R v Vadjunec - [2025] SADC 75

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v VADJUNEC
Criminal Trial by Judge Alone
[2025] SADC 75
Reasons for the Order of his Honour Judge Soulio
10 June 2025
CRIMINAL LAW
Defendant charged with rape - investigation into fitness to stand trial - decided defendant not fit to stand trial - objective elements of rape established beyond reasonable doubt - declared liable to supervision - limiting term of 7 years - defendant to be released on licence.
Criminal Law Consolidation Act 1935 (SA) s 48, Part 8A, referred to.

R v VADJUNEC
[2025] SADC 75

The defendant, Allan Frank Vadjunec, was charged with the offence of rape committed against one Ms S on 16 April 2022 at Brooklyn Park.
Fitness to Stand Trial
The defendant appeared in this Court on 10 February 2023. At that time, pursuant to the provisions of Part 8A of the Criminal Law Consolidation Act, (‘the Act’) I proceeded first to the trial of the defendant's fitness to stand trial. Having heard the submissions of counsel and noting the proper concession by counsel for the Director of Public Prosecutions that the defendant was not fit to stand trial, and noting the opinion expressed by Ms Heinrich in her report of 24 August 2022, I found that the defendant was not fit to stand trial, and would never be fit to stand trial.
Objective Elements
I then proceeded to a trial on the objective elements. I considered the declarations of Brevet Sergeant Edange and, insofar as was relevant, the affidavit of Detective Sergeant Flavel, and of Ms Nishu, the victim’s carer. Taking into account the proper concession by counsel for the defendant, I found the objective elements of the offence of rape proved beyond reasonable doubt.
Disposition
Having found that the defendant was not fit to stand trial, I found that the defendant was not guilty, and pursuant to s 26NB(2) of the Act declared him liable to supervision under Part 8A of the Act.
I was required, as a consequence, to consider the final disposition of the matter and directed that reports be prepared. Reports pursuant to s 269Q & T were provided. I note that no s 269R report had been obtained on the basis that the victim of the offending, Ms S, is an intellectually disabled woman who is non-verbal, and that any next of kin of Mr Vadjunec do not reside with him, and have what could only be described as a fractured relationship with him.
The defendant had been found eligible for NDIS support and indeed is in receipt of extensive NDIS assistance. This matter had been adjourned from time to time over an extended period to clarify matters relating to the level of his support, and to the way in which the disposition of the matter might be determined.
Fixing a Limiting Term
In dealing with a person who has been found unfit to stand trial, it is necessary to fix a limiting term. In doing so, I must have regard to the circumstances of the offending, and the circumstances of the defendant.
The limiting term must be fixed having regard to what would have been the appropriate penalty for the offending absent any discount for the acknowledgment that the objective elements were established, and absent an allowance for the condition of the defendant that led to the finding that he is mentally unfit to stand trial.
Circumstances of the Offending
The background to the offending is that the defendant and the victim of the offending were both residents at the Brooklyn Supported Care facility in Brooklyn Park. They had their own bedrooms, which did not have locks on the doors. As I have said, the victim is essentially non-verbal. She is unable to write or communicate in any other way. She is mobile and has a variety of diagnosed conditions including agoraphobia and schizophrenia. Her medical history, on the information available, is suggestive of her having a significant cognitive impairment.
At about 7.30 pm on the evening of 16 April 2022 Ms Nishu checked on Ms S before Ms S went to bed. Ms S was in bed alone at that time and was clothed. The carer then checked on the defendant, who was in his room wearing only his underwear. He told the carer that he was going for a bicycle ride.
At about 9.00 pm the carer was in the corridor next to Ms S’s room and heard Ms S say 'No'. The carer checked on Ms S and observed that the door of her room was open. The carer said that she heard Ms S repeat the word ‘no’, and said that Ms S sounded scared. The carer entered the room and turned on the light and observed that the defendant was on top of Ms S, was naked, and that Ms S had her trousers pulled down. The carer said that she observed that sexual intercourse was taking place, or had taken place.
