagement. Dr Begg considered that the recent memory of imprisonment, together with diminishing sexual desire associated with age, were factors against the risk of reoffending.
Dr Begg agreed that psychological or psychiatric counselling would be of assistance in establishing Mr Stevens in the community. He would require a skilled counsellor to speak to him about sexual issues. Dr Begg recommended counselling be available to Mr Stevens in the nature of Owenia House type programs. He agreed that Mr Stevens would be unlikely to seek out support on the topics such as sexual preference and sexual deviancy of his own accord. He agreed that a mandated therapy was prudent.
Dr Begg referred to the Post Treatment Report, showing that Mr Stevens had an ability to identify and have his intimacy needs met, a limited repertoire of social engagement, poor self-worth and limited problem-solving initiative. Dr Begg suspects that Mr Stevens’ inability to discuss the nature of deviant arousal is due to his poor intellect.
Dr Begg’s opinion was that Mr Stevens has capacity to control his sexual instincts. Dr Begg states in his report that his “opinion is based on the assumption of intellectual retardation, and a dysfunctional childhood with development of sexual deviancy which manifests in situations in which Mr Stevens is unable to tolerate his anger where he has been in conflict with adult women and then an opportunity arises soon after for offending to occur with children”.
Dr Begg also noted that, at the completion of the SBC-Me program, Mr Stevens was assessed as being at high risk of sexual reoffending. He considered that, if given an opportunity to commit an offence, it is probable that he would exercise appropriate control of his sexual instincts. Dr Begg said he would find this more difficult if he was put in a scenario where he was, for example, angered by the mother of a potential victim and then left in control of that victim. He considered Mr Stevens had an awareness of this propensity as demonstrated by his plan not to associate with children after his release from prison and to establish a lifestyle that gives him purpose and meaning which itself will help distract him from any deviant sexual instincts.
It was Dr Begg’s opinion that Mr Stevens does not have the capacity to see the relevance of discussing his past sexual history because of his intellectual deficit.
Both Dr Begg and Dr Jennings said Mr Stevens’ strategies to avoid reoffending require development. Both recognised that he has made progress but that he still requires development as regards the risk factors identified in the Post Treatment Report including problem-solving and sexual deviancy. Both practitioners considered his risk of reoffending would be significantly higher without development in respect of these risk factors and both considered his risk of reoffending as regards accessing child pornography is high in a situation where he would have unsupervised or unrestricted computer access.
Evidence of Ms Hambidge
Ms Hambidge has been Mr Stevens’ case manager since 2010 and previously between 2001 and 2003.
Ms Hambidge stressed that Mr Stevens’ involvement with Disability SA is voluntary. She reported that Mr Stevens has engaged willingly with her, participating fully in meetings at his home, and has sought to remain in contact whilst he has been in custody. Ms Hambidge said she was confident that Mr Stevens would engage with her upon release to achieve the goals he has set whilst undertaking courses in prison.
Mr Stevens was first referred to intellectual disability services when his mother was unable to cope with his challenging behaviour when he was 10 years old. Ms Hambidge reported that, over the years, Mr Stevens has demonstrated a determined willingness to live independently, that he has sound independent skills and requires only minimal support with problem solving financial and social issues as they arise. She said his finances are currently under the administration of the Public Trustee with Disability SA being the nominated liaison. This order requires Mr Stevens to involve a case manager whenever he needs to make significant financial decisions.
Ms Hambidge reported that she recently met with Mr Stevens to plan for his release from prison. Mr Stevens has identified that he has the capacity to work and has actively sought to work throughout his time in the prison, expressing the view that it is beneficial to him to have something to do with his time. Ms Hambidge has discussed strategies, for example studying at TAFE and volunteer work, to assist him with his long-term goal of obtaining paid employment. Ms Hambidge had identified a Certificate I in Education and Skills Development run by TAFE as a course that could assist Mr Stevens improve his literacy and numeracy skills.
Mr Stevens’ Submissions
Counsel for Mr Stevens submitted that, in considering the Attorney‑General’s application, there is a two-step process. The Court must be satisfied that the person in question is either incapable of controlling their sexual instincts or, alternatively, unwilling to do so. Secondly, the Court must then be satisfied that it is appropriate to make the order. As submitted by counsel, the psychiatrists’ opinions regarding the mental condition of the person are not the only matters that are to be considered. All matters bearing upon the risk that a person would, given the opportunity, commit a relevant offence and fail to exercise appropriate control should be taken into account.
