R v Thrupp - [2011] SASC 122

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v THRUPP
[2011] SASC 122
Judgment of The Honourable Justice Anderson
3 August 2011
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - MISCELLANEOUS OFFENCES AND MATTERS - HABITUAL CRIMINALS - DISCRETION TO MAKE DECLARATION
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER
Application by the Director of Public Prosecutions that the respondent be detained in custody until further order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) - respondent found to have low intellectual ability and poor social skills - respondent has long history of sexual offending - respondent has pleaded guilty to three counts of rape and two counts of indecent assault, for which he is awaiting sentence.
Whether respondent is incapable of controlling or unwilling to control his sexual instincts - whether appropriate to make an order pursuant to s 23 - whether there is a significant risk to the public that the respondent would, given the opportunity, fail to exercise appropriate control of his sexual instincts - factors relevant to the exercise of the discretion.
Held: Application refused - respondent capable of controlling but is unwilling to control, his sexual instincts - however, not reasonable on the evidence to order indefinite detention having regard to long sentence of imprisonment and because of power of intervention by the Attorney-General.
Criminal Law (Sentencing) Act 1988 (SA) s 23, referred to.
R v Ainsworth [2008] SASC 67, applied.
Buckley v The Queen (2006) 80 ALJR 605, discussed.

R v THRUPP
[2011] SASC 122
Criminal

ANDERSON J. This is an application by the Director of Public Prosecutions pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA).
Mr Thrupp was charged with and pleaded guilty to three counts of rape which occurred on 4 November 2009. Mr Thrupp admitted to having vaginal and anal sexual intercourse with the victim and also pleaded guilty to a further count of rape by causing the victim to perform an act of fellatio upon him.
The application, if successful, would require Mr Thrupp to be detained in custody until further order pursuant to the Sentencing Act. The Director of Public Prosecutions claims that he is incapable of controlling, or is unwilling to control, his sexual instincts.
In addition to pleading guilty to the three counts of rape he has also pleaded guilty to two counts of indecent assault which occurred on 8 July 2010. An information was laid in relation to these matters in the Magistrates Court and I am to deal with those matter in addition to the counts of rape by sentencing Mr Thrupp for both lots of offences.
The full details of the offending on both occasions is set out in my sentencing remarks of today’s date.
Evidence of Dr Raeside and Dr Tomasic
I received reports and heard evidence from two specialist psychiatrists, Dr Raeside and Dr Tomasic. There is not much difference in their evidence in that they both agree that although Mr Thrupp is capable he is not willing to control his sexual instincts. Dr Raeside goes so far as supporting the application made by the Director of Public Prosecutions.
Dr Raeside summarises as follows:
… In summary Mr Thrupp is a 47 year old man with a mild intellectual disability, an underlying Antisocial Personality Disorder, and markedly poor social skills. He has a long history of offending, including recurrent sexual offending, which has been assessed as being part of his broader social impairment, with limited capacity to engage in socially appropriate behaviour with adult females in order to have appropriate consensual sexual activity. Rather, he has a history in a premeditated way of engaging with females with a view to having sex and then forcibly doing so. The history also suggests limited capacity to control his sexual behaviours, although as noted he does appear to have some capacity.
Dr Raeside goes on in his report to say:
… I note Mr Thrupp’s limited response to prior sexual offender therapy. Much of this appears to relate to his own limitations, but also due to the limitations of the programs that were provided to him. It is clearly concerning that he acted inappropriately to female workers at times. He has also had more significant social supports in recent times that he has had previously. Notwithstanding considerable input following his release into the community after the more protracted imprisonment he again has reoffended. Of concern, he appears to have offended again after being charged with the initial rapes.
Dr Raeside’s reference in the last sentence above is to the indecent assault offences which occurred subsequent to the rapes.
Dr Tomasic in her report of 5 May 2011 says:
In my opinion Mr Thrupp is unwilling to control his sexual instincts and urges as defined by the Act, and there is a significant risk of him reoffending. Given the opportunity to commit a future sexual offence, Mr Thrupp would most likely fail to control his sexual urges and reoffend. I do not consider that he is unable to control his sexual instincts.
Of significant concern is that Mr Thrupp has continued to reoffend after having specific sexual offender treatment, and indeed his offences have possibly increased in severity. Furthermore, some of his victims have also suffered intellectual disability; a population known to under report sexual offences as compared to the general population. This fact in addition to his itinerant lifestyle and frequent moves between States leads to the additional concern that he has offended on more occasions than have been detected. Although this is speculation, it is clear that his lifestyle, such as living in supported accommodation places him in situations with women who suffer intellectual disability or severe mental illness, a particularly vulnerable group.
It is clear that Mr Thrupp has a low intellectual ability, is illiterate and has poor numeracy skills. It is also clear that he has a long history of unlawful conduct both involving sexual offences and general offences involving dishonesty and other antisocial offending. Dr Tomasic in particular considers that he does have psychopathic traits such as his attempt to charm and manipulate.
One thing is clear and that is that Mr Thrupp is unwilling to recognise the harm that he has caused his victims. He has never expressed any comments of remorse other than those for which he is attempting to gain the sympathy of either the doctors or the court. Dr Tomasic regarded such comments as being melodramatic.
