R v Sumner

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.