R v Whyte - [2006] SASC 56

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v WHYTE
Judgment of The Honourable Justice White
2 March 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - MISCELLANEOUS MATTERS - SEX OFFENDERS INCAPABLE OF CONTROLLING SEXUAL INSTINCTS
Referral pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 ("the Sentencing Act") for consideration of whether defendant unwilling to control his sexual instincts and whether an order for indefinite detention should be made - defendant pleaded guilty to offence of possessing child pornography - defendant convicted of sexual offences on prior occasion - consideration of the term "unwilling" as defined in s 23(1) of the Sentencing Act - consideration of factors to be taken into account in determining an application under s 23 - conflicting reports from medical practitioners as to whether defendant "unwilling" to control sexual instincts - no substantial risk that defendant would, given an opportunity, fail to exercise appropriate control of his sexual instincts - order for indefinite detention of the defendant inappropriate.
Criminal Law (Sentencing) Act 1988 (SA), s 23; Criminal Law Consolidation Act 1935 (SA), s 63A, s 77A (repealed), s 267, s 270A; Statutes Amendment (Sentencing of Sexual Offenders) Act 2005 (SA), s 9; Summary Offences Act 1953 (SA), s 23, referred to.
R v England [2004] SASC 20; (2004) 87 SASR 411; R v England [2003] SASC 321; (2003) 86 SASR 273; R v England [2004] SASC 254; (2004) 89 SASR 316; R v Kiltie (1985) 41 SASR 52; Boughey v The Queen (1986) 161 CLR 10, applied.
R v Wichen (2005) 92 SASR 528; R v Armfield [2005] SASC 108; R v Hodge (1988) 48 SASR 91; Fardon v Attorney-General (Qld) [2004] HCA 46, considered.

R v WHYTE
[2006] SASC 56
WHITE J

Following a plea of guilty to a charge of possession of child pornography, contrary to s 63A of the Criminal Law Consolidation Act 1935, (“the CLCA”) the defendant was remanded to this Court to be dealt with in accordance with s 23 of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”).
Section 23 permits the Court to make an order that a person to whom the section applies be detained in custody until further order. The defendant is such a person. An order for detention until further order may be made if the Court is satisfied that an offender is incapable of controlling, or unwilling to control, his or her sexual instincts. Mr Brebner QC, who appeared with Ms Ingleton for the DPP, submitted that an order of indefinite detention should be made in this case, contending that while the defendant is capable of controlling his sexual instincts, he should be found to be unwilling to do so.
Possession of Child Pornography
On 11 May 2005, the defendant was found to be in possession of child pornography. The defendant had on his personal computer at his home 106 images of young females of various ages ranging from infant to those at the age of puberty. In addition, on a computer disc, the defendant had 24 pictures of naked young females, with some in sexually suggestive poses. Each of the images had been obtained by the defendant from the Internet. Each image was a still image. There were no depictions of sexual behaviour, or of any contact with an adult person. The defendant accepted that the images were pornographic in nature.
Previous Offending
In August 1997, the appellant pleaded guilty to 15 offences of indecent assault, two offences of unlawful sexual intercourse with a person under the age of 12 years, five offences of unlawful sexual intercourse and one offence of inducing a child to expose her body. He was sentenced in the District Court to imprisonment for nine years with a non-parole period of five years. The victim of each of the offences was the same young female. The offending occurred during a course of conduct commencing when the victim was six or seven years old and continuing until she was 20. The defendant was in a relationship of trust with the victim. The offending took the form of touching of the victim’s vagina, cunnilingus, fellatio, penile vaginal intercourse, penetration of her vagina with an object, digital intercourse, fondling of breasts and the taking of explicit photographs.
The defendant was released on parole on 5 August 2002. A designated condition of his parole was that he was not to hold, access or possess child pornography. By his possession of the child pornography on 11 May 2005, the defendant breached that designated condition.
