Thomas v Attorney-General (SA)
[2019] SASCFC 21
•6 March 2019
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 That Act has since been repealed.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 low-risk setting.
Criminal Law (High Risk Offenders) Act 2015 (SA) 5, 7, 9, 10, 15, 17,18, 19; Criminal Law (Sentencing Act) 1988 (SA) 23, 24; Sentencing Act 2017 (SA) 57, 58, 59; Criminal Law Consolidation Act 1935 (SA) 58A(1)(b), 63A(1), 80(1)(a), referred to.
R v Schuster (2016) 125 SASR 388; R v Hoare [2017] SASC 7; Attorney-General (SA) v Smallbone [2017] SASC 7; R v Humphrys [2018] SASCFC 69, applied.
Attorney-General (SA) v Thomas [2018] SASC 45, not followed.
Attorney-General (Qld) v Francis [2007] 1 Qd R 396, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"‘extended supervision order’, ‘interim supervision order’, ‘indefinite detention’, ‘Offenders incapable of controlling, or unwilling to control, sexual instincts’ "
THOMAS v ATTORNEY-GENERAL (SA)
[2019] SASCFC 21Court of Criminal Appeal: Kourakis CJ, Nicholson and Parker JJ
KOURAKIS CJ: This is an application for permission to appeal against an order of a Judge of this Court made on 5 April 2018 that the applicant be indefinitely detained (the indefinite detention order) pursuant to s 23 of the Criminal Law (Sentencing Act) 1988 (SA) (the repealed Sentencing Act). At the same time, the Judge declined to make an extended supervision order (ESO) pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA) (the HRO Act). Concurrent applications for both orders were brought by the Attorney‑General. The application for an ESO was sought only in the alternative should an indefinite detention order not be made.
The applicant, Mr Thomas, contends that the indefinite detention order should be set aside and instead an ESO should be made for a period of five years.
Mr Thomas abandoned grounds 1 and 1A of the amended grounds of appeal and seeks permission to rely on a further particularised ground (ground 2), namely:
·The [indefinite detention] order was not necessary for the protection of the community.
·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.
·The relatively small degree of risk could adequately be met by [an extended] supervision order.
·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 Criminal Law (High Risk Offenders) Act 2015 (SA).
I would grant permission to amend ground 2.
As can be seen, Mr Thomas does not challenge the finding of the Judge that he was unwilling to control his sexual instincts. The question before this Court is whether the Judge’s exercise of the discretion, conferred by s 23 of the repealed Sentencing Act, is vitiated by error. Mr Thomas contends that the Judge erred by:
·failing to consider whether the making of an indefinite detention order was appropriate;
·confining his consideration to the question of whether detention or supervised release would be ‘more effective’ in protecting the community;
·failing to adequately consider the option of an extended supervision order and the conditions that could be imposed under it; and
·failing to give consideration to the fact that Mr Thomas’ last offence involving any physical contact with a victim occurred in 1995.
The Judge considered at some length whether or not to make an ESO and expressly referred to Mr Thomas’ not committing a ‘contact sexual offence since 1995’ as a salient consideration.[1] Mr Thomas’ last two complaints can therefore be immediately dismissed.
[1] Attorney-General (SA) v Thomas [2018] SASC 45 at [23].
The first two complaints can be considered together because common to both is the contention that the Judge made the indefinite detention order when an ESO would have sufficiently protected the public to an extent that justified not making an indefinite detention order. The Judge did not make such an order because his Honour found that the community would not be sufficiently protected unless Mr Thomas completed a sexual behaviour program. The Judge was not satisfied that Mr Thomas would complete such a program, even if it were made a condition of an ESO that he do so.
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.
Mr Thomas sees himself as a heterosexual man and has previously had intimate relationships with women. He has lived in rented accommodation and sometimes on the streets. Mr Thomas was 49 when the indefinite detention order was made.
Offending history
On 23 March 1995, Mr Thomas pleaded guilty to one count of indecent assault of a 16-year-old boy who lived next door to him and who suffered a mild intellectual disability. Mr Thomas was 26 years old at the time. He met the boy by chance on Hindley Street, went for drinks and then went back to Mr Thomas’ house on Hurtle Square. It was there that the offending took place. The sentencing Judge accepted that Mr Thomas ‘offered no threats or force’ at any stage. Mr Thomas was sentenced to one year and six months imprisonment with a non-parole period of nine months.
