R v Sumner
[2015] SASC 177
•6 November 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v SUMNER
[2015] SASC 177
Judgment of The Honourable Justice Nicholson
6 November 2015
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
The defendant was convicted, by a District Court Judge sitting without a jury, of attempted kidnapping and causing harm with intent to cause harm. The Director of Public Prosecutions applied pursuant to section 23 of the Criminal Law (Sentencing) Act 1988 for an order that the defendant be indefinitely detained.
Whether the defendant is unwilling to control his sexual instincts, as defined in section 23 of the Act - if so, whether the Court should exercise its discretion to make an order to indefinitely detain the defendant.
Held:
1. The circumstances of the attempted kidnapping offence were such as to invoke the Court’s jurisdiction to consider whether or not an order for indefinite detention under section 23 of the Criminal Law (Sentencing) Act 1988 should be made.
2. This was so even though a sexual motivation for the attempted kidnapping had not been proved beyond reasonable doubt.
3. The defendant is unwilling to control his sexual instincts within the meaning of section 23 of the Criminal Law (Sentencing) Act 1988.
4. Whilst the discretion to make an order pursuant to section 23(4) has been enlivened, such an order is not warranted in the circumstances.
5. The application is dismissed.
Criminal Law (Sentencing) Act 1988 (SA) s 23, s 23A, s 24; Criminal Law Consolidation Act 1935 (SA) s 24, s 39, s 270A; Correctional Services Act 1982 (SA) s 66, s 67, referred to.
R v England [2004] SASC 20, (2004) 87 SASR 411; R v Whyte [2006] SASC 56, applied.
R v Warsap [2011] SASC 73, discussed.
R v Ainsworth [2008] SASC 67, (2008) 100 SASR 238; R v Armfield [2005] SASC 108; Fardon v Attorney-General (Qld) [2004] HCA 46, (2004) 223 CLR 575; Boughey v The Queen (1986) 161 CLR 10; R v Warsap [2011] SASC 73; R v Warsap [2011] SASCFC 129, (2011) 111 SASR 232, considered.
R v SUMNER
[2015] SASC 177Criminal: Application pursuant to section 23 Criminal Law (Sentencing) Act 1988
NICHOLSON J.
Introduction
The Director of Public Prosecutions has applied, pursuant to section 23 of the Criminal Law (Sentencing) Act 1988, for an order that the defendant be detained in custody until further order on the asserted basis that he is a person who is “unwilling to control his sexual instincts”, as that concept is defined in section 23. Section 23 provides an alternative basis for such an order, namely, where a person is “incapable of controlling” their sexual instincts. This basis is not relied upon.
The prosecution’s application was made following a trial heard by a judge sitting alone in the District Court.[1] The Judge found the defendant guilty of attempted kidnapping,[2] the maximum penalty for which is 13 years imprisonment and causing harm with intent to cause harm, the maximum penalty for which is ten years imprisonment.[3]
[1] R v Sumner [2014] SADC 88.
[2] Contrary to sections 39(1) and 270A of the Criminal Law Consolidation Act 1935.
[3] Contrary to section 24(1) of the Criminal Law Consolidation Act.
Counsel for the prosecution applied to the Judge to have the defendant dealt with pursuant to section 23 and for the matter to be referred to the Supreme Court for this purpose. Counsel for the defendant did not oppose the application.
Subsection 23(2) is in these terms.
(2) If, in proceedings before the District Court or Magistrates Court, a person is convicted of a relevant offence and—
(a) the court is of the opinion that the defendant should be dealt with under this section; or
(b) the prosecutor applies to have the defendant dealt with under this section,
the court will, instead of sentencing the defendant itself, remand the convicted person, in custody or on bail, to appear before the Supreme Court to be dealt with under this section.
The term “relevant offence” is defined as follows.[4]
relevant offence means—
(a)an offence under section 48, 48A, 49, 50, 56, 58, 59, 63, 63A, 63B, 69 or 72 of the Criminal Law Consolidation Act 1935; or
(b)an offence under section 23 of the Summary Offences Act 1953; or
(ba)an offence against a corresponding previous enactment substantially similar to an offence referred to in either of the preceding paragraphs; or
(c) any other offence where the evidence indicates that the defendant may be incapable of controlling, or unwilling to control, his or her sexual instincts; or
(d)an offence of failing to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse where the defendant is a registrable offender within the meaning of the Child Sex Offenders Registration Act 2006.
[4] Section 23(1) of the Sentencing Act.
The defendant was not convicted in the District Court proceedings of any offence falling within (a), (b), (ba), or (d). In support of the application, the prosecution relied on paragraph (c) of the definition and submitted that the offence of attempted kidnapping, in the circumstances in which it was committed by the defendant, qualified as a “relevant offence”.
For this to be so, “the evidence” adduced with respect to the offence must be such as to indicate that the defendant “may be incapable of controlling, or unwilling to control, his ... sexual instincts”. The concept of “unwilling” is also defined for the purpose of section 23.[5]
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.
In this case, before the power under section 23(2) to remand to the Supreme Court arose, there needed to have been, first, an application by the prosecution[6] and the offence for which the defendant had been convicted, attempted kidnapping, had to have been regarded by the Judge as a “relevant offence” by virtue of it falling within paragraph (c) of the definition.
[5] Section 23(1) of the Sentencing Act.
[6] Section 23(2)(b) of the Sentencing Act.
The Judge was so satisfied. Furthermore, that this finding was open to his Honour on the evidence was conceded by counsel for the defendant. On 13 August 2014, the Judge remanded the defendant to appear before this Court to be dealt with pursuant to section 23.
