Thomas v Attorney-General (SA)

Case [2019] SASCFC 21

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal)

THOMAS v ATTORNEY-GENERAL (SA)

[2019] SASCFC 21

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice Nicholson and The Honourable Justice Parker)

6 March 2019

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - PREVENTIVE DETENTION

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - WRONG PRINCIPLE - GENERALLY

Application for permission to appeal against a decision of a single Judge of this Court to order that the applicant be indefinitely detained pursuant to s 23 of the Criminal Law (Sentencing Act) 1988 (SA) (the indefinite detention order). That Act has since been repealed. At the same time, the Judge declined to make an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the HRO Act). The Attorney-General brought both applications simultaneously, but the application for an extended supervision order (ESO) was sought only in the alternative should an indefinite detention order not be made.

The applicant contends that the indefinite detention order should be set aside and instead this Court should order that he be subject to an ESO for a period of five years.

The applicant sought permission to appeal on the following grounds:

i.  The [indefinite detention] order was not necessary for the protection of the community.

ii.  The applicant’s background, and the totality of the evidence, failed to satisfy the conclusion that the safety of the community was at risk in a material manner.

iii.  The relatively small degree of risk could adequately be met by an extended supervision order.

iv. The relatively small degree of material risk did not sufficiently outweigh the other factors to justify the making of an indeterminate detention order [because] the learned judge had available to him an alternative outcome namely, the making of an order pursuant to s 7 of the HRO Act.

Held by Kourakis CJ (Nicholson and Parker JJ agreeing), granting permission to appeal on the amended ground 2 and allowing the appeal:

1. The Judge failed to have regard to the Court’s power under the HRO Act to order that the applicant be detained until he completed a sexual behaviour program in prison if he failed to successfully complete such a program in the community under an ESO. In this situation, there would be little intervening risk to the public.

2.  By reason of the Judge’s error, the Judge incorrectly proceeded as though there was a binary choice to make, namely, one which would see the applicant complete a sexual offender treatment program and one which would not.

3.  The making of an ESO would have resulted in completion of a sexual behaviour program whilst, at the same time, affording the applicant an opportunity to rehabilitate in a…

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Thomas v Attorney-General (SA) [2019] SASCFC 21
Case
[2019] SASCFC 21
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by Mr Thomas against an order for his indefinite detention made by a judge of the Supreme Court of South Australia. The Attorney-General for South Australia was the respondent. The appeal was heard by Kourakis CJ, Nicholson and Parker JJ.

The legal issues before the Full Court were whether the judge erred in ordering Mr Thomas's indefinite detention under section 23 of the repealed Sentencing Act 2017, and whether an Extended Supervision Order (ESO) under the High Risk Offenders Act 2015 (HRO Act) would have been a sufficient alternative to protect the community. Specifically, the court considered whether the judge failed to properly consider the court's power under the HRO Act to order detention until completion of a sexual behaviour program if such a program was not completed in the community as a condition of an ESO.

The Full Court reasoned that the judge had erred by failing to adequately consider the court's powers under the HRO Act. While acknowledging the paramount consideration of community safety, the court noted that the HRO Act provided for the imposition of conditions on an ESO, including the possibility of detention if those conditions were breached. The court highlighted that if Mr Thomas failed to attend a program like Owenia House, he could be detained in prison until completion of a sexual behaviour program. The court found that the judge's decision to order indefinite detention, rather than an ESO with the potential for custodial detention upon breach, represented a failure to have regard to the full scope of the court's powers under the HRO Act.