Section 23
Section 23 of the Sentencing Act was substantially amended by the Statutes Amendment (Sentencing of Sexual Offenders) Act 2005, (“the Amendment Act”) which came into operation on 11 August 2005. Although that was after the offence committed by the defendant on 11 May 2005, s 23, in its present form, is to be applied in this case. That is because of the operation of s 9 of the Amendment Act, which provides that the amendments to the Sentencing Act effected by it apply whether the relevant offence occurred before or after the commencement of the amendment. So far as it is relevant to the present case, s 23 provides as follows:
…
(2)    If, in proceedings before the District Court or Magistrates Court, a person is convicted of a relevant offence and—
(a)     the court is of the opinion that the defendant should be dealt with under this section; or
(b)     the prosecutor applies to have the defendant dealt with under this section,
the court will, instead of sentencing the defendant itself, remand the convicted person, in custody or on bail, to appear before the Supreme Court to be dealt with under this section.
(2a)If a person has been convicted of a relevant offence, the Attorney-General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section.
(3)The Supreme Court will direct at least 2 legally qualified medical practitioners nominated by the Court to 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)For the purpose of an inquiry under subsection (3), each medical practitioner—
(a)     must carry out an independent personal examination of the person; and
(b)     may have access to any evidence before the court by which the person was convicted; and
(c)     may obtain the assistance of a psychologist, social worker, community corrections officer or any other person.
(5)The Court may order that a person to whom this section applies be detained in custody until further order if—
(a)     the Court, after considering the medical practitioners' reports and any relevant evidence or representations that the person may desire to put to the Court, is satisfied that the order is appropriate; or
(b)     the person refuses to cooperate with an inquiry or examination under this section and the Court, after considering any relevant evidence and representations that the person may desire to put to the Court, is satisfied that the order is appropriate.
(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.
(7)If the detention is in addition to a sentence of imprisonment, the detention will commence on the expiration of the term of imprisonment, or of all terms of imprisonment that the person is liable to serve.
(8)     A person detained in custody under this section will be detained—
(a)     if the defendant is under 18 years of age—in such institution (not being a prison) as the Minister for Family and Community Services from time to time directs;
(b)     in any other case—in such institution as the Minister for Correctional Services from time to time directs.
…
Subsections (9)-(12) provide for review of the progress and circumstances of a person in respect of whom an order for detention has been made, and for the discharge of that order.
A critical concept in the operation of s 23 is that of “relevant offence”. It is a person who has committed a “relevant offence” in respect of whom a magistrate or judge may order referral to the Supreme Court (s 23(2)(a)) and in respect of whom the prosecutor or the Attorney-General may make application for the person to be dealt with under s 23 (s 23(2)(b) and s 23(2a) respectively). Such a person is “a person to whom this section applies” (s 23(1)). In addition, the concept of “relevant offence” is relevant to the statutory definition of the word “unwilling” to which reference will be made below.
The expression “relevant offence” is defined in s 23(1) as follows:
relevant offence means—
(a)an offence under section 48, 49, 56, 58, 59, 63, 63A, 63B, 69, 72 or 74 of the Criminal Law Consolidation Act1935;
(b)an offence under section 23 of the Summary Offences Act 1953;
(c)any other offence where the evidence indicates that the defendant may be incapable of controlling, or unwilling to control, his or her sexual instincts;
The offences referred to in the definition can be categorised broadly as offences involving sexual activity (rape, unlawful sexual intercourse, indecent assault, acts of gross indecency, incest, persistent sexual abuse of a child, and bestiality), offences related to sexual activity (abduction for sexual purposes, procuring a child to commit an indecent act), offences related to child pornography (producing or disseminating child pornography, possession of child pornography), and the offence of indecent or offensive behaviour or an act of gross indecency (Summary Offences Act 1953, s 23).
