R v Wichen - [2005] SASC 323

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v WICHEN
Judgment of The Honourable Justice Gray
23 August 2005
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - MISCELLANEOUS MATTERS - SEX OFFENDERS INCAPABLE OF CONTROLLING SEXUAL INSTINCTS
Defendant pleaded guilty to aggravated serious criminal trespass in a place of residence and assault with attempt to rape - Crown application for order for indeterminate detention pursuant to section 23(5) of the Criminal Law (Sentencing) Act 1988 (SA) that defendant incapable of controlling his sexual instincts.
Consideration of circumstances and nature of offending - offending of a serious nature - offending occurred in victim's home - victim 65 years old - consideration of defendant's criminal antecedents - history of alcoholism and sexual offending - consideration of defendant's personal antecedents.
Discussion of statutory scheme - section 23 Criminal Law (Sentencing) Act 1988 (SA) - consideration of rationale behind orders for indeterminate detention - consideration of need to protect community and provide offender with treatment - inquiry by medical experts required before order for indeterminate detention can be made - consideration of expert evidence -consideration of defendant's prospects for rehabilitation and treatment whilst in custody - consideration of construction of section 23(9) of Criminal Law (Sentencing) Act 1988 (SA).
Held: application for an order to be made pursuant to section 23 Criminal Law (Sentencing) Act 1988 (SA) is adjourned to a date to be fixed - defendant sentenced to head sentence of 10 years imprisonment - sentence back dated to commence on 29 April 2002 - issue of fixing a non-parole period adjourned for further consideration.
Criminal Law (Sentencing) Act 1988 (SA) s 23; Criminal Law Consolidation Act 1935 (SA) s 170, s 270; Criminal Law (Consolidation) Act 1965 (SA) s 77a; Correctional Services Act 1982 (SA) s 23, referred to.
R v Scobie (2003) 85 SASR 77; R v England (2004) 87 SASR 411; Veen v R (1979) 143 CLR 458; The Queen v Kiltie (1986) 41 SASR 52; R v England [2004] SASC 254; R v O'Shea (1982) 31 SASR 129; R v odge (1988) 48 SASR 91, considered.

R v WICHEN
[2005] SASC 323
Criminal
Section 23 Application
GRAY J:
Introduction

On 28 January 2003, the defendant, Jacob Arthur Wichen pleaded not guilty before the District Court to the charges of aggravated serious criminal trespass in a place of residence[1] and assault with attempt to rape.[2] He was remanded for trial in the District Court. On 5 February 2003, a voir dire hearing challenging the admissibility of Crown evidence commenced in the District Court. The Judge ruled against the application. The defendant then pleaded guilty to both charges.
[1] Section 170(2) of the Criminal Law Consolidation Act 1935 (SA).
[2] Section 270B of the Criminal Law Consolidation Act 1935 (SA).
On 6 February 2003, the Crown made application pursuant to section 23 of the Criminal Law (Sentencing) Act 1988 (SA) to have the defendant remanded to the Supreme Court. That application was granted. The matter proceeded before the Supreme Court pursuant to section 23.
Section 23 of the Sentencing Act relevantly provides:
(2)Where a defendant is convicted of an offence to which this section applies by the District Court or the Magistrates Court, the court may, if of the opinion that the powers under this section should be exercised in relation to the defendant, remand the defendant in custody or on bail to appear for sentence before the Supreme Court.
(3)The Supreme Court may, in relation to—
(a) a defendant convicted of an offence to which this section applies by the Court; or
(b) a defendant remanded to appear for sentence before the Court pursuant to subsection (2),
before determining sentence, direct that at least two legally qualified medical practitioners, specified by the Court, inquire into the defendant's mental condition and report to the Court as to whether the defendant is incapable of controlling his or her sexual instincts.
…
As will be discussed in detail later in these reasons, section 23 provides a statutory regime for dealing with offenders found to be incapable of controlling their sexual instincts.
When the matter proceeded before this Court, counsel for the Crown sought a declaration that the defendant was incapable of controlling his sexual instincts and an order for indeterminate detention pursuant to section 23. In addition, counsel for the Crown submitted that the defendant ought to be sentenced.
Circumstances of the Offences
The defendant has a history of sexual offending. The circumstances of his most recent offending are grave. This offending occurred on 25 April 2002 at Port Augusta. The victim was a 65-year-old woman who lived alone at Port Augusta. On the Crown case, on the evening of 24 April 2002 the defendant had been drinking with Ritchie Aitken at Hotel Augusta before attending a party. Early the following morning, the defendant was seen walking in the vicinity of the victim’s address.
At around 8.30am on 25 April 2002, the victim, asleep in her home, was awoken by a knock at the door. She decided to ignore the knock and go back to sleep. Not long after, the victim was awoken by a loud bang. As she got up out of bed, the victim observed a man of Aboriginal descent coming through her bedroom window. The victim described the man as taller than she was, but shorter than six foot; very slim; muscular; in about his mid-twenties, with hair pulled back in a pony-tail. She said he was wearing jeans and runners with no shirt. On the Crown case, the defendant was the man who entered the victim’s home.
Once in the victim’s bedroom, the defendant hit or pushed the victim backwards and onto the floor. The victim began shrieking, and the defendant told her to be quiet. The victim continued to create noise in the hope that her neighbours would be alerted and come to her assistance. She hit out at the defendant several times. The defendant then stood over the victim, holding her down by her shoulder before punching her in the left eye. The impact of this punch caused the victim to fall to the floor and hit her head on a wooden boot box. The defendant grabbed the victim’s head and repeatedly hit it against the bedroom floor. He then rolled the victim onto her front and yelled, “Don’t look at my face,” and pushed her face away. The victim told the defendant to cover his face with one of her t-shirts in an attempt to stop him pushing her face into the floor.
The defendant began to remove the victim’s underpants and eventually ripped them off by tearing them. During the course of the attack the victim came to be lying face down on the bed. The defendant attempted to tie her hands behind her back with a computer cord. The victim managed to struggle free. The defendant then attempted to rape the victim. The victim recalls seeing the defendant’s penis in front of her. However she does not specifically recall any penetration.
The victim asked the defendant whether he wanted money, and he replied, “Where is it?” The victim was able to walk into the lounge room and locate her purse. The defendant took the purse.
In an attempt to save herself from a further attack, the victim began acting as if she was having a seizure. The defendant said, “Don’t you die on me!” and left the house through the front door. The victim called the police immediately.
The victim went to Port Augusta Hospital. Her injuries included head and eye injuries and were consistent with an assault. Police obtained a statement from the victim. Around 9am on 25 April 2002, police attended the victim’s home and commenced door knocking in the area. They apprehended the defendant some days later.
The defendant provided a version of the events surrounding this offending to police officers on two separate occasions. Details of the defendant’s version of events are also contained in the medical reports tendered into Court with the consent of both counsel.
The defendant said that on the night of 24 April 2002 he had been drinking beer, wine and whisky at a party with friends. He had also consumed some marijuana and valium. After drinking with friends, the defendant went to a local hotel and walked around all night. He said that while he was walking he decided to find a house where he believed marijuana to be growing. He approached a house and knocked on the door. There was no answer, so he proceeded around the back of the house and through the side-gate, where he saw an open window with a screen, and “busted though it”.
The defendant said that the woman inside the room jumped out of bed and told him to leave the house. He then wrestled with her and punched her. While they wrestled, the victim fell and hit her head on a wooden box. He said that, whilst wrestling, her knickers “came off”. The defendant denied any intention of having sex with her. When the victim refused to do as he said, the defendant asked her for money and continued to hold onto her as she walked into the lounge room, where she got her purse and gave him $20.
The defendant agreed with the victim’s claim that he showed her his penis but provided no explanation as to why he did this. He denied any sexual feelings towards her and said that he had had no intend to have sex with her but might have wanted to “flash her”. The defendant said the incident ended when the victim feigned some type of attack and he then left the house.
In an interview with Dr Raeside, the defendant said that he pleaded guilty to this offending on the advice of his lawyer but believed:
in my head that I was not there to rape the woman. I just wanted to tie her up, but I happened to see her bum and her vagina , but I wasn’t turned on.
The defendant was arrested on 29 April 2002. Police conducted a video-recorded interview and charged the defendant. They interviewed the defendant a second time on 2 May 2002. At this interview, the defendant admitted the assault. He further accepted, by his plea of guilty, that he intended to rape the victim.
Criminal Antecedents
The defendant has a significant history of criminal offending. His offending behaviour began when he was 12 years old. His earlier offending included numerous dishonesty offences, breach of parole, break and enter offences, damage property, and indecent and common assault. While he was a youth, much of his offending was punished without conviction. However, the offending giving rise to the assault charges attracted a suspended sentence of imprisonment secured by a good behaviour bond. At the age of 17, the defendant was sentenced to 6 months’ imprisonment for offending including assault occasioning bodily harm, damaging property and assaulting police.
When adult, the defendant’s offending increased in gravity. Such offending included escape lawful custody, assault occasioning actual bodily harm, driving offences, common assault, damage property and robbery with violence. The defendant’s adult antecedents also included sexual offending. In 1992, he was convicted of attempted rape and received a sentence of 3 years’ imprisonment with a non-parole period of 18 months. A further attempted rape conviction was recorded in 1994 and a sentence of 4 years and 3 months imprisonment imposed. In May 1998, the defendant pleaded guilty to charges of robbery with violence and indecent assault. In relation to this offending, the defendant was sentenced to 2 years, 4 months and 15 days’ imprisonment to be served cumulatively with the sentence imposed for breach of parole.
A report of Dr Raeside, includes a history of the circumstances of the defendant’s prior sexual offending. Dr Raeside reported that the defendant’s first charged sexual offence involved an attempted rape upon a 53-year-old female taxi driver, whereby the defendant touched the driver on the leg, exposed his penis and pulled her hair. The taxi driver had known the defendant since he was a young boy. The defendant did not explain why he had tried to sexually assault the driver and denied any premeditated thoughts of rape, saying, “Just thought I might get some sex from her.”
The defendant’s next sexual offence involved an assault upon a schoolteacher. The victim was in a classroom when the defendant, intoxicated, entered and began talking to her. He then began rubbing her all over her body. She pushed him away. The defendant then wrestled with the victim and punched her in the face. He then removed her shorts and attempted to have intercourse with her. In relation to this offending, the defendant said that, halfway through, he realised what he was doing was wrong and ran off.