A potential difficulty for the Judge was that the offence of attempted kidnapping does not, necessarily, have a sexual connotation or result from an underlying sexual motive. However, his Honour, after considering the circumstances of the offence as committed together with the nature of the defendant’s prior offending and the then available psychiatric and psychological reports, was satisfied that the evidence relevant to the offence indicated that the defendant may be unwilling to control his sexual instincts. The Judge’s finding and decision to remand the defendant to be dealt with pursuant to section 23 has not been challenged. I am satisfied that the jurisdiction of the Supreme Court, under section 23, has properly been invoked. In any event, and insofar as it might be necessary, I agree with the Judge that, on the evidence available to him, the attempted kidnapping offence was a “relevant offence” for the purpose of section 23.
It is to be noted that, at the stage of referral to the Supreme Court pursuant to section 23(2) on the basis of an offence said to fall within paragraph (c) of the definition of “relevant offence”, the Judge only had to be satisfied that the defendant may be unwilling to control his sexual instincts. Whether or not the defendant is, in fact, to be characterised as unwilling, according to the definition, will be determined at the next stage.
The matter was listed on a number of occasions before various Judges of this Court, following the 13 August 2014 remand to the Supreme Court, for directions and the obtaining of reports from legally qualified medical practitioners enquiring into the mental condition of the defendant, as required by section 23(3). On 7 April 2015, the matter came before me for the first time. By then all of the required reports had become available. The matter was listed for hearing in early May. Unfortunately, the hearing had to be vacated at the request of defence counsel. Due to difficulties with the subsequent availability of counsel and expert witnesses, the application was not heard until 13 August 2015, a year after the defendant’s conviction in 2014 for the offences he committed in 2012. The delays in dealing with the matter are very much to be regretted.
2012 offending
The offending which has prompted this application occurred on 19 August 2012. BM, a 70 year old woman, was walking with her dog in a north-eastern suburb of Adelaide. As she passed a parked white car, the defendant was standing at the rear of the car with one hand touching its open boot lid. BM was grabbed from behind with one of the defendant’s arms across her chest and the other hand across her mouth. She was dragged backwards towards the rear of the car. The defendant attempted to force BM into the open boot of the car. According to BM, the defendant managed to force the top half of her body into the open boot. Her feet remained on the ground as she was being pushed over and in. BM resisted and the defendant threw her to the ground, hitting her head on the concrete. The defendant grabbed BM by the hair and banged her head on the ground more than once. He stood on the side of her face with his foot. The defendant gave up, returned to the driver’s door of the car, entered and drove away.
The defendant pleaded not guilty to the charges. However, the Judge was satisfied that the elements of each offence had been proved beyond reasonable doubt. In arriving at his verdicts of guilty, the Judge did not need to and did not make any finding as to whether there was a sexual motive underlying the offending.
Prior offending
In 2004, as a 19 year old, the defendant pleaded guilty to six counts of indecent assault, one count of indecent behaviour, one count of criminal trespass and two offences of gross indecency. These offences were committed against nine females who were strangers to the defendant. The defendant also offended against another female in 2007. The offences in the first group were committed whilst the defendant was a minor. This prior offending is summarised in the following chronology.
No.
Date
Offence
Age of Victim
1.
16.02.2002
Indecent Assault
14 49
2.
20.01.2003
Gross Indecency
15 55
3.
31.01.2003
Indecent Assault
16 68
4.
07.02.2003
Indecent Assault
17 39
5.
21.02.2003
Indecent Assault
18 32
6.
05.03.2003
Criminal Trespass in a Place of Residence and Indecent Behaviour
19 60
7.
11.03.2003
Indecent Assault
20 66
8.
19.04.2003
Indecent Assault
21 59
9.
25.04.2003
Gross Indecency
22 53
10.
15.07.2007
Aggravated Serious Criminal Trespass in a Place of Residence, Assault and Indecent Assault
23 27
All of the victims of the first group of offences were strangers to the defendant and significantly older; some were elderly. In three cases, he forced the victim onto her back, straddled her and engaged in conduct with the apparent intention of ejaculating on her. In two of these three cases, he touched the victim’s breasts and touched one victim near her crutch on the outside of her clothing. In one of these three cases, the defendant ejaculated over the victim’s breasts. In the cases of two other women, the defendant masturbated in their presence and ejaculated on their clothing. In the cases of two further women, he masturbated in their presence, and in the two remaining cases he exposed himself in the presence of each victim. In one of these last mentioned cases, the indecent behaviour occurred in the victim’s home, which the defendant had entered uninvited.
For the 2002-2003 offences, the defendant received a head sentence of five years imprisonment with a non-parole period of three years. The defendant was released on parole on 14 September 2006 but was remanded in custody, after seven months on parole, following a breach of a parole condition.
On 15 July 2007, less than a month after, again, being discharged from custody, the defendant offended again. The defendant did not know the victim but managed to inveigle himself into her house. He refused to leave when asked and followed the victim when she retreated to her bedroom. He threatened to kill the victim and leaned over her, naked. The victim managed to contact the police but the defendant decamped before they arrived.
For the 2007 offending, the defendant received a head sentence of three years and six months imprisonment with a non-parole period of two years and two months.[7] He was released from custody in 2012. However, less than three months later he committed the offences against BM.
[7] The sentence of imprisonment was to commence after the defendant had served three months imprisonment, being the period of the defendant’s unexpired parole.
The prosecution has applied pursuant to section 23 on two previous occasions. The first was in 2004, prior to amendments which introduced the notion of “unwilling to control sexual instincts” as a qualifying state. The Judge on that occasion dismissed the application on the basis that it had not been established that the defendant was incapable of exercising control over his sexual instincts.