Although s 23(5) does not make it explicit that an order for indefinite detention is conditioned on the Court being satisfied that the person is either incapable of controlling, or unwilling to control, his or her sexual instincts, such a condition is, in my opinion, implicit in the section. That implication arises in particular from the requirement in sub-s (3) that the Court direct at least two legally qualified medical practitioners to inquire into the mental condition of the offender and to report to the Court on whether the offender is incapable of controlling, or unwilling to control, his or her sexual instincts; from the stipulations with respect to the inquiry by those practitioners contained in sub-s (4); and from the stipulation in sub-s (5)(a) that the Court is to consider the medical practitioners’ reports (as well as any relevant evidence and representations from the offender) before being satisfied that the order is appropriate. Mr Brebner QC acknowledged that the Court had to be satisfied that the person was either incapable of controlling his or her sexual instincts or, alternatively, unwilling to control those sexual instincts, before the discretion vested in the Court by sub-s (5) could be exercised.
Section 23 in its Previous Form
Section 23 has, since the time of its enactment in 1988, conferred on this Court a power to order the indefinite detention of certain offenders. The principal difference between s 23 in its present form and its previous form is that an order for detention in custody until further order can now be made if the Court is satisfied that the offender is unwilling to control his or her sexual instincts, as well as in the circumstance where the Court is satisfied that the offender is incapable of controlling those sexual instincts. Previously, such an order could be made only in the circumstance of incapacity to control sexual instincts. In addition, the exercise of the discretion to make the order is no longer conditioned on two medical practitioners having reported to the Court, on oath, that the offender has the requisite incapacity.
Section 23 has been considered in a number of decisions of this Court. They include R v England;[1] R v England;[2] R v England;[3] R v Wichen;[4] R v Armfield.[5] While there are some obvious differences between the section in its original form, and the present form, I consider that those decisions provide considerable assistance in the determination of the present matter.
[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.
The purpose of the powers vested in this Court by s 23 is the protection of the public. The public is to be protected from persons who are either incapable of controlling, or unwilling to control, their sexual instincts.[6] That protection is to be obtained by the detention for an indefinite period of such persons. The detention is not imposed for the punishment of the person. It is not a sentence.[7]
[6] R v Kiltie (1985) 41 SASR 52 at 61; R v England [2003] SASC 231 at [11], [51], (2003) 86 SASR 273 at 276 per Bleby J, at 283 per Besanko J; R v England [2004] SASC 254 at [35], (2004) 89 SASR 316 at 327.
[7] R v England [2003] SASC 321 at [12], (2003) 86 SASR 273 at 276-7 per Bleby J.
An order resulting in the deprivation of liberty of a person for an indefinite period is a serious matter, with grave consequences for that person. Such an order is not to be made lightly. The approach adopted by Bleby J in R v England in relation to the question of incapacity to control sexual instincts is, in my opinion, equally apposite in the present matter. Bleby J said:
… satisfaction as to the inability of a person to control their sexual instincts is a matter of assessing the opinions to that effect, their strengths and their weaknesses, to a point where the court can be satisfied that the incapacity is present. In doing so, the court will need to take account of the seriousness of the declaration it is asked to make and the gravity of the consequences of giving the direction. To borrow the words of Dixon J in Briginshaw v Briginshaw, the necessary degree of satisfaction cannot be produced “by inexact proofs, indefinite testimony or indirect inferences”. It will require cogent and acceptable evidence in order to justify the making of the declaration and the giving of the direction. But even then, there is a residual discretion conferred by the use of the word “may” in the subsection. In that respect it may also be appropriate to consider, as in the case of R v Fahey and R v Riley whether, if a sentence is also imposed, the defendant is likely, at the end of the custodial period, to resume similar sexual activities. This will, in turn, require consideration, among other things, of the defendant’s access to and the likely effect of various regimes of treatment, and whether they can be effected in the prison setting or in some other institution contemplated by the section.[8]
[8] [2004] SASC 20 at [56], (2004) 87 SASR 411 at 423-4.