Further offending behaviour of this type involved an indecent assault charge, coupled with robbery with violence, that occurred in Port Lincoln. At the time of the offending, the defendant had been using alcohol and tranquillisers. He saw a woman carrying a handbag get out of a car at the front of a house, and decided to ask her for some money. He knocked on the door, she answered and then he pushed her inside and dragged her down a corridor into another room. The defendant then ripped off her track suit pants and tried to tie her up. He then rubbed her vagina. He told Dr Raeside that he “didn’t want to have sex with her or rape her, but more or less just wanted to have sex with her”.
Personal Antecedents
The defendant is a 31-year-old Aboriginal man. Prior to being taken into custody, he had been in a defacto relationship since about November 2000. He is the father of a 13-year-old girl with whom he has occasional contact, outside and inside of prison. His daughter lives in Leigh Creek with her grandmother. The defendant has been in custody since April 2002. Prior to being taken into custody, he was unemployed and in receipt of social security benefits.
The defendant was born in Port Augusta and, due to his mother’s alcohol abuse, was cared for by his grandparents at Leigh Creek until the age of 11 or 12. During childhood, the defendant maintained contact with his mother but never met his biological father. His mother and her husband, the defendant’s stepfather, both suffered from serious alcoholism. Domestic violence was a feature of their marriage. The defendant’s mother died at the age of 38 as a result of a heart attack.
The defendant’s childhood has been marked by family instability, substance abuse, sexual abuse, peer pressure, criminal behaviour and frequent periods in custody. During his childhood, the defendant witnessed much domestic violence, including seeing his mother stabbed, hit with sticks and scalded with boiling water.
The defendant has a history of alcohol abuse that began at the age of 12. He engaged in extensive petrol sniffing from the age of 8 to 17. Typically, he would sniff for a couple of months and then stop for a couple of months. The defendant also engaged in abuse of minor tranquillisers such as Serepax at an early age. This resulted in occasional accidental overdoses and three deliberate overdoses – one following the death of his mother. The defendant began using marijuana at the age of 16 and was a regular user whilst in the indigenous community, smoking up to an ounce a day.
When interviewed by Dr Raeside, the defendant reported having been sexually abused during his childhood. This sexual abuse began when he was aged around 5 or 6 and continued until he left Leigh Creek to live at Port Augusta at about the age of 12. The defendant reported that 4 older male cousins sexually abused him and this involved anal and oral sexual intercourse. He said that this sexual abuse was often accompanied by violence and threats of being “bashed up”. The defendant also described being physically abused by his grandparents during his childhood, mainly in the form of severe physical punishment.
The defendant suffered from two additional traumatic events during his childhood. When he was three, both his hands were caught in the bumper bar of a parked car which drove off, dragging him for about a mile before the driver became aware of what was happening. At age of 10, he suffered serious injuries to his leg and pelvis as a result of a horse-riding accident.
The defendant performed poorly at school, was involved in fights and displayed behavioural problems. He left school at the age of 13, functionally illiterate and with very basic numeracy skills, and began working on cattle stations until the age of 17, when he was taken into custody. Since that time, he has not been able to attain any substantial form of employment.
Section 23
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 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 declare that a defendant is incapable of controlling his or her sexual instincts and ought to be detained in custody until further order. Section 23(5) provides:
If—
(a) each of the medical practitioners reports to the Supreme Court, on oath, that the defendant is incapable of controlling his or her sexual instincts; and
(b) Court, after hearing any evidence or representations adduced or made by the defendant, is satisfied that the defendant is so incapable,
the Court may declare accordingly and direct that the defendant be detained in custody until further order.
Section 23(6) provides the Court with the option of imposing a sentence of imprisonment instead of, or in addition to, the making of a section 23(5) order. This subsection will be discussed in further detail later in these reasons.
Sections 23(9) and 23(10) provide for ongoing review of persons subject to a section 23(5) order. The content and construction of section 23(9) will be discussed later in these reasons. Section 23(11) allows for this Court, on application from the Director of Public Prosecutions or the person subject to the section 23(5) order, to discharge the order for detention, provided the conditions of section 23(12) are fulfilled.
Order for Detention - Section 23(5)
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.[3] The principal rationale behind section 23 is to provide protection to the community from those offenders who are unable to control their sexual instincts.[4] 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.[5]
[3] For example see R v Scobie (2003) 85 SASR 77 at [10].
[4] R v England (2004) 87 SASR 411; R v Scobie (2003) 85 SASR 77.
[5] Veen v R (1979) 143 CLR 458.
In Veen, the High Court considered the rationale behind imposing a sentence of life imprisonment on an offender found to be a serious and violent risk to the community if released. Mason J observed:[6]
The court must, in sentencing a person who has been convicted of a very serious offence involving violence, if his record and the expert evidence plainly demonstrate that there is a real likelihood of his committing that kind of offence again if he is restored to liberty, ensure by the order which it makes that he will not be released whilst that likelihood continues. If it should appear that the propensities or predilections of the person convicted are such that the imposition of life imprisonment is necessary to protect the community from violent harm, then the court should impose that penalty.
[6] Veen v R (1979) 143 CLR 458 at 468.

In Thompson[7], the High Court considered an application for special leave to appeal a decision by the Western Australian Court of Criminal Appeal regarding an indefinite sentence of imprisonment imposed by a trial judge on a serial sexual offender. The High Court remitted the matter to the Court of Criminal Appeal. Kirby J made the following observations regarding the nature of indeterminate detention in the context of the Western Australian legislation, emphasising the exceptional character of orders for indeterminate detention:[8]
In Chester v The Queen, commenting on the precursor to s 98 of the Sentencing Act 1995 (WA) ("the Sentencing Act") which provides for a convicted offender to be imprisoned indefinitely, this Court observed that the exercise of such a power "should be confined to very exceptional cases where the exercise of the power is demonstrably necessary".
In R v Moffatt, where the history of such legislation in Australia and elsewhere was examined, the reasons for such an approach were elaborated. It was explained that the approach was required because an indefinite sentence goes beyond punishing the offender to an extent proportionate to the crime of which the offender has been convicted. The power conferred upon the Court is therefore exceptional, as are the cases warranting the exercise of such power.
[7] Thompson v The Queen (1999) 73 ALJR 1319.
[8] Thompson v The Queen (1999) 73 ALJR 1319 at [5] –[6].
Kirby J concluded that where there existed a possibility that an order for indefinite detention imprisonment be made, it was essential that procedures observed should be “regular and scrupulously thorough” and the materials relied upon, such as medical evidence, adequate and complete.[9] Kirby J noted that as a consequence of the indefinite nature of the order, the power to make such an order should only be exercised sparingly, in clear cases and following a careful hearing in which all relevant material was before the Court.[10]
[9] Thompson v The Queen (1999) 73 ALJR 1319 at [18].
[10] Thompson v The Queen (1999) 73 ALJR 1319 at [19].
The issue of indeterminate detention was further considered by the High Court in McGarry.[11] The question before the Court in McGarry was whether it was open for the Western Australian Court of Criminal Appeal to dismiss an appeal against an order for indefinite imprisonment made by the trial judge. In particular, the High Court was asked whether it was open to the Court of Criminal Appeal to be satisfied if released from custody the appellant “would be danger to society, or a part of it” and that at an order for indefinite imprisonment should be made.
[11] McGarry v The Queen (2001) 75 ALJR 1682.
In a joint judgment Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ allowed the appeal, concluded that it was not open for the Court of Appeal to find that the appellant would be a danger to society as required by the relevant provision. Consequently it was not open for the Court to make an order for indefinite detention. In reaching this conclusion, the majority made the following observations regarding orders for indeterminate detention:[12]
The judge is not required to make some declaration of fact or law. An order is not to be made unless some conditions are met. One of those is that the judge attains the requisite level of satisfaction about the state of affairs described in s 98(2) but the judge need make no order embodying a declaration that he or she was so satisfied. Section 98(1) empowers a sentencing judge, if the relevant conditions are met, to "order the offender to be imprisoned indefinitely" and to do so "in addition to imposing the term of imprisonment for the offence". An order for indefinite imprisonment is, then, a part of the sentence which is imposed (just as much as, in other cases, will be a parole eligibility order, or an order suspending the imprisonment). Further, and no less importantly, s 98(1) does not oblige a sentencing judge to make an order for indefinite imprisonment in every case in which the conditions specified in that sub-section are met. Nor does s 98(1) oblige a sentencing judge to make such an order if satisfied of the matter specified in sub-s (2), namely, that "when the offender would otherwise be released from custody in respect of the nominal sentence or any other term, he or she would be a danger to society, or a part of it". Even if satisfied of that fact, a sentencing judge has a discretion in deciding whether or not to make an order for indefinite imprisonment.
[12] McGarry v The Queen (2001) 75 ALJR 1682 at [7].
The majority acknowledged the difficulties associated with determining the meaning of “a danger to society or a part of it”, noting that a fundamental premise of the criminal law is that conduct is regarded as criminal for the very reasons that it’s commission harms society or a part of it.[13] In this way, all criminal conduct poses a danger to society. The majority went on to observe that the relevant legislative provisions authorising the making of orders of indeterminate detention require that the danger or risk posed by the release of the offender be of an exceptional seriousness. [14] It was emphasised that even where an exceptionally serious danger can be identified, the making of an indeterminate order for detention remains discretionary. [15]
[13] McGarry v The Queen (2001) 75 ALJR 1682 at [20].
[14] McGarry v The Queen (2001) 75 ALJR 1682 at [22].
[15] McGarry v The Queen (2001) 75 ALJR 1682 at [22].
Kirby J agreed with the conclusions reached by the majority in their joint judgment. In his reasons, Kirby J referred to the High Court’s observations in Lowndes[16] where it was said that the making of an order for indefinite imprisonment is a “serious and extraordinary step”. The accuracy and reliability of the materials relied upon when considering whether to make an order for indeterminate detention was found to be imperative. His Honour observed:
Apart from the language of the Sentencing Act, read together with the provisions of the Sentence Administration Act, it is also appropriate to consider an order for indefinite imprisonment in the context in which it takes effect. This is a criminal justice system that follows certain "settled fundamental legal principle[s]". In Chester it was pointed out that "our common law does not sanction preventive detention" and that "[t]he fundamental principle of proportionality does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender". Subject to the Constitution, legislation may over-ride such common law principles. However, to do so, any such legislation would need to be unmistakably clear. In the absence of a clear and valid statutory departure from such fundamental principles, a court would ordinarily assume that the settled approach of the criminal justice system continues to apply.