The second application was made following the offending in 2007. The matter was referred to the Supreme Court following conviction and the two requisite[8] medical reports were obtained. Both reporting psychiatrists concluded that the defendant was capable of controlling his sexual instincts but had chosen not to in certain situations, particularly when alcohol and amphetamines had been consumed. Sulan J in his sentencing remarks for the 2007 offences noted the following.[9]
In my view, if you are to be rehabilitated and avoid re-offending in the future it is crucial that the authorities provide intensive rehabilitation programs as I have outlined whilst you are in custody and that those programs are followed up with intensive supervision of you when you are eventually released on parole and are back in the community. Unless these problems are addressed there is a significant likelihood that you will re-offend. These programs require your willingness to cooperate and to attend where required.
[8] Section 23(3) of the Sentencing Act.
[9] R v Eamon Merritt Sumner (SCCRM-08-101) Sentencing Remarks, 25 August 2008, at page 8.
The prosecution withdrew its application in 2007, presumably for the reason that the available psychiatric evidence was not seen as sufficiently persuasive in the circumstances.
The law
The fundamental purpose of an order for indefinite detention pursuant to section 23 is to assist with protecting the public from persons who are incapable of controlling, or unwilling to control, their sexual instincts;[10] it is not a sentence and is not imposed in order to punish the person subject to the order.[11] It will be convenient to set out at this stage the whole of section 23.
[10] Section 23(5) of the Sentencing Act provides that this is the paramount consideration when determining whether to make an order for indefinite detention.
[11] R v England [2004] SASC 20; (2004) 87 SASR 411 at [11], R v Whyte [2006] SASC 56 at [13].
23—Offenders incapable of controlling, or unwilling to control, sexual instincts
(1)In this section—
institution means—
(a) a prison; and
(b) a place declared by the Governor by proclamation to be a place in which persons may be detained under this section; and
(c) in relation to a youth, includes a training centre;
person to whom this section applies means—
(a) a person convicted by the Supreme Court of a relevant offence; or
(b) a person remanded by the District Court or the Magistrates Court under subsection (2) to be dealt with by the Supreme Court under this section; or
(c) a person who is the subject of an application by the Attorney-General under subsection (2a);
relevant offence means—
(a) an offence under section 48, 48A, 49, 50, 56, 58, 59, 63, 63A, 63B, 69 or 72 of the Criminal Law Consolidation Act 1935; or
(b) an offence under section 23 of the Summary Offences Act 1953; or
(ba) an offence against a corresponding previous enactment substantially similar to an offence referred to in either of the preceding paragraphs; or
(c) any other offence where the evidence indicates that the defendant may be incapable of controlling, or unwilling to control, his or her sexual instincts; or
(d) an offence of failing to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse where the defendant is a registrable offender within the meaning of the Child Sex Offenders Registration Act 2006;
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.
(2)If, in proceedings before the District Court or Magistrates Court, a person is convicted of a relevant offence and—
(a) the court is of the opinion that the defendant should be dealt with under this section; or
(b) the prosecutor applies to have the defendant dealt with under this section,
the court will, instead of sentencing the defendant itself, remand the convicted person, in custody or on bail, to appear before the Supreme Court to be dealt with under this section.
(2a)If a person has been convicted of a relevant offence, the Attorney-General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section.
(2b)The Attorney-General may make an application under subsection (2a) in respect of a person serving a sentence of imprisonment whether or not an application to the Supreme Court to have the person dealt with under this section has previously been made (but, if a previous application has been made, a further application cannot be made more than 12 months before the person is eligible to apply for release on parole).
(3)The Supreme Court must, before determining whether to make an order that a person to whom this section applies be detained in custody until further order, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) 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.
(4)The Supreme Court may order that a person to whom this section applies be detained in custody until further order if satisfied that the order is appropriate.
(5)The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be the safety of the community.
(5a)The Supreme Court must also take the following matters into consideration in determining whether to make an order that a person to whom this section applies be detained in custody until further order:
(a) the reports of the medical practitioners (as directed and nominated under subsection (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 section 25;
(d) any other matter that the Court thinks relevant.
(5b)A copy of a report furnished to the Supreme Court under subsection (5a) must be given to each party to the proceedings or to counsel for those parties.
(5c)If a person to whom this section applies refuses to cooperate with an inquiry or examination for the purposes of this section, the Supreme Court may, if satisfied that the order is appropriate, order that the person be detained in custody until further order having given—
(a) paramount consideration to the safety of the community; and
(b) consideration to any relevant evidence and representations that the person may desire to put to the Court.
(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.
(7)If the detention is in addition to a sentence of imprisonment, the detention will commence on the expiration of the term of imprisonment, or of all terms of imprisonment that the person is liable to serve.
(8)A person detained in custody under this section will be detained—
(a) if the defendant is under 18 years of age—in such institution (not being a prison) as the Minister for Family and Community Services from to time directs;
(b) in any other case—in such institution as the Minister for Correctional Services from time to time directs.
(9)The progress and circumstances of a person subject to an order under this section must be reviewed at least once in each period of 12 months—
(a) if the person is detained in, or released on licence from, a training centre—by the Training Centre Review Board; or
(b) in any other case—by the Parole Board,
for the purpose of making a recommendation about whether the person is—
(c) if the person is in custody—suitable for release on licence under section 24; or
(d) if the person has been authorised to be released, or has been released, on licence under section 24—suitable to be so released.
(10)The results of a review under subsection (9), including the recommendation of the relevant Board, must be embodied in a written report, a copy of which must be furnished to the person the subject of the report, the Attorney-General and—
(a) in the case of a report of the Training Centre Review Board—to the Minister for Family and Community Services;
(b) in the case of a report of the Parole Board—to the Minister for Correctional Services.
In R v Whyte,[12] White J discussed, in detail, the notion of “unwilling” in the context of determining whether an order under section 23 is necessary.[13] His Honour observed: [14]
The statutory definition is in the nature of a deeming provision, ie, requiring the Court to presume that an offender is unwilling to control his or her sexual instincts if there is a significant risk that he or she would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of those instincts.
