R v Williams - [2006] SASC 377

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Criminal)
R v WILLIAMS
[2006] SASC 377
Reasons for Ruling of The Honourable Justice Sulan
14 December 2006
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - RAPE AND SEXUAL ASSAULT

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - OTHER OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - SENTENCING
Application by the Crown pursuant to s 23 of the Criminal Law Consolidation Act 1935 - respondent pleaded guilty to indecent assault and contravening a paedophile restraining order - 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 capable or willing to control his sexual instincts - consideration of the factors that the Court should consider when determining capability or willingness - whether an order to have the respondent detained, for an indeterminate period, is required to protect the community - application dismissed, held that although the respondent is unwilling to control his sexual desires in certain circumstances, he is capable of doing so.
Section 20B of the Criminal Law (Sentencing) Act 1935 raised by the Crown for consideration by the Court - whether the respondent should be declared a serious repeat offender and sentenced accordingly - consideration of the factors that the Court should consider when determining whether a person is a serious repeat offender - duty of the Crown when making an application to indicate its position and to make relevant submissions to the Court - application dismissed.
Criminal Law Consolidation Act 1935 s 48, s 49, s 56, s 58, s 59, s 63, s 63A, s 63B, s 69, s 72, s 74; Criminal Law (Sentencing) Act 1988 s 20B, s 23 (1), (2), (5), (6), (7), (8), (9), (10); Summary Procedure Act 1921 s 99I; Sumary Offences Act 1953 s 23, referred to.
Chester v The Queen (1988) 165 CLR 611; Hoare v The Queen (1989) 167 CLR 348; McGarry v The Queen (2001) 207 CLR 121; R v England (2004) 87 SASR 411; R v Moffatt [1998] 2 VR 229; R v O'Shea (1997) 94 A Crim R 560; R v Whyte [2006] SASC 56, considered.

R v WILLIAMS
[2006] SASC 377
Criminal
Introduction

SULAN J: Justin Alan Williams (“the defendant”) pleaded guilty in the Holden Hill Magistrates Court to indecent assault, contrary to s 56 of the Criminal Law Consolidation Act 1935 (“the CLCA”). The maximum penalty for the offence is eight years imprisonment. He also pleaded guilty to contravening a paedophile restraining order, contrary to s 99I of the Summary Procedure Act 1921 (“the SPA”), which had been imposed on 7 July 2005. The maximum penalty for that offence is two years imprisonment.
The offences were committed on 25 August 2005. On 6 April 2006, a magistrate remanded the defendant to the District Court for sentence, pursuant to s 19(5) of the Criminal Law (Sentencing) Act 1988 (“the CLSA”). Section 19(5) of the CLSA provides that if a magistrate is of the opinion in any particular case that the sentence that should be imposed exceeds the limits of the Magistrates Court, the court may remand the defendant to the District Court.
The defendant appeared before the District Court on 8 May 2006 when counsel for the Director of Public Prosecutions (“the DPP”) sought to have the matter removed to the Supreme Court, pursuant to s 23(2) of the CLSA, for an inquiry as to whether the defendant is capable of controlling or willing to control his sexual instincts.
On 29 May 2006, I ordered that Drs O’Brien and Raeside inquire into the mental condition of the defendant and report to the Court whether he is incapable of controlling or unwilling to control his sexual instincts. I shall return to the reports and evidence of Drs O’Brien and Raeside later. It is necessary to understand the background to this offending and earlier offending in order to determine what course the Court should adopt.
Section 23 CLSA
Section 23 of the CLSA provides that, upon the application of the prosecution, a person who has been convicted of a relevant offence, which includes the offence of indecent assault, will be remanded to appear before the Supreme Court to be 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 to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts. A relevant offence includes an offence under s 56 of the CLCA. Section 23(5) of the CLSA 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.