In part, the reason why the system of criminal justice treats an order of indefinite imprisonment as a serious and extraordinary step, derives from the respect which the law accords to individual liberty and the need for very clear authority, both of law and of fact, to deprive a person of liberty, particularly indefinitely. In part, this approach rests upon the indisputable feature of almost all criminal sentencing in Australia that limits the sentence imposed to one that is proportionate to the offence of which the person has been convicted. In part, it reflects a tendency to recoil from preventive detention that involves punishing a person "not for something that he has done but because of something it is feared he might do". In part, it represents a realistic acknowledgment of the limitations experienced by judicial officers, parole officers and everyone else in predicting dangerousness accurately and estimating what people will do in the future.
On the occasions on which this Court has recently reviewed orders of imprisonment akin to that contemplated by s 98 of the Sentencing Act, it has emphasised that such punishment should not be ordered except after the observance of fair procedures and upon the basis of materials that are appropriate, both in kind and quantity, to the exceptional character of the order that is sought.
In Thompson the Court of Criminal Appeal itself had observed that "the pre-sentence and psychological reports relied upon by [the sentencing judge] were prepared in some haste with the further consequence that the psychological assessment which was carried out was not comprehensive". In this Court, Gaudron and Hayne JJ concluded that that finding led inevitably to the conclusion that the decision of the sentencing judge in respect of s 98 of the Sentencing Act, had miscarried. Inherent in that opinion was the proposition that, for such a serious order, having such profound effects upon the liberty of the prisoner, defects of the kind described in the sentencing materials were not tolerable.
[16] Lowndes v The Queen (1999) 195 CLR 665 at 679.
In the present case, the material relied upon by the Crown to support the submission that the defendant is incapable of controlling his sexual instincts has been provided by well qualified, experienced medical practitioners. Both psychiatrists have provided initial and later updated reports. Further expert evidence has been provided from psychologists and a neurologist that is consistent with the evidence of Drs Balfour and Raeside. The medical evidence has been the subject of extensive cross-examination in Court. Unlike Thompson, the present case does not give rise to concerns or doubts regarding the accuracy and reliability of the medical evidence tendered. The point of contention in the present case rests with the opinions reached by the two experts and whether, on their evidence, it is open for this Court to conclude that the defendant is incapable of controlling his sexual instincts. If that question is answered in the affirmative, a further question arises: whether, in the circumstances the Court is prepared to exercise its discretion to make an order for indeterminate detention.
In Kiltie[17], King CJ, referring to section 77a, the progenitor to section 23, observed:[18]
[The section], as appears from its terms, is designed to protect the community from sexual offenders who are incapable of exercising control over their sexual instincts or who, although not incapable, nevertheless ought to be detained by reason of their subnormal mental condition. It has a subsidiary purpose of providing care, supervision and control for subnormal sexual offenders in their own interests.
[17] The Queen v Kiltie (1986) 41 SASR 52.
[18] The Queen v Kiltie (1986) 41 SASR 52 at 61.
In the recent decision of England[19], the Court of Criminal Appeal considered the provisions for indeterminate detention provided in section 23 and observed:[20]
It can be seen that the legislation provides for a regime of detention which is aptly described as preventive, that is preventive in the interests of protecting the community. At least in a case in which sentence has been passed, that is the only function. The passing of sentence means that punishment in the ordinary sense has been imposed. The detention may be seen by the defendant as punitive, but the purpose of the detention appears to be to prevent the defendant from offending again, and so to protect the community from someone who is a real risk to the community, because he or she is incapable of controlling his or her sexual instincts.
[19] R v England (2004) 89 SASR 316.
[20] R v England [2004] SASC 254 at [35].
An order for detention pursuant to section 23(5) is a matter for the discretion of the Court. In O’Shea[21], the Court of Criminal Appeal considered the making of an order pursuant to section 77a of the Criminal Law (Consolidation) Act 1965 (SA). Wells J, with whom Walters and Matheson JJ agreed, observed:[22]
It is important to observe that the legislature did not, without more, confer a discretion; sub-s (3) [of section 77a of the Criminal Law Consolidation Act] serves expressly to remind the sentencing judge that he has three choices - to sentence the prisoner to a determinate sentence; to make an order directing him to be detained under the section; or to make such an order, and to impose a determinate sentence as well.
[21] R v O’Shea (1982) 31 SASR 129.
[22] R v O’Shea (1982) 31 SASR 129 at 140.
When the discretion is enlivened, a number of discrete steps must be taken before making an order pursuant to section 23(5). In the recent decision of England[23], Bleby J observed:[24]
[S]atisfaction 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.
In summary, the process that I perceive to be required by s 23(5) of the Act is first, the expression on oath of the opinion required by para (a) by two medical practitioners. If one or both of them do not express such an opinion or do not do so on oath, that is the end of the matter.
Secondly, the Court will need to assess the strength of those opinions, taking into account a number of factors relevant to the assessment of expert evidence. That will include identifying the relevant primary facts surrounding the proven offending on which the medical practitioners have based their opinions, and ensuring that they are established to the Court’s satisfaction beyond reasonable doubt.
Thirdly, the Court will then have to be satisfied in a manner that I have described that the incapability exists
Finally, the Court must exercise its residual discretion as to the making of the declaration and granting of the directions.
[23] R v England (2004) 87 SASR 411.
[24] R v England (2004) 87 SASR 411 at [56] – [60].
Before an order for detention under section 23(5) can be made, the Court must be satisfied that, in the opinion of at least two qualified medical practitioners, the defendant is incapable of controlling his or her sexual instincts. The Court of Criminal Appeal recently discussed this requirement in England:[25]
The provision is clear. Each practitioner must report on oath that the defendant is incapable of controlling his sexual instincts. The requirement is not purely one of form. It is not sufficient for the medical practitioner to mouth those words. The judge must be satisfied, having heard the evidence, that the medical practitioner is of the relevant opinion. For example, if the medical practitioner were to resile from the opinion under cross-examination, the basis for the making of an order would have gone. Sometimes it may be difficult to decide if the medical practitioner has adhered to the required opinion. But here, each medical practitioner expressed the required opinion and adhered to it. That is all that is required for the purposes of s 23(5)(a).
[25] R v England (2004) 89 SASR 316 at [22].
Each medical practitioner must report on oath that the defendant is relevantly incapable. The Court may have regard to the combined force of the opinions of each practitioner and there is no requirement that each opinion on its own must be capable of establishing the relevant incapacity. As observed by Doyle CJ in England:[26]
There is nothing in the section to suggest that each opinion considered in isolation must be sufficiently persuasive to support a finding of incapacity. Such an approach to a finding of fact would be most unusual. For all sorts of reasons one witness might express a firmer or more convincing opinion than the other. Usually findings of fact are made on all of the relevant material, having regard to its combined force. As long as the threshold requirement of two opinions as to incapacity is met, there is no reason why the judge should not be left to assess the evidence as a whole, paying due regard to any weaknesses in the evidence of either witness, and then to decide whether or not the judge is satisfied that the defendant is incapable of controlling his sexual instincts.
[26] R v England (2004) 89 SASR 316 at [23].
In the present case, reports were received from two fully qualified medical practitioners, Drs Raeside and O’Brien, who were called to give evidence and cross-examined before the Court. Reports were also tendered, by consent of both counsel, from psychologists Mr Balfour and Dr Bamboyne. Additional material was before the Court in relation to the defendant’s past medical history and criminal antecedents.
Mental Condition
As earlier observed, section 23(3) of the Sentencing Act authorises the Court to direct at least two qualified medical practitioners to inquire into the defendant’s “medical condition” before making a declaration regarding the defendant’s ability to control his or her sexual instincts.
When enquiring into whether a defendant lacks capacity to control his or her sexual instincts, it is imperative that the distinction between a mental condition giving rise to incapacity to control, and mere unwillingness to exercise control, be strictly observed.[27]
[27] See R v Kiltie (1985) 41 SASR 52 at 62 ; R v Hodge (1988) 48 SASR 91 at 97; R v England (2003) 86 SASR 273.
In Kiltie, the Court of Criminal Appeal considered the meaning of the expression “medical condition” within section 77a, and now contained in section 23(3). King CJ observed:[28]
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 of to a condition amounting to psychiatric illness capable of diagnosis as such.
…
It follows from what I have said that the expression “mental condition” used in the section is not restricted to a condition which can be described as a psychiatric illness capable of diagnosis. 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. It may be difficult for a medical practitioner to arrive at the conclusion that there is true incapacity where there is no psychiatric illness capable of diagnosis; but that is a medical, not a legal problem.
[28] R v Kiltie (1985) 41 SASR 52 at 61.

These remarks are apposite. The absence of a diagnosed psychiatric illness will not of itself prevent the conclusion that the defendant’s mental condition is such that he is incapable of controlling his sexual instincts.
Expert Evidence
Dr O’Brien
Two reports dated 2 September 2003 and 22 November 2004 compiled by Dr O’Brien, Clinical Director of the Forensic Mental Health Services, were tendered into evidence. In addition, Dr O’Brien was called to give evidence and was cross-examined on the content of those reports. Dr O’Brien has considerable experience in assessing individuals for the purpose of determining whether they are capable of controlling their sexual instincts for the purposes of section 23.
It was Dr O’Brien’s concluding opinion that the defendant’s capacity to control his sexual instincts varies depending on his level of intoxication. He was of the view that when sober the defendant was capable of controlling his sexual instincts but when intoxicated he was not.
Dr O’Brien interviewed the defendant on three separate occasions for the purpose of preparing his reports. In his report of 2 September 2003, Dr O’Brien considered material including witness statements and previous medical and physiological reports in addition to information gained from his two examinations of the defendant. Dr O’Brien noted the defendant’s history of petrol sniffing, alcohol and polysubstance abuse. In addition to his substance abuse problems, Dr O’Brien was of the view that the defendant suffered from a significant personality disorder with prominent aggressive and antisocial features, particularly when intoxicated.
When interviewed by Dr O’Brien, the defendant acknowledged that he had been before the court on four separate occasions for sexual crimes. However, he stated that he never planned to commit the offences. The defendant denied that he could not control his sexual instincts and told Dr O’Brien: “If I could not control myself, I would be raping them.” The defendant acknowledged he had a problem with alcohol and a “bit of an anger problem on me”. He explained the effect of alcohol on his behaviour as follows:
when I’m drunk, I can do a housebreak and if somebody is at home, my mind can change like that … I have got to give the alcohol away, that’s the key to it.