It was submitted that the following matters should be taken into account when comparing the opinions of the psychiatrists:
·Dr Jennings has had less experience than Dr Begg with applications under s 23 of the Act;
·Dr Jennings did not address his opinion in terms of the language of s 23, whereas Dr Begg did which, it is submitted, indicates greater familiarity with the issues relevant to an application.
Both psychiatrists agreed that the most significant risk would arise only if Mr Stevens had contact beyond mere transient contact with children.
It was contended that, having regard to the evidence of Ms Hambidge to the effect she would not allow Mr Stevens to purchase a computer or mobile phone, Mr Stevens was unlikely to commit child pornography offences using electronic devices. It was submitted that the effect of the evidence in the reports before the Court was that Mr Stevens is unlikely to have the opportunity to interfere with children or commit offences bearing in mind his insight, his resolution not to offend, his strategies to avoid coming into significant contact with children and the supports and incentives that will be in place upon his release. It was submitted that it is unnecessary for the protection of the community to go to the extraordinary measure of ordering his detention until further order.
Conclusion
I am satisfied Dr Jennings did directly respond to what was required of him pursuant to s 23. As earlier discussed, it is Dr Jennings’ opinion that Mr Stevens is incapable of controlling his sexual instincts. In this regard, I prefer his evidence to that of Dr Begg.
My assessment of Dr Begg’s evidence is that:
·he was of the opinion that Mr Stevens is willing to control his sexual instincts in the sense that Mr Stevens has a desire to control his instincts by, for example, not associating with children.
·if Mr Stevens were to be released from prison unconditionally and without supervision, his risk of reoffending would be high and he is therefore not presently capable of controlling his sexual instincts.
Dr Jennings considers that Mr Stevens’ reluctance to explore his sexual arousal with his tendency to deny and avoid such issues (which is a consistent theme throughout the various reports concerning Mr Stevens contained in the Book of Documents) places him in a high risk category of reoffending which, in the context of his intellectual impairment and his antisocial personality, would make it difficult for him to control his sexual urges should they arise in the future. This aligns with Dr Begg’s opinion that Mr Stevens would find it more difficult to exercise appropriate control of his sexual instincts when put in a scenario where he was, for example, angered by the mother of a potential victim and then left in control of that victim.

Whilst Mr Stevens has an awareness of this propensity as demonstrated by his stated “escape plan”, my assessment of the evidence is that, following his participation in the SBC-Me program, his awareness of victim impact and insight is just developing. The fact that he has made this progress reduced his very high risk of sexual reoffending as assessed at the commencement of the program to high risk. I am satisfied that he is not currently capable of controlling his sexual instincts. If he were released from prison without supervised conditions it is very likely that stressful situations in everyday life will arise whereby he will be incapable of controlling his sexual instincts.
The evidence before me suggests that Mr Stevens would, of his own accord, seek out assistance with respect to day to day living matters but, not with respect to matters pertaining to sexual instincts requiring specialised psychological management. In my view, in order to give Mr Stevens the best chance of successful assimilation into the community, he requires a supervised program mandating the recommendations in the Post Treatment Report.
Most, if not all, of the psychologists and psychiatrists who have provided reports over the years and whose reports are contained in the Book of Documents reiterate that the risk Mr Stevens presents to the community can be reduced through adherence to a sexual behaviour treatment program as part of a structured supervised rehabilitation program in the community.[11]
[11] I acknowledge that certain of the opinions expressed in the reports were provided during sentencing submissions prior to a custodial sentence being imposed on 30 November 2010.
Whilst the primary purpose of a s 23 order is the protection of the community, “another purpose is to ensure that” Mr Stevens “receives appropriate treatment, review and supervision”.[12]
[12] R v Ainsworth (2008) 100 SASR 238, [81] (White J, Doyle CJ agreeing).
Bearing in mind the safety of the community and the need to ensure that Mr Stevens receives appropriate treatment, review and supervision, and the deprivation of liberty which is brought about by a s 23 order, I am satisfied that an order should be made that Mr Stevens be detained until further order.
Accordingly, I order that Mr Stevens be detained in custody until further order pursuant to s 23(4) of the Act, such detention to commence at the expiry of his term of imprisonment.