In 2004, Mr Thomas was charged with three counts of abduction of a child under 16 years[2] and six counts of causing a child to expose his or her body.[3] The circumstances of the offending were that, on 14 March 2004, Mr Thomas enticed three boys under the age of 10 from a park in a northern suburb of Adelaide and took them to Maslin Beach, a nudist beach, where they removed their clothes. They stayed with him overnight at the home of a female acquaintance. The boys were neither physically assaulted nor traumatised in any other way, but their foster mother was severely distressed. Mr Thomas pleaded guilty to the three charges of abduction. On 17 February 2005, after a trial by Judge alone, he was also found guilty on the six child exposure charges. Mr Thomas was sentenced to imprisonment for three years with a non-parole period of two years and six months.
[2] Contrary to s 80(1)(a) of the Criminal Law Consolidation Act 1935 (SA).
[3] Contrary to s 58A(1)(b) of the Criminal Law Consolidation Act 1935 (SA). This section has since been repealed.
After his release in March 2008 Mr Thomas failed to meet his Australian National Child Offender Register (ANCOR) reporting obligations. In 2014 he pleaded guilty to one count of aggravated possessing child pornography. The circumstances were that, on 7 December 2012, police discovered 16 images in a drawer of a residence at which Mr Thomas had previously resided. Of the 16 images, 12 were the subject of the charge in that they fell within the first and least serious level of the ‘Oliver Scale’ of child pornography. The sentencing Judge acknowledged that the photographs were readily available. The sentencing Judge imposed a sentence of three months and two weeks, which was wholly suspended.
In 2015, Mr Thomas was found to have breached an interim control order made under the Child Sex Offenders Registration Act 2006 (SA) in that he both lived within 500 meters of a public park and loitered near a children’s playground. Again in 2015 he allowed young boys to camp in the backyard of his accommodation. Mr Thomas did not offend against the children but, by allowing them to be in his backyard, he breached the interim control order.
In 2016, Mr Thomas pleaded guilty to one count of aggravated accessing child exploitation material[4] and failing to comply with reporting obligations. The material had been posted on the website of a naturalist society. It was for this offending that Mr Thomas was imprisoned at the time the Attorney-General brought the applications.
[4] Contrary to s 63A(1) of the Criminal Law Consolidation Act 1935 (SA).
The statutory provisions
Division 3 of the repealed Sentencing Act provided a regime for the indeterminate detention of persons incapable of, or unwilling to, control their sexual instincts. Section 23 applied to persons convicted of sexual offences against a person or of child pornography offences. It relevantly provided:
(2a)If a person has been convicted of a relevant offence, the Attorney‑General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section.
…
(3)The Supreme Court must, before determining whether to make an order that a person to whom this section applies be detained in custody until further order, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of a person to whom this section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, his or her sexual instincts.
(4)The Supreme Court may order that a person to whom this section applies be detained in custody until further order if satisfied that the order is appropriate.
(5)The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be the safety of the community.
(5a)The Supreme Court must also take the following matters into consideration in determining whether to make an order that a person to whom this section applies be detained in custody until further order:
(a) the reports of the medical practitioners (as directed and nominated under subsection (3)) furnished to the Court;
(b) any relevant evidence or representations that the person may desire to put to the Court;
(c) any report required by the Court under section 25;
(d) any other matter that the Court thinks relevant.
…
(7)If the detention is in addition to a sentence of imprisonment, the detention will commence on the expiration of the term of imprisonment, or of all terms of imprisonment that the person is liable to serve.
Section 24 of the repealed Sentencing Act conferred an unconditional and wide discretion on the Supreme Court to order the release on licence of a person detained pursuant to s 23 but subject to terms and conditions which protected the safety of the community.
The Sentencing Act 2017 (SA) (the Sentencing Act 2017) came into operation on 30 April 2018, a matter of weeks after the Judge made the indefinite detention order.
Division 5, s 57 of the Sentencing Act 2017 relevantly provides:
…
(2) If, in proceedings before the District Court or Magistrates Court, a person is convicted of a relevant offence and—
(a) the court is of the opinion that the defendant should be dealt with under this section; or
(b) the prosecutor applies to have the defendant dealt with under this section,
the court will, instead of sentencing the defendant itself, remand the convicted person, in custody or on bail, to appear before the Supreme Court to be dealt with under this section.
(3)If a person has been convicted of a relevant offence, the Attorney-General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section.
(4) The Attorney-General may make an application under subsection (3) in respect of a person serving a sentence of imprisonment whether or not an application to the Supreme Court to have the person dealt with under this section has previously been made (but, if a previous application has been made, a further application cannot be made more than 12 months before the person is eligible to apply for release on parole).
(5) The Supreme Court may, if the Attorney-General has made an application under subsection (3) in respect of a person who is in prison serving a sentence of imprisonment, make an interim order that the person is to remain in custody pending determination by the Supreme Court as to whether to make an order under this section that the person be detained in custody until further order.