When asked how these problems might be addressed, the defendant said that he would like to see a counsellor. He told Dr O’Brien that he had never seen a counsellor, psychologist or psychiatrist before and that he had no support while living in his indigenous community.
Dr O’Brien reported that the defendant engaged in minimisation of his offending behaviour, for example by referring to “touching people” rather than “attempting to rape” them. He attributed his offending behaviour to his alcoholism and his own dysfunctional and abusive background.
Dr O’Brien was of the view that the defendant’s psychological background and offending history indicates that he has a propensity to attack older women. The defendant appeared to display a degree of anger towards women and in particular older women. Dr O’Brien said that, when sober, the defendant appears able to control this anger, but when intoxicated he is at high risk of committing an aggressive sexual offence.
Dr O’Brien described the defendant’s offending behaviour as opportunistic rather than predatory, and stated that the risk he poses to the community is specific rather than general. He said that this risk was related to the defendant’s ability to abstain from alcohol. Dr O’Brien reported:
It may well be that [Mr Wichen] is not, necessarily, a predatory sex offender and that his sexual misbehaviours are opportunistic in the context of the commission of non-sexual offences (when he is intoxicated). Nonetheless, I would take the view that whenever Mr Wichen is intoxicated (for whatever reason) he is at high risk of committing an aggressive sexual offence, although he himself would minimise the majority of his sexual offences and suggests simplistic solutions - that is stopping alcohol and / or seeing a counsellor. This indicates to me that Mr Wichen has a totally inadequate understanding of the extent of his pathologies, the fear that his behaviour engenders and the ongoing risk that he presents to the community, if untreated.
In his September 2003 report, Dr O’Brien expressed concerns in regard to the defendant’s lack of treatment and whether this has a substantive bearing on whether a conclusion can be drawn that the defendant is unable to control his sexual instincts for the purposes of section 23. However, it was Dr O’Brien’s view that:
[I]t would seem to me to be abundantly clear, not just to a professional examiner such as myself but to others, that Mr Wichen’s historical record strongly suggests that when he is intoxicated his a sexual risk to the community and to older women in particular.
… Essentially, Mr Wichen is an untreated sex offender. Furthermore, there is a significant component of anger in his sexual offending which, in my opinion, is related to his own sexual victimisation as he was growing up. I believe that under ordinary circumstances Mr Wichen is able to control his sexual conduct but when he is intoxicated (for whatever reason) then more likely than not he is unable to do so. Consequently, in an intoxicated state I believe that he presents a significant risk to the community and there is every likelihood that further offences of this nature will be committed unless he is assertively treated for his pathologies.
Dr O’Brien recommended that the defendant undergo neuropsychological testing in order to ascertain the presence or otherwise of any organic deficits.
As a result of this recommendation, Mr Balfour, a neuro-psychologist, examined the defendant. Mr Balfour’s report will be discussed in detail later in these reasons. Mr Balfour concluded that at the time of assessment, the defendant did not suffer from any severe profound cognitive impairment caused by an acquired brain injury.
Having considered Mr Balfour’s report, Dr O’Brien provided a further report on 22 November 2004. In that report, Dr O’Brien reiterated that he was of the opinion that under “ordinary circumstances” the defendant was able to control his sexual instincts, and that this opinion accurately described the defendant’s condition as at November 2004. However, Dr O’Brien went on to emphasise that it was his view that when the defendant is intoxicated he is unable to control his sexual instincts. Dr O’Brien reported:
[I]t is clear that Mr Wichen is not in a state of permanent intoxication. There are periods in his life when he does not drink and in fact for a period of two months immediately prior the most recent offence, he was, according to his narrative, abstinent. …[I]t follows that Mr Wichen can control his sexual instincts some of the time but not all of the time. At times when he is intoxicated, he cannot control while on occasions when he is sober he is capable of control. The relationship, in my opinion, is quite specific.
During cross-examination at the hearing of the present application, Dr O’Brien said:
If he successfully was rehabilitated and abstinent from alcohol, and that was an enduring situation and validated, yes, the risk of further sexual offending, in my view, would be significantly reduced.
When asked about the defendant’s ability to overcome his alcoholism, Dr O’Brien said:
I have no confidence about his ability to abstain from alcohol under circumstances where he does not have active treatment.
…
If his alcohol condition is not successfully treated, the potential for a repeat of earlier offending behaviour, in my view, is very high.
…
[U]nless he has access to the new proposed or pilot program, I would say that his sexual offending, essentially, would not be addressed in any meaningful way.
Dr Raeside
Dr Raeside, a specialist psychiatrist, provided two reports dated 2 June 2003 and 12 February 2004 that were tendered into evidence. In addition, Dr Raeside was called to give evidence and was cross-examined. Dr Raeside has considerable experience in conducting examinations to determine whether or not individuals may or may not be mentally incompetent for the purposes of section 269 of the Criminal Law Consolidation Act. He has also conducted a number of assessments with a view to determining whether individuals are or are not capable of controlling their sexual instincts within the meaning of section 23 of the Sentencing Act.
For the purposes of compiling the June 2003 report, Dr Raeside interviewed the defendant on 28 March 2003. He had no previous contact with the defendant. The defendant told Dr Raeside that he believed he was capable of controlling his sexual instincts and added, “If I couldn’t, then I would be raping all the time”.
When discussing his childhood sexual abuse with Dr Raeside, the defendant said it had “put an anger in him” and caused paranoia and a general distrust of people. The defendant believed that the sexual abuse he suffered as a child contributed to his alcohol abuse at an early age and continued to affect him as an adult.
Dr Raeside formed the view that the defendant’s offending demonstrated significant violence in addition to sexual intent. He said that his sexual offending often included stealing items and was motivated not only by sexual intent but also for material gain.
When interviewed by Dr Raeside, the defendant expressed regret about his actions and his subsequent incarceration, but he did not appear to express any remorse about the impact of his behaviour on his victims. Dr Raeside reported that the defendant appeared to minimise the extent of his offending, attributing his criminal behaviour to his alcoholism.
Dr Raeside diagnosed the defendant with an underlying antisocial personality disorder. However, he found no indication of a formal psychiatric disorder such as mood disorder or psychosis.
Dr Raeside concluded his June 2003 report with the following observations:
[T]he history suggests a man with significant impulsivity, disinhibition, risk taking behaviour, and limited ability to discern the impact of his behaviour on others. His sexual offending appears to be both for direct sexually related motives, but also appears to be associated with significant violence (at times in excess of what might be needed to subdue the victim). There are features that he is not easily deterred. Some offending is associated with non sexual behaviour, such as theft.
Overall, the combined picture for Mr Wichen is not positive. I would like to see a neuropsychological assessment before being conclusive, but with the information available it would suggest that Mr Wichen is a man with considerable difficulty in controlling both his sexual and non sexual offending behaviour. This may be solely related to his underlying personality disorder, the effects of his own childhood sexual abuse, and disinhibition from alcohol, but it is possible that underlying organic brain damage (such as frontal lobe brain damage) may produce a further degree of disinhibition with subsequent further inability to control his sexual instincts.
…
Consequently I would like to defer my final opinion until I have had opportunity to see a neuropsychological opinion, but a present my views are not very positive with regards to Mr Wichen’s ability to control his sexual conduct.
Having read the neuropsychological report provided by Mr Balfour, Dr Raeside formed the view that, at the time of assessment, the defendant was incapable of controlling his sexual instincts in an ordinary manner when sober or intoxicated or both. He reiterated this opinion during evidence in chief. Dr Raeside provided an addendum report on 12 February 2004. In his addendum report, Dr Raeside consolidated his earlier views in light of Mr Balfour’s assessment and concluded:
In my opinion Mr Wichen is at high risk of further sexual offending. The neuropsychological assessment identifies a mild intellectual disability. Whilst not demonstrating severe brain injury with frontal lobe damage (which would impair impulse control) it is a further negative factor as it would impair Mr Wichen’s ability to engage in sexual offender rehabilitation. Individual and group therapy are less likely to be successful given his intellectual disability. His compliance with any medication regime is likely to be unreliable unless administered by long acting intramuscular injection (eg Depo-Provera) although this may not be the drug of choice. Further there remains the static problem of the underlying personality disorder, aggravated by a long history of substance abuse which further impairs control.
Consequently, it is my opinion that at present Mr Wichen is unable to control his sexual behaviour and remains at high risk of further offending in the future. There is no sexual offender rehabilitation program is prison. Whilst he might benefit in the future from a trial of anti-libidinal medication (to decrease sexual drive), the success of such treatment would need to wait until he was again in the community and able to offend. This may be an unacceptable risk given his past history, personality disorder, risk of substance abuse, and potential for non compliance. I believe the chances of successful rehabilitation in future are low.
When cross-examined as to whether the defendant’s ability to control his sexual instincts is directly related to his state of intoxication, Dr Raeside said:
In an assessment of someone’s ability to control their conduct, I think the greatest weight is on historical evidence; that is whether they have demonstrated evidence to control their conduct. … . Given that the nature of that assessment predominately relies on historical information, that is the nature of their previous offending, I would spend most of my assessment looking at that historical information in combination with a thorough assessment of the person, to have their views and their attitudes and particularly existence of any treatable psychiatric condition that might be associated with it. In this case, as I have indicated, I didn’t think that he had a psychiatric disorder or consider his personality disorder to be a psychiatric illness. … Obviously, it was apparent that Mr Wichen would consume alcohol to excess and his offending occurred in the context of alcohol abuse but his offending - he was intoxicated many times when he didn’t apparently offend, so I didn’t attribute his lack of control solely to his alcohol use. But I believe that, on the basis of that history and my assessment of him, that for the current purposes he demonstrated an incapacity to control whether that was in association with intoxication and other factors, and I thought it wasn’t simply due to alcohol intoxication.
Dr Raeside did not totally discount alcohol as a significant factor in the defendant’s offending behaviour. However, it was his opinion that the defendant’s underlying personality disorder and behavioural problems were more fundamental than the impact of alcohol on his offending. Dr Raeside believed that, even if the defendant was able to address his alcohol-related problems, his underlying psychological and mental disorders would give rise to grave concerns about his ability to control his sexual instincts. Dr Raeside said:
To put it in the reverse: if he was never to use alcohol again I would still be pessimistic about his chances of controlling his conduct in such situations.