In the circumstances of this case, two questions arise: is the defendant unwilling to control his sexual instincts; if so, should the discretion vested in the Court by s 23(5) be exercised so as to order his detention until further order?
Mental Condition
The two medical practitioners nominated by the Court are to inquire into the “mental condition” of the offender (s 23(3)). That expression also appeared in a predecessor provision of s 23, namely, s 77A(1) of the CLCA. That provision empowered a judge, in certain circumstances, to order two medical practitioners to inquire into “the mental condition of [an] offender and in particular whether his mental condition is such that he is incapable of exercising proper control over his sexual instincts”. The meaning of the expression in that provision was considered by the Full Court in R v Kiltie.[9] King CJ said:
[9] (1986) 41 SASR 52.
The meaning of the expression “mental condition” in the section falls to be determined in the context in which it is found and by reference to the purpose of the section.
The expression “mental condition” may be used in more than one sense. It may be used in the sense of a morbid condition of the mind or of a condition of the mind which amounts to mental illness. It may mean no more than “state of mind”. In the present context, it means, as it seems to me, the condition of the offender’s mind as regards capacity to control his sexual instincts or, put another way, his mental capacity to control his sexual instincts. I do not find anything in the section which would limit the meaning of the expression to a condition amounting to psychiatric illness capable of diagnosis as such.[10]
[10] Ibid at 61.
Johnston J said:
… In my opinion, each of the words in the phrase “mental condition” is used in their ordinary meaning and the phrase itself is not a term of art but is to be understood in its ordinary meaning. “Condition” connotes to my mind “the state of” in a broad sense. “Mental” means of or pertaining to the mind. The standard dictionaries give, naturally enough, a large number of meanings to the word “mind” in different contexts. The Shorter Oxford English Dictionary meaning, in what I take to be the relevant sense, is as follows:
The seat of consciousness, thought, volitions and feelings.
Murray’s New English Dictionary definition in the relevant sense is fuller and to be preferred. It reads:
The seat of a person’s consciousness, thoughts, volitions, and feelings; the system of cognitive and emotional phenomena and powers that constitutes the subjective being of a person.
In my opinion “mental condition” means the state or condition of the offender’s mind as so defined.[11]
[11] Ibid at 71.
That view of the meaning of the expression “mental condition” was confirmed by the Full Court in R v Hodge[12] and was applied by Gray J in relation to s 23 in its former form in R v Wichen[13] and in R v Armfield.[14] It is the meaning which, in my opinion, should be applied in this case. As will be seen however, the Court is required to consider more than the state or condition of the defendant’s mind in determining whether he is unwilling to control his sexual instincts.
[12] (1988) 48 SASR 91 at 96-7.
[13] [2005] SASC 323 at [50]-[53], (2005) 92 SASR 528 at 540-41.
[14] [2005] SASC 108 at [57].
Unwillingness
In decisions concerning the former s 77A of the CLCA and s 23 in its previous form, this Court emphasised that it was incapacity, and not unwillingness, to control sexual instincts which was the foundation for the exercise of the discretion to make an order for indefinite detention. In R v Kiltie King CJ said:
It is to be remembered, of course, that what is in question is not unwillingness to exercise self-control, nor a high degree of sexual drive, nor a high degree of temptation resulting from innate characteristics or external circumstances, nor special susceptibility to such temptation; what is in question is true incapacity to exercise the necessary degree of self-control over the sexual instincts.[15]
[15] (1986) 41 SASR 52 at 62. See also R v Hodge (1987) 48 SASR 91 at 97.
In its current form, s 23 contemplates that an order for indefinite detention may be made in respect of an offender who has the capacity to control his or her sexual instincts but is nevertheless unwilling to do so.
Unassisted by any statutory definition, it might have been thought that the question of whether an offender is unwilling to control his sexual instincts required an assessment of his or her state of mind. Ordinarily an unwillingness to refrain from performing an act occurs where a person is loath or reluctant to refrain from performing that act. A state of reluctance is a state of mind. That reluctance may exist for any one of a number of reasons: lack of scruples, lack of appreciation of the intrinsic wrongfulness of the conduct, cultural belief, an unwillingness to resist temptation even when it arises and so on.