The Full Court allowed the appeal, finding that the judge had erred in law. The court remitted the matter to the Supreme Court for redetermination, with directions to consider the making of an ESO under the HRO Act, including the potential for custodial detention as a consequence of non-compliance with program conditions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

For the reasons that I elaborate on below, I would find that the Judge erred by failing to have regard to the power of the Court under the HRO Act to order that Mr Thomas be detained until he completed a sexual behaviour program in prison if he failed to complete such a program in the community and in accordance with a condition of an ESO. The error so expressed fell within the scope of the complaints made by Mr Thomas on the hearing of the appeal.Background On 30 October 2017 the Judge ordered two medical reports on each application (a total of four medical reports). On the application for the indefinite detention order, medical reports were sought on the question of whether Mr Thomas was incapable of controlling or unwilling to control his sexual instincts. The medical reports sought for the purpose of the ESO application addressed whether there was a likelihood that Mr Thomas would commit a further serious offence if an ESO was not made. On 7 February 2018 the matter was called on for a directions hearing. On the Court being informed that Mr Thomas would be eligible for release on parole on 6 April 2018, being the relevant expiry date for the purpose of s 7(2) of the HRO Act, a two-day hearing was listed for 3 April 2018. On 3 April 2018 counsel for Mr Thomas sought an adjournment to allow him to read the medical reports of Dr Brereton and Dr Furst, both of whom had provided reports for each application. The hearing resumed on 4 April 2018. The reports were admitted into evidence and both doctors were called to give evidence. Counsel for the Attorney-General also called Mr Clark Sim, who was the manager of the Rehabilitation Programs Branch of the Department for Correctional Services (DCS). On 5 April 2018, the Judge delivered judgment and ordered that the applicant be detained until further order, pursuant to s 23 of the repealed Sentencing Act. Personal circumstances of Mr Thomas Mr Thomas was born on 25 June 1968. He identifies as Aboriginal and as a member of the stolen generation. Mr Thomas first learnt of his Aboriginal heritage when he was seven years old. He was brought up in New South Wales and was raised in the Anglican faith. He was not physically abused by his parents but reported being sexually abused at around four years old by a man living near his home. Mr Thomas’ family moved to South Australia in 1982 when he was still in primary school. He attended five different schools, moving because of his father’s vocation as a school chaplain. He left school in year 10 at the age of 14 following violent incidents and alcohol and drug use. Mr Thomas has held various jobs in service stations and worked for a time at a demolition site in Roxby Downs. He was last employed in 2010 but that employment came to an end when his employer discovered his history of sexual offending. Mr Thomas used amphetamines and other illicit substances in his twenties. At times he has been dependent on alcohol and cannabis. He suffers from depression for which he has been prescribed medication.

Evidence

Evidence Before The Court

The draconian consequence of an indefinite detention order emphasises the importance of carefully weighing the competing public policy considerations to which I referred in R v Humphrys before deciding whether or not to make an indefinite detention order pursuant to s 57 of the Sentencing Act 2017.The evidence The diagnosis of Mr Thomas proffered by Dr Furst in his report of 29 March 2018 was:Paedophilia; Non-exclusive Type; Primarily attracted to males, and Antisocial Personality Disorder. Dr Furst assessed Mr Thomas’ risk of offending by applying the Risk of Sexual Violence Protocol (RSVP). Dr Furst’s assessment based on the five RSVP domains was:A.Sexual Violence History; I considered that Mr Thomas has a history of sexual violence on two occasions, and with ongoing sexual offending (albeit non-contact) ever since. … He has also conducted a range of sexual offence types, in that he has had one indecent assault, abduction and inducing children to expose their bodies and two sets of possessing or accessing child exploitation material. His offending has decreased in severity rather than escalated, which is a positive thing. ... B.Psychological Adjustment; he has a history of blaming his victims and denial noted first by Dr Begg and Dr Holmes, but more recently in his assessment with me. He does not express antisocial views that condone sexual offending, other than perhaps that he claimed that there were no victims of his child exploitation material offences. He has very significant problems with self-awareness or insight in that I believe it is totally absent. He does not appreciate the seriousness of his paedophilia and he does not seem to have any awareness of how callous his attitude is to his own children, or how dysfunctional his life has been, but sees himself as a victim to some degree. He has a history of difficulty dealing with stress and having suicidal ideation and attempts in the past, and he has used drugs and alcohol to deal with his problems. … C.Mental Disorder; he clearly meets criteria for Paedophilia and Antisocial Personality Disorder according to DSM-V and Dissocial Personality Disorder according to ICD-10, although I did not conduct a formal psychopathy assessment. … D.Social Adjustment; He has a history of significant problems with intimate relationships and non-intimate relationships, as well as problems with employment and a long offender history with multiple non-sexual offences. E.Manageability; Mr Thomas has a history of problems with planning and has lived a largely impulsive life with little apparent thought for the future. He has never completed a course of sexual offender treatment and twice been breached for this. He has had multiple incident in which he has failed to adhere to conditions of supervision and from what I can tell has never completed a period of community supervision for his sexual offending. Dr Furst found that, on the basis of those ‘static risk factors’, Mr Thomas is in the high range of risk of sexual reoffending if he does not receive further rehabilitation.

