R v Sumner

Case [2015] SASC 177

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 177

Criminal: Application pursuant to section 23 Criminal Law (Sentencing) Act 1988

NICHOLSON J.        

Introduction

  1. 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.

  2. The prosecution’s application was made following a trial heard by a judge sitting alone in the District Court.[1]  The Judge found the…

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R v Sumner [2015] SASC 177
Case
[2015] SASC 177
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CaseChat Overview and Summary

In R v Sumner, the Supreme Court of South Australia was tasked with considering whether the defendant was unwilling to control his sexual instincts as defined in section 23 of the Summary Offences Act 1953. The case arose following the defendant's conviction for attempted kidnapping, which led the trial judge to refer the matter to the Supreme Court for consideration of a sentencing order under section 23. The primary legal issue was whether the defendant's propensity for sexual offences against older women, coupled with the nature of the attempted kidnapping, indicated a significant risk that he would fail to exercise appropriate control of his sexual instincts.

The court relied on the expert evidence of two forensic psychiatrists and a forensic psychologist. These experts conducted actuarial risk assessments, including the STATIC-99R and Stable 2007 assessments, which indicated that the defendant fell within the "high risk" and "very high risk" ranges for sexual re-offending. Factors such as the defendant's limited capacity for relationship stability, impulsivity, deviant sexual preferences, and hostility towards women contributed to these high-risk assessments. The experts also highlighted the limited availability of sexual offender treatment programs for prisoners on parole.

The court acknowledged that while the experts were of significant assistance, the ultimate determination of whether the defendant was unwilling to control his sexual instincts was a matter for the court. The court noted that the threshold for invoking the jurisdiction under section 23 was not demanding, requiring only a significant risk that the defendant would fail to exercise appropriate control of his sexual instincts. The court concluded that the defendant's history of offending and the circumstances of the attempted kidnapping supported the trial judge's finding that the defendant may be unwilling to control his sexual instincts.

The Supreme Court found that the defendant's risk of re-offending, as indicated by the expert evidence, warranted consideration of a sentencing order under section 23. The court ordered that the defendant be subject to a supervision order, which included participation in a sexual offender treatment program, to address his risk factors and to mitigate the likelihood of re-offending.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

NICHOLSON J

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Ratio Decidendi

Legal Principle Established

Established by: NICHOLSON J

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.