R v Stevens - [2012] SADC 178

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v STEVENS
[2012] SADC 178
Reasons for Ruling of His Honour Judge Soulio
13 December 2012
CRIMINAL LAW
Investigation into fitness to stand trial - decided that defendant unfit to stand trial - decided that the objective elements were established beyond reasonable doubt - supervision order made - defendant currently serving sentence of imprisonment for offences of indecent assault and gross indecency.
Defendant detained and limiting order of one year and six months to operate concurently with sentence of imprisonment.
Criminal Law Consolidation Act 1935 Part 8A; Criminal Law (Sentencing Act) 1988 s 18A, referred to.
R v Draoui (2008) 101 SASR 267, considered.

R v STEVENS
[2012] SADC 178
Introduction

The defendant, Michael Stevens, was charged with two counts of aggravated possessing child pornography and one count of possessing child pornography, contrary to s 63A(1)(a) of the Criminal Law Consolidation Act 1935 (CLCA). Following a visit by police to the defendant’s home address on 8 October 2009, two notes hand written by the defendant, were located which detailed sexual acts upon a child, and which constitute Counts 1 and 3. Police also located images on the defendant’s computer which constitute child pornography and relate to Count 2.
Question of Fitness to Plead
In a report of 1 November 2010, Mr Broomhall, a psychologist, had expressed the opinion that the defendant had the intellectual capacity of a six or seven year old, and was not fit to stand trial within the meaning of s 269H CLCA. Mr Broomhall reiterated that opinion in his report of 16 January 2012.
A similar opinion was expressed by Dr Scamps, a clinical neuropsychologist, in her report of 27 January 2011. She said:
In terms of his ability to understand the nature of the proceedings, or to follow the evidence or the course of proceedings, it is my opinion that Mr Stevens would have significant difficulty with this. The neuropsychological assessment found that his working memory was significantly impaired. Working memory is an important and basic cognitive function required for the processing of information. If working memory is impaired, it is likely the person will have significant trouble taking in complex conversations, processing information and problem-solving, and committing such information to memory. I expect that Mr Stevens would have significant difficulty following and understanding the proceedings of the court. His memory was impaired when learning short stories, and this suggests that the information that he hears in court is unlikely to be processed or encoded to memory adequately. … He does not have the capacity to exercise his procedural rights or to understand the nature of the proceedings.
The opinions of Mr Broomhall and Dr Scamps, to which I have referred, were supported by that of Dr Raeside, forensic psychiatrist, in his report of 8 November 2011 where he said:
However, I would concur with the previous psychological assessments that Mr Stevens is unfit to plead, instruct, and to stand trial. Whilst he appears to have a rudimentary understanding of some of the aspects of the Court and its officers and procedures, he is significantly impaired in this regard and certainly would be unable to follow the course of proceedings in court given his intellectual disability. He would also be impaired in his ability to provide adequate instructions in his defence because of his intellectual disability.
Such a condition is permanent. The psychologists have previously offered these opinions that he would be unfit and there is no reason why this would have changed since their earlier assessments given the permanency of his intellectual disability. Simple education would not resolve the issue. In particular, Dr Scamps notes his marked impairment in memory which not only would impact his ability to provide instructions, but more importantly would impact his ability to follow proceedings, retain information, and make any sense of it later.
On the basis of the opinions expressed by the experts to whom I have referred, I formed the view that there were reasonable grounds to suppose that the defendant was mentally unfit to stand trial and ordered an investigation into that issue pursuant to s 269J CLCA.
The Hearing
The matter initially came on for hearing on 23 April 2012, at which time the question of the defendant’s lack of fitness to stand trial was not conceded by the prosecution and the objective elements of the offence were not conceded by the defence.
An investigation into a defendant’s fitness to stand trial, or into whether the objective elements of an offence have been established, is to be conducted before a jury unless the defendant has elected to have the matter dealt with by a judge sitting alone. Here the election was made by the defendant’s counsel.[1]
[1] Pursuant to s 269W CLCA.
Pursuant to s 269M I proceeded first with the investigation into the defendant’s fitness to stand trial.