Decision

Reasons for decision

I make the following observations on the evidence. First, the relatively long period in which Mr Thomas has not committed a sexual assault is significant. So too is the nature of the pornographic material found in his possession. Both circumstances suggest a reduced risk of serious sexual offending. Secondly, an ESO with an electronic GPS monitoring condition is well adapted to guard against Mr Thomas’ modus operandi, which has involved loitering in places where he might come across children whom he might be able to entice to accompany him. The GPS monitoring can confine him to a home, a broader locality and/or be set to exclude him from visiting particular places. Thirdly, if Mr Thomas were to breach a condition of an ESO, this Court is empowered to order his detention. For example, if Mr Thomas were not to attend the Owenia House program, he could be detained in prison until he had completed the SBC program in prison.Decision of the Judge The Judge’s reasons for making the indefinite detention order pursuant to s 23 were as follows:[20]I am satisfied on the evidence that the respondent is unwilling to control his sexual instincts within the meaning of s 23 of the Sentencing Act. I reject the submission of the respondent that the evidence is ambivalent. I found the evidence of Dr Brereton persuasive, although both he and Dr Furst are in agreement on this issue. Accordingly, the question is whether an order for indefinite detention is required to ensure adequate protection of the community, having regard to the risk to the community posed by the respondent. That requires consideration of whether an extended supervision order made pursuant to s 7 of the HRO Act would be sufficient to ensure the safety of the community. [21]This requires an evaluative exercise. [22]The respondent submits that the preferable course to be adopted by the Court is to make an extended supervision order. He puts this submission on the basis that an order pursuant to s 7 of the HRO Act would be sufficient to protect the community, given the relatively low level of offending committed by the respondent since 2005 and the absence of any sexual contact offending since 1995. In those circumstances, an extended supervision order is to be preferred over an order for indefinite detention, as it involves less interference with the personal liberty of the respondent. He further submits that there is no guarantee that if an order is made pursuant to s 23 that the respondent would be able to undertake the sexual behaviour clinic program commencing in October 2018.[23]I do not accept these submissions. I accept the evidence of Dr Brereton that the respondent represents a high risk of further sexual offending including, where the circumstances are propitious, contact offending against teenage and child males. While it is a salient consideration that the respondent has not committed a contact sexual offence since 1995, and that much of the offending relating to accessing child exploitation material is at the lower end of the scale of seriousness, the Court is concerned with the seriousness of the risk that the respondent poses to the safety of the community. The seriousness of that risk is highlighted by the respondent’s denial of the risk he poses and his reluctance to undergo the necessary treatment to reduce that risk. In my view, the safety of the community will be best protected by the respondent undergoing the course of sexual behaviour clinic program treatment which will most likely be available to him in a custodial setting. I have no confidence that the making of an extended supervision order, including a requirement that he attend treatment at Owenia House, would culminate in the successful completion of such treatment. The Court can only be satisfied that the safety of the community is protected by an order for indefinite detention that will provide the best chance of the respondent successfully undergoing the treatment he needs and will provide an incentive for him to do so. Pursuant to s 23(9), his progress and circumstances must be reviewed at least once in each 12 month period for the purposes of assessing whether the respondent is suitable for release on licence pursuant to s 24. In these circumstances, once the respondent has undergone and completed treatment and an opportunity has occurred to assess the success of that treatment, consideration can be given to his release on licence. [24]I come to this view on the basis of the safety of the community being this Court’s paramount consideration. In the case of the respondent, he represents a high risk of re-offending and presently exhibits poor prospects of rehabilitation. As the Full Court said in R v Schuster, the effect of making public safety the paramount consideration is that relatively smaller degrees of risk will outweigh considerations which, even strongly, support release. The exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety.[25]In this case, the consideration of public safety will not be satisfied by the making of an extended supervision order, and requires the making of an order for indefinite detention pursuant to s 23 of the Sentencing Act. The making of an order for indefinite detention offers the best prospect that the respondent will undergo the rehabilitation treatment that is required for the future protection of the public. Accordingly, I would grant the application pursuant to s 23. As the application for an extended supervision order was brought in the alternative to the application for indefinite detention, that application can be dismissed.(Emphasis added; citations omitted)The appeal