It is clear to me from the reports of the psychiatrists that Mr Thrupp wants me to think that his whole life will change because he now realises the error of his ways and that therefore I should take this into account in granting him leniency. In particular he has emphasised to the psychiatrists the relationship which he says he has with his girlfriend who I was informed in final submissions is now his fiancée. It is a strange fact that the offences of indecent assault against a woman took place while his fiancée was actually present. This seems to indicate a huge problem which Mr Thrupp has in understanding his actions and the consequences of them.
Of particular concern are the views of the doctors regarding the high risk of reoffending. Both doctors regard the risk as high. In particular it is Dr Raeside’s opinion that Mr Thrupp will remain a high risk regardless of what happens in gaol and whatever therapy or courses he may be involved in. As he puts it, the risk is based on historical factors which will not change. So Mr Thrupp’s history makes him a difficult subject for anyone involved in attempting rehabilitation. It is Dr Raeside’s opinion that the high risk of reoffending cannot be lowered because of the past history of offending.
Consideration of s 23
The Act gives the Court power to detain a prisoner for an indefinite period of time. That clearly results in a deprivation of that person’s liberty. Such a wide power must not be exercised without caution.
The application of s 23 was generally discussed by the Court of Criminal Appeal in R v Ainsworth [2008] SASC 67. Doyle CJ agreed with the reasons proposed by White J. I apply the principles discussed in Ainsworth.
It is clear that the question of any order under s 23 is to be considered at the same time as the Court considers the question of sentence. An order for indefinite detention may be made in addition to, or instead of, a sentence of imprisonment: see Ainsworth per White J at [25] and Layton J at [105].
An order of indefinite detention can be made after the offender has been sentenced but only on the application of the Attorney-General made while the offender remains in prison: see Ainsworth per White J at [26] and Layton J at [115].
Section 23(5) contains no express requirement that at least two court-ordered medical practitioners must consider that the offender lacks the requisite capacity or willingness. The section does not make the content of the expert opinions either a necessary or sufficient condition for the making of an order. The court must obtain the opinions and have due regard to them. The words of the section do not indicate that the court must first be satisfied that two medical practitioners consider that the offender lacks the requisite capacity or willingness to control his or her sexual instincts: see Ainsworth per White J at [41].
The purpose of an order for indefinite detention is principally protective, that is, to protect the public from conduct of a particular kind by the offender: see Ainsworth per White J at [56] and Layton J at [142].
A judge should only make an order upon cogent evidence and with a clear appreciation of the exceptional nature of the course being taken: see Ainsworth per White J at [56]. After deciding the appropriate penalty, the utility of any order for indefinite detention needs to be considered: see Ainsworth per White J at [78] and Layton J at [140].
Consideration
On the whole of the evidence I do not find that Mr Thrupp is incapable of controlling his sexual instincts.
I am of the opinion that Mr Thrupp is manipulative. I am also of the opinion that he lacks empathy and has little if any insight into the impact of his offending on his victims. He continues to relate the offences in a manner which tends to transfer the blame for his acts away from himself.
I agree with the opinions expressed by Dr Raeside and Dr Tomasic, and in my own assessment of Mr Thrupp I find he is unwilling to control his sexual instincts as per the definition contained in s 23.
Mr Stewart for Mr Thrupp submitted that there is one final step before any order can be made. A finding of unwillingness to control sexual instincts is not the only determinant of whether to make such an order. The court must be satisfied that the order is appropriate.
I have concerns about whether an order is appropriate in this matter. I have today sentenced Mr Thrupp to a head sentence of 13 years and 5 months with a non-parole period of 9 years and 6 months.
It may be that with proper treatment in prison Mr Thrupp can be educated to control his sexual instincts. This is all very speculative. Dr Raeside’s opinion, and to a lesser extent that of Dr Tomasic, is that the risk remains high regardless of what treatment is undertaken.
In my sentencing remarks I refer to a program to be introduced for sexual offenders with low intellectual function. This may be in operation in August. I have been told that where offenders have an indefinite sentence the practice is to allocate only one person with an indefinite sentence to each treatment group. Mr Stewart submitted that that in itself was a reason not to make the order sought.
Conclusion
The lengthy sentence of imprisonment which I have imposed makes it unlikely that Mr Thrupp will have any opportunity to commit a sexual offence for many years. I consider this is a relevant factor in considering the protection of the community which is the principal reason for making an order under s 23.
In R v Ainsworth the court emphasised a passage from Buckley v The Queen (2006) 80 ALJR 605 at 607, a portion of which I now set out:
In the first place, where a judge, sentencing a dangerous offender, is deciding whether the protection of society requires an indefinite sentence, the protective effect of a finite sentence, fixed according to ordinary sentencing principles, including the need to protect the public, is a matter to be weighed carefully. An indefinite sentence is not merely another sentencing option. Much less it is a default option. It is exceptional, and the necessity for its application is to be considered in the light of the protective effect of a finite sentence. Second, the available finite sentence sets the timeframe by reference to which the temporal issues earlier mentioned are to be examined.
[Footnotes omitted]
I have also taken into account the power vested in the Attorney-General to make an application under s 23(2a). This allows for the possibility that if Mr Thrupp has undergone treatment in prison and if, when nearing the end of his non-parole period, there are still concerns over his willingness to control his sexual instincts, then the Attorney-General may make an application within the time specified in s 23(2b).
I have therefore concluded that it would not be reasonable for me to order indefinite detention in these circumstances. I have taken into account the whole of the evidence before me, the sentence of imprisonment which I have imposed today, the possibility, although not high, that treatment may be successful and the overriding power of the Attorney-General to intervene in the public interest. I therefore refuse the application.