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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Thrupp

Details

AGLC: R v Thrupp [2011] SASC 122
Case: [2011] SASC 122
Decision Date: 3 August 2011

CaseChat Overview and Summary

In the matter of R v Thrupp, the defendant faced an application by the Director of Public Prosecutions for an order to detain the respondent in custody until further order pursuant to section 23 of the Criminal Law (Sentencing) Act 1988 (SA). The respondent, Thrupp, had a history of sexual offending, including pleading guilty to three counts of rape and two counts of indecent assault. The court was tasked with determining whether the respondent was incapable of controlling or unwilling to control his sexual instincts, and whether it was appropriate to make an order under section 23. The court also had to consider whether there was a significant risk to the public that the respondent would, given the opportunity, fail to exercise appropriate control of his sexual instincts, and the factors relevant to the exercise of the discretion.

The court heard evidence from two specialist psychiatrists, Dr Raeside and Dr Tomasic, who both concluded that while the respondent was capable of controlling his sexual instincts, he was unwilling to do so. Dr Raeside supported the application by the Director of Public Prosecutions, noting the respondent's history of premeditated sexual offending and limited response to prior sexual offender therapy. Dr Tomasic agreed with the assessment that the respondent was unwilling to control his sexual instincts and there was a significant risk of reoffending. However, the court also considered the lengthy sentence of imprisonment imposed on the respondent, the possibility of successful treatment in prison, and the power of the Attorney-General to intervene if concerns remained at the end of the non-parole period.

The court concluded that it was not reasonable to order indefinite detention given the long sentence of imprisonment and the possibility of treatment and intervention by the Attorney-General. The court emphasised the exceptional nature of making such an order and the need to carefully weigh the protective effect of a finite sentence. The court also noted that the imposition of a lengthy sentence made it unlikely that the respondent would have any opportunity to commit a sexual offence for many years, which was a relevant factor in considering the protection of the community. Therefore, the application was refused.

In summary, the court found that the respondent was not incapable of controlling his sexual instincts but was unwilling to do so. However, given the long sentence of imprisonment, the possibility of successful treatment in prison, and the power of the Attorney-General to intervene, it was not reasonable to order indefinite detention. The court emphasised the need to carefully weigh the protective effect of a finite sentence and the exceptional nature of making such an order.

Orders

Orders of the court

Application refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

ANDERSON J

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.

Ratio Decidendi

Legal Principle Established

Established by: ANDERSON J

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]