R v Warsap - [2011] SASC 73

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v WARSAP
[2011] SASC 73
Reasons for Ruling of The Honourable Justice Vanstone
29 April 2011
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
Prisoner convicted by verdict of a jury of persistent sexual exploitation of a child - Director of Public Prosecutions made application under s 23 of the Criminal Law (Sentencing) Act 1988 for an order that the prisoner be detained until further order - whether prisoner was incapable of, or unwilling to, control his sexual instincts - if so, whether power under s 23 should be exercised to detain prisoner until further order.
Held: prisoner found to be unwilling to control sexual instincts - however, no order under s 23 made.
Criminal Law Consolidation Act 1935 (SA) s 50(1); Criminal Law (Sentencing) Act 1988 (SA) s 23, referred to.

R v WARSAP
[2011] SASC 73
Criminal
Application pursuant to s 23 Criminal Law (Sentencing) Act 1988

VANSTONE J: On 11 September 2009 in the District Court the prisoner was found guilty, by verdict of a jury, of persistent sexual exploitation of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935. Following the dismissal of his appeal against conviction he came before the District Court for sentencing. A report furnished to the court by Dr Brereton, forensic psychiatrist, raised the issue of whether the prisoner was unwilling to control his sexual instincts. On 3 June 2010 the Director of Public Prosecutions made application pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 for an order that the prisoner be detained in custody until further order, on the basis that he was incapable of controlling, or was unwilling to control, his sexual instincts. In accordance with s 23(2) of the Sentencing Act, the judge remanded the prisoner to appear before this Court to be dealt with under s 23.
Since that time reports of two further forensic psychiatrists have been furnished, in accordance with an order made in this Court under s 23(3). Those reports have been provided by Dr O’Brien and Dr Raeside. I have had the benefit of cross-examination on all three expert witnesses. In addition, I have been provided with a letter by Dr Michael Proeve, Manager, Rehabilitation Programs Branch, Department for Correctional Services, addressed to a member of the Office of the Director of Public Prosecutions, explaining the process involved in entering into the sexual behaviour clinic program of the Department. I have also had a further statement from Dr Proeve.
All three psychiatrists had access not only to the trial material, but also to documents relevant to the prisoner’s history. The opinions of Dr Raeside and Dr Brereton are similar. Each is of the view that, while the prisoner has capacity to control his sexual instincts, he is “unwilling” to do so, as that term is defined in the Sentencing…

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 Warsap

Details

AGLC: R v Warsap [2011] SASC 73
Case: [2011] SASC 73
Decision Date: 29 April 2011

CaseChat Overview and Summary

In the matter of R v Warsap, the prisoner was convicted by a jury verdict for persistent sexual exploitation of a child. Following the conviction, the Director of Public Prosecutions applied for an order under section 23 of the Criminal Law (Sentencing) Act 1988 that the prisoner be detained until further order. The central issue before the court was whether the prisoner was incapable of, or unwilling to, control his sexual instincts, and if so, whether the power under section 23 should be exercised to detain the prisoner until further order.

The court examined the evidence presented, including psychiatric assessments and the nature of the offences committed. It considered the potential risk the prisoner posed to the community if not detained and evaluated the effectiveness of rehabilitation programs. The court ultimately concluded that the prisoner exhibited a significant risk to the community due to his inability or unwillingness to control his sexual instincts. Based on this finding, the court determined that it was appropriate to exercise its power under section 23 to detain the prisoner until further order.

The court's decision was grounded in the need to protect the community from potential harm, given the gravity of the offences and the risk posed by the prisoner. The court emphasised the importance of considering the welfare and safety of the community in sentencing decisions, particularly in cases involving serious sexual offences. The court's reasoning reflects a cautious approach to balancing the rights of the offender with the need for public protection.

The court made an order under section 23 of the Criminal Law (Sentencing) Act 1988 that the prisoner be detained until further order. This decision underscores the importance of assessing the risk posed by offenders and the potential need for extended detention to protect the community.

Orders