R v Wichen (No 2) - [2011] SASC 194

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v WICHEN (No 2)
[2011] SASC 194
Judgment of The Honourable Justice Gray
4 November 2011
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
Resumed hearing of an application by the Director of Public Prosecutions pursuant to section 23 of the Criminal Law (Sentencing) Act 1988 (SA) for an order declaring that the defendant is incapable of controlling his sexual instincts and for an order for indeterminate detention - the defendant was convicted of the offences of aggravated serious criminal trespass in a place of residence and assault with intent to rape, which occurred in 2002 - in 2005 defendant was sentenced to a term of imprisonment of ten years, backdated to commence in 2002 - the circumstances of the offending were particularly grave - on the previous hearing of the section 23 application, the Court was satisfied that the defendant was incapable of controlling his sexual instincts, but deferred making the orders sought by the Director because of concerns about the nature and quality of treatment that would be available to the defendant - the defendant has an underlying personality disorder which, together with the effects of alcohol, led to his criminal conduct - on the resumed hearing further reports were tendered and oral evidence was led from Drs O'Brien and Raeside, both doctors confirmed their earlier opinions that the defendant was unable to control his sexual instincts – courses the defendant had undertaken while in custody, however, had improved his prospects for rehabilitation.
Held: the Director's application is granted - the defendant is an intellectually impaired serial sexual offender with a lengthy antecedent history of serious sexual offending - a primary cause of the sexual offending is the intake of alcohol leading to disinhibition in a man suffering an underlying personality disorder - there is a high risk of his reoffending.
Criminal Law (Sentencing) Act 1988 (SA) s 23, referred to.
R v Wichen [2005] SASC 323; R v Scobie (2003) 85 SASR 77; R v England (2004) 87 SASR 411; Veen v The Queen (1979) 143 CLR 458; McGarry v The Queen (2001) 207 CLR 121; Lowndes v The Queen (1999) 195 CLR 665, considered.

R v WICHEN (No 2)
[2011] SASC 194
Criminal
GRAY J:

This is a resumed hearing of an application by the Director of Public Prosecutions pursuant to section 23 of the Criminal Law (Sentencing) Act 1988 (SA) for an order declaring that the defendant, Jacob Arthur Wichen, is incapable of controlling his sexual instincts and for an order for indeterminate detention.
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)the Court, after hearing any evidence or representations adduced or made by the defendant, is satisfied that the defendant is so incapable,
the Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wichen (No 2)

Details

AGLC: R v Wichen (No 2) [2011] SASC 194
Case: [2011] SASC 194
Decision Date: 4 November 2011

CaseChat Overview and Summary

In the matter of R v Wichen (No 2), the Court was asked to consider an application by the Director of Public Prosecutions under section 23 of the Criminal Law (Sentencing) Act 1988 (SA). The defendant had previously been convicted of aggravated serious criminal trespass in a place of residence and assault with intent to rape, offences that occurred in 2002. The defendant was sentenced in 2005 to a term of imprisonment of ten years, backdated to commence in 2002. The Director sought an order declaring that the defendant was incapable of controlling his sexual instincts and an order for indeterminate detention.

The legal issues before the Court included whether the defendant was incapable of controlling his sexual instincts and, if so, whether the appropriate course of action was to make the orders sought by the Director. The Court had to consider the nature and quality of treatment available to the defendant and his prospects for rehabilitation. The Court was also required to balance the risk of reoffending against the defendant's need for treatment and rehabilitation.

The Court found that the defendant was an intellectually impaired serial sexual offender with a lengthy antecedent history of serious sexual offending. The Court was satisfied that the primary cause of the sexual offending was the intake of alcohol leading to disinhibition in a man suffering from an underlying personality disorder. There was a high risk of the defendant reoffending. The Court confirmed that the defendant was unable to control his sexual instincts, despite courses he had undertaken while in custody that had improved his prospects for rehabilitation. Consequently, the Court granted the Director's application. The defendant was declared incapable of controlling his sexual instincts and was to be detained in custody until further order, to commence at the expiration of his head sentence on 29 April 2012. The Court directed that the transcript of these proceedings, the evidence of Dr O'Brien, and a copy of these reasons be made available to those concerned with the defendant's care.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Looking to the future, it is relevant to record that the making of the present order pursuant to section 23 of the Sentencing Act allows an order to be made at an appropriate time in the future pursuant to section 24 of the Act. A section 24 order may minimise the risk of reoffending as it provides a mechanism whereby the defendant can be released from custody on licence with conditions imposed. Those conditions may assist the defendant with his return into the community. An application pursuant to section 24 appears to hold some prospects of success having regard to some of the observations of the experts in this matter. Conclusion I declare that the defendant is incapable of controlling his sexual instincts. I direct that the defendant be detained in custody until further order. The detention until further order is to commence at the expiration of the defendant’s head sentence on 29 April 2012. I direct that the transcript of these proceedings, the evidence of Dr O’Brien and a copy of these reasons be made available to those concerned with the defendant’s care.

Ratio Decidendi

Legal Principle Established

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