Such an approach to the meaning of the word “unwilling” would be consistent with the requirement that the two medical practitioners inquire into the “mental condition” of the offender before reporting on the person’s unwillingness (or otherwise) to control his or her sexual instincts.
However, the word “unwilling” is given a statutory definition in s 23(1) as follows:
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 statutory definition is in the nature of a deeming provision, ie, requiring the Court to presume that an offender is unwilling to control his or her sexual instincts if there is a significant risk that he or she would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of those instincts.
The decision concerning the offender’s present state of mind is to be made by an assessment of the chance that he or she may in the future, in certain circumstances, behave in a certain way. It is the risk that the offender may fail to exercise appropriate control of his or her sexual instincts which is to be assessed. In most cases, the commission of one or other of the offences listed in the definition of “relevant offence” will comprise a failure to exercise the requisite control. Where the conduct in question involves a breach of the criminal law, it could hardly be said that the control of sexual instincts was appropriate. But it may not be every commission of a relevant offence which indicates a failure to exercise appropriate control of sexual instincts. The offence of producing or disseminating child pornography might be committed for reasons quite unrelated to control of the person’s sexual instincts, e.g. where it is committed for the purpose of commercial profit. The offence of possession of child pornography may be committed by a person who acts only as a carrier of the material. But, putting examples of that kind to one side, the definition requires an assessment of the risk that the offender may commit a relevant offence.
The assessment is not, however, to be confined to the risk that a relevant offence may be committed. The risk to be assessed is the risk that the offender will fail to exercise appropriate control of his or her sexual instincts, not that he or she will commit a relevant offence. The definition is not to be construed as though it referred to the risk that, given an opportunity to commit a relevant offence, the offender would do so. In most cases, failure to exercise appropriate control of sexual instincts would be evident if a person attempted to commit a relevant offence,[16] or who aided, abetted, counselled or procured the commission of such an offence.[17] It is not necessary in this case to consider whether there may be circumstances falling short of the commission of a criminal offence which may be indicative of a failure to exercise appropriate control of sexual instincts.
[16] Criminal Law Consolidation Act 1935, s 270A.
[17] Criminal Law Consolidation Act 1935, s 267
The offender’s actual present state of mind may be a factor which bears on the risk that an offender may, at some time in the future, fail to exercise appropriate control of his or her sexual instincts, but in many cases, it will not be the only factor. The definition itself recognises one other factor, namely an opportunity. The risk that a person may fail to exercise appropriate control of his or her sexual instincts is likely to vary according to the nature and extent of the circumstances in which the opportunity to do so arises. The definition seems to require a variety of possible circumstances in which such an opportunity might arise to be considered.
As already noted, the statutory definition requires the court to presume that an offender is unwilling to control his or her sexual instincts if there is a significant risk that he or she would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of those instincts. It is unclear whether that unwillingness is to be presumed when the court is satisfied that there is no present reluctance on the part of the offender to control his or her sexual instincts but nevertheless considers, having regard to other factors, that there is a significant risk that he or she may not do so. Put slightly differently, it is not clear if the definition is intended to be a statement of the only circumstance in which a state of the requisite unwillingness is to be found.
In the present case both the forensic psychiatrists who, at the direction of the Court, examined the defendant recognised that the statutory definition of the word “unwilling” required a consideration of matters going beyond an assessment of his present state of mind. Dr Nambiar said in his evidence that whilst it was within the professional confidence of a forensic psychiatrist to express an opinion on a person’s capacity to control sexual instincts, a psychiatrist was in no better position than a layman to provide an opinion on the question of whether a person was willing to control his or her sexual instincts. Dr Branson confined his attention to the defendant’s mental condition.