(6) The Supreme Court must, before determining whether to make an order that a person to whom this section applies be detained in custody until further order, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of a person to whom this section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person's sexual instincts.
(7) The Supreme Court may order that a person to whom this section applies be detained in custody until further order if satisfied that the order is appropriate.
(8) The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be to protect the safety of the community (whether as individuals or in general).
(9) The Supreme Court must also take the following matters into consideration in determining whether to make an order that a person to whom this section applies be detained in custody until further order:
(a) the reports of the medical practitioners (as directed and nominated under subsection (6)) provided to the Court;
(b) any relevant evidence or representations that the person may desire to put to the Court;
(c) any report required by the Court under section 61;
(d) any other matter that the Court thinks relevant.
Importantly, Division 5 of the Sentencing Act 2017 removed the power which, at the time the Judge made the indefinite detention order against Mr Thomas, entrusted to the Supreme Court by s 24 of the repealed Sentencing Act to release a person subject to an indefinite detention order on licence. Instead, under the Sentencing Act 2017, a person detained by an indefinite detention order, whether made before or after it came into effect, can now only be released if the indefinite detention order is discharged. Section 58 of the Sentencing Act 2017 provides that an indefinite detention order may only be discharged as follows:
58—Discharge of detention order under section 57
…
(1a) An order for detention under section 57 cannot be discharged unless the person subject to the order satisfies the Supreme Court that—
(a) the person is both capable of controlling and willing to control the person's sexual instincts; or
(b) the person no longer presents an appreciable risk to the safety of the community (whether as individuals or in general) due to the person's advanced age or permanent infirmity.
Section 58(3) of the Sentencing Act 2017 provides that:
(3) The paramount consideration of the Supreme Court when determining an application for the discharge of an order for detention under section 57 must be to protect the safety of the community (whether as individuals or in general).
Moreover, s 58(4a) precludes the Supreme Court from having regard ‘to the length of time that the person subject to the order may spend in custody if the order is not discharged’.
Section 58 of the Sentencing Act 2017 conditions the Supreme Court’s power to discharge an indefinite detention order made pursuant to s 57 on a finding of either one of the two facts prescribed by s 58(1a). There could be no rational reason for not discharging an indefinite detention order if either of those factual findings are made. Accordingly, and consistently with the presumption of legality, I would hold that the Court has no discretion not to discharge the order on the making of those findings. It follows that, other than perhaps to affect the construction of the word appreciable in s 58(1a), s 58(3) is largely surplusage, left over from a time when the Court exercised a real discretion to release on licence persons detained on indefinite detention orders.
The Attorney-General proceeded on the basis that Mr Thomas was a high risk offender for the purposes of s 5 of the HRO Act because Mr Thomas was sentenced to a period of imprisonment for the offence of aggravated accessing Child Exploitation Material, which falls within the definition of a ‘serious sexual offence’.
Section 7 of the HRO Act provides that the Attorney-General may apply to the Supreme Court for an ESO to be made in respect of a high risk offender within 12 months of the end of his or her head sentence or non-parole period expiry date.
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.
Pursuant to s 15 of the HRO Act the Parole Board may issue a warrant for the arrest of a person suspected of breaching a condition of an ESO.
Pursuant to s 17 of the HRO Act the Parole Board is authorised to enquire into alleged breaches of a supervision order. If a breach is proved the Parole Board may vary or revoke any of the conditions of the ESO. If a person is found to have breached a condition of his or her supervision order, the Parole Board may, pursuant to s 17(1)(b):
(i) direct that the person be released from custody; or
(ii) direct that the person be detained in custody pending attendance before the Supreme Court for determination as to whether a continuing detention order should be made in respect of the person.
Section 18(2) of the HRO Act provides:
(2) The Supreme Court may, if satisfied that the person—
(a) has breached a condition of the supervision order; and
(b) poses an appreciable risk to the safety of the community if not detained in custody,
order that the person be detained in custody (a continuing detention order) until the expiration of the supervision order, or for such lesser period as may be specified by the Court.
(Emphasis in original)
Section 18(3) of the HRO Act provides:
(3) The paramount consideration of the Supreme Court in determining whether to make a continuing detention order must be the safety of the community.
Section 19 provides this Court the power to vary or revoke a continuing detention order (CDO):
19—Variation and revocation of continuing detention order
(1) The Supreme Court may, on application made by the Attorney-General, the Parole Board or a person subject to a continuing detention order, vary or revoke the order.
(2) A person subject to a continuing detention order may only apply under subsection (1) with the permission of the Court.
(3) The Court may only grant permission under subsection (2) if satisfied that—
(a) there has been a material change in circumstances relating to the person; and
(b) it is in the interests of justice to grant permission.
