R v Wood No. Sccrm-02-370

R v WOOD
[2003] SASC 213
Criminal

PERRY J. The defendant, Paul John Wood, was tried in the District Court before a judge and jury on an information which alleged three counts of rape, all arising out of an incident which occurred on 6 June 2001.
On the evening of that day, the victim, a 23 year old woman employed by an escort agency, attended at the defendant’s city apartment. Without warning, as she entered the premises, he attacked her, using what she thought was a knife but which was very likely a bottle opener or corkscrew with a sharp metal tip. He forced her to remove her clothes and then proceeded to cause her to perform an act of fellatio on him (count 1), following which he engaged in penile vaginal sexual intercourse (count 2) and finally he performed an act of cunnilingus upon her (count 3).
Following the conviction, the DPP applied pursuant to s 23(2) of the Criminal Law (Sentencing) Act 1988 (“the Act”) for an order that the defendant be remanded in custody for sentence before the Supreme Court. No doubt a factor taken into account by the DPP in making the application is that the defendant had been convicted of rape on two previous occasions. I will refer to the circumstances of those rapes in due course.
On 23 October 2002, a District Court judge made the order sought.
I mention in passing that the procedure which led to the order of referral to this Court was initiated by a formal application by the DPP, accompanied by a substantial volume of material relating to the defendant’s antecedents and other material said to be relevant to the application. In fact, s 23(2) does not refer to the making of an application as a prerequisite to the making of an order under the section, and does not confer on the DPP any particular status or standing to apply for the exercise of the powers conferred by the section. Section 23(2) simply provides that:
“... the court may, if of the opinion that the powers under this section should be exercised in relation to the defendant, remand the defendant in custody or on bail to appear for sentence before the Supreme Court.”
However, no objection was taken to the procedure which was followed.
It is, in any event, a convenient procedure.
Importantly for present purposes, there was no objection by counsel for the defendant to the District Court dealing with the matter without formal proof of the evidentiary material attached to the DPP’s application. Neither did the defendant object to this Court having regard to that material without further proof.
In consequence of the order made by the District Court, the matter came before me on 18 November 2002. I then directed, pursuant to s 23(3) of the Act, that two medical practitioners inquire into the defendant’s mental condition and report to the Court as to whether the defendant is incapable of controlling his sexual instincts.
I later varied that order when it appeared that one of the doctors specified in that order thought that it was inappropriate for him to report in the matter.
In the result, reports have been furnished by two psychiatrists: Dr N.P. Nambiar and Dr A. S. Czechowicz.
On 11 June 2003 I heard evidence from both psychiatrists, and received submissions from counsel.
Ms Andrews, counsel for the DPP, sought an order declaring the defendant to be incapable of controlling his sexual instincts, and directing that he be detained in custody until further order. At the same time she invited me to exercise my power under s 23(6) of the Act to impose in addition, a sentence of imprisonment for the offences of rape upon which the defendant has been convicted.
Mr Wyatt, who appeared for the defendant, submitted that if his client was detained, I should not impose a sentence of imprisonment for the substantive offences.
In order to determine the application, it is necessary to refer to some matters of background, including the defendant’s history of offending.
Background
The defendant is aged 31 years (date of birth 1 September 1971). He was born in Melbourne, Victoria.
The defendant describes his father as a “violent alcoholic” who would frequently physically abuse him and his mother. The defendant was given the impression that his conception was a “mistake” and that he was not wanted. He has no siblings.
His parents separated in 1982, when the defendant was aged 11. For a time after his parents separated, he moved between each parent. This proved to be a very unstable situation. He began running away and truanting from school.
The defendant attended a number of secondary schools, but his rebellious disposition eventually resulted in him being expelled from school at the age of 15. At that stage he had only completed half way through year 9 level.
After leaving school he began living in hostels or living on the streets. He obtained his first job working for a supermarket, stocking fruit and vegetables.