Sub-sections (6), (7) and (8) provide that the Supreme Court will concurrently determine whether an order should be made pursuant to s 23 and the question of the sentence for the offence with which the person is charged. The order may be made in addition to or instead of a sentence of imprisonment. If a sentence of imprisonment is imposed, then the detention order, if made, will commence at the expiration of the term of imprisonment. A person detained in custody under the section will be detained in such institution as the Minister for Correctional Services from time to time directs.
Sub-sections (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. The section provides for the discharge of the order.
The approach of the Court
Section 23 is primarily concerned with the protection of the public from persons who are either incapable of controlling or unwilling to control their sexual instincts: see R v O’Shea.[1]
[1] (1997) 94 A Crim R 560, 564.
In R v England,[2] Bleby J considered the standard of proof required when the Court was determining an application that a person was unable to control their sexual instincts. He said:
Similarly, in relation to s 23(5) of the Act, satisfaction as to the inability of a person to control their sexual instincts is a matter of assessing the opinions to that effect, their strengths and their weaknesses, to a point where the court can be satisfied that the incapacity is present. In doing so, the court will need to take account of the seriousness of the declaration it is asked to make and the gravity of the consequences of giving the direction. To borrow the words of Dixon J in Briginshaw v Briginshaw, the necessary degree of satisfaction cannot be produced “by inexact proofs, indefinite testimony or indirect inferences”. It will require cogent and acceptable evidence in order to justify the making of the declaration and the giving of the direction. But even then, there is a residual discretion conferred by the use of the word “may” in the subsection. In that respect it may also be appropriate to consider, as in the case of R v Fahey and R v Riley whether, if a sentence is also imposed, the defendant is likely, at the end of the custodial period, to resume similar sexual activities. This will, in turn, require consideration, among other things, of the defendant’s access to and the likely effect of various regimes of treatment, and whether they can be effected in the prison setting or in some other institution contemplated by the section.[3]
[2] (2004) 87 SASR 411.
[3] (2004) 87 SASR 411, 423-4.
Bleby J observed:
It is important to bear in mind precisely what it is that the court is called upon to be satisfied about. It is that the particular person is incapable of controlling his or her sexual instincts. That is not a readily observable fact. It is not something that can readily be inferred by a finder of fact from other primary facts. It depends upon the formation and acceptance of an opinion which in turn depends, not only on the establishment of ascertainable facts, but on expert interpretation of the significance of those facts and of the weight to be given to them. It is not a process which is amenable to satisfaction beyond reasonable doubt.[4]
[4] (2004) 87 SASR 411, 423.
I agree with Bleby J’s observations, which are also applicable to a determination of a person’s willingness to control their sexual instincts: see R v Whyte.[5]
[5] [2006] SASC 56, 5.
I consider that because of the nature of the order being sought, being that the defendant be subject to indeterminate detention, I should be satisfied by cogent evidence that the defendant is a danger to the community before making such an order. The factors to which I should have regard include the defendant’s antecedents, character, age, health, the nature of the offence and any other relevant circumstances which point to the likelihood that he will commit further crimes of a sexual nature: see Chester v The Queen.[6]
[6] (1988) 165 CLR 611, 618-9.
In McGarry v The Queen,[7] the High Court considered whether the prosecution had established that the appellant should be subjected to an indeterminate sentence. The issue with which the High Court was concerned was whether it had been established that the appellant was “a danger to society or part of it”. Kirby J referred to the profound effects upon the liberty of a prisoner of an order such as that sought in this case. Before an order is made, the court will ensure that its powers are only exercised in the clearest of cases. In R v Moffatt,[8] in the Victorian Court of Appeal, Hayne JA, as he then was, discussed the Victorian provision which provided for indeterminate sentences. The provision was in not dissimilar terms to the West Australian provision which had been considered by the High Court in Chester and was enlivened if the court was satisfied to a high degree of probability that the offender was a serious danger to the community. Unlike the West Australian provision, the Victorian provision provided for supervision by the court. Hayne JA said:
While I accept that there are safeguards in the Victorian legislation that were not to be found in the provisions considered in Chester’s case (safeguards like judicial rather than executive review and the identification of a narrower list of offences for which indefinite sentences can be imposed) the fundamental proposition that such powers are to be sparingly exercised, and then only in clear cases, applies to the Victorian provisions as much as it did to the Western Australian.[9]
[7] (2001) 207 CLR 121.