Police were called. The defendant left the facility but returned by the time police had arrived. The defendant was placed under arrest but was not interviewed because of his disability and the fact that there was not an appropriate support person available for him. Ms S was not interviewed due to her lack of facility with language and other difficulties.
Personal Circumstances of the Defendant
I turn to the defendant's personal circumstances. The ascertainment of his background, which is relevant to the fixing of the limiting term, was rendered difficult by the limited information available, and by his communication difficulties. The most comprehensive source of information regarding his personal circumstances is contained in the report of Mr Balfour, a psychologist, who prepared a report dated 16 April 2024 and ascertained information as to the defendant's personal history from one Ms Smit, who had known the defendant for some two years prior to the offending.
It appears that the defendant originally resided with his parents and one of his brothers. In 2015, one of the defendant's brothers murdered the defendant's father. The brother has been diagnosed with autism spectrum disorder. He was found guilty of the charge and sentenced to life imprisonment. I note the suggestion that the brother acted in that manner because of the apparent disciplinary and other violent behaviour of the defendant's father, but I have no independent confirmation of that, and need not, of course, make any finding about that.
The defendant has no ongoing contact with his incarcerated brother, and their relationship is understandably fractured by virtue of the actions of the brother. In 2023, the defendant received a letter from his incarcerated brother, but it is not known whether he ever opened that letter.
The defendant's mother died in April 2023. She had suffered dementia. The defendant became distraught and suffered a grief reaction as a result of her passing.
The defendant has another brother who continues to reside in the family home. The defendant’s relationship with the remaining brother, again, is a difficult one and whilst the defendant communicates with his brother by telephone, the communication is described as characterised by argument and profanity. The defendant is apparently concerned that his brother uses illegal drugs. There had been visits when the defendant rode his bicycle to his brother's house, but the defendant’s carers observed that the defendant was always distressed when he returned from such visits.
The defendant has an uncle who resides in Sydney and, again, that relationship is described as complex, and their communications are apparently also characterised by arguments and profanity.
A person known to the defendant who attended the same church congregation as the defendant's family, had visited the defendant from time to time. She provided information that when the defendant was functioning in the community, he completed small jobs for pocket money.
There is no information available as to whether the defendant suffered trauma, neglect, or abuse, during his developmental years. He had, up until the time he was placed in supported care, always resided with his parents. The defendant apparently coped poorly with his mother's declining mental health as a result of developing dementia, and her associated neurocognitive deterioration.
At some point, his frustration or inability to cope with the situation led to a physical altercation in which he apparently assaulted his mother and she was hospitalised. Thereafter, the defendant was unable to continue residing in the family home and was forcibly removed and placed in supported care. That was the accommodation facility where he committed the subject offending.
Following the commission of the offence the defendant was evicted from that accommodation, and spent time in respite facilities before being moved to a facility at Seaford. There is no information as to the defendant's history of education. Mr Balfour made the assumption that any such education must have taken place in a State-run special education facility.
The defendant, I observe, does not have survival-level literacy. He can count to 10, but cannot manage his finances, which are controlled by the Public Trustee under an Administration Order. He has never had formal employment. His main recreational interest was described as cycling and he continues to ride around in the community for two to four hours each day. Mr Balfour noted from the history that the defendant does not always disclose where he goes when he rides. The defendant had ceased attending church, although his carers have indicated they would facilitate assisting him to attend church again if he wished to.
The Limiting Term
I turn to the fixing of a limiting term. The maximum penalty for the offence of rape is life imprisonment. It is clearly serious offending. There is no suggestion that the defendant has any other criminal history, apart from having been dealt with in relation to indecent behaviour which was also the subject of a Part 8A order.
I consider that the appropriate limiting term, equivalent to the undiscounted sentence I would have imposed, having regard to the circumstances of the offending and the disability experienced by the victim of the offending, and bearing in mind, as I have said, that I am unable to take into account those aspects of the defendant's presentation that led to him being found unfit to stand trial, is a limiting term of seven years.