Ratio Decidendi

Legal Principle Established

Section 7 of the HRO Act relevantly provides:…(3)The Supreme Court must, before determining whether to make an extended supervision order, direct that 1 or more legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) examine the respondent and report to the Court on the results of the examination, including—(a) if the respondent is a serious sexual offender—an assessment of the likelihood of the respondent committing a further serious sexual offence; or(b) if the respondent is a serious violent offender—an assessment of the likelihood of the respondent committing a further serious offence of violence.…(5) The paramount consideration of the Supreme Court in determining whether to make an extended supervision order must be the safety of the community. (6) The Supreme Court must also take the following matters into consideration in determining whether to make an extended supervision order in respect of the respondent: (a) the likelihood of the respondent—(i) committing a further serious sexual offence; or (ii) committing a further serious offence of violence; or (iii) committing a terrorist offence, or otherwise being involved in a terrorist act, or committing a serious offence of violence, (as the case may be) if not supervised under the order; (b) the reports of any medical practitioner (as directed and nominated under subsection (3)) furnished to the Court; (c) any report prepared by the Parole Board under section 64(5) of the Correctional Services Act 1982; (d) any report required by the Court under section 20 (including the results of any statistical or other assessment furnished to the Court as to the likelihood of persons with histories and characteristics similar to those of the respondent committing a further relevant offence); (e) any relevant evidence or representations that the respondent may desire to put to the Court; (f) any treatment or rehabilitation program in which the respondent has had an opportunity to participate, including his or her willingness to so participate and the extent of such participation; (g) in the case of a respondent released on parole—the extent to which he or she has complied with the conditions of his or her release on parole; (h) in the case of a respondent subject to an existing extended supervision order—the extent to which he or she has complied with the terms of the order; (i) in the case of a respondent who is a registrable offender (within the meaning of the Child Sex Offenders Registration Act 2006)—the extent to which he or she has complied with any obligations under that Act; (j) the circumstances and seriousness of any offence in respect of which the respondent has been found guilty according to his or her criminal history, and any pattern of offending behaviour disclosed by that history; (k) any remarks made by the sentencing court in passing sentence; (l) any other matter that the Court thinks relevant.(Emphasis added) Section 10(1) authorises the imposition of conditions in relation to an ESO including:…(d)a condition that the person subject to the order—(i) be under the supervision of a community corrections officer; and(ii) obey the reasonable directions of the community corrections officer; and(iii) submit to such tests (including testing without notice) for gunshot residue as the community corrections officer may reasonably require;(e)any other condition that the Court thinks fit and specifies in the order;(f)any condition imposed by the Parole Board under section 11.