In my opinion, the definition is to be applied in the following way: the Court must assess the risk that the offender would, given the opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts. That assessment is to take account of all factors bearing on that risk. The Court’s assessment of the person’s state of mind will usually be very relevant to the assessment of the risk, but it is not the only matter to be considered. The opinions of the medical practitioners who have examined the offender and reported to the Court on the offender’s mental condition will be relevant to the assessment of the offender’s state of mind, but the opinions which those practitioners are able to express based on their field of expertise will not ordinarily encompass all the matters relevant to the Court’s assessment. That is to say, it will be necessary in some cases for the court to consider a range of factors which are not particularly within the field of expertise of, say, a forensic psychiatrist.
Before a Court concludes that a person is unwilling in the defined sense, it must be satisfied that the risk of failure to exercise appropriate control is “significant”. In context, the word “significant” has the meaning of “substantial”.[18] Put more colloquially, the Court must be satisfied that there is a “good chance” that the risk will eventuate.[19] The mere possibility of a failure to exercise appropriate control of sexual instincts will not be sufficient. But on the other hand the Court does not have to predict that the offender will fail to exercise appropriate control, or even consider it probable that he will fail to exercise such control.
[18] Cf the concept of “unacceptable risk” which appeared in the Queensland legislation considered in Fardon v Attorney-General (Qld) [2004] HCA 46.
[19] Boughey v The Queen (1986) 161 CLR 10 at 22 per Mason, Wilson and Deane JJ.
The Defendant’s Personal Circumstances
The defendant is now aged 54. He has been in custody since his arrest on 11 May 2005.
Following his release on parole in August 2002, the defendant obtained part-time work delivering frozen food and in carrying out industrial roof cleaning. Prior to his imprisonment in 1997, the defendant had had long term employment as a sales representative for an automotive company.
The defendant has been married twice. As a result of his conduct leading to the charges for which he was sentenced in 1997, the defendant has become alienated from his family and divorced from his wife. The defendant remarried in February 2004.
The defendant has told the psychiatrists who have assessed him that he obtained a computer in November 2003. An Internet connection was required for the purposes of his business. Curiosity led him to sites on the Internet which contained child pornography. The defendant told Dr Nambiar that he would become sexually aroused by the sites, often masturbating to the images shown.
Whilst in prison previously, the defendant had undergone a Cognitive Skills Course and a Victim Awareness Course. He has reported that these courses were useful and that he now realises the serious effect which his conduct had on his victim. The defendant has expressed willingness to undergo such further programs as may be recommended for him.
Medical Opinion
I directed two forensic psychiatrists, Dr Nambiar and Dr Branson, to inquire into the defendant’s mental condition and to report on whether he is incapable of controlling, or unwilling to control, his sexual instincts. Each interviewed the defendant and provided a written report. In addition, each gave oral evidence in relation to their opinions. Each concluded that the defendant is capable of controlling his sexual instincts. Dr Branson concluded that there was no evidence of unwillingness to control sexual instincts and expressed the view that the appellant was both capable of controlling, and willing to control, his sexual instincts. Dr Nambiar, however, expressed the opinion that “given ample opportunity in the future, it is highly likely that [the defendant] would fail to exercise appropriate control”. Dr Nambiar did not consider that there was a significant risk that he defendant would commit an offence involving physical contact with a victim, eg, unlawful sexual intercourse or indecent assault. The only risk he thought significant was that of the defendant again accessing child pornography. This was the only risk to which Mr Brebner QC referred in his submissions as being relevant in this case.