[8] (1998) 2 VR 229, 255.
[9] (1998) 2 VR 229, 255.
Those comments were applicable to South Australia. The Court should exercise the powers sparingly. There should be compelling reasons before the Court will make an order.
Once the discretion is enlivened, then a number of discrete steps must be taken before an order pursuant to s 23(5) will be made. In England¸ Bleby J summarised the steps required to be taken by the Court in considering the exercise of the discretion. He said:
In summary, 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.
Finally, the court must exercise its residual discretion as to the making of the declaration and granting of the directions.[10]
[10] (2004) 87 SASR 411, 424.
I agree that the process summarised by Bleby J is to be followed.
The offences
The events which led to the defendant being charged with these offences are that on 25 August 2005 the victim, “N”, who was aged fifteen years, was a passenger on a bus travelling from Adelaide to Prospect. N was seated in the bus when the defendant boarded it and sat next to him. The defendant then moved to a seat behind N. N felt something touching his buttocks area. N looked around and the defendant lent forward and whispered, “Call the police”. N felt frightened. He alighted from the bus. The defendant followed him and touched him several more times on the buttocks, and again said, “Call the police”.
The police were called and they were able to locate the defendant and identify him from information given to them by the bus driver. The defendant refused to answer any questions.
The second count to which the defendant pleaded guilty relates to a paedophile restraining order which was entered into at the Adelaide Magistrates Court on 7 July 2005. The restraining order included a condition that the defendant not loiter in any area where children are present. His conduct on the day in question was a breach of that condition.
At the time that the offences were committed, the defendant was on parole. He had been released on parole on 5 November 2004. On 13 September 2005, he appeared before the Parole Board (“the Board”). The Board concluded that he had breached his parole and determined to cancel his parole. He was liable to serve the balance of his cancelled parole of four months and sixteen days, which period expired on 28 January 2006. He has been in custody on these offences since that time. He had spent from 25 May 2005 to 13 September 2005 in custody. He had, therefore, spent three months and nineteen days in custody prior to the cancellation of his parole.
Antecedents
The defendant has prior convictions. His first offence occurred on 9 July 1999 at Whyalla when he assaulted a young boy aged twelve years. The circumstances of that offence were that the victim was walking through a vacant block at Whyalla at dusk when the defendant came up behind him and followed him through a quadrangle at the adjoining school. The boy confronted the defendant by asking him what was his problem. The defendant replied, “I like you”. The defendant then grabbed the young man from behind, pushed him towards the building at the end of the quadrangle, grabbed hold of his tracksuit pants and attempted to pull them down. The boy struck the defendant with a clenched fist. When the defendant took a step back, the boy ran to the other side of the building near the oval. The defendant did not follow him. The defendant was nineteen years of age at the time.
The sentencing Judge had regard to a psychologist’s report. The defendant was sentenced to sixteen months imprisonment. The sentence was suspended upon him entering into a bond to be of good behaviour for two years, to be under the supervision of a Community Corrections Officer, and to undertake and complete such courses of treatment offered by the Sexual Offenders Treatment Assessment Program (“SOTAP”), as directed. The defendant was also required to undergo counselling with a psychologist or psychotherapist, as directed.
The psychologist who examined the defendant at that time concluded that there was a high likelihood that the sexualised thinking associated with the offence is part of a broader pattern of sexual preoccupation towards younger males. There was a need for the defendant to have opportunities to develop a greater understanding of and address thinking patterns associated with the offence and to explore the possibilities that such thinking may occur at other times in his life. He concluded that the defendant was at moderate to high risk for future sexual offending if the issues to which the psychologist referred remained unaddressed or untreated.