His Honour continued:[15]
The assessment is not, however, to be confined to the risk that a relevant offence may be committed. The risk to be assessed is the risk that the offender will fail to exercise appropriate control of his or her sexual instincts, not that he or she will commit a relevant offence. The definition is not to be construed as though it referred to the risk that, given an opportunity to commit a relevant offence, the offender would do so. In most cases, failure to exercise appropriate control of sexual instincts would be evident if a person attempted to commit a relevant offence,[16] or who aided, abetted, counselled or procured the commission of such an offence.[17]
[12] [2006] SASC 56.
[13] Previously, a person would be subject to indefinite detention pursuant to an order made under section 23 only in circumstances where the person was “incapable of controlling” their sexual instincts. Following an amendment to s 23 in 2005, an order for indefinite detention may be made in circumstances where the person is “unwilling to control” their sexual instincts.
[14] R v Whyte [2006] SASC 56 at [23].
[15] R v Whyte [2006] SASC 56 at [25].
[16] Criminal Law Consolidation Act 1935 s 270A.
[17] Criminal Law Consolidation Act 1935 s 267.
White J also identified factors the Court should consider when assessing the relevant risk and the level of risk that would support an order for indefinite detention.[18]
[T]he definition is to be applied in the following way: 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.
Before a Court concludes that a person is unwilling in the defined sense, it must be satisfied that the risk of failure to exercise appropriate control is “significant”. In context, the word “significant” has the meaning of “substantial”.[19] Put more colloquially, the Court must be satisfied that there is a “good chance” that the risk will eventuate.[20] The mere possibility of a failure to exercise appropriate control of sexual instincts will not be sufficient. But on the other hand the Court does not have to predict that the offender will fail to exercise appropriate control, or even consider it probable that he will fail to exercise such control.
[18] R v Whyte [2006] SASC 56 at [29]-[30].
[19] Cf the concept of “unacceptable risk” which appeared in the Queensland legislation considered in Fardon v Attorney-General (Qld) [2004] HCA 46.
[20] Boughey v The Queen (1986) 161 CLR 10 at 22 per Mason, Wilson and Deane JJ.
The Court directed that two psychiatrists inquire into the mental condition of the defendant and to report on whether he is incapable of controlling, or unwilling to control, his sexual instincts.[21] In addition, the Court had available to it a forensic psychologist report addressing the question whether or not the defendant is unwilling to control his sexual instincts, as defined in section 23.
[21] As required by section 23(3) of the Sentencing Act.
The paramount consideration when determining whether an order for indefinite detention is appropriate is the safety of the community.[22] In addition to this consideration, subsection (5a) requires me to consider the abovementioned reports, any evidence and representations put to the Court on behalf of the defendant and any other relevant matter.
[22] Section 23(5) of the Sentencing Act.
An issue arising under section 23 concerns the basis upon which any assumptions of fact, upon which the medical practitioners have based their opinion as to the defendant’s unwillingness, must be established. Bleby J in R v England said this.[23]
[T]he Court will need to assess the strength of [the medical practitioners’] opinions, taking into account a number of factors relevant to the assessment of expert evidence. That will include identifying the relevant primary facts surrounding the proven offending on which medical practitioners have based their opinions, and ensuring that they are established to the court’s satisfaction beyond reasonable doubt.
[23] R v England (2004) 87 SASR 411 at [58].
Ultimately, the question of whether or not an offender is unwilling, as defined, is a matter for the Court. An opinion to that effect by any or all of the medical practitioners who provide a report is neither a necessary nor a sufficient requirement, although the Court must “have regard” to their opinions.[24]
[24] R v Ainsworth [2008] SASC 67; (2008) 100 SASR 238 at [41].
If I were to conclude that the defendant is unwilling, in the relevant sense, I still must then consider whether I should exercise the discretion to make an order pursuant to section 23(4).[25] I must engage in an exercise of balancing the interest of the community to be protected against the significant deprivation of liberty that would result from an order for indefinite detention.[26]
[25] [2006] SASC 56 at [15]; R v England (2004) 87 SASR 411 at [56], [60].
[26] R v Armfield [2005] SASC 108 at [67].
An important consideration is the possibility for an offender to be rehabilitated and where and how that might best be achieved. For example, in R v Warsap,[27] Vanstone J determined that, although section 23 was enlivened due to the offender being unwilling to control his sexual instincts, a countervailing consideration was that the offender was to be sentenced to a long term of imprisonment, in any event, with the inherent possibility of rehabilitation. Counsel for the offender in Warsap had submitted that the offender could participate in intervention programs while serving his sentence and, subsequently, the Parole Board could fix restrictive conditions of parole. Her Honour declined to make an order for indefinite detention. The offender was sentenced to imprisonment for 13 years with a non-parole period of nine years. Her Honour was satisfied that the offender had a capacity to control his sexual instincts that could be enhanced by participation in custodial intervention programs.
[27] [2011] SASC 73. The sentence in this matter was appealed to the Court of Criminal Appeal; the appeal was dismissed, see R v Warsap [2011] SASCFC 129; (2011) 111 SASR 232.
In addition to deciding whether or not to make an order for indefinite detention, it is necessary for me to deal with the question of sentence. The defendant has not yet been sentenced for the most recent offending. If I were to conclude that an order for indefinite detention is appropriate, I would have a discretion whether or not to sentence for that offending.[28] Any order for indefinite detention would commence at the expiration of any sentence also ordered.[29]
[28] Section 23(6) of the Sentencing Act.
[29] Section 23(7) of the Sentencing Act.
Should an order for indefinite detention be made, the Sentencing Act provides for an offender, in prescribed circumstances, to apply to have the order discharged or to be released on licence.[30]
[30] Sections 23(9), 23A and 24 of the Sentencing Act.
The materials before the Court
The written materials before the Court include the two volumes, exhibits P1 and P2.
