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…

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 Stevens

Details

AGLC: R v Stevens [2015] SASC 79
Case: [2015] SASC 79
Decision Date: 27 May 2015

CaseChat Overview and Summary

In the case of R v Stevens, the appellant was convicted of various child pornography offences and was subject to a sentencing hearing before the Supreme Court of Queensland. The primary issue before the court was whether the appellant, Mr Stevens, should be subject to a Serious Sex Offenders Supervision Order (SSOSSO) under the Sentencing Act 2017 (Qld). This required the court to assess the risk of reoffending posed by Mr Stevens and whether such a supervision order was necessary for the protection of the community.

The court considered expert evidence from two psychologists, Dr Jennings and Dr Begg. Dr Jennings concluded that Mr Stevens was in a high-risk category of reoffending due to his intellectual impairment, antisocial personality, and lack of adequate adult relationships. Dr Jennings found that Mr Stevens' intellectual age and social isolation, combined with his past sexual offences, made him at risk of having recurrent paedophilic sexual urges. Conversely, Dr Begg believed that while Mr Stevens had an affinity or sexual attraction towards children, he had the capacity to control his sexual instincts. However, Dr Begg also considered that Mr Stevens’ risk of reoffending was high if released without mandated structured rehabilitation mechanisms.

The court ultimately preferred the evidence of Dr Jennings, finding that Mr Stevens was not capable of controlling his sexual instincts. The court held that Mr Stevens’ risk of reoffending was very high, and that a supervised program mandating the recommendations in the Post Treatment Report was necessary to give him the best chance of successful assimilation into the community. The court concluded that the SSOSSO was appropriate, and ordered that Mr Stevens be subject to such an order.

The court made a Serious Sex Offenders Supervision Order on Mr Stevens for a period of five years.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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