At that time, the defendant had a female partner and the psychologist considered that the risks of him re-offending were associated with that relationship and whether it would continue.
On 30 August 2001, the defendant committed a further act of indecent assault. On 19 September 2001, he committed an offence of common assault.
He appeared before a District Court judge. He also admitted a breach of the suspended sentence bond which had been imposed for the offence committed on 9 July 1999.
The offences on 30 August 2001 and 19 September 2001 were described by the District Court judge in the following terms:
At about 3.45 p.m. on 30 August 2001, the victim, who was 12 at the time, was walking home from school. You followed him for some distance. You approached him and spoke to him. Whilst, you were talking to him, you continually rubbed him in the area of his bottom about ten times. You scared the victim. The victim told his parents, then later the police. The victim later identified you as the assailant.
At about 8.45 am on 19 September 2001, the victim was putting his bicycle into the bike shed at his school. Whilst the victim was doing that, you came from behind and grabbed him with both of your arms around his shoulders. The victim freed himself from your grip and was then assisted by a school employee. You walked away and yelled to the victim, “I’m going to get you kid”. You were chased but fled. The victim reported the matter to the police. The police located you the following day. You denied responsibility for the offence on that day.
In determining the sentence, the Judge had regard to a report of Dr Fugler and to a report of SOTAP. The Judge revoked the suspended sentence and imposed a sentence of three years and four months imprisonment, with a non-parole period of fifteen months, the non-parole period to commence on 4 September 2002.
On 3 January 2004, the defendant was released on parole. A designated condition of the defendant’s release was that he not attend or remain within 500 metres of any school or place where children were regularly present. He deliberately breached this condition on four occasions by attending toy stores in the city during January 2004. As a consequence of these breaches, his parole was cancelled. He was returned to prison.
On 18 August 2004, a District Court judge set a new non-parole period of eight months. The defendant was released on 17 April 2005. This offending took place on 25 August 2005.
Personal details
The defendant grew up in the northern suburbs in Adelaide. His biological father left home when the defendant was two years old. His father kept contact with him until the defendant was eight years old, and then his mother forbade further contact. The defendant had a poor relationship with his mother. He has recently re-established contact with his father.
The defendant has had little contact with an older brother, or with his half‑sister. His mother re-married on two occasions, as a consequence of which the defendant has a younger half-brother with whom he has maintained some contact. The third marriage broke down and his mother re-married for a fourth time.

Six adult men, who were family friends or acquaintances of his mother, sexually abused him from the age of six years to twelve years. The sexual abuse included oral and anal intercourse. When he complained to other adults about the abuse they did not believe him.
The defendant believes that the previous extensive abuse is the main reason for his homosexual tendencies, and his psychological problems as an adult. He ran away from home when he was twelve and became a street kid. He commenced working as a child prostitute at the age of thirteen. He abused drugs and alcohol. At the age of sixteen he met a man of his own age and they commenced a relationship. At the age of nineteen he committed his first sexual offence. He has lived a transient lifestyle, and has little family support.
The defendant attended school until year 11. He then commenced a chef’s apprenticeship at TAFE. He completed three years of a four-year course before moving interstate. He has expressed a desire to complete his training.
His work history has been unsatisfactory. He expresses a desire to be employed in regular employment, but his prior offending history and the periods he has spent in custody have interfered with his ability to obtain a regular job.
The psychiatric opinions
I received a report of 28 July 2006 from Dr Kenneth O’Brien, the Clinical Director of Forensic and Mental Health Services. Dr O’Brien gave evidence on 15 September 2006 and again on 1 November 2006. I also received a report from Dr Craig Raeside, dated 27 June 2006. Dr Raeside gave evidence on 1 November 2006.
Both Drs O’Brien and Raeside have extensive experience in forensic psychiatry. Their qualification to express opinions as to the mental condition of the prisoner was not disputed.