Relevant principles
In R v Schuster (Schuster),[5] the Court of Criminal Appeal considered the effect of the statutory requirement of s 21 of the repealed Sentencing Act that ‘public safety’ be the paramount consideration in the exercise of the discretion to release on licence a person subject to an indefinite detention order. The Court said: [6]
[79]What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility.
[5] (2016) 125 SASR 388.
[6] R v Schuster (2016) 125 SASR 388 at [79].
In R v Hoare,[7] Hinton J heard concurrent applications for an indefinite detention order and an ESO. After setting out the passage just cited from Schuster, his Honour continued:[8]
[72]I think these observations apply equally to s 23(5). So too the observation that 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”. The Court quoted from the judgment of the Queensland Court of Appeal in Attorney-General (Qld) v Francis as reflecting the approach to be adopted. In that case Keane and Holmes JJA and Dutney J said:
The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.
[73]Again such approach may be seen to apply equally to an application made under s 23. If the Court is satisfied that the offender is incapable or unwilling to control his or her sexual instincts, the question is whether an order for indeterminate detention is apt to ensure adequate protection of the community, having regard to the risk to the community posed by the offender.
(Citations omitted)
[7] [2017] SASC 7.
[8] R v Hoare [2017] SASC 7 at [72]-[73].
His Honour went on to emphasise the treatment focus of Part 2 Division 3 of the repealed Sentencing Act in his reasons for making an indefinite detention order instead of an ESO: [9]
[177]The supervision regime created by the High Risk Offenders Act is not necessarily, in my view, a substitute for the regime created by Part 2 Division 3 of the Sentencing Act nor is it intended to be. The focus of Part 2 Division 3, upon an order being made under s 23, is treatment first and foremost. This is particularly evident in s 23(9) and (10) of the Sentencing Act and in the provision for release on licence and the gradual reintegration of the individual who is initially indeterminately detained. It is this sort of regime that offers the community the best protection from the risk posed by Mr Hoare.
[178]... I appreciate that Mr Hoare can be treated in the community, but that would not be subject to the system of review and ultimate supervision of this Court provided for by the Sentencing Act. That system obliges the provision of treatment, the tracking of progress, the review of methodologies and outcomes, and change to such methodologies and outcomes if desired results are not obtained.
[9] R v Hoare [2017] SASC 7 at [177], [178].
In Attorney-General (SA) v Smallbone, Hinton J further commented on the purpose of a sentence of an indeterminate duration:[10]
[64]The purpose of an order under s 23 of the [repealed] Sentencing Act is not punitive. Rather, the purpose is to allow Mr Smallbone to receive appropriate treatment, review and supervision.
(Citations omitted)
[10] [2018] SASC 2 at [116].
In R v Humphrys, I explained the valid reasons, both practical and as a matter of principle, for investing the Court with a discretion to release a person on licence, even if he or she were unwilling to, or incapable of, controlling his or her sexual instincts:[11]
[2]Section 24 of the [repealed] Sentencing Act confers on this Court a discretion (the s 24 discretion) to release a person detained pursuant to s 23 of the Sentencing Act on licence, even if that person remains unwilling to control, or is incapable of controlling, his or her sexual instincts. The reasons for Parliament in conferring that discretion are obvious enough. First, the indefinite detention of an offender, even after he or she has served the condign punishment fitting his or her crime, is an exceptional deprivation of liberty which should not continue any longer than is strictly necessary. This accords with fundamental human rights of liberty and security of the person, stemming from the Conventions to which Australia is a party.[12] Secondly, counselling and therapy, necessary to address the root causes of an offender’s incapacity or unwillingness, cannot always be fully delivered in custody. Nonetheless, the paramount, but not the only, consideration in exercising the s 24 discretion is the safety of the community.[13]
…
[9]I emphasise, and repeat my earlier observation, that the question of the detention of a person pursuant to s 23 of the Sentencing Act, and any release on licence, only arises, in a practical sense, after the sentence imposed for his or her offending has been served. The discretion entrusted to this Court by s 24(1) of the Sentencing Act may usefully be contrasted with alternative ways in which the Parliament may have chosen to protect the community from persons incapable of controlling, or unwilling to control, their sexual instincts beyond the term of a sentence of imprisonment proportionate to their offending.
[10]Parliament might have legislated that persons incapable or unwilling to control their sexual instincts should be detained and never released for so long as that condition persists. Alternatively, Parliament might have provided that such persons should not be released if there were any risk that they might offend again. The difficulty presented by those positions is that prison is necessarily a tightly controlled, and a closely regulated, environment. It is so completely unlike community life that there is a limit to the programs which can be delivered, as well as a limit on the capacity to test their effectiveness. The reality, therefore, of either of those positions is that, once detained for being either incapable or unwilling to control his or her sexual instincts, such persons will rarely, if ever, be released because their very detention will, for all practical purposes, preclude them from the treatment and rehabilitation processes necessary to show that they no longer present an appreciable risk to the community.
