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R v Whyte

R v Whyte

Case [2006] SASC 56 2 March 2006

Sex Offenders Incapable of Controlling Sexual Instincts

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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Criminal Law (Sentencing) Act 1988 (SA), s 23; Criminal Law Consolidation Act 1935 (SA), s 63A, s 77A (repealed), s 267, s 270A; Statutes Amendment (Sentencing of Sexual Offenders) Act 2005 (SA), s 9; Summary Offences Act 1953 (SA), s 23, referred to.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…

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.

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Details

AGLC: R v Whyte [2006] SASC 56
Case: [2006] SASC 56
Decision Date: 2 March 2006

CaseChat Overview and Summary

The case of R v Whyte involved the defendant, who had pleaded guilty to the offence of possessing child pornography. This case was referred to the court under section 23 of the Criminal Law (Sentencing) Act 1988 for consideration of whether the defendant was unwilling to control his sexual instincts and whether an order for his indefinite detention should be made. The defendant had a prior conviction for sexual offences, which played a significant role in the court's deliberations.

The court was required to decide whether the defendant was "unwilling" to control his sexual instincts as defined by section 23(1) of the Sentencing Act. The court also had to consider the factors outlined in the Act in determining the application for an order under section 23. This included examining conflicting medical reports regarding the defendant's willingness to control his sexual instincts and whether there was a substantial risk that the defendant would fail to exercise appropriate control if given an opportunity.

The court determined that there was no substantial risk that the defendant would fail to exercise appropriate control of his sexual instincts, given an opportunity. The conflicting medical reports did not provide a clear indication that the defendant was unwilling to control his sexual instincts. Consequently, the court concluded that an order for the indefinite detention of the defendant was inappropriate. The court's decision was based on the lack of evidence to support the notion that the defendant was unwilling to control his sexual instincts and the absence of a substantial risk of reoffending.

The court did not make an order for the indefinite detention of the defendant, affirming that such a measure was not warranted based on the evidence presented.

Orders