Dr O’Brien conducted lengthy interviews with the defendant in which he discussed with the defendant his previous history, previous offending and the circumstances of the current offence. Dr O’Brien concluded that the defendant has the capacity to control his sexual instincts. He then considered the second limb of the test, which is the willingness to control his sexual instincts. He concluded that periodically, and because of related psychological pressures, the defendant is unwilling to control his sexual instincts. In explaining his conclusions, he said:
… there are times when he is willing to control his sexual urge, in fact most of the time he’s willing to control his sexual urges but there are occasions when he is unwilling.[11]
[11] Transport of Proceedings, R v Williams (Supreme Court of South Australia, Justice J R Sulan, 1 November 2006, p 38).
He explained that when the defendant is subjected to certain psychological pressures, his overarching emotional state of depression leads him to be unwilling to control his sexual instincts. He explained that there are two stress factors that come together, one being an external stressor and the other being his previous traumatisation and, in particular, his own sexual abuse as he was growing up. He said that the defendant is particularly vulnerable when he is unable to let go of his historic or traumatic memories and, at the same time, he is attempting to cope with a more recently externally-driven stressful event. He then stops trying, gives up and is unwilling to control his instincts at that point.
A cause of the defendant’s destabilisation was a confronting incident that occurred at a SOTAP session, combined with personal stress relating to his cousin who had been diagnosed with cancer. Dr O’Brien concluded:
I don’t believe that he suffers from a primary psychiatric condition. At times, of course, at times if he has stress-related or depressive symptoms, reactive to an external circumstance he may have a temporary time limited psychiatric diagnosis, such as an adjustment disorder with depressed mood. You could argue perhaps on the basis of his own sexual traumatisation that he has a chronic low grade post-traumatic stress disorder‑like condition; I’m not necessarily saying that it would fulfil all the criteria for chronic post-traumatic stress disorder, but he does experience traumatic memories which distress him, and at times when they become more intrusive temporarily you might be able to call that a temporary psychiatric illness.[12]
[12] Transcript of Proceedings, R v Williams (Supreme Court of South Australia, Justice J R Sulan, 1 November 2006, pp 41-42).
Dr O’Brien observed that the defendant had never had a sustained period of treatment from a specialist sexual treatment program, and he expressed the opinion that if that were to occur he was quietly hopeful that the defendant would respond. He considered that a treatment program over two or three years, with psychiatric monitoring, was required.
Dr Raeside concluded that the defendant has considerable difficulty controlling his sexual instincts and, for current purposes, could be considered to be incapable of controlling them. Additionally, given the definition of unwillingness in s 23, Dr Raeside believed that the defendant is also unwilling, in that he represents a significant risk of further offending if given the opportunity.
He said that the defendant was not totally unable to control his sexual instincts, but he had a substantial difficulty in doing so. He also concluded that the defendant presented a significant risk of failing to exercise appropriate control over his sexual instincts if an opportunity arose to commit an offence. On the other hand, Dr Raeside observed that there were several favourable factors in the defendant’s case. The first was that his offending was a function of his underlying borderline personality disorder, arising out of his own sexual abuse so that, with appropriate treatment of his own abusive issues, Dr Raeside considered the offending will decrease considerably. He considered that targeted sexual offender treatment would assist him. He considered that the defendant would be a good candidate for cognitive behaviour treatment. He opined that he would also be a good candidate for group treatment. He observed that a positive factor in his analysis was the apparent lack of progression of the defendant’s behaviour, and the relative lack of seriousness of his offences compared to others. When he was asked about treatment, he said that there were two treatment strategies which were potentially effective in the case of the defendant. He said:
My understanding is that two treatments offered both in the community and in custody potentially both effective type of treatment strategies. The one in custody obviously hasn’t been going very long and their results, outcome, obviously not as established as a community-based program but there shouldn’t be any reason why the outcome should be different, they will be applying similar types of principles. The main concern I would have, I consider as I’ve expressed, my opinion of Mr Williams he is a significant risk at the moment and therefore in the community I think he would be a significant risk until such time as the therapy began to have positive benefits. The other problem is often therapy, particularly individual therapy of his own abuse, the nature of it might stir up unpleasant memories and feelings of emotions and during that period of time in which he’s being treated he might actually become an even greater risk before positive benefits of the treatment would occur. That’s fairly common in many types of therapy that when dealing with painful issues the person might become more depressed, for example, as they face some of the issues they would rather not think about. Mr Williams in my view has shown he is a considerable risk when he is depressed. Treating his depression is an important part of his treatment as well. My concern would be that whilst perhaps all things considered community-based treatment might be more effective for Mr Williams because of it’s established nature, I think that until it becomes beneficial for him I think he would be a greater risk in the community at present.[13]
[13] Transcript of Proceedings, R v Williams (Supreme Court of Supreme Court of South Australia, Justice J R Sulan, 1 November 2006, 55-56).