(Citations in original)
[11] [2018] SASCFC 69 at [2], [9]-[10].
[12] R v Schuster (2016) 125 SASR 388 at [86]-[88]. See UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III); UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, United Nations, Treaty Series, vol. 999, p.17.
[13] Section 24(1b), Criminal Law (Sentencing) Act 1988 (SA).
The fundamental human rights to which I referred in the preceding passage include Article 9 of the International Covenant on Civil and Political Rights (ICCPR), which provides:
Article 9
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
The United Nations Human Rights Committee (HRC), the independent expert body tasked with the interpretation and implementation of the ICCPR in those States where ratification has occurred, has, over the past 20 years, evaluated the legislative introduction of post-sentence preventative detention.[14] Amongst other things, the HRC drafts general comments on a specific article within the ICCPR.
[14] Australia first signed the ICCPR in 1972 and ratified it in 1980.
General Comment 35, published on 16 December 2014, on Article 9 (Liberty and security of the person) shows that the HRC takes the view that preventative detention may be arbitrary, even when authorised by law, if the law lacks elements of reasonableness, necessity and proportionality.[15]
[15] Human Rights Committee, General comment No. 35, Article 9 (Liberty and security of person), 16 December 2014, CCPR/C/GC/35 at [12].
In cases of sentences of an indeterminate duration, or, as the HRC labels it: ‘security detention’, the HRC has expressed severe concern that ‘such detention presents severe risks of arbitrary deprivation of liberty’.[16] The HRC has also found that ‘[r]etroactive criminal punishment by detention in violation of Article 15 amounts to arbitrary detention.’[17]
[16] Human Rights Committee (HRC), General comment No. 35, Article 9 (Liberty and security of person), 16 December 2014, CCPR/C/GC/35 at [15].
[17] Human Rights Committee, General comment No. 35, Article 9 (Liberty and security of person), CCPR/C/GC/35, 16 December 2014 at [17]. See also Fardon v Australia, CCPR/C/98/D/1629/2007, Human Rights Committee, 10 May 2010.
In Fardon v Australia[18] the HRC found that the Queensland Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), (DPSOA), the constitutional validity of which was upheld in Fardon v Attorney-General (Qld),[19] violated Mr Fardon’s Article 9 rights. The HRC made the following critical observations on preventable detention regimes:[20]
(4)The “detention” of [Mr Fardon] as a “prisoner” under the DPSOA was ordered because it was feared that he might be a danger to the community in the future and for purposes of his rehabilitation. The concept of feared or predicted dangerousness to the community applicable in the case of past offenders is inherently problematic. It is essentially based on opinion as distinct from factual evidence, even if that evidence consists in the opinion of psychiatric experts. But psychiatry is not an exact science. The DPSOA, on the one hand, requires the Court to have regard to the opinion of psychiatric experts on future dangerousness but, on the other hand, requires the Court to make a finding of fact of dangerousness. While Courts are free to accept or reject expert opinion and are required to consider all other available relevant evidence, the reality is that the Courts must make a finding of fact on the suspected future behaviour of a past offender which may or may not materialise. To avoid arbitrariness, in these circumstances, the State Party should have demonstrated that [Mr Fardon]’s rehabilitation could not have been achieved by means less intrusive than continued imprisonment or even detention, particularly as the State Party had a continuing obligation under Article 10 paragraph 3 of the Covenant to adopt meaningful measures for the reformation, if indeed it was needed, of [Mr Fardon] throughout the 14 years during which he was in prison.
[18] CCPR/C/98/D/1629/2007, Human Rights Committee, 10 May 2010.
[19] (2004) 223 CLR 575.
[20] Fardon v Australia, CCPR/C/98/D/1629/2007, Human Rights Committee, 10 May 2010 at [7.4 (4)].
The amendments to s 58 of the Sentencing Act 2017 have radically changed the purpose of the indefinite detention order regime. Preventative detention is now its primary purpose. The long experience of this Court in making indefinite detention orders and releasing defendants on licence, and monitoring those licences, and the expert evidence taken in those cases clearly establishes two things. First, treatment in prison alone is unlikely to effectively reverse an incapacity or unwillingness to control sexual urges. Secondly, an opinion that a person is both capable and willing to control his or her sexual instincts can rarely, if ever, be given on the basis of a person’s behaviour in the artificial environment of a prison, especially when previous offending remains a static factor in evaluating future risk of reoffending. The most probable result of an indefinite detention order now is that a person so detained will only be released when, by reason of advanced age or infirmity, he or she is physically incapable of committing an offence.