When asked whether it is possible to conclude that a person who displays an inability to control his sexual instincts but has never received treatment for their psychological disorders is incapable of exercising that control, Dr Raeside stated that his opinion was based on the defendant’s ability to control his sexual instincts at the time of assessment. Dr Raeside expressed scepticism in relation to the defendant’s ability to respond successfully to rehabilitation programs. Dr Raeside stated that his opinion at the time of cross-examination remained that expressed in his report of 12 February 2004.
Mr Balfour
As a result of the recommendations of both Drs O’Brien and Raeside, Mr Balfour, a registered neuro-psychologist, provided a report dated 10 August 2003. Mr Balfour interviewed the defendant for the purposes of compiling the report. He discussed the defendant’s childhood and the sexual abuse he suffered as a child. Mr Balfour noted the defendant’s extensive family history of alcoholism and drug problems and his propensity for depression. He observed that the defendant also has a history of anger management problems that are exacerbated by his alcoholism:
[Mr Wichen] said that ruminating about his dysfunctional past is the major trigger. He becomes distressed whenever the local community gossip about him and always assume that he is guilty of whatever he has been accused of. He becomes angry when he perceives others are being judgmental about him. He is resentful because no-one in the community has attempted to help him secure stable employment but instead they are judgmental of him.
The defendant told Mr Balfour that his first sexual experience occurred when he was aged 5 and an 18-year-old aunt had sexual intercourse with him. His next sexual encounter was when he was anally raped at aged 6 by an Aboriginal adolescent. The defendant also recalled being very young and sexually assaulted in a creek-bed by several men. His next sexual encounter occurred at the age of 11 with two Aboriginal girls who were approximately the same age as the defendant. The defendant described being sexually promiscuous from the age of 11 onwards.
The defendant described his masturbatory fantasies as predominantly heterosexual in content, involving women aged in the forties, fifties and sixties. He believes older women are superior to women within his own age group, perceiving them to be more experienced, self-assured, confident and better able to please a man through non-sexual activities such as cooking. The defendant told Mr Balfour that he has only felt sexually attracted to older women since the death of his mother.
Mr Balfour’s report includes the results of various cognitive tests performed upon the defendant. Mr Balfour notes that caution must be exercised when interpreting the test results due to the defendant’s cultural background and the (non-Aboriginal) cultural biases inherent in the testing. Account must also be taken of the defendant’s premorbid intellectual functioning. Taking these factors into account, Mr Balfour concluded that the defendant suffers from a mild intellectual disability and exhibits evidence of cognitive impairment.
Mr Balfour concluded that the defendant did not suffer from severe to profound cognitive impairment caused by an acquired brain injury, and that his poor impulse control problems are “more a function of his inadequate socialisation, mild intellectual disability, and childhood abuse rather than an acquired brain injury”. Mr Balfour assessed the defendant as being functionally illiterate, with a reading age equivalent to a child aged 7 years.
Mr Balfour diagnosed the defendant with gerontophilia[29] and expressed the opinion that the defendant’s attempts to sexually assault older women are driven by a combination of the following factors:
-     His perception of older women as surrogate mother figures whom he believes will be able to comfort him. He prefers older women because he perceives them to be self-assured and able to mother him.
-     His premature ejaculation which is a source of embarrassment and shame for him. He perceives older women to be sexually less threatening and therefore believes that he will be able to sexually perform.
-     He was the victim of severe sexual aberrant and aggressive behaviour as a child. This has led him to becoming sexually aroused by aggressive behaviour.
-     He has never received psychological or psychiatric treatment for the personality and sexual pathology stemming from his childhood sexually traumatic experiences.
- His alcoholism acts as a significant disinhibitor that lowers his threshold to engage in sexual offending by increasing his libido.
-     He leads a socially chaotic and aimless life dominated by his significant mental health problems and alcoholism.
-     He has a mild intellectual disability. …
[29] Gerontophilia is a sexual disorder that is opposite to paedophilia – the sufferer is sexually attracted to members of the opposite sex who are much older than themselves.

Mr Balfour described the defendant’s sexual offending as indicative of a man with “a severely damaged personality structure as a result of extreme childhood sexual, physical and psychological abuse who has developed gerontophilia”.
Mr Balfour expressed concern at the prospect of the defendant being institutionalised with no access to meaningful treatment or rehabilitation programs.
Conclusion on Section 23
Counsel for the defendant opposed the making of a section 23 order and invited the Court to take an alternative interpretation of section 23(5) from that proffered by counsel for the Crown. Counsel for the defendant submitted that section 23(5) requires each psychiatrist to report, on oath and unequivocally, that the defendant is incapable of controlling his or her sexual instincts. Counsel further submitted that it was open to the Court to interpret the subsection such that Parliament intended the provisions to apply to persons presenting a constant threat or danger to the community. Counsel said that the discretion to make an order effectively depriving a person indefinitely of their liberty was of such a serious nature that it warranted the requirement of evidence of a constant threat of danger. Counsel submitted that, if Dr O’Brien’s evidence is accepted, the risk the defendant poses to the community is specific rather than general and is directly linked to his consumption of alcohol. Counsel for the defendant further claimed was said that as a result, the risk the defendant posed the community could not be described as constant.
Counsel for the defendant sought to distinguish the meaning of the term “incapable of controlling sexual instincts” in section 23 from the concept of “substantial risk”. Counsel said that the term “incapable” was invested with a higher connotation. Counsel contended that the medical evidence before the Court did not meet the standard of “incapable of controlling sexual instincts”.
Counsel for the defendant sought to distinguish the present case from that of England. As earlier observed, in England, Doyle CJ described how the Court is to use medical evidence to determine whether or not a person is incapable of controlling his or her sexual instincts. Doyle CJ observed that it is not necessary for both medical practitioners to be of exactly the same view, but rather it is the combined effect of their opinions on which the Court should rely.
Counsel suggested that the defendant’s situation was to be distinguished from that of the defendant in England in that the two medical practitioner’s called to give evidence differed in their ultimate conclusions as to his ability to control the defendant’s sexual instincts. Dr O’Brien, counsel said, was of the view that the defendant was only incapable of controlling his sexual instincts in specific circumstances whereas Mr Raeside was of the view that he was incapable of controlling his sexual instincts whether intoxicated or not.
In addition, counsel for the defendant submitted that it was open to the Court to accept the version of events provided by the defendant during his interviews with police. Counsel said that the defendant’s account indicated that he entered the victim’s premises for the purpose of obtaining drugs and became involved in a struggle with the occupant of the house whereby the victim’s underwear was removed. Counsel submitted that the defendant was strongly affected by substances at the time.
Counsel described the incident as “impulsive”, since the defendant denied forming a premeditated intention to either assault or rape the victim. Counsel said that this distinguished the defendant’s behaviour from that of someone who was unable to control his sexual instincts or from sexual offenders who “stalk” or plan to rape women.
However, as earlier observed, the defendant acknowledged that once inside the victim’s house he formed the necessary intent to assault her. He further accepted by his pleas of guilty that he intended to rape her.
The terms of section 23 are intended to provide the Court with a discretion to make an order for indeterminate detention which ought to be exercised if an offender presents a continuing danger to the community in circumstances which can be identified and are likely to occur. Parliament, by the terms of the section, intended that the discretion ought to be exercised irrespective of how frequently or in what circumstances the risk might manifest itself. The circumstances need not be such that the risk of sexual offending exits virtually every waking moment of the offender’s life or that an incapacity brought about by intoxication is outside the ambit of the discretion.
The relevant legislative provisions do not address the cause of the incapacity at all, referring only to “mental condition”. In the present case, even on Dr O’Brien’s more narrow opinion of the defendant’s incapacity, it was clear that the defendant has a mental condition, triggered by alcohol, that results in an incapacity to control his sexual instincts. Both qualified and experienced medical professionals expressed the view that due to that incapacity, the defendant presents a grave risk to the community of ongoing sexual offending. For these reasons, the discretion provided for under section 23 was enlivened. The defendant is unable to control his sexual instincts within the meaning of section 23.
Review and Rehabilitation
Construction of Section 23(9)
Section 23(9) of the Sentencing Act requires the progress and circumstances of a person subject to a section 23(5) order to be reviewed at least once each six months by the Parole Board. Section 23(9) relevantly provides:
The progress and circumstances of a person subject to an order under this section (whether in custody or not) must be reviewed at least once in each period of six months by—
(a)the case of a person detained in, or released on licence from, a training centre—the Training Centre Review Board;
(b) any other case—the Parole Board.
In the course of submissions in the present matter, attention was drawn to what could be described as an ambiguity in the language of section 23(9). In the course of his evidence, Mr Chapman expressed the view that, should a head sentence be fixed in addition to an order for indeterminate detention, section 23(9) could be construed to suggest that the six-monthly reviews would commence only after the expiry of the head sentence.
Such a construction would appear to be inconsistent with the scheme of the section and the rehabilitative objective contained within it. Counsel for the Crown suggested that the section ought to be construed to ensure that the six- monthly reviews commence from the time of the making of the section 23(5) indeterminate detention order, regardless of whether a head sentence were imposed. Counsel said that this construction was supported by the text of the subsection, in particular the words “subject to the order”, which indicate that a defendant would be subject to section 23(9) immediately upon the making of a section 23(5) order. This construction was supported by counsel for the defendant.
There is no authority specifically addressing section 23(9) of the Act. However, having regard to the subsection in the context of the purpose of section 23, it is clear that the defendant’s need for treatment and rehabilitation constitutes a key policy of the provision.
As earlier observed, whilst the public interest in persons unable to control their sexual instincts being indeterminately detained constitutes an overriding concern of the section, the public interest in the rehabilitation of offenders also constitutes an underlying policy that must be respected when construing subsection 23(9). The observations of the Court in Veen[30] and reaffirmed in England,[31] that the principle purpose of section 23 is the protection of the public rather than the imposition of a penalty on the offender, supports this view.
[30] Veen v The Queen (1979) 143 CLR 458.
[31] R v England (2004) 86 SASR 273.
Section 23(9) gives legislative endorsement to the usual practice of review by the parole board which would be expected for a defendant eligible for parole. The indeterminate nature of a section 23(5) order warrants that regular review by the parole board be enshrined in legislation. It would be incongruous with section 23 as a whole for subsection 23(9) to have the effect of postponing regular reviews of a defendant’s treatment until the expiry of a head sentence. This is particularly so given that a person subject to a section 23(5) order would be more than likely to receive a high head sentence.