Dr Raeside favoured treatment within the community as superior to a custodial-based treatment.
Various reports
I have had regard to a pre-sentence report of 31 March 2006. The report recommends that the defendant receive treatment, either whilst in custody or upon release. The report recommends that, once released into the community, he should be referred back to the SOTAP program, under the supervision of a Community Corrections Officer. Further psychological assessment and treatment is recommended.
Mr Balfour, a forensic psychologist, concluded that, without the assistance of a supervised structured rehabilitation program, the defendant’s prognosis to cease offending is poor. He was unable to offer a reliable opinion about whether the severity of the defendant’s offending behaviour will escalate. In Mr Balfour’s opinion, the defendant has made a realistic personal appraisal of his risk of re‑offending as being high. In 2001, the defendant had only participated in the SOTAP program for one month when he was assessed as not requiring ongoing treatment. This led to a false sense of confidence and, without the benefit of treatment, he re-offended. He re-commenced attending SOTAP during February 2005 and completed eleven sessions of therapy at the time he was arrested for the current offences.
Mr Balfour observed that the defendant has demonstrated that he is capable of overcoming addictive behaviours in the past, that he is motivated to complete his training as a chef and obtain stable and secure employment. He has a desire to enter into a stable, consenting relationship with another adult male. Mr Balfour considered that the defendant would benefit from cognitive behavioural therapy with a psychologist to assist him to improve his repertoire of coping strategies and tolerance of stress and improve his social problem-solving skills and help him to become more assertive and improve his self-esteem. He also recommended that he be referred to group rehabilitation programs offered by the Department of Community Corrections, and that he be referred to a prison‑based sex offender rehabilitation program during his period in custody and that he be referred to SOTAP once he is released into the community. Further, Mr Balfour considered that referral to a psychiatrist for assessment of the defendant’s suitability for pharmacotherapy for his depression and deviant sexual arousal was recommended.
During submissions, I inquired whether there was suitable accommodation for the defendant in order that he might be able to undertake treatment whilst on bail if I were prepared to release him on bail, pending sentence and pending determination of this application. Dr O’Brien gave evidence that he considered that Mr Williams would benefit from psychiatric treatment and the SOTAP program, and that it would be difficult for him to obtain the best treatment whilst in custody.
I raised the question of the defendant being released on bail, with conditions that he undertake treatment and attend SOTAP and that, whilst on bail, I would monitor his progress with a view to sentencing him some time in the future after he had been further assessed, having received treatment.
There were difficulties in finding adequate accommodation, as the defendant has no family support and there are problems in obtaining suitable accommodation whereby he could be monitored on home detention bail. I have considered a report of the Department of Correctional Services which deals with the only possible accommodation offered on behalf of the defendant at St Eliza’s Hostel. The report is that all accommodation is twin share and is primarily provided to persons with intellectual impairment, mental health problems and advancing age. The age range of residents is 40 to 80 years. The residence is not equipped to undertake any form of surveillance. I do not consider that the hostel would provide appropriate or adequate accommodation for the defendant whilst on bail. I have taken all factors into account, and I do not consider that this case is appropriate for a Griffith’s remand and supervision whilst on bail for a lengthy period.