Plainly, then, there is considerable tension between s 58 of the Sentencing Act 2017 and Article 9 of the ICCPR. The detention authorised by s 58 of the Sentencing Act 2017 may be characterised as arbitrary for the purposes of Article 9, both because a shorter period of detention, or less intensive restraints, might in many cases sufficiently protect the community, and because meaningful information cannot be provided in prison.
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.
Dr Furst concluded that Mr Thomas was therefore unwilling to control his sexual instincts in that there was a significant risk that if he were given the opportunity to commit a relevant offence, he would act on those instincts.
He also concluded that there is a significant risk that Mr Thomas would commit another sexual offence, most probably another failure to report or an offence of Child Exploitation Material. However, Dr Furst also expressed the opinion that there was a significant risk that Mr Thomas would commit a contact offence if the opportunity arose and he had not completed a course of rehabilitation. That risk would increase significantly if Mr Thomas was under the influence of drugs or alcohol.
In examination-in-chief, Dr Furst was asked how treatment might mitigate the risk of reoffending:
QIn your conclusion you express that your assessment of risk is qualified by Mr Thomas not completing treatment. What is the relevance of treatment in relation to Mr Thomas.
AI think firstly there is a general principle that offenders can reduce the risk of re-offending through rehabilitation or therapy. That’s on a general principle but in particular in regard to sexual offenders the risk of a person re-offending has a lot to do with that person’s understanding of their own sexual deviance, their own ability to control instincts and impulses, their ability to understand situations which are high risk, and the better that they understand all of these things the more likely they are, or the better capacity they have, either to take steps to take themselves out of that situation or to alter their pattern of behaviour so I think that undergoing treatment or rehabilitation for someone who has had an offending history like Mr Thomas is very important.
QTaking a step back to the conclusions in your report again, I think you expressed a view that it was most likely that the form of offending that Mr Thomas was likely to engage in is in relation to child exploitation material and failing to comply with reporting obligations.
AYes, that’s correct.
QWhy do you think that that is more likely than other kinds of offending.
AI clarify that in terms of there is a difference between sexual offending and general offending, so general offending is more common than sexual offending and so the general principle is that he is more likely to commit a general offence rather than a sexual offence. Contact sexual offences are relatively uncommon and so it’s what we call something that has a low base rate, and they are hard to predict things that don’t happen very often, whereas other offences that do happen a lot more often are a bit easier to predict. So from my point of view Mr Thomas’ history is strongly suggestive that he has problems with supervision and he’s not complied with supervision on a number of occasions so I think that is the most likely offence he would commit if he was released without any treatment.
HIS HONOUR
QThe risk you are referring to there is the risk of a failure to comply with reporting obligations or accessing child exploitation material.
AYes. That is not to say that he wouldn’t commit a contact offence, I think it is more likely one of those other offences would occur firstly or more likely to occur than contact offences.
XN
QInsofar as the risk of committing contact offence what is your assessment of that risk.
AI think that Mr Thomas’ risk of committing a contact offence is much higher than other sexual offenders, the assessment is based on the static - the assessment of static factors which was carried about by Department of Corrections indicate he was in high risk category which suggests generally he was twice as likely as a general sexual offender to commit a further sexual offence. It’s still not necessarily a high rate, I don’t have the exact numbers of high rate, but he is twice as likely as other sexual offenders to commit a sexual offence, there is a range but that is the general principle of someone in that high risk rating. One of the difficulties with using actuarial assessment as I think I put in my report is they are good when you have a group of people in the population, people who are in the low risk, and in particular it is really good at identifying people who are in the low risk of sexual offending and it is a good tool for predicting people who are at the high level of sexual offending. The people in the middle it’s a bit more difficult but he is in the high risk area but when you are looking at a population and sorting people into groups it still doesn’t tell you whether this particular individual will go on and commit an offence and unfortunately all of the things I have read and studied say there really isn’t a good way to tell which particular individual will go on and commit a sexual offence. I am not sure if I lost my train of thought. Have I answered your question?