Disposition
I turn then to the final disposition. In considering the disposition of the matter, I have had regard to the submissions of both counsel, and the expert reports, including the initial reports upon which the issue of fitness was raised namely: Ms Heinrich's report of 24 August 2022, to which I have referred, and her reports of 14 July 2023 and of 26 November 2023; the report of Mr Balfour of 16 April 2024; and the reports of Dr Lowe, a forensic psychiatrist, prepared on 3 February 2025 and 28 April 2025.
I note the issues of concern expressed in Ms Heinrich’s report of 26 November 2023. She reiterated that the defendant's functioning was so low that he would be excluded from any group treatment program, such as Owenia House. She did not believe he was capable of understanding the content presented, even within programs designed for low-functioning participants. She said there was also a high chance that the defendant would be disruptive to other members of the group as he may become bored or frustrated and would not understand group rules and norms. Her view was supported by the opinions expressed by the defendant's NDIS-funded workers.
Ms Heinrich noted that as at the time of that report the defendant was working with a developmental educator regarding, in particular, inappropriate sexualised behaviours. She noted at the time that there was a clinical risk associated with forcing the defendant to engage with more therapeutic input in that area. She said that if the defendant was engaged with too many supports, his risk of becoming frustrated and therefore disengaging with all supports would increase. She said further that if those supports were not closely coordinated there was a risk that the defendant would become confused, for example if different language was used to explain the same concept it was unlikely that the defendant would be able to integrate that information.
At the time of her assessment in 2023 Ms Heinrich reiterated that the defendant would present a risk to vulnerable people, especially women with whom he lived. She said that his offending appears to have been essentially opportunistic, and the defendant did not appreciate the impact of his conduct. She said that accordingly in order to manage such risk it was strongly recommended that he not be placed in a house which was shared by female residents with a disability. She also said that his careers, particularly those who provided overnight support, whilst not needing to know all of the details of the defendant's offending, should be made aware that the defendant had previously engaged in sexually inappropriate conduct, and that a risk management plan should be put in place tailored to the setting.
Ms Heinrich said, that based on the information available to her, the defendant clearly presented as a risk in the community in relation to inappropriate behaviour; but expressed the view that he was not at high risk of similar offending. She noted that he was last charged on 11 June 2022 with indecent behaviour which involved masturbating in a park, but that such behaviour was not specifically targeted towards any particular person, but rather was observed by a householder who lived adjacent to the park in question. The defendant had apparently subsequently been warned by police about his behaviour.[1]
[1] The defendant appeared in the Magistrates Court in relation to that matter and was unconditionally released without conviction.
Ms Heinrich also expressed the view that given the defendant's strong desire for a relationship with a girlfriend there was a risk that he would make uninvited propositions, or invade the personal space of others. She considered that the defendant would present as a higher risk to those who had no way to protect themselves, and were unable to put up resistance, such as the profoundly disabled. She noted that the information available suggested that the defendant was sexually attracted to adult women. She considered that the defendant would likely present as a chronic risk of making people feel uncomfortable in the community, but did not consider that he was at significant risk to the community beyond the potential for indecent exposure.
Ms Heinrich noted the defendant's stated intention to obtain employment at KFC. Indeed, I observed that the defendant disclosed that intention to me from the dock during the course of court appearances earlier this year. Whilst that may be the defendant's stated intention, Ms Heinrich said that that was entirely unrealistic and that his level of disability was so profound that she did not consider there was any task that the defendant could undertake in such a setting.
Ms Heinrich recommended that the defendant's situation be overseen by the Department for Correctional Services and the Forensic Community Team, but suggested there was no benefit in requiring the defendant to personally report to DCS on a regular basis, and no benefit in compelling him to do so as that may lead to an increase in other problematic behaviour. She noted he was difficult to speak to and had a history of aggression when frustrated. She said his level of cognitive function meant that he was largely unable to understand what was happening in relation to his legal proceedings, and that it was unlikely that a Corrections officer who had only limited contact with the defendant would be able to understand his speech, let alone engage in meaningful conversation and develop a rapport with him.
I note in passing that his counsel frankly conceded that she has difficulty in understanding the defendant's statements from time to time. It seems that his carers are best placed to engage in conversation with him.