Exhibit P1 is a volume of reference materials tendered by the prosecution with the defendant’s consent. It contains numerous documents, by way of background leading up to the 2012 offending, including: past sentencing remarks, Parole Board documents, victim impact statements, sentencing reports and psychiatrist reports. I have considered and had regard to that material.
Exhibit P2 was also received with the consent of the defence. It contains numerous documents, primarily relevant to the 2012 offending, including: the District Court judgment, the victim’s witness statements, the expert reports obtained for the purpose of this section 23 application, an updated criminal antecedent report and a number of reports provided on behalf of the Rehabilitation Programs Branch of the Department for Correctional Services which deal with programs that have been offered to the defendant in custody and his level of responsiveness. I have considered and had regard to this material.
The prosecution relied, principally, on the evidence of two forensic psychiatrists and a forensic psychologist. I do not propose to summarise the materials in exhibits P1 and P2 but I will outline the evidence given by these three experts.
Evidence of Ms Emma Warne
Ms Emma Warne is a registered psychologist with endorsements in clinical and forensic psychology. After interviewing the defendant and considering various materials provided to her, she prepared a report dated 8 January 2015. Ms Warne was also orally examined and cross-examined before me. I found her to be an impressive witness on whose evidence I was content to rely. The summary that follows is based on a combination of her written report and oral evidence.
Ms Warne described the defendant as an engaging interviewee who was quite willing to provide information, save for some instances in which he was quick in being unable to recall events relating to his sexual offending. At times, he suggested that his offending was related to substance abuse.
Ms Warne had been asked specifically to address whether the defendant was unwilling to control his sexual instincts, as defined in section 23(1). She was asked to conduct an actuarial risk assessment of the defendant’s sexual offending and, for this purpose, she administered two standardised and industry accepted tests; the STATIC-99R[31] assessment and the Stable 2007[32] assessment. She was also asked to consider his personality structure.
[31] STATIC-99R is an actuarial tool that assesses static risk factors, which are factors that are historical in nature and cannot be changed with further intervention or treatment. It is a tool that reviews a person’s past behaviour with a view to predicting the person’s future behaviour.
[32] Stable 2007 is also an actuarial tool that assesses a person’s dynamic risk factors, which are factors that are amendable to change based on intervention or treatment or on an individual desisting from a particular behaviour.
Ms Warne reported that the defendant fell within the “high risk” range for sexual re-offending under each assessment. Factors relevant to the Stable 2007 assessment included the defendant’s: limited capacity for relationship stability, impulsivity, poor problem solving, deviant sexual preferences, limited social influences, difficulty with regard to social interaction, demonstrated emotional reactivity and hostility towards women and demonstrated poor cooperation with regard to supervision.
After combining the results from the two assessments, Ms Warne reported that the defendant was within the “very high risk” range for sexual re-offending. Based on recidivism rates in the Stable 2007 Coding Manual,[33] the “very high risk range”, indicated a 79.4% chance of re-offending in any manner within a five year period and a likelihood of sexual re-offending within five years of between 24.6% and 57.7%.
[33] The rates were based on a Canadian population and are to be viewed with caution.
Ms Warne also conducted a “psychopathy” checklist,[34] which is a tool used to assess a person’s personality structure.[35] Ms Warne noted that this checklist can assist with the assessment of risk derived from STATIC-99R and Stable 2007 assessments to the extent it might show consistency. According to Ms Warne, the defendant demonstrated various personality traits consistent with the construct of a psychopathic personality disorder. In Ms Warne’s opinion, the results indicated that the defendant was at risk of re-offending in the future.
[34] This was done at the request of Dr Furst.
[35] The checklist is a tool that assists in indicating whether or not an individual presents with traits or qualities of someone with a psychopathic personality disorder.
Ms Warne, in her report, concluded that the defendant could be regarded as unwilling to control his sexual instincts, if the 2012 offending was sexually motivated. During her evidence, Ms Warne clarified that the defendant may, in certain situations, be unwilling to control his sexual instincts, such as when he was under the influence of drugs or thought that he would not be caught.
In her evidence, Ms Warne said that because the defendant was well above the threshold for the high-risk category for sexual re-offending with respect to both the STATIC-99R and Stable 2007 assessments, any lack of sexual motivation to the 2012 offending would not reduce the assessment below the ‘high risk’ level. Nevertheless, Ms Warne maintained that her conclusion that the defendant may be unwilling to control his sexual instincts was based on on the assumption that the 2012 offending against BM was sexually motivated.
Ms Warne was of the opinion that the defendant would engage with any further treatment offered and that it would be appropriate for him to do so. However, she said that the programs available in custody would likely have a waiting list. Given that places are limited, the Rehabilitations Program Branch endeavours to ensure that persons serving a sentence with a non-parole period receive treatment prior to being released. As a consequence, priority will often be given to persons who are nearing release and this can put prisoners who are indefinitely detained, and with no formal release date, at a potential disadvantage.
According to Ms Warne, and it is common ground that, the defendant had participated in Sexual Behaviour Clinics on three occasions in the past but has only completed the clinic once. He also has received supplementary individual treatment. Ms Warne said that there was potential value in having the defendant participate again in any available rehabilitation programs. However, in order to benefit, he would need to be more honest and candid with his responses and more engaged. If he were to approach the rehabilitation programs in this manner, it would assist in reducing the defendant’s dynamic risk factors. Ms Warne acknowledged that there was evidence to the effect that the defendant was willing to engage in such treatment.
Evidence of Dr Jules Begg
Dr Jules Begg interviewed the defendant and provided various reports in 2014 and 2015. He had previously assessed and reported on the defendant in 2004, relevant to a prior section 23 application. Dr Begg is a highly qualified and experienced forensic psychiatrist. I found his evidence to be of significant assistance. Again, the summary that follows is based on a combination of his written reports and oral evidence.