The system of review contemplated by the subsection envisages a continual evaluation of the effectiveness of treatment to ensure that progress towards rehabilitation continues to occur. The importance of this system of review is underscored by the gravity of the infringement of the defendant’s liberty arising from the order for indeterminate detention. Against this background, subsection 23(9) must necessarily be construed to take immediate effect following the making of the section 23(5) order, regardless of whether a head sentence has also been imposed.
The Evidence
Submissions were received and materials produced in respect of the defendant’s prospects for rehabilitation.
During cross-examination, Dr O’Brien provided information as to the defendant’s prospects of rehabilitation. He was of the opinion that any rehabilitation program designed to address the defendant’s alcohol and drug abuse problems and his sexual offending problems would need to take into account his intellectual disabilities. Dr O’Brien described the defendant’s alcohol dependence as “pathological” and was sceptical of his likelihood of overcoming the problem without specialised treatment. He said he had seen “scant evidence” of active therapy addressing pathological alcohol dependency in South Australian prisons. Dr O’Brien was of the opinion that unless his alcohol dependency problem was rectified, the defendant had a high potential for re-offending.
Dr O’Brien expressed concern that if the defendant was not provided with access to the proposed pilot program for sexual offenders he would be unlikely to receive meaningful rehabilitation or treatment for his sexual offending whilst in prison. Dr O’Brien was of the view that, should the defendant be eligible for the program, it was likely that he would be relocated from Port Augusta to an Adelaide prison, either on a short-term or long-term basis. Dr O’Brien told the Court that it was his understanding that no other programs for sexual offenders, other than the proposed pilot program, existed in the prison system.
On 20 December 2004, a report was provided to the Court from the Department for Correctional Services Sexual Offender Programs Rehabilitation Programs Branch. This report contained details of the prison-based pilot Sexual Offenders Program proposed to commence in 2005. It described the program as of “moderate intensity”, based around a cognitive-behavioural treatment which incorporates components including self-management, cognitive distortion and management strategies, empathy and victim awareness, intimacy, relationships and social function, emotion management and deviant sexual fantasy and arousal. When prisoners have completed this program, they are to progress to a maintenance program conducted either within prison or in a community setting.
The Department anticipated that 12 prisoners would participate in the pilot program. The program is directed towards inmates at the end of their sentence, due to the limited number of placements available. It is the impending release date that currently activates acceptance into the program. Prisoners meeting these criteria are then assessed for suitability to the program.
The report provided by the Department included comments in relation to the defendant’s eligibility to the program should the Court make a section 23 order. The report claimed that, at the time of its compiling, the defendant would not be regarded as a priority for the program due to a combination of his need for a high-intensity treatment program and his co-morbidity and cognitive deficits. The opinion and recommendations expressed in the report are as follows:
Based on a file review of Mr Wichen, it would appear that he represents a high risk to re-offend for sexual offences. On the basis of this limited assessment, it is likely that he would require a high-intensity treatment program to address his sexual offending. Mr Wichen needs to address his cognitive distortions, develop his victim empathy and awareness, and would benefit from developing awareness and skills related to intimacy and interpersonal relationships. Ultimately, Mr Wichen will need to develop skills in self-management to enable him to successfully complete his parole, most likely while completing the maintenance component of the DCS SA Sexual Offender Treatment (Sexual Behaviour Clinic). Further psychological assessment would clarify the precise level of sexual deviancy and treatment necessary to appropriately address his offending behaviour. Importantly, this assessment would also be able to determine Mr Wichen’s level of motivation for treatment.
Additionally, Mr Wichen requires further neuropsychological assessment to determine the extent of individual intervention necessary for him to succeed in any treatment program. In particular, it will be important to determine Mr Wichen’s cognitive capacity, to clarify whether a cognitive-behavioural approach is suitable for him.
Mr Wichen will require intervention for his extensive history of substance abuse, and may be suitable for participation in the South Australian Department for Correctional Services Alcohol and Other Drugs Treatment Programs. Again, however, it will be important to determine Mr Wichen’s cognitive capacity, to clarify whether a cognitive-behavioural approach is suitable for him. Irrespective of his cognitive capacity, Mr Wichen may also require further individual intervention to address his substance abuse, given the apparent link with his sexual offending behaviour.
Counsel for the prosecution called oral evidence from Raphael Chapman, the administrative manager of the Rehabilitation Programs Branch in the Department for Correctional Services. Mr Chapman has held this position since approximately December 2004. Mr Chapman’s position involves the administrative facilitation of implementing the Sex Offender Treatment Program for the department. He also has responsibilities regarding the establishment of a Violent Offender Treatment Program and the facilitation of Aboriginal Support Services.
Mr Chapman told the Court that the department currently provides two alcohol dependency programs. One program is the Alcohol and Other Drugs Program. This program was described as “a brief intervention” program, as distinct from an intensive program. The second program, available to Aboriginal inmates, is called Ending Offending. Mr Chapman explained that this program has a focus on drug and alcohol within a cultural context. He said that this program was in the preliminary stages of implementation.
Mr Chapman gave evidence regarding the general obligations of the Department in regard to the assessment of prisoners pursuant to section 23 of the Correctional Services Act 1982 (SA). He explained that, as a matter of usual practice, when a person has been sentenced by the Court, a comprehensive assessment process ensues in an attempt to identify the needs of that person in relation to either rehabilitation or immediate service delivery. This assessment will be formulated into an individual development plan, which informs the nature of service delivery within the correctional system. This process assists in the determination of the individual’s suitability and eligibility for programs.
When developing these individual development plans, Mr Chapman and his staff receive advice from psychologists and other professionals. Medical and other expert reports before the Court during sentencing would generally be expected to be consulted during the assessment process. Persons assessed are also interviewed by staff.
Mr Chapman said that, in relation to the defendant, it would be his expectation that the psychological reports provided by Drs O’Brien and Raeside would be considered during the assessment process, as would other material before the Court concerning the defendant’s mental health.
Mr Chapman explained that the defendant’s initial assessment would probably not consider his eligibility and suitability for the Sexual Offenders Treatment Program. The assessment, he said, would highlight the areas in need of intervention, such as criminogenic needs, and would be likely to occasion a referral to the Sexual Offenders Treatment Program Branch for consideration. Mr Chapman indicated that the likely response to the referral would be that the defendant would not be eligible. This is because the Sexual Offender Treatment Program, in its pilot phase, has targeted offenders who are serving the last 12 months of their sentence. In addition, in order to be eligible for the Sexual Offenders Treatment Program, candidates must have all the faculties, in terms of cognitive and development function, to be able to participate meaningfully in the program.
When asked how those persons subject to section 23(5) orders of indeterminate detention fit within this assessment system, Mr Chapman anticipated that such persons would be assessed and would receive an independent development plan in accordance with the general practice. This material would provide the basis for the six-monthly review of the Parole Board required under section 23(7). Mr Chapman indicated that the presence of a section 23(5) order would be a strong indicator that a referral for assessment to a program such as the Sexual Offenders Treatment Program was required. Alternatively, it could trigger a referral for further investigation as to what alternative forms of intervention would be appropriate.
When Mr Chapman was asked specifically to comment on the defendant’s eligibility to take part in the Sexual Offenders Treatment Program, the following exchange took place:
Q.In your own letter you told us that Mr Wichen, according to the justice information system data on him, didn’t meet the criteria for the pilot program.
A.There are two elements to that. One was that the letter that was sent to the court was a view that was formed as a result of reviewing the available file material, and there was a suggestion within that review that Mr Wichen came out at high risk and, therefore, was not within the framework of the pilot process, and the second aspect to that was that people who were participant in the program were people who had had their matters before the court concluded, and so we were able to identify that they had sufficient time on their sentence left to do the program, but were sufficiently close to the end of their sentence to form that bridge that I had previously mentioned to the court.
…
Q.T]he two reasons [that Mr Wichen is not eligible for the program] are, with the condition you’ve just attached; he was likely to be high risk and he was not nearing the end of his sentence, ...
A.Yes; and the other component that is mentioned in there relates to the question of cognitive functioning, and in the letter, if my recollection is correct, we suggest that it is that element that will need to be further tested and may, in fact, at the end of the day, if proven to be substantial, may mitigate against participation because it’s a cognitively-based program and has a threshold of cognition that needs to be present.
Q.That raises this further problem, does it not, that, depending upon the assessment that is made following his being sentenced he may not fit into any envisaged sex offender treatment program, any structured program.
A.[S]ay, for instance, hypothetically, we had structured a high-risk sex offender treatment program and, we then, after assessment, found that Mr Wichen was in that category and had all the other antecedents that would lead to being otherwise a participant in that, if we then found that there was a level of cognitive functioning that precluded his participation, then it raises the question for the department, in terms of program development - because he would not be alone in that category, I would believe within the custodial system – it raises the question for the department as to whether the next integration of program development would then be along the lines of the suggestion made in Dr Bamboyne’s letter, that special needs or a group that was able to cater for a level of cognitive deficiency or an intellectual impairment that required extra to the course needed to be constructed.

The pilot sex offender program currently operating in South Australia and aimed at moderate-risk offenders is said to have received funding until 2007. However, the level of funding necessitates placing limits on the number of persons able to participate in the program.
Mr Chapman anticipated that, should the defendant be detained pursuant to section 23, some form of treatment would be provided to him within the next 12 months. Mr Chapman was of the view that, having regard to the defendant’s long-standing dependency on alcohol and the interrelationship between his alcohol dependency and his offending behaviour, a more intensive program of treatment than the existing “core” programs would be likely to be recommended. It could be expected that one-on-one treatment for alcohol dependency and related issues would be suggested.
The material before the Court indicating the defendant’s high risk of sexual re-offending, his severe alcohol dependency problems and his cognitive functioning problems suggests that he would not be eligible for the sex offenders program as currently in operation. Mr Chapman’s evidence suggests some form of intensive treatment would be available to the defendant within 12 months of an order for detention being made. However, it is difficult to express optimism as to the defendant’s opportunity to participate in a comprehensive and intensive treatment program aimed at addressing both his sexual offending problems and his alcohol dependency in the near future.
Counsel for the defendant contended that the defendant’s prospects for receiving treatment whilst in custody were material matters to consider when determining whether to exercise the discretion to make a section 23(5) order and when considering the issue of sentence. It is of considerable concern that a person before the Court facing the prospect of an order for indeterminate detention has, after spending considerable periods in custody, not received any meaningful treatment for his mental health problems and alcohol dependency. It is of further concern to hear that such a person may not, despite being declared incapable of controlling his sexual instincts, receive comprehensive treatment for these problems in the near future. There is, however, a limit to how much weight can be attributed to considerations of this nature.
