R v Westwood - [2014] SASC 139

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Criminal)
R v WESTWOOD
[2014] SASC 139
Judgment of The Honourable Justice Stanley
23 September 2014
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - PREVENTATIVE DETENTION
The prisoner pleaded guilty in the District Court to seven counts of indecent assault, four counts of persistent sexual exploitation of a child, one count of production of child pornography and one count of unlawful sexual intercourse. Following his pleas of guilty, the prisoner came before the District Court for sentencing. On 21 October 2013 the Director of Public Prosecutions made an 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 is incapable of controlling, or 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.
Whether the prisoner is incapable of, or unwilling to, control his sexual instincts. Whether the power under s 23 should be exercised to detain the prisoner until further order.
Held: The prisoner is unwilling to control his sexual instincts; however it is not necessary or appropriate in all of the circumstances to make an order for indefinite detention.
Criminal Law Consolidation Act 1935 (SA) s 49, s 50, s 56, s 63; Criminal Law (Sentencing) Act 1988 (SA) s 23, referred to.
R v England (2003) 86 SASR 273; R v England (2004) 87 SASR 411; R v England (2004) 89 SASR 316; R v Wichen (2005) 92 SASR 528; R v Armfield (2005) 155 A Crim R 299; R v Whyte [2006] SASC 56; R v Ainsworth (2008) 100 SASR 238; R v Warsap (2011) 111 SASR 232; R v Spurr [2008] SASC 336; R v Kiltie (1985) 41 SASR 52, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"indefinite detention", "repeat serious offender"

R v WESTWOOD
[2014] SASC 139
Criminal
Application pursuant to s 23 of the Criminal Law (Sentencing) Act 1988

STANLEY J: On the morning of his trial in the District Court on 1 July 2013, the prisoner pleaded guilty to one count of persistent sexual exploitation of a child, contrary to s 50(1) of the Criminal Law Consolidation Act 1935 (the CLCA) and one count of production of child pornography contrary to s 63 of the CLCA. On 4 July 2014, following arguments on the voir dire, the prisoner entered pleas of guilty to the remaining charges against him, namely seven counts of indecent assault contrary to s 56 of the CLCA, three counts of persistent sexual exploitation of a child contrary to s 50(1) of the CLCA and one count of unlawful sexual intercourse contrary to s 49(3) of the CLCA. Following his pleas of guilty, the prisoner came before the District Court for sentencing. On 21 October 2013 the Director of Public Prosecutions made an application pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (the Sentencing Act) for an order that the prisoner be detained in custody until further order, on the basis that he is incapable of controlling, or 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.
I am not satisfied that an order for indefinite detention is appropriate in all the circumstances of this matter. My reasons for that conclusion follow.
The prisoner is 64 years of age. He has served time in prison, on parole and on a bond for sexual offending against children on previous occasions. Those occasions are clearly set out in his antecedent report. In the 1970’s the prisoner was convicted of carnal knowledge. He was fined $100 for that offending and placed on a bond to be of good behaviour for two years. In 1989 the prisoner was convicted of three counts of unlawful sexual intercourse and three counts of indecent assault against his daughter. He was sentenced to five years and six months imprisonment with a non parole period of three years. The prisoner was on parole for the offending against his daughter when he committed offences against a victim of one of the charges presently before this Court.
The offending which is the subject of this application occurred over a period of almost 20 years from 1 January 1993 until 31 December 2011 and involved the sexual abuse of seven young boys. The prisoner met the victims on trains travelling from Gawler to Adelaide or in the vicinity of the train lines in Elizabeth. He gave the victims gifts and money in the process of befriending them. The prisoner also used drugs and alcohol to make some of the boys amenable to sex. He had no knowledge of, or association with, any of the victims prior to the commission of the offending. His conduct was predatory in nature. The prisoner befriended and groomed the victims for sexual exploitation. He gained the trust of the victims and subsequently abused that trust in an abhorrent manner.