While so employed he had what has been described as his first psychological breakdown. This was at the age of 16, when he was admitted to hospital following an attempted suicide by cutting his wrists.
There is also a report that on another occasion he attempted suicide by climbing into an electricity sub-station.
It appears that the defendant was not diagnosed as psychotic, but opinions were expressed to the effect that his behaviour was attributable to an “adolescent crisis” in the context of long-term family disharmony and rejection.
The defendant has a long history of drug abuse dating back to his early teens.
He has rarely had any long-term relationships with females. His longest relationship was with a young woman whom he met in Victoria when he was aged 18 years. They were together for some two years.
That relationship came to a dramatic end on 23 July 1992, when he raped her.
I will now deal more specifically with the circumstances of that incident.
(a) Rape Offence committed on 23 July 1992
The defendant had been living with the victim, who was some two years older than him, for something between eighteen months and two years before the offence occurred.
According to the victim, she had broken off the relationship about six months before the rape, but it seems that the defendant did not accept that. He continued living on her parents’ property in a caravan outside the house. He remained jealous of her socialising with other men. The victim felt threatened, and on occasions declined opportunities to go out for fear of provoking the defendant.
The offence occurred on a night when the victim’s parents were out of the house. When the victim returned from visiting a friend, she found the defendant sitting in the house.
When she undressed in her bedroom to go to bed, he entered and threw her onto the bed. He gagged her with a tea towel and threatened her with a knife. She unsuccessfully tried to fight him off. He threatened to kill her. He then ripped her nightie off, at which stage she said she “gave in”. He placed his finger in her vagina and then penetrated her with his penis.
After he had finished, he became emotional and said that he still loved her.
When he left her, he drove off in her mother’s car, and apparently stole some money. Subsequently he was charged in the Victorian County Court at Melbourne with threatening to kill, digital rape, penile vaginal rape, theft of money and larceny of a motor car.
Following his plea of guilty to all counts, on 1 December 1992 the defendant was given cumulative sentences amounting in all to 2 years and 3 months with a non-parole period of 1 year and 3 months,.
Amongst the materials which have been submitted to do with this rape offence is the report of a psychologist, Mr Ian Joblin, dated 24 November 1992. In the report he describes the offences as “representative of a build up of frustration and anger, and a violation of a dependency”. He goes on to state:
“It is further my opinion that the psychological bases of the offending had to do with years of build-up of difficulties, probably stemming from as far back as his parents’ separation, as in my opinion this man has had a lot of unresolved anger.”
He remarked on what he described as a “strange catharsis” in that after the offence the defendant’s aggression and anger appeared to subside, and he offered to get the victim a drink and apologised to her.
Prophetically, he stated, “I still have some concerns in relation to Wood”.
(b) Rape offence committed 28 March 1998
This occurred at Port Lincoln.
The victim was a 50 year old woman who was living in and looking after a flat for a friend, being one of a block of flats on Lincoln Highway. The defendant was living in a flat directly below her friend’s flat.
When she had trouble operating the key to enter her friend’s flat, she asked the defendant if he could help. He did so, opened the door and returned to his flat.
A little later, in the evening, the victim wanted to open a bottle of wine and was lacking a bottle opener. She returned to the defendant’s flat, and he opened the bottle for her. After a short conversation, she returned to her friend’s flat.
Later again, the defendant knocked on the victim’s door and asked her if she would like to come to his flat “to have a smoke”. She said she would come a little later.
When she did so, and he let her into the flat, he immediately brandished a knife, pulled her hands behind her back and tied them up with a rag. He applied a blindfold and forced her down onto her back on the floor. She was wearing full-piece bathers under her jeans. He pulled her jeans off, and using the knife, cut off the bathers. He then proceeded to insert his finger into her vagina, and then his penis.
The victim states she was “limp with fear” and did not resist.