In O’Shea[32], Wells J observed:
It seems to me that once the sentencing judge satisfies himself that the order should be made, and makes it, the responsibility for the offender’s future passes to the Executive – in short, the Court is, generally speaking functus officio. Provided the sentencing judge is reasonably satisfied that the Authorities charged with the Executive responsibility of administering s.77a [the predecessor provision to the present s 23] have the facilitates for inquiring into and treating the offender’s condition, and the circumstances are such that there is then no ground for supposing that those facilities will be withheld, he is entitled and bound to proceed on the assumption that the Executive will do its duty. If it should turn out that the doctors, psychiatrists, and other specialists, cannot diagnose or improve the offender’s condition, the case does not then return to the jurisdiction of the Court. The legislation says as much, because the Governor could not then be satisfied that the offender is fit to be at liberty, unless he recovers normality, and his capacity to control his sexual instincts, suo motu or under influences other than medical or psychiatric. If a situation develops that is truly unfair to an offender and that reflects discredit – at all events allegedly so – on the Executive, he is not without remedy. He can petition the Governor direct; he can initiate the procedures established under s. 369 of the Criminal Law Consolidation Act. It may be that mandamus would lie against the Governor and the Parole Board to have them discharge their responsibilities under sub-ss. (7a) and (7b).
What is, to my mind, certain is that he cannot institute an appeal against sentence simply because his and the Court’s justifiable expectations have been disappointed.
Counsel for the defendant submitted, that in light of the evidence regarding the defendant’s likely access to treatment whilst in custody, the Court cannot be satisfied to the degree described by Wells J above. Counsel for the Crown stressed that the protection of the community is the paramount consideration when exercising the discretion to make a section 23 order. Counsel said that both the availability of treatment for the defendant and its prospects for success must be weighed against the public interest in the protection of the community.
The Balancing Exercise
[32] R v O’Shea (1981) 31 SASR 129 at 145.
When contemplating an order for indeterminate detention pursuant to section 23(5), the Court must engage in a most serious balancing exercise. The need for the public to be protected from sexual offending and the public interest in the defendant’s full rehabilitation must be weighed against the significant deprivation of liberty that results from an order of indeterminate detention.
These concerns give rise to a need for the Court to be confident that, should indeterminate detention be ordered, progress will be made in terms of the defendant’s treatment and rehabilitation. Such opportunity to progress towards rehabilitation is anticipated by the monitoring provisions in section 23. These provisions carry some hope that a person subject to a section 23 order will receive treatment while in custody. Section 23(9) of the Act requires the progress and circumstances of a person subject to a section 23(5) order to be reviewed at least once each six months by the Parole Board. There is an implication in this provision that the person will have the opportunity to make progress in terms of addressing his or her mental condition that gives rise to the incapacity to control their sexual instincts. It is therefore of critical concern that, should a section 23 order for indeterminate detention be made, the defendant will have the opportunity to receive treatment to begin to address his psychological and substance abuse problems.
From the information provided to the Court by Correctional Services and the medical professionals, it is difficult for the Court at this time to have confidence in the defendant’s rehabilitation and treatment while in custody. In the circumstances, it was appropriate to proceed to sentence the defendant and adjourn the making of an order pursuant to section 23(5) until such time as the Court can receive further information with respect to the steps taken to address the defendant’s mental condition while in custody.
Sentence
In addition, or as an alternative to making an order for indeterminate detention pursuant to section 23(5), section 23(6) of the Act provides the Court with the power to sentence the accused. Section 23(6) provides:
The Supreme Court may exercise its powers under subsection (5) in addition to, or instead of, imposing a sentence of imprisonment for the offence.
In the present case, there is a clear public interest in sentencing the defendant. His offending is serious and long-standing. Not only is sentencing the defendant in the interests of the community at large, the sentencing process is of crucial importance to the victim of the defendant’s offending. The defendant’s offending constituted an unprovoked, violent attack on a 65-year-old woman while she was sleeping in her own home. There is a clear need for the defendant’s sentence to address the need for personal and general deterrence and to reflect the need to protect the community from such sexual offending.
Orders were made in this matter on 26 July 2005 adjourning the section 23 application to a date to be fixed. The defendant was also sentenced at this time. The sentencing remarks delivered are attached to this judgment as an appendix.
Where an order for indeterminate detention has been made on the basis that an accused is incapable of controlling his sexual instincts, it is inappropriate and against the interest of the community to fix a non-parole period. In addition, it appears to be contrary to the rationale behind section 23 for the Court to consider making an order for indeterminate detention whilst at the same time expressing a view as to when a defendant may be able to be released into the community. In the circumstances, as the application for a section 23 order is to be deferred, it is appropriate also to defer the issue of the fixing of a non-parole period.
Having regard to all relevant matters, including the gravity of the offending and the defendant’s personal and criminal antecedents, a sentence of imprisonment of 10 years imprisonment was imposed. The sentence was backdated to 29 April 2002, the date that he was first taken into custody.
Orders of the Court
The orders made by the Court on 26 July 2005 were as follows:
-In respect of the charges of aggravated serious criminal trespass in a place of residence and assault with intent to rape committed on 25 April 2002, the defendant was sentenced to a head sentence of 10 years imprisonment. That sentence was backdated to commence on 29 April 2002.
-The application for a declaration that the defendant is incapable of controlling his sexual instincts and an order for indeterminate detention pursuant to section 23 of the Sentencing Act was adjourned to a date to be fixed.
-The issue of fixing a non-parole period was adjourned to a date to be fixed.
APPENDIX A
Jacob Arthur Wichen, on 28 January 2003 you pleaded not guilty before the District Court to the charges of aggravated serious criminal trespass in a place of residence and assault with attempt to rape. You were remanded for trial. Following a voir dire hearing you pleaded guilty to the charges.
On 6 February 2003, the Crown made an application pursuant to section 23 of the Criminal Law (Sentencing) Act1988 (SA) to have all matters referred to the Supreme Court. That application was granted.
The maximum sentence in respect of the offence of aggravated serious criminal trespass is imprisonment for life, and the maximum penalty for the offence of assault with intent to rape is imprisonment for not more than 12 years.
Section 23 of the Sentencing Act provides a statutory regime for dealing with offenders found to be incapable of controlling their sexual instincts. The Crown has made an application for a section 23 order to be made with respect to you. Section 23(3) provides this court with the power to order at least two qualified medical practitioners to inquire into your mental condition and report to the court as to whether you are capable of controlling your sexual instincts.
In addition, or as an alternative to making an order for indeterminate detention pursuant to section 23(5), section 23(6) provides this court with the power to sentence you for your crimes.
In the present case, there is a clear public interest in sentencing you. Your offending is serious and now longstanding. Fixing a sentence in relation to your offending is not only in the interests of the community at large, it is also of particular interest and importance to your victim.
It is a sad reflection on our community that you come before this court as a young man who, having survived a violent and abusive childhood, has received little or no treatment for alcohol dependency or mental health problems. This sadness is intensified when regard is had to the devastation your offending behaviour has caused to your victim. It is further magnified by the material before the court suggesting that comprehensive, intensive treatment for your sexual offending, alcohol dependency and mental health problems may not be available to you in the immediate future. However, these matters do not alleviate the need to fix a sentence of imprisonment that reflects and is proportionate to the gravity of your offending.
Jacob Wichen, your offending behaviour is grave. On 25 April 2002 at Port Augusta, you broke into your victim’s home and assaulted her with intent to rape. Your victim was a 65-year-old woman who lived alone. At around 8.30 a.m. on 25 April 2002 she was asleep in her home, when awoken by a knock at the door. She saw you coming through her bedroom window. You entered the victim’s bedroom and hit or pushed her backwards and onto the floor. She began shrieking. You told her to be quiet. She continued to create noise in the hope that her neighbours would be alerted and come to her assistance. She hit out at you. You then stood over her, held her down by her shoulder before punching her in the left eye. The impact of this punch caused your victim to fall to the floor and hit her head on a wooden boot box. You then rolled your victim on to her front and yelled, ‘Don’t look at my face’ and pushed her face away. Your victim then asked you to cover your face with one of her T-shirts in an endeavour to stop you from pushing her face into the floor. You began to remove your victim’s underpants and eventually tore them from her. Your victim was lying face down on the bed. You attempted to tie her hands behind her back with a computer cord. She managed to struggle free. You then attempted to rape her. She recalls seeing your penis in front of her, however she did not specifically recall any penetration. You then stole money from her and you left the house through the front door.
Your victim was taken to the Port Augusta Hospital. Her injuries included head and eye injuries consistent with the assault. She suffered a severe laceration of some 7 cm to her scalp, extensive facial bruising, swelling to the left eye and bruising to the rest of her body.
You were arrested on 29 April 2002. When interviewed by police, you agreed with the victim’s claim that you showed her your penis, but you have provided no explanation as to why you did this. You denied any sexual feelings towards her. By your plea of guilty to the charge of attempted rape, you have accepted that, when assaulting your victim, you intended to rape her.
It is clear from the material before this court that your offending was of a most serious nature. Your conduct was violent and brutal and occurred whilst your victim was in her own home.
A victim impact statement powerfully describes the gravity of your offending and the impact of your behaviour. Your offending has resulted in long lasting damage, in particular emotional damage and has caused your victim to change her lifestyle. It has also affected her sense of personal security.
Your victim has read her statement in court during the hearing of this application. Her statement displayed a poignant insight into the causes of your offending behaviour and your obvious and urgent need for treatment. It also disclosed the courageous steps that she took to protect herself from further harm. I wanted to include in these sentencing remarks the extracts from her statement. She said:
I have experienced deep sadness and emotional disturbance over the last two years since I was attacked in my home by Jacob Wichen. My body wounds have healed, although I still have reminders of the brutal treatment I received from him.
Living alone is not so comfortable any more. I am more reclusive than I was. I tend not to answer a knock on my door unless I know who is there. I sometimes choose not to answer even then. Locked doors seem safer somehow, even against a friendly intrusion.
Because of his eleventh hour guilty plea, I haven’t had a chance to speak directly to my assailant. Today I want to tell the court and Jacob Wichen that I did well on that day, Thursday, 25 April 2002. Anzac Day.
It is the knowledge that I did the best I possibly could within an intolerable situation that has allowed me to cope over these months as well as I have done. I still shudder to think of rape as a possibility and yet Jacob Wichen’s actions undoubtedly indicated that was very much in his mind as he went about his silent business with me.