Dr Raeside gave sworn evidence, and thereafter counsel for the prosecution conceded that the defendant was not fit to stand trial. Having regard to Dr Raeside’s evidence, and the concession by the prosecution, I terminated the investigation into the defendant’s fitness to stand trial, and recorded a finding that the defendant was mentally unfit to stand trial.[2]
[2] Pursuant to s 269MA(5) CLCA.
The Objective Elements of the Offences
I then proceeded with the trial of the objective elements of the offences.[3] I received declarations and a book of photographs, and heard submissions of counsel. I regarded the material discovered in the defendant’s possession, the subject of the three counts, to constitute child pornography, within the definition contained in s 62 CLCA. I accepted the evidence as to the age of the child, the subject of the handwriting in Counts 1 and 3. The element of aggravation in each case is made out. Despite the suggestion that the defendant wrote down the notes constituting child pornography in Counts 1 and 3 in order to “get the ideas out of his head”, I found that the material was in each case intended, or apparently intended, to excite or gratify sexual interest. Accordingly, I was satisfied, beyond reasonable doubt, that the objective elements of each of the charged offences were established.
[3] Pursuant to s 269E(2) CLCA.
Pursuant to s 269MB(2) CLCA I declared the defendant liable to supervision under Part 8A of the Act.
Division IV Disposition
Reports were provided pursuant to ss 269Q(1), 269R and 269T(2) CLCA following which further submissions were made by counsel for the prosecution and counsel for the defendant, on 20 June, 6 September, 8 October and 7 November 2012.
I note, at the outset, that on 30 November 2010 the defendant was sentenced, in this Court, to imprisonment for four years and six months, for six counts of aggravated indecent assault, and one count of gross indecency. A non-parole period of one year and four months was fixed. That non-parole period expired on 10 March 2012, and the head sentence is due to expire on 10 May 2015.
Parole Board Report
I received, by consent, a report dated 29 October 2012 from the Executive Officer of the Parole Board. On 21 February 2012 the Parole Board had considered an application for parole by the defendant. At that time the Parole Board noted that a senior psychologist from the Department for Correctional Services had assessed the defendant as being at very high risk of sexual re-offending should he not receive treatment. The defendant was considered to be suitable for involvement in the Sexual Behaviours Clinic ME Programme, which is a programme targeted at offenders with lower levels of cognitive functioning. Accordingly, the application for parole was deferred pending the provision of advice as to the defendant’s participation in that programme whilst in Mount Gambier Prison.
The defendant again appeared before the Parole Board on 19 June 2012. He had not been offered the opportunity to undertake the Sexual Behaviours Clinic ME Programme, apparently because the initial pilot programme had already commenced earlier in the year. The application for parole was further deferred.
On 26 October 2012 the director of programmes for the Department for Correctional Services notified the Parole Board that a further Sexual Behaviours Clinic ME Programme would not be run until a full evaluation of the pilot programme had been undertaken, and that the Department for Correctional Services was therefore unable to advise as to when the defendant would receive such treatment.
The Executive Officer of the Parole Board reported, on 29 October 2012, that in view of the Parole Board’s original assessment that the defendant was at a very high risk of re-offending, the Parole Board was unlikely to consider releasing the defendant on parole until he had had the opportunity to participate in the programme and could be further assessed.
By a further report dated 6 November 2012, which I again received by consent, I was informed that the Parole Board had ordered that the defendant not be eligible to apply for parole for a further 12 months.
Mr Balfour
In his report of 17 September 2012, Mr Balfour expressed the opinion that the defendant clearly presents a sexual risk to children in the community. However Mr Balfour doubted that the defendant had the ability to socially groom parents and children, given his poor social skills. That of course does not sit well with the defendant’s previous offending, of which Mr Balfour appeared to be unaware. Mr Balfour considered that an effective rehabilitation programme could be formulated and implemented for the defendant, through cooperation with disability services, forensic community mental heath services, the Department for Correctional Services and Owenia House.