When he was finished, he seemed “extremely remorseful and started to cry”. In the words of the victim:
“He then crouched down on the floor and was crying ... I got dressed ... Paul was still crying and I was talking to him about what had happened and trying to make [him] feel better. He was blaming himself for everything and I was comforting him, empathetic towards him.”
As a result of this incident, the defendant was charged with rape, to which he pleaded guilty before a District Court judge. He was given a sentence of 4 years and 6 months with a non-parole period of 2 years and 6 months, both to commence from 28 March 1998.
At that time, the District Court sentencing judge had before him two psychologists reports.
In one of them, Dr Jack White described the defendant as “extremely emotional, introverted, moderately conservative, disagreeable and lacking skills in planning or organisation”. He described him as dependent on drugs but said that he appeared “genuinely motivated for treatment”. He thought that it was extremely important that Mr Wood be offered some opportunity for therapy. He stated:
“A failure to provide intervention is likely to frustrate and anger [Wood] to the point that his risk of further offending would be greatly increased.”
He said further:
“Given [Wood’s] volatile and seriously dangerous offending state, good management of his condition is paramount to there being any chance of a positive prognosis.”
He stated that “without treatment” the defendant “is likely to be a high recidivist risk”.
In a separate report, Dr Kenneth O’Brien offered the view that although the defendant did not suffer from a psychotic illness, he exhibited-
“.... a significant personality disorder with borderline and anti-social features. Secondary to his personality style, from time to time he becomes depressed and requires appropriate interventions.”
He offered the further view that the rape was committed-
“.... in the context of long-standing and severe personality problems arising out of very adverse circumstances during his childhood/adolescence. This has left him with a legacy of anger and hate”.
No doubt in response to the psychiatric opinion which was before him, in his sentencing remarks the District Court judge who dealt with the matter recommended that the psychiatric reports be furnished to the gaol authorities, and he offered the “strong recommendation” that there be ongoing treatment.
The defendant was in fact offered at least two programs while in gaol serving that sentence. They have been described as the “alcohol and other drugs relapse prevention and anger management programs”.
After being released on parole, the defendant reported regularly, as required by the parole conditions, and saw a forensic psychologist, Dr Sue Bubner, on a regular basis. Indeed, Ms Bubner saw the defendant on 5 June 2001, which was the day before his next offending.
She was optimistic as to his progress. At the counselling session on 5 June 2001, he spoke to her as to what he described as new accommodation which he had found, giving him his own fully-furnished self-contained room. The defendant told Ms Bubner:
“.... that this was going to improve his ability to cope as he would now be able to look after himself better.”
He spoke of seeking employment in the Northern Territory.
That was not to be. The defendant offended again the very next day.
(c) Rape offences committed on 6 June 2001
From his newly provided room in the city, the defendant rang an escort agency. The victim was despatched to respond to his call.
On entering the premises, she asked the defendant whether he had the money for her fee. His response was to rush at her and place a sharp implement at her neck.
I have already described the violent assault which followed. After he had finished, the defendant showed her out of his room and told her that if she told anyone what had happened, he would “hurt her”.
In her victim impact statement, the victim, a woman aged 25 years, describes her physical injuries which included bruising and ongoing pain “from forced penetration”. She accepted an offer of a program of counselling, but states that sometimes she cannot bring herself to talk about the rape, as memories of it “come flooding back” into her mind when she does so. She has nightmares and suffers from sleeplessness.
She had a drug habit which she was supporting by her earnings from prostitution, but because of the rape she says that she was too frightened to resume her employment. An unfortunate sequence of events then unfolded.
She began using large amounts of heroin. To pay for her habit, she committed criminal offences.
When the defendant was dealt with for this rape, further psychiatric and psychologists reports were before the District Court judge.
In one of them, Dr Jack White, psychologist, using what he describes as a “sex offender risk appraisal guide”, determined that the defendant was in “the very high range for risk of offending and his score placed him within the 97^th percentile”. He thought that this indicated “a high probability of offending”.