For the purpose of his initial assessment, Dr Begg also assumed that the motivation for the 2012 offending against BM was sexual. However, the defendant told Dr Begg the offending was not sexually motivated, that it was not an attempted rape but an attempted robbery, that he only wanted to take BM’s house keys and that he did not want to put her into the boot of the car.
Dr Begg concluded that the defendant had an Antisocial Personality Disorder, characterised by impulsive behaviour, repeated offending and a lack of remorse or conscience that would stop further behaviour of that nature.
In Dr Begg’s opinion, the defendant is capable of controlling his sexual instincts. With respect to whether the defendant would be “willing” to exercise appropriate control of his sexual instincts, Dr Begg concluded that he would not. However, in his report(s) Dr Begg based this conclusion, in part, on the assumption that the motivation for the offending against BM had been sexual. If it had been robbery, he would come to the conclusion that the defendant was willing to control his sexual instincts.
Dr Begg modified this opinion during his evidence. After giving further consideration to the notion of “willing”, as defined, Dr Begg came to the view that the defendant may not be willing, given a relevant opportunity, to control his sexual instincts. This opinion stood regardless of whether there was a sexual motivation to the 2012 offending against BM. However, a lack of sexual motivation would cause this opinion to be less strongly held, although not significantly so.
Dr Begg expressed the opinion that, in the event that the defendant had not been truthful as to his motivation for the 2012 offending against BM, such would demonstrate poor prospects for rehabilitation, because acknowledgment and the ability to appreciate his own motivation for the offending would be an important aspect of being able to control his actions. Dr Begg was of the view that the defendant would not benefit from further treatment to lower the risk of re-offending, unless he were genuinely to engage with and fully participate in the treatment.
Evidence of Dr Paul Furst
Dr Paul Furst is also a highly qualified and experienced forensic psychiatrist. I found his evidence to be of particular assistance. Again, the summary that follows is based on a combination of his written report(s) and oral evidence. Dr Furst interviewed the defendant and prepared a report in late 2014. At that time, Dr Furst was not prepared to express a concluded view as to the defendant’s willingness to control his sexual instincts. He suggested that an assessment, using psychological assessment tools by a qualified forensic psychologist (the STATIC-99R and Stable 2007 assessments) be obtained.
After receiving Ms Warne’s report, Dr Furst interviewed the defendant again and provided a further report to the Court dated 23 March 2015. During this interview, the defendant said that drugs were his primary problem. However, he denied that drugs would have increased his sex drive such that he would have been aroused by a non-consenting victim. Instead, he said he could have sex with his partner or, somewhat inconsistently, if he had wanted to rape someone, he could have kidnapped a prostitute. The defendant said that his previous sexual offences involving masturbation were “sick and weird”.
In his later report, Dr Furst acknowledged that Ms Warne’s assessment results placed the defendant within the “high risk” range for sexual re-offending, regardless of his current mental state or attitude. He reported that the defendant had repeatedly claimed that the 2012 offending was not sexually motivated. Dr Furst expressed the opinion that the motivation for the 2012 offending was likely to have been sexual arousal with respect to older women or, even more concerning, arousal with respect to the idea of rape and the power imbalance from selecting an older woman as an easy target. The seeking out of older women suggested some pre-planning on the defendant’s part and a lack of impulsivity.
During his evidence, Dr Furst agreed that a person’s static risk and dynamic risk factors were of significance to an assessment of the person’s risk of sexual re-offending.[36] In his view, the analyses undertaken by Ms Warne demonstrated that the defendant had a high risk of sexual re-offending. Dr Furst concluded that, even if one were to assume that the motivation for the 2012 offending was of a non-sexual nature, the fact that the defendant committed another very serious offence of violence still showed an increase in his risk of sexual re-offending, although not to the same level as if the motivation had been sexual. In other words, violent re-offending, albeit non-sexual, still pointed to a high risk of sexual re-offending because of the defendant’s existing static risk and dynamic risk factors. According to Dr Furst, the 2012 offending, whether sexual or not, served to demonstrate an increased risk of both sexual re-offending and violent re-offending.
[36] In short, static risk factors are features of an offender’s history that might assist in predicting recidivism but are not amenable to change, for example, an offender’s prior record and prior experiences. Dynamic risk factors are factors potentially amenable to change such as ongoing substance abuse or negative relationships. See also footnotes 31 and 32.
Dr Furst qualified his opinion to the following extent. Although the defendant poses a greater risk of sexual re-offending than does a general member of the public, there are several factors that need to be considered. These include his mood, recent events in his life preceding an event, whether or not he had been using amphetamines or other drugs, if he was “aggro” about something, or whether he had been spending time ruminating about sexual themes. Dr Furst concluded that, if the defendant were to be under the influence of alcohol or drugs, the level of risk of re-offending would be “quite significant”, particularly given that the defendant had mentioned in the past that amphetamine use had increased his sexual drive.
Dr Furst accepted that conditions imposed by the Parole Board so as to govern a prisoner’s release on parole can include participation in sexual offender treatment programs. However, Dr Furst observed that the availability of sexual offender programs for a prisoner on parole is limited.
Consideration
All of the experts expressed their opinions cautiously, recognising that, ultimately, whether or not the defendant is to be found unwilling to control his sexual instincts, as that notion is defined for the purposes of a section 23 application, is a matter for the Court. I found all of the experts to be of significant assistance.
Each of the experts was, in one way or another, troubled about how to deal with the issue of the defendant’s motivation for the 2012 offending and its potential relevance.
