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 upon breach called upon the defendant to be resentenced for that offending.
The Director of Public Prosecutions (“the DPP”) now makes an application that either in lieu of or in addition to sentencing the defendant for the above offences I make an order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (“the Sentencing Act”) detaining the defendant in custody until further order because he is incapable of controlling, or is unwilling to control, his sexual instincts. In addition, the DPP also asks that alternatively I should make an order that the defendant be declared a serious repeat offender pursuant to s 20B of the Sentencing Act. I indicated during argument that an application under s 20B is not appropriate to the facts of this case and I have concentrated my attention to the decision whether or not to make a declaration pursuant to s 23 of the Sentencing Act.
Personal and offending history
The defendant was born on 22 November 1979.
On 21 December 2000, he was sentenced to 16 months imprisonment with a non-parole period of nine months which sentence was suspended for a period of two years with conditions. That penalty was imposed for the offence of assault with intent to commit an offence which involved a 12 year old boy.
On 30 August 2001, the defendant committed a further act of indecent assault and on 19 September 2001 he committed an offence of common assault. He appeared before a District Court judge and also admitted a breach of the suspended sentence which had been imposed upon on him on 21 December 2000. The total sentence imposed was three years and four months imprisonment, including imprisonment for the breach of bond, with a non-parole period of 16 months.
On 3 January 2004, the defendant was automatically released on parole. A designated condition of the defendant’s release was that he not attend at or remain within 500 metres of any school or place where children were regularly present. He breached this condition on four occasions as a result of which his parole was cancelled and he was returned to prison.
On 18 August 2004, a District Court judge set a new non-parole period of eight months.
On 25 August 2005, the defendant indecently assaulted a 15 year old boy on a bus travelling from Adelaide to Prospect by touching his buttocks. On 14 December 2006, Justice Sulan imposed a sentence of four years imprisonment with a non-parole period of two years and nine months. His Honour declined to make an order pursuant to s 23 of the Sentencing Act.
On 25 November 2008, the defendant was released on parole but on 31 July 2009 he was arrested on a Parole Board warrant for breach of a designated condition by having contact with his 14 year old son.
On 10 February 2010, his term of unexpired parole was completed and on 11 July 2011 he committed the offences which are before me. He has been in custody since that date.
The present offending
The defendant pleaded guilty in the Holden Hill Magistrates Court for indecently assaulting an unknown person, namely, a child under the age of 14 years. The defendant was seen at the Westfield Tea Tree Plaza, Modbury following close behind two young children. He then reached down with his right hand and attempted to touch a young boy in the area of the buttocks. The children, with their female minder, hurried away. In pleading guilty to that offending, the defendant admitted to failing to comply with a restraining order, namely, a paedophile restraining order, and also entering a declared area without holding a valid ticket or pass. He also acknowledged a breach of the bond imposed on 10 January 2011.
The application under s 23 of the Sentencing Act
Section 23 of the Sentencing Act provides that, upon the application of the prosecution, a person who has been convicted of a relevant offence, which includes indecent assault, will be remanded to appear before the Supreme Court and dealt with pursuant to the section. The Supreme Court will then direct at least two legally qualified medical practitioners, nominated by the Court, to inquire into the mental condition of the defendant and report to the Court on whether the person is incapable of controlling, or unwilling to control, his or her sexual instincts.
Section 23(1) provides that a person will be regarded as unwilling to control their sexual instincts if there is a significant risk that the person would, given an opportunity, commit a relevant offence and fail to exercise appropriate control of his or her sexual instincts. Section 23(5) of the Sentencing Act provides:
(5)The Court may order that a person to whom this section applies be detained in custody until further order if—
(a) the Court, after considering the medical practitioners’ reports and any relevant evidence or representations that the person may desire to put to the Court, is satisfied that the order is appropriate; or
(b) the person refuses to cooperate with an inquiry or examination under this section and the Court, after considering any relevant evidence and representations that the person may desire to put to the Court, is satisfied that the order is appropriate.
It is to be noted that the order under s 23 may be made in addition to, or instead of, a sentence of imprisonment. Also, it is to be noted that subsections (9) to (12) provide for review of the progress and circumstances of the person in respect of whom the order for detention has been made. Those sections provide for the discharge of the order.
The applicant in the present matter provided two psychiatric reports and called evidence from Dr Kenneth O’Brien. Those reports were dated 20 February 2012 and 6 August 2012. Dr O’Brien was also involved in assessing the defendant as far back as 2006. Dr O’Brien was of the opinion that the defendant was both incapable of controlling his sexual instincts and was also unwilling to do so.
Dr Craig Raeside was also called and supplied a psychiatric report dated 17 July 2012. He also was of the opinion that the defendant was both incapable of controlling and unwilling to control his sexual instincts. Those opinions were basically unchallenged.
Both psychiatrists were of the opinion that the defendant has particular difficulty in controlling his sexual instincts when his mood is depressed and both were of the view that he represents a significant risk of further offending if given the opportunity. However, both of them stress the advantages of the defendant participating in appropriate programs.
I also received two reports (2 July 2012 and 12 October 2012) from Ms Lucy Wade, the Director of Programs in the Department for Correctional Services, concerning the Sexual Behaviours Clinic and its availability for people who are incarcerated. Such a program takes approximately nine months to complete. Ms Wade was of the opinion that, if given an indeterminate sentence, the defendant would still be eligible for the program but the point at which he could begin would be affected, as distinct from a determinate sentence.
Ms Waldron, for the defendant, has urged me not to set an indeterminate sentence pursuant to s 23 but to sentence the defendant in the normal way. She argues that the report from Ms Wade may indicate that it could be a long time before the defendant can enter the program if incarcerated pursuant to an indeterminate sentence.
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.