Ms Heinrich said that she understood that as a matter of course the defendant would be under the supervision of the Director of the Forensic Mental Health Service and the Director’s team, but reiterated that rather than compelling the defendant to attend regular supervision appointments, his risk be managed through oversight by the Forensic Mental Health Service and DCS, working and speaking directly with the defendant's guardian and those who support him through the NDIS. That is, she recommended that rather than direct supervision by a Corrections officer, the supervision occur indirectly through those who support the defendant.
Ms Heinrich considered that it would be beneficial for the defendant to be introduced to his Corrections supervisor and the relevant contact at the Forensic Community Team, and that the role of those people be explained to the defendant as being part of a hierarchy, so that if the defendant were to violate any licenced conditions or act in a way suggestive of increased risk, the Corrections service or the Forensic Community Team could take on the role of disciplinarian, preserving the defendant's relationship with his NDIS-funded support team.
Ms Heinrich concluded that due to the defendant's significant disability, and limited understanding of the world, he would always require external supports in order to both provide safety to the defendant, and also to regulate his behaviour in the community. Again, she said that was most appropriately provided by the NDIS support team.
Consideration had been given to a requirement that the defendant undergo antilibidinal treatment, given his previous history of disinhibited sexualised behaviour, including initially in the presence of the counsellor tasked with assisting in the regulation of such behaviour. However it seems that more recent medical evidence indicates that the long-term use of the antilibidinal medications carries with it a risk of developing meningioma, that is a tumour growing from the membrane surrounding the brain and spinal cord. There would be a need for constant blood tests and monitoring, and that of itself presents a difficulty, having regard to the defendant's reaction to such diagnostic procedures. Accordingly, whilst, as I have said, consideration was given to such a course of treatment being a condition for any release on licence, that has now been withdrawn from consideration because of the potential serious medical consequences.
Dr Lowe noted the history provided by carers that the defendant often leaves the supported accommodation for several hours, riding his bicycle. He has from time to time requested that staff take him to a massage parlour. He is apparently no longer displaying disinhibited sexualised behaviour within the supported accommodation facility, or at least not within the public parts of that facility.
As at the time of her report of 28 April 2025, Dr Lowe noted there had been no further reports of indecent exposure, or of unwelcome approaches to women, or inappropriate touching. The defendant was described as still interested in seeking female company, but appeared nervous and anxious in the presence of female emergency workers when they attended.
As I have said, I take into account the opinions expressed in all of those reports. I take into account the submissions of counsel. I take into account in considering the disposition of the matter, the provisions of s 269NA of the Act which provides that the paramount consideration of the court in determining whether to release a defendant under this Division, or in determining the conditions of a licence, must be to protect the safety of the community, whether as individuals or in general; and the paramount consideration of the safety of the community outweighs the principle that restrictions on the defendant's freedom and personal autonomy should be kept to a minimum.

Having regard to the matters to which I have referred, I consider that it is appropriate that the defendant be released on licence. I note that counsel for the Director of Public Prosecutions supported that finding.
I have been provided with a draft set of orders. The only issue in contention is whether there should be electronic monitoring. I take into account the provisions of s 269NA to which I have referred. I take into account the information available regarding the defendant's sojourns from the supported accommodation facility. I take into account the submissions of the defendant’s counsel as to the difficulties that may be involved with an order for electronic monitoring. Weighing those factors, I consider that it is appropriate that one of the conditions of the licence be that the defendant be subject to electronic monitoring. That means that upon his return to his supported accommodation facility, arrangements will need to be made for the appropriate corrections officer to attend to fit the equipment.
I consider that any requirement as to the maintaining of electric charge and the like of such equipment will of necessity fall to the defendant’s carers, rather than be an issue that the defendant can be expected to deal with.
I make it clear that the defendant is not subject to home detention conditions; that is, he is permitted to leave the supported accommodation unaccompanied, noting that the extent of his care includes the ability to take him shopping and for essential services, but that the defendant clearly enjoys the ability to leave the premises to ride his bicycle. He is able to continue to do that, but his whereabouts will be known to those monitoring him.