The victims were between the ages of 9 and 17 at the time the offences took place. A number of the victims were not known to each other, however two of the victims were brothers. The conduct forming the bases of the 13 counts to which the prisoner has pleaded guilty includes kissing the victims’ bodies, making the victims masturbate his penis and him masturbating the victims’ penises, touching of the victims’ genitals, inducing the victims to expose their genitals, procuring one victim to insert his penis into the prisoner’s anus and penetrating that same victim’s anus with his finger, taking two photographs of one victim’s exposed buttocks, performing fellatio on a number of the victims and procuring the victims to touch his penis. The offending occurred at outdoor locations around Elizabeth and Gawler and at the prisoner’s house at Ottoway. The prisoner refuses to accept full responsibility for these offences and deflects the blame for the 1972 and 1989 offences on to others.
Relevantly, s 23 of the Sentencing Act provides:
...
(3) The Supreme Court must, before determining whether to make an order that a person to whom this section applies be detained in custody until further order, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of a person to whom this section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, his or her sexual instincts.
(4) The Supreme Court may order that a person to whom this section applies be detained in custody until further order if satisfied that the order is appropriate.
(5) The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be the safety of the community.
...
(6) If a person to whom this section applies has not been sentenced for a relevant offence, the Supreme Court will deal with the question of sentence at the same time as it deals with the question whether an order is to be made under this section and, if the Court decides to make such an order, the order may be made in addition to, or instead of, a sentence of imprisonment.
The concept of unwillingness for the purpose of s 23 is to be determined by reference to the statutory definition of unwilling in s 23(1):
unwilling—a person to whom this section applies will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts.
The approach to be adopted by this Court in applying s 23 has been considered in a number of decisions including R v England;[1] R v England;[2] R v England;[3] R v Wichen;[4] R v Armfield;[5] R v Whyte;[6] R v Ainsworth;[7] and R v Warsap.[8] It is not necessary, for the purposes of the present decision, to review the relevant principles in detail. The authorities clearly state that the purpose of the powers conferred on this Court by s 23 is the protection of the public.[9] The community is to be protected from persons who are either incapable of controlling, or unwilling to control, their sexual instincts.[10] Protection is to come in the form of the indefinite detention of such persons.
[1] [2003] SASC 321, (2003) 86 SASR 273.
[2] [2004] SASC 20, (2004) 87 SASR 411.
[3] [2004] SASC 254, (2004) 89 SASR 316.
[4] [2005] SASC 323, (2005) 92 SASR 528.
[5] [2005] SASC 108, (2005) 155 A Crim R 299.
[6] [2006] SASC 56.
[7] [2008] SASC 67, (2008) 100 SASR 238.
[8] [2011] SASCFC 129, (2011) 111 SASR 232.
[9] R v Spurr [2008] SASC 336.
[10] R v Kiltie (1985) 41 SASR 52 at 61; R v England [2003] SASC 321 at [11], [51], (2003) 86 SASR 273 at 276, 283; R v England [2004] SASC 254 at [35], (2004) 89 SASR 316 at 327.
In Warsap Gray J, with whom Sulan and David JJ agreed, explained the operation of s 23 as follows:[11]
Section 23 of the Sentencing Act provides a statutory regime for dealing with offenders found to be incapable of controlling their sexual instincts. Section 23(3) provides this Court with the power to order at least two qualified medical practitioners to inquire into a defendant’s mental condition and report to the Court as to whether the defendant is incapable of controlling or unwilling to control his or her sexual instincts. Section 23(4) provides that such an inquiry must be independent and may be assisted by a psychologist or a corrections officer or some other such person. Having received such reports, section 23(5) allows this Court to order that the defendant be detained in custody until further order, if satisfied that the order in appropriate. Section 23 provides for ongoing review of persons subject to a section 23(5) order, and further provides for the Court, on application, to discharge the order for detention, provided that certain conditions are fulfilled. In Wichen, I had occasion to consider the scheme of section 23, and made the following observations:[12]
Section 23(5) of the Act has been described as facilitating a form of “preventive detention” and constitutes an exception to the general common law principle of proportionality in sentencing.[13] The principal rationale behind section 23 is to provide protection to the community from those offenders who are unable to control their sexual instincts.[14] In addition, indeterminate sentences may provide an avenue for a sexual offender’s mental condition to be regularly reviewed and treated to prevent a continuing danger to the community.[15]
[11] [2011] SASCFC 129 at [6], (2011) 111 SASR 232 at 236.