Mr Balfour described the defendant as socially reclusive and without family support, and without a network of friends and associates. He expressed the view that the defendant possesses the necessary residual intellectual capacity to understand licence conditions. Mr Balfour considered that the defendant would comply with conditions, albeit reluctantly, provided he had adequate support. Given the lack of support from family and friends, such support would necessarily have to be provided through organisations providing such support in the community.
Other Opinions
Dr Scamps had earlier agreed with Mr Broomhall’s recommendation that the defendant required a thorough assessment and intervention through the Sexual Offenders Treatment and Assessment Programme.
Dr Raeside did not consider that the defendant required any psychiatric treatment, but strongly recommended that he participate in a Sexual Offenders Treatment and Assessment Programme designed for those with intellectual disabilities. Dr Raeside expressed concern as to the risk the defendant posed to children in the absence of such treatment.
Victim Report
I received a report dated 21 August 2012 from Ms D’Alessandro, a senior social worker from James Nash House. She reported that the members of the victim’s family are described as having been traumatised by their experiences with the defendant. Much of that trauma relates to the sexual offences for which the defendant has already been sentenced. The victims and other family members have expressed a desire to be protected from encountering the defendant should he be released on licence. No next of kin have been identified.
For reasons I will refer to shortly, it is not appropriate that the defendant be released on licence and the concerns expressed by the victims and family will be ameliorated, on the basis that the defendant will remain in custody.
Fixing Limiting Term
Where a supervision order is made, a limiting term must be fixed equivalent to the period of imprisonment or supervision, or the aggregate period of imprisonment and supervision that would have been appropriate if the defendant had been convicted of the offences. Further, the limiting term is to be fixed on the basis of the head sentence that would have been imposed.
The defendant is 40 years of age. He has an extensive criminal history commencing as a juvenile, when, at the age of 14, he was dealt with in relation to numerous counts of building break with intent to commit a felony, committing a felony, illegal interference with a motor vehicle, and subsequently on offences of larceny, sacrilege, and damaging property. He was dealt with without conviction on each occasion.
As an adult, the defendant was dealt with in relation to charges of giving false alarm of a fire, damaging property, arson, being unlawfully on premises, larceny, and building break and felony, all dealt with leniently; and thereafter was given suspended sentences for building break and felony, and a community service order for being unlawfully on premises and common assault.
The defendant committed his first sexual offence in 1997 when he was convicted of indecent assault and was sentenced to six months imprisonment, made cumulative on other sentences of imprisonment. He was subsequently sentenced in 2010 to imprisonment for four years and six months with a non-parole period of one year and four months for six counts of indecent assault and one count of gross indecency, the sentence he is presently serving.
The maximum penalties for the offences with which the defendant is presently charged are, for Counts 1 and 3 imprisonment for seven years, and for Count 2 imprisonment for five years.
Had I been required to sentence him, I would have proceeded to s 18A of the Criminal Law (Sentencing) Act and imposed a single penalty, and would have imposed a head sentence of imprisonment for one year and six months. There can be no discount on the basis of the concession made by counsel for the defendant, that the objective facts of the offences are made out.[4] Accordingly, the limiting term is one year and six months, to operate from today.
[4] R v Draoui (2008) 101 SASR 267 at [88], per Vanstone J.
Options
Section 269O CLCA provides that once a defendant has been declared liable to supervision the court may release him unconditionally or make a supervising order either committing the defendant to detention or releasing the defendant on licence on conditions.
Section 269S CLCA provides that in deciding whether to release the defendant under this Division, or in deciding the conditions of a licence, the court must apply the principle that restriction on the defendant’s freedom and personal autonomy should be kept to a minimum, consistent however with the safety of the community, including of course the victims of his offending.
Both counsel made the submission that it was appropriate, having regard to the state of the medical evidence, and the information provided by the Parole Board, and in particular the high risk of the defendant re-offending, that there should not be a release on licence, but rather that the defendant should be detained.
It appears that there is no power to impose a limiting term cumulative upon a sentence of imprisonment. Both counsel submitted that the limiting term should run concurrently with the defendant’s sentence of imprisonment.
I accept the joint submission, and having regard to the information to which I have referred, have come to the view that it is appropriate that the defendant be detained pursuant to s 269O CLCA.