(Emphasis added)
Later, in his examination-in-chief, Dr Furst supported the recommendations of Mr Sim that Mr Thomas compete the Sexual Behaviour Clinic (SBC) program if detained and the Owenia House SBC program if released back into the community. Dr Furst was asked about the difference between those programs:
AThere are some differences, the first thing is though that the programs are based on the same source manual and in fact the Owenia House program is based on the Correctional program. They have become slightly different in the last few years. One of the reasons is that the research is suggesting that offenders in the high risk range should have quite a few more hours of treatment than was previously recognised so it’s in that sort of 2-300 hours of treatment recommended for high risk offenders and Corrections have responded to that quite quickly and have certainly increased the intensity and the number of treatment hours they provide for the custodial SBC course whereas at Owenia House it’s responded a little bit more slowly or we are still trying to increase the number of treatment hours that we can provide. The current SBC program from Owenia House would run for about 150 hours rather than 250 which is the current program in custody is running at. The other thing is the custodial program has the ability they have a captive audience in essence and offenders can attend group programs, once or twice a week for quite considerable amounts of times. That is more difficult in the community. There is still an expectation that if offenders are required to do the SBC program in the community that they do make a significant commitment to doing that but given that most of them are spread across the metropolitan area in Adelaide it is quite difficult for them to come in more than once a week to attend that group program so rather than a nine-month program the program is 12-plus months depending on Christmas breaks and it’s more like 12 months and it’s a weekly session of about three hours and that is 150 treatment hours rather than 250. The other thing is that there are risk referrals for Owenia House programs, less community based people get into high risk program, Owenia House has a lot of programs for people in lower risk range. So the effect of that is those custodial program are run more often, they have more referrals, they can complete more programs whereas the community program you have to accumulate enough referrals to run the program and that means that once you have somewhere between a dozen, 16, 18 patients enrolled then you will start the program and it will run for about 12 months but for another program to start you need to accumulate another 12 to 18 people so whilst we can run two courses at the SBC at the same time generally once the program is started you have to wait another 12 months or so before you can start the next program so the current SBC program at Owenia House has been running I think for a couple of months now, one to two months so that would mean if Mr Thomas was released soon he would probably have to wait close to a year, possibly longer, in the community, before he would be eligible to do the community based SBC program.
Dr Furst acknowledged that sexual treatment programs were available at Owenia House but it was his preference that Mr Thomas complete the custodial programs because he would be more likely to complete them. Dr Furst continued:
A… I think that it would be important that he has a supervision order that is long enough to ensure that he can complete that program under supervision. His history would suggest that unless he is very tightly managed in the community, he will drop out of the program, so I think it is very important that he has a community corrections officer who monitors him quite closely and makes sure that he attends all those programs. I think general measures such as him not being able to use alcohol or illicit drugs, those sorts of things, that he shouldn’t be able to associate with minors. Certainly he has a stable address. The thing I’m not sure about is whether or not home detention is something that I would say is definitely required or not. I’m not sure I can answer that.
…
QAnd what sort of length of time would you think would be necessary, having regard to your recommendation that he participate at Owenia House, if the extended supervision order is made and taking into account when that might commence and finish.
AGiven Ms Howie’s recommendation, the next group would probably start in sort of late April 2019. I would allow at least 18 months from that date. I say that because whilst she has given an approximate start date, sometimes it takes us a little bit longer than we anticipate to collect enough subjects to conduct the group effectively, and there can also be occasions when the course takes a bit longer than 12 months if it runs over a Christmas period or something like that. Staff try to make sure it doesn’t have gaps but sometimes it is necessary to have a little break for one reason or another. So I would have thought at least 18 months from April, or late April, 2019.
QAnd overall what do you think is the best option in terms of treatment for Mr Thomas.
AMy recommendation would be that he completes the custodial program. I think he is far more likely to complete it. I think that he would benefit from doing that in a contained environment. His history of supervision in the community is not good, so I think that is one of the main things that would be very important for him to do that and he is most likely to do that in custody.
Dr Furst acknowledged that there is yet to be an assessment of the effectiveness, one way or the other, of the custodial and non-custodial programs.
Dr Furst explained the relative risks of Mr Thomas committing a contact or non-contact sexual offence as follows:
ASo the first part is in terms of - essentially because he has committed a contact offence in the past he is at higher risk of having a future contact offence compared to other child exploitation non-contact offenders, so that is the yes part. The no part is that the fact that it has been years since his last contact offence does reduce the risk but I think it’s still sufficiently high to be of concern.
In cross-examination Dr Furst accepted that completion of the Owenia House SBC course would be as effective as completing the custodial SBC course:
AYes, as far as we know. We haven’t done direct comparison of the two courses but they are based on the same source material so it’s difficult to be absolute about it but we would assume it would have a similar impact. The difficult issue is that even at the end of treatment a person’s risk factors really may not change much at the end of that treatment period, it is really how that person utilises that over the next few years.
QAre you saying this, that someone might undertake enthusiastically, if you like, all the courses available whether in custody or not but the risk assessment remains the same at the end.
AIt may, yes.
HIS HONOUR
QAnd what may change the risk assessment is events that occur in the years following the completion of the treatment.
AYes.