[12] R v Wichen (2005) 92 SASR 528, [34].
[13] For example see R v Scobie (2003) 85 SASR 77, [10].
[14] R v England (2004) 87 SASR 411; R v Scobie (2003) 85 SASR 77.
[15] Veen v The Queen (1979) 143 CLR 458.
An order under s 23 of the Sentencing Act results in the deprivation of the liberty of a person for an indefinite period and is a serious matter. Such an order is not to be made lightly. Cogent evidence that establishes that the offender is either incapable of controlling, or unwilling to control, his or her sexual instincts is required. Further, the Court must be satisfied that it is appropriate in the circumstances of the case for an order for indefinite detention to be made.
Reports of two forensic psychiatrists have been furnished, in accordance with an order made by this Court under s 23(3). Those reports have been provided by Dr O’Brien and Dr Raeside. The content of those reports is not disputed and I did not hear further evidence from their authors. In addition, I have before me a report of Dr Griffin dated 3 October 1989, a report of Dr Furst dated 11 September 2013, reports of Mr Broomhall dated 10 September 2013 and 28 October 2013, an antecedent report, a parole board report, a time spent in custody letter, sentencing remarks of Senior Judge Ligertwood dated 6 June 1972 and sentencing remarks of Mohr J dated 13 November 1989.
Dr O’Brien and Dr Raeside both had access not only to the sentencing material, but also to documents relevant to the prisoner’s history. The opinions of Dr O’Brien and Dr Raeside are similar. Each is of the view that, while the prisoner has the capacity to control his sexual instincts, he is “unwilling” to do so, as that term is defined in the Sentencing Act. Dr Raeside said:
Given his age, the extent of his past offending, his ongoing significant distortions in his thinking, but also his recognition that he needs help, all suggest a relatively poor prognosis as to how much he might benefit from such a [sexual offender rehabilitation] program.
Consequently, at present I would offer the opinion that Mr Westwood does satisfy the criteria for Section 23, in that he would be “unwilling” to control his sexual impulses, namely that he is at high risk of further such offending [if] given the opportunity. It is a little less clear about his actual ability to control his conduct. I do not think he has any particular condition that renders him unable to control, but his various psychological factors decrease his ability to make appropriate decisions and his behaviour follows.
Dr O’Brien put the matter this way:
It is self-evident that Mr Westwood comes from a traumatic background one in which his own sexual traumatisation is prominent. It would seem to me that this left him with a confused sexual identity. At one level he would himself acknowledge this. What he does repeatedly deny is that he crosses social mores in terms of sexual boundaries. Given his past criminal history (about which, at most, he accepts only partial responsibility), this could either be interpreted as crude, unsophisticated denials or an incapacity of accepting in psychological terms his paedophilic, and particularly homosexual, tendencies. One way or the other, his unwillingness and/or incapacity to accept this increases the potential that his pathology will remain unaddressed (maintaining the risk) although in fairness to him and in general terms he is seeking professional assistance (he received a limited amount in 1989, both psychological and psychiatric).
In my opinion, Richard Westwood:-
a)Is capable of controlling his sexual instincts;
b)Is unwilling, at times, to control these same instincts, bearing in mind the statutory definition of “unwilling” as is contained in the relevant legislation.
In his interviews with the forensic psychiatrists whose reports I have mentioned, the prisoner protested his innocence. Despite his pleas of guilty, he maintains that he did not engage in sexual activity with the victims. However, these assertions contradict accounts given by the prisoner as to his behaviour with the victims and the fact that he told Dr Raeside that he deeply regrets what he has done. Such discrepancies are consistent with the prisoner’s underlying cognitive distortions and rationalisation of his behaviour. In any event, the prisoner entered guilty pleas to all counts and has thus admitted the elements of all offences.
I accept without hesitation the opinions Dr O’Brien and Dr 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. Therefore, I must now consider whether I am satisfied that such an order is appropriate.[16]
[16] See Ainsworth [2008] SASC 67 at [78], (2008) 100 SASR 238 at 259; R v Warsap [2011] SASCFC 129 at [6], (2011) 111 SASR 232 at 3.
