R v Wichen

Case [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

  1. 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).

  2. On 6 February 2003, the Crown made application pursuant…

Continue reading R v Wichen

Sign in free to access the full text

Details
AGLC
R v Wichen [2005] SASC 323
Case
[2005] SASC 323
Decision Date

CaseChat Overview and Summary

The case of R v Wichen was heard in an Australian court where the defendant, Mr. Wichen, was charged with multiple sexual offences. The key issue before the court was whether Mr. Wichen was incapable of controlling his sexual instincts, as required under a specific section of the law, to warrant a particular type of sentencing order. The court needed to decide if the medical evidence presented was sufficient to conclude that Mr. Wichen's mental condition rendered him incapable of controlling his sexual instincts.

The court considered expert evidence from Dr. O’Brien, who opined that Mr. Wichen's capacity to control his sexual instincts varied depending on his level of intoxication. Dr. O’Brien concluded that while Mr. Wichen could control his instincts when sober, he was incapable of doing so when intoxicated. The court also heard that Mr. Wichen had a history of substance abuse and exhibited aggressive and antisocial behaviour, particularly when intoxicated. Despite these findings, the court had to weigh whether the evidence met the threshold of proving that Mr. Wichen was incapable of controlling his sexual instincts in all circumstances.

In its reasoning, the court acknowledged the expert evidence but noted that the defendant’s capacity to control his sexual instincts was contingent on his sobriety. The court held that the evidence did not support an unequivocal finding that Mr. Wichen was incapable of controlling his sexual instincts in all situations, as required by the legislation. Consequently, the court decided not to make the specific sentencing order under discussion. The court’s decision was based on the nuanced nature of Mr. Wichen's condition, which was not constant but rather context-dependent.

The final order of the court was to not proceed with the specific sentencing order that would have required Mr. Wichen to be institutionalised indefinitely, as the evidence did not sufficiently establish that he was incapable of controlling his sexual instincts in all circumstances.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 EvidenceDr 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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.