I also obtained a report from Dr Andrea Louis, the Director of SOTAP. In her opinion, the defendant is a child sexual offender with a high risk of re-offending. She considered that he should enter a sex offender treatment program, either in prison or the community SOTAP program. She considered that, because the defendant has not had the benefit of treatment, that is, the programs which he has attended in the past have not been completed, and there is evidence that he has been reasonably candid about his sexual urges towards boys, that it was premature to apply for an order pursuant to s 23 of the CLSA. She did consider, however, that because of the impulsive nature of his offending and his inability and unwillingness to not place himself in situations of risk, that if he is released into the community he should be subject to a paedophile restraining order with clear guidelines on activities and areas he is to avoid.
I received a report from Mr Michael Burvill, the manager of rehabilitation programs of the Department for Correctional Services. He advised that within the prison environment there is a moderate to high intensity group‑based treatment program for prisoners on protection at Yatala Labour Prison or at the Port Augusta Prison. The program also provides community‑based sex offender treatment out of the Adelaide Community Corrections Office. He advised that in the past twelve months the program activity has increased dramatically to the point where up to sixty sex offenders per year are to be provided with access to intense long-term programs.
In the case of the defendant, he could undergo treatment as a sentenced prisoner whilst in custody. The program does not apply to prisoners on remand. In Mr Burvill’s opinion, he could then later be released into the community, whereby he would be intensely supervised and required to undergo community‑based maintenance programs provided by the Department of Community Corrections.
Additionally, he could attend the forensic mental health outpatients clinic for medical intervention deemed appropriate. Mr Burvill advised that the prison‑based treatment occurs at the rate of four sessions per week, as opposed to once a week at SOTAP. The community-based program is delivered twice weekly. Medical treatment could be provided, together with any program which the defendant was required to undergo.
I consider that the defendant should receive treatment whilst in custody. Once he is released on parole, conditions should be imposed to ensure the treatment is continued and there is supervision of him during his parole period.
The applications pursuant to s 23
I have had regard to the reports and to the evidence of Drs O’Brien and Raeside. I accept their evidence that the defendant is unwilling to control his sexual instincts. In particular, I have had regard to the fact that when the defendant is faced with an event or events which cause him to be stressed and which exacerbate his depressive symptoms, he is likely to be unwilling to control his sexual instincts in that, at that point in time, although capable, he is not willing to stop himself from further offending and he, therefore, is likely to re‑offend.
The psychiatrists and psychologists who examined the defendant were of the opinion that the defendant has insight into his offending, and that he is likely to re-offend in circumstances in which his depressive illness is exacerbated by events which cause him to become distressed. If the defendant undergoes extensive therapy and psychiatric treatment and he is monitored, the prognosis for him not relapsing into offending in the future is reasonable.
Although it is difficult to predict whether the defendant will fully respond to treatment, there is some optimistic assessment about his future conduct. Furthermore, there is no indication that his offending, if it were to recur, would escalate to violence or more aggressive sexual conduct.
I have had regard to the nature of the defendant’s offending. I have had regard to the opinions of the medical experts. I have considered the various reports.
A decision to order that the defendant be detained indefinitely should only be taken if the Court is satisfied that such an order is required for protection of the public.
In the case of any sexual offender, and in particular those who commit offences against children, there is always a risk of re-offending when the person is released into the community. In the defendant’s case, it cannot be said that there will be no risk. However, with adequate counselling and treatment, and having regard to his insight, there are reasonable prospects that he will be willing and able to avoid further offending.
I have had regard to the defendant’s prior offending. I am not satisfied that the point has been reached when it can be said that his offending is so entrenched and that he poses such a risk to the community that I should exercise my discretion and order that the defendant be detained for an indeterminate period. I am satisfied the defendant is motivated to deal with his sexual conduct and his psychiatric and psychological problems. I consider he is contrite and that there are prospects of rehabilitation if he receives adequate assistance.