Mr White, counsel for the prisoner, argues that the expert psychiatrists cannot exclude the prospect of rehabilitation and therefore it would not be appropriate for the Court to make an order for indefinite detention. Mr White further submits that the prisoner is liable to a lengthy term of imprisonment and a corresponding non-parole period, which would provide sufficient protection to the public. It is Mr White’s submission that the future protection of the public does not need to be addressed at this stage and that it is open to the Attorney-General to renew the application when the prisoner is nearing the end of his non parole period.
The prosecutor, Ms Giorgini, asserts that the paramount consideration in making an order pursuant to s 23 of the Sentencing Act is the safety of the community. She submits that in considering whether to make such an order, I ought to have regard to the nature and seriousness of the offences, the commission of other offences by the prisoner and whether prior periods of imprisonment and supervision have deterred the prisoner from reoffending. It is Ms Giorgini’s submission that the prisoner has had previous opportunities with respect to supervision and treatment and such opportunities have not had an effect on the prisoner’s behaviour. She also notes the concern voiced by the psychiatrists in relation to the prisoner’s likelihood of reoffending. It is the prosecution’s position that the prisoner’s offending is of a kind that is so serious and longstanding that the protection of the community requires that an order be made under s 23.
In his report dated 5 May 2014, Dr Raeside’s notes that the prisoner is more comfortable interacting with teenage boys than adults and that he appears to also have a continuing sexual attraction to one of the victims. There is no obvious reason for the change in the prisoner’s predilection from underage girls to underage boys. Although it is apparent that the prisoner has an attraction to children in their mid-teens, it does not seem to be the case that he suffers from a condition such as paedophilia.
Both Dr O’Brien and Dr Raeside were reluctant to rule out the possibility of rehabilitation. Dr Raeside recognised that the prisoner has not received adequate sexual offender therapy in the past. He noted that whether the prisoner will respond well to such therapy, thereby reducing his risk to the public, remains to be seen. However, Dr Raeside considers the prisoner’s prognosis to be relatively poor. Dr O’Brien noted that, in fairness to the prisoner, he is seeking professional assistance. In my view, considering Dr Raeside’s opinion that the prisoner is at high risk of reoffending if given the opportunity, the prisoner currently poses a danger to the community.
On the other hand, there have been long periods during which he was apparently able to control his proclivities. He has shown self-discipline in that regard. 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 may be enhanced by intervention.
Given the prisoner’s prior record of offending and the gravity and nature of the present offending, it is inevitable that he will be subject to a lengthy sentence of imprisonment. The utility of an order for indefinite detention must be considered in these circumstances.[17]
[17] See Ainsworth [2008] SASC 67 at [78], [140], (2008) 100 SASR 238 at 259, 270.
In this matter the prosecutor has made an application pursuant to s 20B of the Sentencing Act that the prisoner be declared a serious repeat offender. For reasons which are outlined in the sentencing remarks, I have allowed that application and made a declaration pursuant to s 20B that the prisoner is a serious repeat offender. The result of a s 20B declaration is severe. It is not a decision to be made lightly. As a consequence of the declaration, the prisoner is liable to be sentenced to a severe sentence with a non-parole period that is four-fifths of the head sentence. In my view, the making of the s 20B declaration and the imposition of a lengthy sentence and non parole period, considering the prisoner’s age, will adequately protect the public for the foreseeable future.

In evaluating the above factors, I hope I will not be understood as diminishing the seriousness of the prisoner’s conduct or the impact which it has had on his victims. His conduct was abhorrent and that will be reflected in the sentence which is imposed on him.
The making of a declaration that the prisoner is a serious repeat offender, the fact that I have determined to impose a long sentence of imprisonment upon him, the potential for a positive outcome in future from formal sexual offender therapy and his age have led me to consider that it is not, at this stage, necessary or appropriate to make an order for indefinite detention.
Accordingly, the application for an order under s 23 that the prisoner be detained in custody until further order is refused. Instead, he should be sentenced for the offences currently before this Court.
If, in the future, it transpires that intervention is unsuccessful, it will be open to the Attorney-General, closer to the time of the prisoner’s release, to make a fresh application. That possibility combined with the lengthy sentence he will serve, together with his age and the potential for a positive response to therapy, will sufficiently protect the public.