R v Williams - [2012] SASC 196

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Criminal)
R v WILLIAMS
[2012] SASC 196
Judgment of The Honourable Justice David
31 October 2012
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCE
Application by the Crown pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 - respondent pleaded guilty to indecent assault, contravening a paedophile restraining order and breach of bond – respondent’s prior convictions include assault with the intent to commit indecent assault, common assault and breaching a designated condition of his parole - whether respondent is incapable of controlling or unwilling to control his sexual instincts - consideration of the factors that the Court should consider when determining such incapability or unwillingness - whether an order to have the respondent detained, for an indeterminate period, is required to protect the community - application granted, held that the expert evidence clearly and undisputedly supports the making of the declaration and, despite the less serious nature of the recent offending, the respondent's recent criminal history including parole breaches indicates he is not only a danger to the public as he is unwilling and incapable of controlling his sexual instincts but also because of his indifference to any orders of the Parole Board and the Court.
Section 20B of the Criminal Law (Sentencing) Act 1988 raised by the Crown for consideration by the Court - whether the respondent should be declared a serious repeat offender and sentenced accordingly - application dismissed.
Criminal Law Consolidation Act 1935 (SA) s 56; Criminal Law (Sentencing) Act 1988 (SA) s 23, s 20B; Passenger Transport Regulations 2009 (SA) reg 104; Summary Procedure Act 1921 (SA) s 23, referred to.
R v England (2004) 87 SASR 411, considered.

R v WILLIAMS
[2012] SASC 196
Criminal: Application

DAVID J: The defendant in this matter, Justin Alan Williams, pleaded guilty in the Holden Hill Magistrates Court to one count of indecently assaulting a child under the age of 14 years contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA) and one count of breaching a paedophile restraining order contrary to s 99I of the Summary Procedure Act 1921 (SA). The maximum penalty for the breach of s 56 is 10 years imprisonment and the maximum penalty for the breach of the restraining order is two years imprisonment. The matters were committed to this Court.
Before me, the defendant acknowledged the breach of a bond. That bond was for a period of 12 months and was imposed in relation to one count of failing to comply with a restraining order and one count of entering a declared area without holding a valid ticket or pass. That bond was imposed on 10 January 2011. The above offences breached that bond. It is to be noted that the bond was not part of a suspended sentence, but…

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 Williams

Details

AGLC: R v Williams [2012] SASC 196
Case: [2012] SASC 196
Decision Date: 31 October 2012

CaseChat Overview and Summary

The matter of R v Williams involved an application by the Crown pursuant to section 23 of the Criminal Law (Sentencing) Act 1988 (SA). The respondent had pleaded guilty to indecent assault, contravention of a paedophile restraining order, and breach of bond. The respondent had a history of convictions that included assault with intent to commit indecent assault, common assault, and breach of parole conditions. The court was required to determine whether the respondent was incapable of controlling or unwilling to control his sexual instincts, and if an indeterminate detention order was required to protect the community.

The legal issues before the court were whether the respondent's expert opinions on his inability to control his sexual instincts were undisputed and if such inability, combined with his recent criminal history and breaches of parole, justified an indeterminate detention order. The court also had to consider whether the respondent should be declared a serious repeat offender under section 20B of the Sentencing Act. The Crown argued that despite the relatively less serious nature of the recent offending, the respondent's history indicated he was a danger to the public due to his unwillingness and inability to control his sexual instincts and his disregard for parole and court orders.

The court found that the two medical practitioners who gave evidence unanimously and without dispute confirmed that the respondent was unable and unwilling to control his sexual instincts. The court followed the process outlined by Bleby J in R v England, which involves the expression of expert opinions, assessment of those opinions, and exercising residual discretion on whether to make the declaration. The court was satisfied that the respondent was not only unwilling and incapable of controlling his sexual instincts but also showed a clear disregard for parole and court orders, making him a danger to the public. Therefore, the application under section 23 was granted, and the respondent was ordered to be detained in custody until further order. The application under section 20B was dismissed.

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

Ms Telfer, for the DPP, acknowledges the difficulties of the Executive in exercising such programs, but makes the submission that the protection of the public is paramount and, despite the relatively less serious nature of this type of offending, an indeterminate sentence of supervision is called for.Conclusion There is no dispute that in this matter the two medical practitioners who have been called to give evidence are of the opinion that the defendant is unable and unwilling to control his sexual instincts. Those opinions are undisputed. Therefore, I should approach the matter in the way set out by Bleby J in R v England[1] when his Honour said:… 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.[1] (2004) 87 SASR 411 at 424. In my view, it is left for me to exercise my residual discretion as to whether I should make the declaration or not. The opinions are clear and not disputed. I am of the view that it is in the interests of both the community and the defendant that the declaration be granted. Despite the fact that the nature of the offending which has activated this application is far less serious an example of that type of offending, nevertheless his recent criminal history, including his breaches of parole, indicates that he is not only unwilling and incapable of controlling his sexual instincts, but that results in him paying very little heed to any orders of the Parole Board or of the Court, making him a clear danger to the public. I grant the application pursuant to s 23 of the Sentencing Act. I do not impose any sentence for the offences which are before me, namely, aggravated indecent assault, breaching a paedophile restraining order and breaching a bond. I also dismiss the application brought pursuant to s 20B of the Sentencing Act.Order I order that the defendant, pursuant to s 23(5) of the Sentencing Act, be detained in custody until further order.

Ratio Decidendi

Legal Principle Established

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