The Present Application
As I have said, the application is supported by reports furnished by two psychiatrists, Dr Nambiar and Dr Czechowicz, who also gave evidence before me.
In his report, dated 10 March 2003, Dr Nambiar states:
“With respect to s 23 of the Criminal Law Sentencing Act 1998, in my opinion Mr Wood has received a form of intervention aimed at reducing his sexual offending, however, this has been unsuccessful and he remains at risk of giving in further to sexual instincts should the opportunity arise. Clearly he is not a predator, however, in the context of familiarity there is a high likelihood that he may once again find himself in a situation where he asserts himself inappropriately in the form of aggressive rape. In my opinion, without the benefits of psychological intervention that targets his social inadequacies and his maladaptive displacement of anger, he remains at great risk of being unable to control his sexual impulses.
Unfortunately there do not appear to be any specific programs available to offenders in custody who have committed rape to provide them with an opportunity to rehabilitate. There would appear to be no dedicated psychological service for this purpose, nor any organised method of referring to any appropriate agency. I would suggest that serious consideration be given to a sexual offender program that is prison-based, and that is dedicated to treating individuals who are rapists. This should occur early on in their sentence rather than later, and such a program should consist of a panel of individuals who provide comprehensive assessments, and advice with regard to treatment, whether psychological or biological. Without an attempt at providing Mr Wood with such a range of methods to offer rehabilitation there is a high risk of repeat offending if he were released to the community.”
In his evidence, which was taken on 11 June 2003, Dr Nambiar confirmed that in his opinion the defendant “is at this time incapable of controlling his sexual instincts”.
In his report, which is dated 14 March 2003, and in his evidence, Dr Czechowicz expressed the same opinion.
Both psychiatrists gave evidence was that in similar circumstances, that is, where the defendant was alone with a woman and in a position to take advantage of her, he was likely to lose control and offend again.
Conclusion
After considering the whole of the material which is before me, including the material associated with the earlier offending, which in turn includes the various opinions which have been expressed over a long period of time by the psychologists and psychiatrists who have been associated with the treatment of the defendant, I am satisfied in terms of s 23(5)(b) of the Act that the defendant is incapable of controlling his sexual instincts. Furthermore, I think that it is proper in the circumstances that I should so declare and direct that he be detained in custody until further order.
I am further of the view that in all the circumstances, in addition to making a declaration in those terms, I should impose a sentence of imprisonment for the rape committed on 6 June 2001.
I will publish these reasons in open court at the time I sentence the defendant.
Before parting with the matter, I add that it is obviously desirable that the defendant be offered treatment for his condition while in custody. Recent public announcements suggest that Government funding for such treatment is soon to be forthcoming. As I observed in O’Shea v DPP,[1] detention in custody pursuant to the provisions now in question does not mean detention indefinitely, for the rest of the defendant’s natural life.
[1] (1998) 71 SASR 109.
As I there observed:[2]
“I am unable to construe the relevant statutory provisions so as to countenance such a draconian result. It seems to me that the length of the period of detention is a relevant factor in the exercise of the discretions whether to discharge or release on licence. The longer the period of the detention, quite apart from any other factor, the stronger the case for release. Eventually a point is reached at which it would not be right to countenance further detention, even though there remains a risk of recidivism.”
[2] Ibid 138-139.
Given that the defendant will eventually be released back into the community, it is obviously not only in his interests but in the interests of the public that he be given appropriate treatment while in gaol in the hope that this will lessen the risk of re-offending. Such treatment should commence from now or as soon as it can be provided, rather than from the expiration of the term of imprisonment which I propose to impose.
JUDGMENT CITATIONS
LISTED IN ORDER OF APPEARANCE IN JUDGMENT
1. (1998) 71 SASR 109.
2. Ibid 138-139.

[2003] SASC 213

10 July 2003