R v Wichen (No 2)

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.