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 may declare accordingly and direct that the defendant be detained in custody until further order.
The Director’s application was first made on 6 February 2003. On 26 July 2005, I made an order that the application for a declaration and for an order for indeterminate detention be adjourned to a date to be fixed. This is the resumed hearing of that application.
There are a number of differences between the current provision and that which was in force at the time of the application. The principal difference is that evidence needed to be given on oath under the old provision and no longer does under the new provision. The parties agreed that I should proceed using the provision as it was in force at the time of the initial consideration of this matter.
The full history of the matter is set out in my earlier reasons for judgment in the matter of Wichen.[1] Shortly stated, the defendant was convicted of the offences of aggravated serious criminal trespass in a place of residence and of assault with intent to rape. The offences occurred on 25 April 2002. The convictions followed the defendant’s pleas of guilty before a District Court Judge. Following the Director’s application for a declaration and for an order for indeterminate detention, the proceedings were transferred to the Supreme Court.
[1] R v Wichen [2005] SASC 323.
On 26 July 2005, I sentenced the defendant to the one term of imprisonment of ten years in respect of both offences. That sentence was backdated to commence on 29 April 2002. That sentence will in the ordinary course terminate on 29 April 2012. The circumstances of the defendant’s offending are set out in my sentencing remarks which form an attachment to my earlier reasons for judgment. I extract the following relevant remarks:
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.
In sentencing, I deferred the fixing of a non-parole period. My reasons for doing so were as follows:[2]
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.
[2] R v Wichen [2005] SASC 323, [127].
In my earlier reasons, I concluded that I was satisfied that the defendant was incapable of controlling his sexual instincts:[3]
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.
[3] R v Wichen [2005] SASC 323, [93]-[94].
Notwithstanding these conclusions, I 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. In that respect, I noted:[4]
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.
[4] R v Wichen [2005] SASC 323, [123].
It is against the above background that the Director’s application for a declaration and for an order for indeterminate detention came on for further hearing. At the further hearing, the defendant maintained his opposition to the orders sought.
For the reasons that follow, I have reached the conclusion that the order sought by the Director should be granted. In arriving that this conclusion I have had regard to the principles set out in a number of authorities regarding preventative or indeterminate detention and the attendant and at times competing considerations to which regard is to be had. In my previous reasons for judgment in this matter, I considered these authorities in some detail, and I refer to that analysis.[5] In particular, I reiterate the following.
[5] R v Wichen [2005] SASC 323, [34]-[49].
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.[6] The principal rationale behind section 23 is to provide protection to the community from those offenders who are unable to control their sexual instincts.[7] 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.[8]
[6]    For example see R v Scobie (2003) 85 SASR 77 [10].
[7]    R v England (2004) 87 SASR 411; R v Scobie (2003) 85 SASR 77.
[8]    Veen v The Queen (1979) 143 CLR 458; as set out in R v Wichen [2005] SASC 323.
In McGarry,[9] Kirby J agreed with the majority and in separate reasons referred to the High Court’s observations in Lowndes,[10] where it was said that the making of an order for indeterminate 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 were found to be imperative. Kirby J observed:[11]
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. …
[Footnotes omitted.]
[9] McGarry v The Queen (2001) 207 CLR 121.
[10] Lowndes v The Queen (1999) 195 CLR 665, 679.
[11] McGarry v The Queen (2001) 207 CLR 121, [60]-[63].
On the resumed hearing of the application, counsel for the Director tendered further reports from psychiatrists, Kenneth O’Brien, Craig Raeside and psychologist, Richard Balfour. Letters were also received from Ann Finlay, the general manager of the Sentence Management Unit of Correctional Services and from Peter Severin, the chief executive of Correctional Services. Drs O’Brien and Raeside were called to give evidence to verify the contents of their reports and to supplement those reports with oral testimony.
Since being sentenced, the defendant has participated in and completed a number of rehabilitation and treatment programs, including the sexual behaviour clinic, alcohol and drug programs and an anger management program. During that time, Mr Wichen has returned five urinalysis tests with positive readings for cannabis, the latest being July 2008. A number of other tests have returned negative results.
In my earlier reasons for judgment, I summarised the reports and evidence of both Drs O’Brien and Raeside and of the psychologist, Mr Balfour, and indicated my acceptance of that evidence. It is to be understood that the defendant has an underlying personality disorder which, together with the effects of alcohol, led to his criminal conduct.
At the resumed hearing, both Drs O’Brien and Raeside confirmed their opinions that the defendant was unable to control his sexual instincts. Both considered that the courses he had undertaken while in custody had improved his prospects for rehabilitation. Mr Balfour remained of the view that the defendant was unable to control his sexual instincts and that his future prognosis was poor. Both Drs O’Brien and Raeside considered that with further treatment and counselling, it may be possible for the defendant to bring his use of alcohol under control and that, in this event, his disinhibition produced by the intake of alcohol would also be controlled. If this occurred and could be maintained, it would remove a cause of his sexual offending.
Both Drs O’Brien and Raeside were of the view that there would be a time when the defendant could be considered for release into the community. At that time, the preparation for his release would require careful planning. On release from custody he would require supervision, treatment, counselling and support for a considerable time. In Dr O’Brien’s opinion, an opinion that I accept, this would in all probability be for a period of some years. Counsel for the defendant did not challenge these opinions.