I’m not angry at Jacob Wichen. I don’t hate him or feel vindictive towards him. I believe he may not be able to control himself in certain ways and he may not be able to comprehend the true awfulness of his behaviour. Therefore, at this stage, I cannot judge him in normal human terms.
Decisions are now being made about Jacob Wichen’s future. I hope he can be helped and can be cured and rehabilitated. I hope he will become someone who respects other people’s needs and who is able to gain the respect of the community into which he is released. But, if not - if you can’t guarantee that - please help the rest of us by ensuring that he doesn’t take his current antisocial and brutal behaviour back into any community.
Jacob Wichen, the protection of the community is an important consideration when sentencing you. Your recent offending constituted an unprovoked, violent attack on a 65-year-old woman while she was sleeping in her own home. There is a clear need for the sentence imposed to address personal and general deterrence and to reflect the need to protect the community from such sexual offending. Your extensive criminal antecedents indicate that personal deterrence ought to be of particular concern when sentencing. Offending of this nature calls for a substantial term of imprisonment.
You have a significant history of criminal offending. Your offending behaviour began when you were about 12 years old. Your earliest offending included numerous dishonesty offences, breach of parole, break and enter offences, damage property and common and indecent assault. While you were a youth, much of your offending was punished without conviction. However, you have spent some time in custody as a youth for offending, including assault occasioning actual bodily harm, damaging property and assault police.
Once you became an adult your offending increased in gravity. It has included the offences of escaping lawful custody, assault occasioning actual bodily harm and robbery with violence.
Your adult antecedents also include serious sexual offending. Your prior sexual offending took place during the 1990s and included offences of attempted rape and indecent assault. In relation to these offences, you were sentenced to significant periods in custody including a custodial sentence of four years and three months in 1994. The circumstances of your prior sexual offending are recounted in further detail in my reasons to be published regarding the section 23 application. Your prior offending constitutes a material matter that militates against any exercise of leniency that might have otherwise been afforded had you been of prior good character.
Mr Wichen, you are a 31-year-old Aboriginal man. You have been in custody, since April 2002. Prior to being taken into custody you had been in a de facto relationship since about November 2000. You are the father of a 13-year-old girl with whom you have had occasional contact. You were born in Port Augusta and cared for by your grandparents at Leigh Creek until you were about 12 years of age. This was due to your mother’s alcohol abuse. You maintained contact with your mother during your childhood. You have never met your biological father. Your mother and your stepfather both suffered from serious alcoholism. Domestic violence was a feature of their relationship. Your mother died when she was 38 years old.
Your childhood was marked by family instability, substance abuse, sexual abuse, peer pressure, criminal behaviour and periods in custody. You witnessed much domestic violence, including seeing your mother stabbed, hit with sticks and scalded with boiling water.
You have a history of alcohol and illicit drug abuse that began when you were about 12 years. You engaged in extensive petrol sniffing from that age until you were about 17. You also engaged in abuse of minor tranquillisers at an early age and this resulted in occasional accidental overdoses and three deliberate overdoses, one following the death of your mother. You began using marijuana at the age of 16 and became a regular user.

You have reported being molested during your childhood. This sexual abuse began when you were aged about 5 or 6 and continued until you left Leigh Creek to live at Port Augusta when you were about 12. You told Dr Raeside that four older male cousins sexually abused you and this involved both anal and oral sexual intercourse. You said that this abuse was often accompanied by violence and threats of being bashed up.
You have suffered from two additional traumatic events during your childhood. When you were 3, it is reported that both your hands were caught in the bumper bar of a parked car which was then driven off, dragging you from behind for about a mile before the driver became aware of what was happening. At the age of 10 you suffered serious injuries to your leg and pelvis as a result of a horse-riding accident.
You performed poorly at school, were frequently involved in fights and displayed behavioural problems. You left school at the age of 13, functionally illiterate and with very basic numeracy skills. You worked on cattle stations until about the age of 17 when you were first taken into custody. Since that time, you have not been able maintain any substantial form of employment.
Mr Wichen, your personal circumstances are relevant matters to consider when sentencing. Of particular relevance is your abusive and violent childhood, which has been identified by the medical experts as an underlying cause of your present mental condition and substance abuse problems.
It is Dr O’Brien’s opinion that your capacity to control your sexual instincts varies depending on your level of intoxication. He is of the view that when sober you are capable of controlling your sexual instincts but when intoxicated you are not. Dr O’Brien noted your history of petrol sniffing, alcohol and polysubstance abuse. Dr O’Brien is of the view that you suffer from a significant personality disorder with prominent aggressive and antisocial features, particularly when intoxicated.
Dr O’Brien’s evidence is discussed in detail in the reasons to be published with reference to the section 23 application. However, for present purposes it should be noted that Dr O’Brien is of the view that your psychological background and offending history indicates that you have a propensity to attack older women.
Dr Raeside’s opinion is that at the time of assessment you were incapable of controlling your sexual instincts when sober or intoxicated. He did not totally discount alcohol as a significant factor in your offending behaviour. However, it is his opinion that your underlying personality disorder and behavioural problems are more fundamental than being the result of the impact of alcohol. Dr Raeside believes that even if you are able to address your alcohol-related problems, your underlying psychological and mental disorders give rise to grave concerns about your ability to control your sexual instincts.
Dr Raeside’s evidence, including his findings, conclusion and oral evidence, is discussed in detail in the reasons to be published with respect to the section 23 application.
You were also examined by Mr Balfour, a neuro-psychologist. Mr Balfour concluded that you suffer from a mild intellectual disability and exhibit evidence of cognitive impairment. You were assessed as being functionally illiterate with a reading age equivalent to a child of 7 years.
Mr Balfour diagnosed you with gerontophilia and expressed the opinion that your attempts to sexually assault older women is indicative of a man with a severely damaged personality structure as a result of extreme childhood, sexual, physical and psychological abuse.
Like Drs O’Brien and Raeside, Mr Balfour expressed concern at the prospect of your being institutionalised with no access to meaningful treatment or rehabilitation programs. Further discussion of Mr Balfour’s opinion can be found in the reasons to be published concerning the section 23 application.
Submissions were heard and materials produced in respect of your prospects for rehabilitation; in particular, material was before the court regarding the South Australian Sexual Offenders Rehabilitation Pilot Program that has been developed for offenders who are assessed as being moderate-risk offenders. Due to the limited number of placements available, the program is directed towards inmates at the end of their sentence.. Prisoners meeting these criteria are then assessed for suitability to the program.
Dr O’Brien was of the opinion that any rehabilitation program designed to address your alcohol and drug abuse and your sexual offending would need to take into account your intellectual disabilities. He described your alcohol dependence as pathological and was sceptical of your likelihood of overcoming the problem without specialised treatment. Dr O’Brien is of the opinion that unless your alcohol dependency problems are rectified, you have a high potential for re-offending.
Counsel for the Crown called oral evidence from Raphael Chapman, the administrative manager of the Rehabilitation Programs Branch of the Department for Correctional Services. Mr Chapman told the court that the Department currently provides two alcohol dependency programs. One program is the Alcohol and Other Drugs Program. The second program available to Aboriginal inmates is called Ending Offending. Mr Chapman explained that this program has a focus on drug and alcohol problems within a cultural context.
Mr Chapman explained that, as a matter of usual practice, when a person has been sentenced by the court, a comprehensive assessment process ensues in an attempt to identify the needs of that person in relation to either rehabilitation or, as he said, immediate service delivery. This assessment will be formulated into an individual development plan, which informs the nature of service delivery within the correctional system. This process assists in the determination of the individual’s suitability and eligibility for programs and treatment.
The material before this court suggests that, at the present time, you would not be eligible for the sex offenders program as currently in operation. Mr Chapman’s evidence suggests that some form of intensive treatment would be available to you within 12 months of an order for detention being made. However, it’s difficult to express optimism as to your opportunity to participate in a comprehensive and intensive treatment program aimed at addressing both your sexual offending problems and your alcohol dependency.
It is in the interests of the community that you receive treatment for your psychological and substance abuse problems. It is of concern that you have not had the opportunity to address many of your underlying problems in the past, despite being taken into custody numerous times.
Jacob Wichen, your offending involved two separate counts. Section 18A of the Sentencing Act provides sentencing authorities with a discretion to impose the one sentence for multiple offences. Given the nature of your offending, it is appropriate to consider your conduct as a whole and arrive at an appropriate single sentence.
You have a history of serious sexual offending. In the past, your convictions and related penalties appear to have had little personal deterrent effect.
Counsel for the Crown submitted that matters pertaining to your eligibility for treatment programs whilst in custody were matters to be considered by the Department for Correctional Services and the executive branch of government rather than the courts. Although the provision of particular resources at particular correctional institutions can be described as an administrative matter, the likelihood of your receiving rehabilitation treatment while in custody is a relevant matter to consider when sentencing. This is a consideration to have regard to when considering the question of personal deterrence.
Where an order for indeterminate detention has been made on the basis that an accused is incapable of controlling his sexual instincts and there is uncertainty as to his ability to do so in the future, it is inappropriate, and against the interests of the community, to fix a non-parole period. In addition, it appears to be contrary to the rationale behind section 23 for the court to make an order for indeterminate detention whilst at the same time expressing a view as to when a defendant may be able to be released into the community.
In the circumstances, as the application for a section 23 order is to be deferred, it is also appropriate to defer the issue of the fixing of your non-parole period.
It is necessary that the head sentence that I am about to impose reflects the gravity of your offending. In the circumstances, and having regard to all of the submissions put on your behalf, a sentence of imprisonment of 12 years is an appropriate starting point. The sentence imposed must also reflect an allowance for your guilty pleas, your contrition and your remorse. A reduction of 2 years is made in consideration of these factors. Regard is also to be had to your personal and criminal antecedents, in particular your history of substance abuse, your intellectual disabilities and the violent and abusive nature of your childhood. Your prospect for rehabilitation is a material factor that has been considered.
Jacob Wichen, I sentence you to a head sentence of 10 years’ imprisonment. Regard must be had to the period you have already spent in custody. The sentence that I impose is backdated to commence on 29 April 2002, the date when you were first taken into custody.
As earlier observed, at the present time I decline to fix a non-parole period and defer that issue along with the section 23 application to a date to be fixed. In doing so, this court strongly urges those authorities with the executive responsibility for providing treatment for you whilst in custody to do so expediently and in the most comprehensive manner permitted within the confines of their resources.
My section 23 reasons will be forwarded to counsel hopefully in the next few days.