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

1. 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.

2. 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.

3. 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 Act. Dr Brereton said:

   Given all the factors I have outlined above, I have concluded that there is a significant risk that, if Mr Warsap were to find himself alone with a male child and had the opportunity to sexually offend against this child, he would fail to exercise the appropriate control of his sexual instincts.

   Dr Raeside put the matter this way:

   Finally, I would support Dr Brereton’s opinion that currently Mr Warsap is ‘unwilling’ to control his sexual instincts as defined by the Act.  I understand that ‘unwilling’ indicates that if given opportunity Mr Warsap would be at significant risk of re-offending.  He appears to have understood this previously and acknowledges it currently, despite previous treatment.

   Dr O’Brien’s opinion was that the prisoner was both incapable and unwilling.  The way he put it was:

   … Mr Warsap has demonstrated both an incapacity and unwillingness to control his abnormal sexual proclivities, (although it must be acknowledged that for long periods of time he has apparently demonstrated a capacity to control;  in my clinical experience failure to control is rarely a constant variable.  However, if the legal interpretation of incapacity to control means constant/continuing incapacity over time, then I would have to alter my opinion and state that he has the capacity to control).

4. The prisoner is 54 years of age.  He has some four pages of convictions going back to the early ‘80s.  Most of these are for dishonesty offences, but there are also offences of violence and drink driving offences.  For present purposes the most significant prior offences are as follows:

Court	Offence	Penalty
Supreme Court, 1983	Unlawful sexual intercourse with a person under 12 (two counts) Indecent assault (two counts)	A total of six years imprisonment with a non-parole period of four years.
Magistrates Court, 2002	Indecent assault (two counts)	Four years imprisonment with a non-parole period of two years, suspended

1. It appears from sentencing remarks which are before me from the 1983 offending and also from the 1999 offending (dealt with in 2002) that the pattern of behaviour involves the prisoner befriending an unattached woman with male children and then, having established a friendship with that family and achieved a position of trust, offending against one of those children.  A matter remarked upon in the reports is the long period between each of the three groups of sexual offences, particularly the first group and second pair.  The current offence took place over the period 11 May 2007 and 18 December 2007.

2. The victim of this offence (V) was 15 years of age at the time of the offending.  According to his treating psychiatrist who gave evidence at the trial, he had an intellectual age between eight and ten years.  V described a course of offending which began on about Mothers’ Day 2007 and continued over the ensuing months.  It included two occasions of anal intercourse, two instances of fellatio and other instances of the prisoner stimulating V’s penis.

3. The prisoner did not give evidence at his trial, but in his interviews with the forensic psychiatrists whose reports I have mentioned, he denied having had anal intercourse with the boy.  Plainly, I have not heard V’s evidence and therefore have not had the advantage enjoyed by the trial judge of assessing his credibility.  However, inasmuch as V’s evidence describing the prisoner’s activities is uncontradicted evidence given on oath, which the jury acted upon and which the prisoner has not chosen to challenge before me, I am satisfied beyond reasonable doubt that the relevant conduct extended to anal intercourse.

4. Given the prisoner’s prior record of offending, including offending of a light nature, and the fact that he cannot claim credit for a plea of guilty, it is inevitable that this crime will attract a long sentence of imprisonment. That is a relevant matter when it comes to determining whether it is appropriate to order that he be detained in custody until further order, pursuant to s 23(5) of the Sentencing Act.

5. I accept without hesitation the opinions of each of Drs O’Brien, Brereton and Raeside that the prisoner is unwilling to control his sexual instincts. Accordingly, the discretion to make an order in terms of s 23 is enlivened. It remains to consider whether I am satisfied that the order is appropriate: s 23(5)(a). Mr Stokes, for the prisoner, argues that the protection of the public can be secured by having the prisoner undertake intervention while serving his sentence and by having the Parole Board fix restrictive conditions, designed to prevent the prisoner establishing close connections with a woman with children, when released. I accept the evidence of Dr O’Brien that the prisoner is a homosexual paedophile. I do not accept that he has a sexual attraction to adult females and in this regard I prefer the opinion of Dr O’Brien to that of Dr Raeside. However, as regards this matter I attach no significance to the difference. I note Dr Brereton’s opinion that the prisoner is more likely to be emotionally comfortable in a sexual encounter with a child than with an adult and that the prisoner appears to also have a sexual attraction to children.

6. Both Dr O’Brien and Dr Brereton were reluctant to say that, because the prisoner’s three victims were all encountered in the context of a relationship the prisoner had formed with their mother, that future risk would be confined to a recurrence of the same circumstances.  Dr Brereton considered that in taking part in social clubs and the like the prisoner was either setting out to establish relationships with young boys, or was showing extremely poor judgment in putting himself in situations where he would be establishing relationships with boys and likely be tempted to engage in further criminal conduct.  In my view, even if, in the future, Mr Warsap does not form a relationship with a woman with children, he will still be at risk of re-offending, absent appropriate intervention over the next several years.

7. On the other hand, a striking feature of the prisoner’s history is that it appears there have only been three children against whom he has offended.  There have been long periods during which he was apparently able to control his proclivities.  He has shown self-discipline not only in that regard, but also in ceasing to abuse liquor and overcoming his addiction to gambling.  Dr Brereton considered that the same self-discipline could be brought to bear to prevent future offending.  Although I have found that the prisoner is unwilling to control his sexual instincts, it seems to me he has the capacity to do so and that that capacity can be enhanced by intervention.

8. In many cases where an order pursuant to s 23 is sought, the records of the respondent’s offending will be prolific. In many cases there will not be these long periods between offending. That fact, together with the optimism which the three psychiatrists expressed about the utility of the available interventionist programs, coupled with the fact that I have determined to impose a long sentence of imprisonment upon the prisoner, has led me to consider that it is not, at this stage, necessary or appropriate to make a s 23 order.

9. If, in the future, it turns out that intervention is unsuccessful, then it will be open to the Attorney-General, closer to the time of the prisoner’s release, to make a fresh application.

10. Accordingly, the application for an order under s 23 that the prisoner be detained in custody until further order is refused.