As mentioned, Drs O’Brien and Raeside confirmed their earlier opinions. Dr O’Brien’s earlier opinion may be summarised as follows. He 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. In 2003, 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 the same report, Dr O’Brien expressed concerns in regard to the defendant’s lack of treatment and whether this had a substantive bearing on reaching a conclusion 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.

In a November 2004 report, 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.
In his October 2010 report, Dr O’Brien concluded:
Since Mr Wichen has been in custody and since he has participated in a number of programs, particularly the SBC Program, I believe that the level of sexual risk that he presents to the community in section 23 terms, has been reduced. However, I remain concerned about the issue of alcohol and believe the importance of this needs to be further reinforced (through participation in a suitable program) before release should be contemplated.
Dr Raeside too held the opinion that the defendant is at risk of further sexual offending and in particular, this risk continues having regard to the positive cannabis readings since the defendant has been in prison. He explained that while the cannabis use itself does not particularly heighten the risk of offending apart from in a general sense, it provides a window into the fact that the defendant has been unable to remain abstinent. This, in the opinion of Dr Raeside, was the concerning factor rather than the cannabis use itself. Dr Raeside’s earlier opinion included the following:
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.
In his 2010 report, Dr Raeside concluded:
…Mr Wichen has participated in a prison-based sexual offender program, with positive reports. He too described some positive benefit from it, particularly with regards to empathy and victim awareness.
I note that Mr Wichen’s overall risk assessment remains high and has not particularly changed over the course of the last few years or through his participation in the various programs in custody. This is not an unexpected finding as most of his risk factors are based on pre-existing, static factors that would not be amenable to change. However, the most significant dynamic factor that is amendable to change and is specifically associated with his past sexual offending is that of drug and alcohol abuse. Mr Wichen appears to be well aware of this.
Although it is somewhat difficult to accurately assess the drug and alcohol risk as Mr Wichen has been in custody it is obviously an important factor that he has repeatedly tested positive for cannabis despite his incarceration. It is not known if he accessed any alcohol which would likely be more difficult. Therefore, as much as it can be a window into his current status it is obviously concerning that his substance abuse has continued despite his incarceration, leaving him at significant risk of relapse of drug and alcohol abuse upon his release into the community. However, by his own account, he has not tested positive for the last two or three years and may well have benefitted substantially from his participation in the various drug and alcohol programs, although he acknowledged a couple of positive tests after completing the program.
Therefore, based on the information available to me, it would appear that there has been overall improvement in Mr Wichen’s situation with benefit from participation in various prison-based programs. However, his ongoing drug use during this time remains problematic. With respect to this risk to the community upon his release on parole, I think the most significant factor relates to his risk of relapse of drug and alcohol abuse. His drug use in custody elevates this risk of relapse.
As earlier mentioned, Mr Balfour remained of the view that the defendant was unable to control his sexual instincts and that his future prognosis was poor. In this respect, Mr Balfour concluded:
…I believe that on the balance of probabilities Mr Wichen is incapable of controlling his sexual instincts. I believe this risk is heightened even further by the effects of acute intoxication. He is willing to cease offending but has repeatedly sexually offended.
To summarise, the defendant is an intellectually impaired serial sexual offender. He has a lengthy antecedent history of serious sexual offending. His sexual offending is directed against older women. A primary cause of the sexual offending is the intake of alcohol leading to disinhibition in a man suffering an underlying personality disorder. While there is any risk that the defendant may use alcohol, there is a high risk of his reoffending. The Director’s application for a declaration and an order for indeterminate detention is granted.
There remains a further matter on which I consider it is appropriate to comment. The following remarks have the support of both counsel for the defendant and of the Director.
The defendant has faced considerable difficulty in accessing treatment to address his problems while in custody. Thus far, recommended treatment, as outlined by Dr O’Brien, has not been available. The experience of Drs O’Brien and Raeside leads them to be sceptical as to the provision of the recommended treatment. No doubt the lack of availability of treatment is the result of a lack of resources. My order for indeterminate detention will take effect on the termination of the head sentence on 29 April 2012. The Department of Correctional Services should take steps to provide the defendant with the treatment recommended as outlined by Dr O’Brien in his evidence. The transcript of the proceedings and the evidence of Dr O’Brien should be made available to those concerned with the defendant’s care. I set out below the critical passages from Dr O’Brien’s evidence. In examination-in-chief, he gave the following evidence:
Q.     Looking at the letter of Mr Severin of 30 June 2011 … Mr Severin has indicated that a clinician of the rehabilitation programs branch will engage with Mr Wichen on an individual basis to deal with his alcohol problem, would you support this.
A.     I would support it but I would need to be reassured that those arrangements are firmly put in place because I am acutely aware of staffing shortages. My experience of my work with Corrections is that individual one-to-one therapy is a relative rarity for staffing and funding reasons.
Q.     Given Mr Wichen’s mild intellectual disability, an individual one on one counselling in relation to alcohol would be a preferred treatment approach.
A.   I would not necessarily say that. Ideally I would like some combination of some group work and one-to-one work. One-to-one work certainly has advantages given his intellectual capacity and also because of his cultural background. But care would need to be taken about who that individual was, I don’t think that you could just throw any old therapist into the equation. Care would have to be taken.
And in cross-examination:
Q.     What, in your view, is the optimal way of addressing the alcohol problem.
A.   The optimum way is for him to participate in a dedicated alcohol rehabilitation program in prison and for the results to be evaluated by professional people and then the court matters are reconsidered.
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.