In the circumstances of this case, I prefer to attach greater weight to the assessment of Dr Branson. I have referred already to Dr Nambiar’s concession that he was in no better position than a layman to express an opinion about the defendant’s willingness or otherwise to control his sexual instincts. In other words, his opinion is not to be understood as an expression of an expert professional view. In addition, it did seem to me that Dr Nambiar minimised, to some extent, the defendant’s own statements of his attitude to further offending. Dr Nambiar attributed those statements to the defendant’s dislike of his current incarceration, and separation from his wife rather than to any recognition of the intrinsic wrongfulness of his conduct. That view of the matter, it seems to me, underestimates the deterrent effect of service of a period in custody. It is also relevant to note in this context the limited nature of the risk contemplated by Dr Nambiar. As already noted, he considered that the defendant was willing to exercise appropriate control of his sexual instincts in relation to physical contact with females: it was only in relation to the obtaining of pornographic material in respect of which he considered the unwillingness to exist.
Dr Branson’s opinion was summarised in the following paragraph:
Given the differences in the nature of [the defendant’s] offending, compared to other defendants who in my view clearly would meet the criteria of being incapable or unwilling to control their sexual instincts, I do not believe that [the defendant] falls into that category. Certainly there is no doubt that [the defendant] is able to control his sexual instincts. He professes that far from being unwilling to do so, he has indeed being doing so willingly in the sense that despite his sexual curiosity about children, he has not re-offended by attempting to make any sexual contact with children. Whilst he has admittedly re-offended by accessing child pornography, [the defendant] states that he is very willing to avoid this activity in future. There is therefore no evidence in my view that he is unwilling to control his sexual instincts.
In his oral evidence, Dr Branson said that he had not ascertained anything in the defendant’s mental condition during the course of his examination which would suggest that he was unwilling to control his sexual instincts.
Other Factors
In addition to considering the evidence about the defendant’s mental condition, I have considered whether other factors indicate a substantial risk of the requisite kind. In my opinion they do not. The defendant is now well aware of the serious view which the law takes of possession of child pornography. Not only has his offence led to the revocation of his parole, it will, by virtue of the sentence which I will impose for that offence, be subject to its own punishment. Contrary to a view which the defendant may have held, the production of child pornography does involve the sexual exploitation of children. Although the defendant’s conduct may not have an immediate victim, the children whose images have been displayed on the sites accessed by the defendant have been exploited in a quite inappropriate way. The defendant is now well aware of that. In addition, as some of the images in this case were recovered from the hard drive of the defendant’s computer, he is now aware that offending of this type is capable of ready detection.
The defendant has asserted his intention to refrain from accessing child pornography in the future. He has indicated a willingness to participate in appropriate treatment programmes. Despite Dr Nambiar’s opinion, I am not persuaded that those expressions of attitude should not be regarded as sincere.
It is relevant that the offence occurred, not only while the defendant was on parole, but in breach of a designated condition of that parole. I am not prepared to accept that the defendant was not well aware of that condition. I consider that he must have known of the condition, and must have known that he was breaching his parole conditions. But as already noted, the defendant’s conduct has had, and will have, significant consequences for him. For the reasons already given, I consider that the defendant is willing to modify his behaviour.
Finally, I have regard to the written references provided to the Court concerning the defendant. I have disregarded those references which did not disclose, on their face, knowledge by the author of the defendant’s offending. Two of the referees, with knowledge of the defendant’s history, have spoken well of his character. Each is in a position to provide continuing support to the defendant. Their friendship and support also militates against the likelihood of re-offending.
Summary
In summary, there is no suggestion that the defendant is incapable of controlling his sexual instincts. Despite the opinion expressed by Dr Nambiar, I am not satisfied that the defendant is unwilling to control his sexual instincts. It cannot sensibly be said that there is no risk of the defendant, given an opportunity, failing to exercise appropriate control of his sexual instincts but, having regard to the various factors to which I have referred above, I am not satisfied that such a risk as there is can be said to be significant.
That conclusion means that the discretion vested in this Court by s 23(5) is not enlivened. That makes it unnecessary to consider the exercise of the discretion in circumstances where the only relevant offence which it is said an offender is at risk of committing is that of possession of child pornography. It is sufficient to say that I am not satisfied that an order that the defendant be detained in custody until further order is appropriate.
The defendant is to be sentenced for the offence of possession of child pornography.