A difficulty in this matter arises because the jurisdiction of the Supreme Court, to consider whether or not to make an order pursuant to section 23, has been invoked by the Judge’s finding that the defendant committed a “relevant offence” on the basis that the offence of attempted kidnapping fell within paragraph (c) of the definition. Paragraph (c) provides that a “relevant offence” includes:
(c)any other offence where the evidence indicates that the defendant may be incapable of controlling, or unwilling to control, his or her sexual instincts.
As already discussed, the definition of “unwilling” requires only that there be “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”. At one level, the test is not demanding; only a “significant risk”, in the sense explained by White J in R v Whyte,[37] needs to be established.
[37] [2006] SASC 56 at [30].
Further, insofar as paragraph (c) of the definition of “relevant offence” is concerned, the Judge only had to be satisfied that the defendant “may” be unwilling, as defined. This suggests an even lower threshold, at least for the purpose of attracting the jurisdiction of the Supreme Court to consider whether or not to make an order under section 23. In addition, there need only be a significant risk that the person would, given an opportunity, commit a “relevant offence” which, for this purpose, can be any offence falling within paragraphs (a) to (d) of the definition of relevant offence in section 23(1). These paragraphs embrace offences ranging from the, relatively, less serious offence of behaving in an indecent manner in a public place,[38] to the significantly more serious offences of, for example, rape[39] or persistent sexual exploitation of a child.[40]
[38] Section 23(1) of the Summary Offences Act 1953.
[39] Section 48 of the Criminal Law Consolidation Act.
[40] Section 50 of the Criminal Law Consolidation Act.
In reaching his conclusion that this was an appropriate case to be referred to the Supreme Court, the Judge said this.
Having regard to the arguments of counsel and, in particular, [defence counsel’s] submissions, I am satisfied that having regard to [the defendant’s] history of offending, which shows there is a clear propensity to commit sexual offences against older women of a predatory nature and having regard to the circumstances of the particular offence of attempted kidnapping, it seems to me that [the defendant] has been convicted of a relevant offence in the sense that the evidence indicates that having regard to, as I say, the circumstances of this offence and his prior offending and the psychiatric and psychological reports which have been tendered, that [the defendant] may be incapable of controlling or unwilling to control his sexual instincts.
Each of the experts who have given evidence before this Court have qualified to a greater or lesser degree their opinion, according to whether or not the attempted kidnapping offence committed by the defendant in 2012 was sexually motivated. Whilst both Dr Begg and Dr Furst gave reasons as to why they believed that the offence was probably sexually motivated, this is not a finding of fact strictly within their province. To the extent that a finding needs to be made in this respect, it is a matter for the Court and this is where the problem lies.
The Judge below did not make an express finding, beyond reasonable doubt,[41] that the attempted kidnapping offence was sexually motivated. His Honour was not required to. However, it can be inferred that his Honour was, at least, strongly inclined to that view given that he expressly had regard “to the circumstances of the particular offence of attempted kidnapping” when forming his view as to whether or not the evidence indicated that the defendant may be unwilling to control his sexual instincts.
[41] See R v England[2004] SASC 20; (2004) 87 SASR 411 at [58] (Bleby J).
Strictly, if I am to rely on the opinions of the experts to the extent that they are dependent on a finding of fact that the attempted kidnapping offence was sexually motivated, I would need first to be satisfied that such a finding ought be made beyond reasonable doubt.
The material relevant to this issue, available to me, includes the Judge’s reasons for judgment in finding the defendant guilty of the offence of attempted kidnapping, the statements provided to police by the victim, a transcript of the evidence given at trial, the defendant’s prior criminal record, together with various materials including sentencing remarks and reports available to the Court dealing with his earlier offending, and the expert psychiatric and psychological evidence provided for the purposes of this application. I did not have the advantage of seeing the victim give her evidence during the trial. Further, neither the victim nor the defendant gave evidence in the proceedings before me, although I doubt very much, given the objective circumstances surrounding the attempted kidnapping, whether any such evidence, had it been given, would have been determinative.
On my review of all of the available materials, I cannot be satisfied beyond reasonable doubt that the defendant intended to sexually assault BM or commit some other sexual offence at the time of the attempted kidnapping. However, I am of the view that it was highly probable that this was his intention or motivation.
Given this finding, I can only rely on the expert opinions subject to the extent to which they are qualified in this respect. At the end of the day, this does not stand in the way of a finding that the defendant is a person unwilling to control his sexual instincts, as that term is defined. I am, in any event, satisfied that there is a significant risk that the defendant would, given an opportunity to commit a “relevant offence”, fail to exercise appropriate control of his sexual instincts. The risk is a “substantial” one; there is a “good chance” that this would occur.[42] I make that finding as a result of the following considerations:
(i)the defendant has an extensive history of sexual offending;
(ii)the historical offending exhibits a pattern that indicates a strong motivation to offend in a particular way against a particular type of victim;
(iii)on each of the two occasions the defendant was released having recently served a lengthy period of imprisonment, he offended again (on at least one such occasion, in a similar manner) within a matter of months such that it would seem that the serving of substantial periods of imprisonment has had little effect by way of personal deterrence;
(iv)the defendant has participated three times in a sexual offender rehabilitation program and his level of response has been limited and disappointing;
(v)much of the defendant’s prior offending had the hallmarks of being planned and organised in a way that would permit a ready escape and reasonable prospects of lack of detection;
(vi)the expert evidence strongly favours a finding that the defendant is, by definition, unwilling to control his sexual instincts; and
(vii) in particular, Ms Warne’s psychometric analyses, adopted with approval by Dr Furst, demonstrate, at the least, that the defendant presents with a substantial risk of sexual re-offending.
[42] R v Whyte [2006] SASC 56 at [30].
On an overall reading of their evidence, both Dr Begg and Dr Furst are of the opinion that there is a significant risk that the defendant, if given an opportunity to offend in a sexual manner, would fail to exercise appropriate control of his sexual instincts. According to their evidence, this risk would be heightened in circumstances such as where the defendant was affected by alcohol or drugs or where the defendant was confident that he would be able to offend undetected. Ultimately, they both, particularly Dr Furst, adhered to this view independently of whether or not the attempted kidnapping was sexually motivated.