I do not consider that the point has been reached at which I should make an order that he be detained in custody until further order. I therefore refuse the application.
Section 20B of the CLSA
Section 20B provides that a person is liable to be declared a serious repeat offender if the person has committed a serious sexual offence against a person or persons under the age of fourteen years on at least two separate occasions, and has been convicted of those offences. A serious sexual offence includes the offence of indecent assault, contrary to s 56 of the CLCA.
The defendant committed two serious sexual offences against a person under the age of fourteen years, being offences of indecent assault, committed on 9 July 1999 and 30 August 2001 respectively. If a person is a serious repeat offender, the Court must consider a declaration and, if the Court is of the opinion that the person’s history of offending warrants a particularly severe sentence in order to protect the community, it should make such a declaration. If a person is declared to be a serious repeat offender, then the Court is not bound to ensure that the sentence it imposes for the offence for which the serious repeat offender is to be sentenced is proportional to the offence and, further, in fixing any non‑parole period the Court must fix a period of at least four-fifths the length of the sentence.
In considering whether to make the declaration, the Court is required to form an opinion as to whether the person’s history of offending warrants a particularly severe sentence in order to protect the community. The effect of the section is to provide for the imposition of a lengthier term of imprisonment and lengthier non-parole period than would normally apply to the offence with which the Court is dealing.
The section departs from the basic principle that a sentence of imprisonment, imposed by a court, should never exceed that which can be justified as appropriate or proportionate to the gravity of the crime, considered in the light of its objective circumstances: see Hoare v The Queen.[14] I consider that it is only appropriate to make a declaration in the instance that the Court is satisfied that there is a clear need to protect the community. Only in rare cases will the Court be justified in departing from the recognised principle of proportionality.
[14] (1989) 167 CLR 348, 354.

Section 20B was raised by counsel for the DPP for the consideration of the Court. I requested that counsel for the DPP indicate whether the DPP considered that this was an appropriate case to make a declaration and impose a severer sentence than would normally be imposed. Initially, counsel for the DPP indicated that the DPP simply brought the section to the attention of the Court and did not make any specific submission. If the DPP considers it is necessary to draw the Court’s attention to the section, then I consider that the Court is entitled to have the benefit of a submission from counsel. Counsel has a duty to assist the Court. The DPP has a responsibility to assist the Court, indicate to the Court the attitude of the Crown, and to make any relevant submissions.
I re-called the matter and, upon my further request, counsel for the DPP indicated that the DPP did not consider that this was a case in which the Court should make a declaration. Counsel indicated that the position of the DPP is that a declaration pursuant to s 20B should be made only in rare and exceptional cases.
The making of a declaration pursuant to s 20B is discretionary. In my view, a declaration should only be made when the Court is satisfied that the person is such an habitual offender that a lengthier term of imprisonment and non-parole period is justified for the protection of the community. Factors to be considered include the number of prior offences, the seriousness of the offences, the age of the defendant and his or her prospects of rehabilitation, the time which has elapsed between the repeat offences, the likelihood of further re-offending and the nature of offending, having regard to the protection of the community.
In this case, the defendant has been convicted on two prior occasions. He is relatively young. Although he has committed two previous serious sexual offences, in my view there is insufficient material to suggest that he is a repeat offender and that he needs to be imprisoned for a lengthier period in order to protect the community. He is seeking assistance and, hopefully, will receive intensive counselling whilst in custody.
Drs O’Brien and Raeside are of the opinion that treatment in the community is preferable to treatment whilst in custody. There is some confidence that if the defendant receives adequate treatment, he may not re-offend.
In my view, the community will be better protected if the defendant is successfully treated. To order that the defendant be kept in custody for a longer period would not, in my view, ultimately result in better protection for the community. It has not been demonstrated that a declaration pursuant to s 20B is required for the protection of the community, and I decline to make an order.
I am therefore required to sentence the defendant for the offences of indecent assault and contravening a paedophile restraining order.