The defendant is a person to whom section 23 applies and accordingly the discretion under section 23(4) to order that the defendant be detained in custody until further order is enlivened. However, in order to exercise the discretion, I must be satisfied that the order “is appropriate”.[43]
[43] Section 23(4) of the Sentencing Act.
In my view, the safety of the community is a very real concern in this case. The defendant’s criminal history demonstrates offending that is of a repetitive nature, that is significant both in the number of offences and their seriousness and which discloses, in my view, a potentially escalating pattern of seriousness. In this case, serious weight must be given to the paramount consideration required by section 23(5) of the safety of the community.
There are considerations that militate against the making of an order for indefinite detention. The defendant, in his early 30s, is still quite young. He has prospects although, it would be fair to say on the basis of the materials before the Court and the expert opinion, only guarded prospects, of rehabilitation. It cannot be known for certain what further rehabilitation programs will be made available to the defendant in custody, how soon they could be made available, particularly if he is subjected to indefinite detention, or how effective they might prove to be. However, similar concerns arise with respect to any rehabilitation assistance that may be available to the defendant should he be released into the community.
Whilst the defendant’s most recent offending is extremely serious, it is not so serious as to merit a very long sentence of imprisonment such as was the case in, for example, R v Warsap.[44] Nevertheless, given the seriousness of the offending, the defendant’s prior criminal record, his personal circumstances, his prospects for rehabilitation as they presently stand and the importance of deterrence, particularly personal deterrence, in this case, a single head sentence[45] of something in the order of six years and six months with a relatively lengthy non-parole period of, say, five years and six months can be considered appropriate.
[44] [2011] SASC 73.
[45] Exercising s 18A of the Sentencing Act to impose one penalty for both offences.
The defendant has been in custody since 20 August 2012. Should he be sentenced, as indicated, he would not be in a position to apply for parole for at least another two years and three months. Parole could not be automatically granted under section 66 of the Correctional Services Act 1982[46] and an application would have to be made to, and approved by, the Parole Board pursuant to section 67 of that Act. In the present case, and without in any way intending to constrain the Parole Board’s discretion should the occasion for it arise, there is a real prospect that parole might be refused or delayed in which case the defendant would spend a further three years and three months or so in custody.
[46] Excluded from the automatic parole entitlement are prisoners serving a sentence for an offence of personal violence, section 66(2)(ab) of the Correctional Services Act.
The most obvious concern about making an order for indefinite detention in this case is the fact that it would deprive such a young defendant of his liberty on an indefinite basis, not as punishment for a criminal offence or offences committed but in order to prevent the defendant from committing further criminal offences and in order to alleviate the risk he poses to the community for the future. This concern is ameliorated to some degree by the requirements under the legislation that a person, subject to such an order, must have their progress and circumstances reviewed by the Parole Board at least once in each period of 12 months for the purpose of making a recommendation whether or not the person is suitable for release on licence.[47] There is also provision for a person, subject to an order for indefinite detention, to make an application for that order to be discharged.[48] However, the prospects for release pursuant to one or other of these processes will depend, in large measure, on the success or otherwise of the person’s efforts to rehabilitate which will, in turn, depend in large measure on the nature of the programs and treatment that will be offered, and availed of, whilst in custody. This cannot be predicted and it is of concern that priority in this respect may need to be given to prisoners with nominated release dates.
[47] See section 23(9) and section 24 of the Sentencing Act.
[48] Section 23A of the Sentencing Act.
Ultimately, I must balance the risk this defendant presents against the considerations that militate against the making of the order. Unfortunately, one cannot, with confidence, predict the future; there are many unknowns.
Whilst the nature of the risk to the community posed by the defendant is clear, at one level, its extent or prospect of manifestation is less clear. The defendant’s last recorded sexual offence occurred in 2007, some eight years ago, although I have found that it is highly probable that the attempted kidnapping in 2012 was sexually motivated. Of course, the defendant has not had much opportunity to offend again since 2007, given his periods in custody, and he did re-offend quite soon after his releases in 2007 and 2012.
Nevertheless, the defendant, albeit having been deprived of opportunity, has not offended for a good number of years now. Further, he has been found unwilling, but not incapable, of controlling his sexual instincts. It cannot be known what effect this latest lengthy period of custody and the section 23 process presently underway will have had on the defendant’s desire to better engage with any treatment that may be offered. The experts were guardedly optimistic about his rehabilitation prospects, provided that the defendant were to genuinely engage and cooperate with any further treatment that might be offered. In this respect, the fact that the defendant has been on remand for so long on this occasion and, as a remand prisoner, has been deprived of the opportunity to engage in further sexual offender treatment programs is of concern.
The risk to the community is ameliorated for the present by the fact that the defendant will remain in custody for more than another two years, at least. There is sufficient time for him to undertake further sexual offender treatment programs. Ms Warne, in her report, has identified a number of dynamic risk factors (see earlier) that need to be addressed. In time the defendant will be reviewed by the Parole Board. The ultimate protection available to the community is that before he were to be released, either on parole or at the expiration of his sentence, the Attorney General will be entitled to bring another application under section 23 and to have it considered and determined with the assistance of updated information as to the defendant’s future responsiveness to any additional sexual offender treatment.[49]
[49] Section 23(2a), (2b) of the Sentencing Act.
In all the circumstances including that, immediately after delivering this judgment, I propose to sentence the defendant for the 2012 offending in the manner I have indicated, the risk to the safety of the community, whilst a paramount consideration, is not sufficient to warrant the making of an order for indefinite detention at this stage. The prosecution application under section 23 is dismissed.
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