In his report dated 23 March 2018, Dr Brereton concluded that there existed a very high risk that Mr Thomas would re-offend, but that the risk was ‘difficult to quantify’. Dr Brereton reported:
7.14Mr Thomas has grossly distorted attitudes regarding his sexual behaviour. He completely denied his sexual offending to me and at times used elaborate and improbable rationalisations to account for his offending and explain why it was not sexual. It was not clear to me the extent to which Mr Thomas believed what he was telling me or to what extent he was knowingly trying to present himself in a better light. Either explanation, however, causes concern with regards to his risk of future offending. It was not possible to explore Mr Thomas’ understanding of the effects of his offending on the victims because he would not acknowledge the offending in the first place.
7.15As discussed above, Mr Thomas has clear problems in terms of relational style and emotional regulation. He has had a number of turbulent relationships and has a history of emotional instability. In other assessments, he has described a certain emotional congruity with children and adolescents (also indicated by police finding adolescents camping and having a party at his property), which increases his risk as it increases his chances of gravitating towards adolescents and spending time with them.
7.16Mr Thomas’ self-management, problem solving and life management skills, including antisocial behaviour, are also an area of significant concern. He has a substantial history of antisocial behaviour in addition to his sexual offending. His ability to manage his life is limited, as evidenced by his poor employment record. His ability to cope with adverse circumstances is poor, evidenced by his tendency towards antisocial behaviour and his alcohol dependency. Mr Thomas’ poor response to supervision shows his poor judgement, his lack of appreciation of the gravity of his offending and failure to take any responsibility for the management of his own risk. During our interview he was unable to explain what practical steps he might take to reduce his risk of reoffending, largely because he did not acknowledge that he has offended or poses any risk in the first place. This obviously limits his ability to make changes. There are some individuals who deny their offending but are still able to articulate how they might ensure they can avoid legal difficulties in the future. Mr Thomas was not able to do this.
7.17Overall therefore, in my opinion, Mr Thomas is a very high risk of further sexual offending.
...
7.19Given Mr Thomas’ history and my consideration of his risk above, in my opinion there is a likelihood that Mr Thomas may commit a further serious sexual offence. The risk is difficult to quantify but I believe the risk, over a period measured in years, of Mr Thomas committing an opportunistic offence against a vulnerable adolescent or child is high.
In examination-in-chief, Dr Brereton was asked to comment on the effect undergoing treatment might have in reducing Mr Thomas’ risk of offending:
AThis is an interesting question. I think treatment is worth trying but I would be quite pessimistic about the outcome given how little measures to try and manage his risk have impacted on Mr Thomas to date, so his total failure to admit to there being any risk, his avoidance of sex offender treatment so far and his poor response to supervision. So I believe it’s worth trying but I’m not very optimistic about the outcome.
QDo you have any views as to whether treatment in custody as opposed to another attempt at treatment in the community might be more effective.
AI’m not sure whether there’s anything intrinsic to the therapy that would be more effective but, of course, were he to be in custody he would have a massive choice. We’ve seen when he’s been given that choice in the community he’s not taken advantage of the treatment offered. It would also provide us with an opportunity to contain his risk and assess his response to the treatment before he went out in the community.
QIn the event that Mr Thomas is released on an extended supervision order, what kind of conditions do you think would assist in providing a structured lifestyle as you suggested would be necessary to reduce his risk.
AI think the conditions that you see quite often, so that to restrict a person in terms of where they live, restricting an individual in terms of contact with youth or children, restricting individuals in terms of where they can go so children’s playgrounds, schools, that kind of thing. I think given his very poor response to supervision so far I think quite strong measures to restrict him would be justified such as an electronic tag.
QWhat about requirements to undertake treatment.
ACertainly a requirement to undertake treatment.
QDo you have any view about the length of time Mr Thomas would need to be supervised on an extended supervision order.
AThat would depend somewhat on his response to treatment, but as things stand I would suggest that he needs to be on an order for a period measured in years.
In cross-examination, Dr Brereton was asked whether treatment in custody or the community would be more effective for Mr Thomas. Dr Brereton, like Dr Furst, preferred the option of treatment in custody because he would not have the same choices of programs as he would if he were in the community. He was then asked to discuss the conditions to be implemented should Mr Thomas be released on an ESO:
QYou were asked a question about a preference as to treatment in custody as opposed to treatment not in custody, and you’ve answered that and I won’t ask any questions about that, but now there is a form of custody in the community and you’ve referred to that electronic monitoring, home detention, GPS monitoring, all that would be highly effective in ensuring that he maintained any conditions including attendance at courses, with the clear sanction that if he breached anything he would be detected quickly. Do you agree with that.
AI’m not sure ‘highly effective’ is necessarily how I’d couch it given his failures so far. I think there’s also the aspect that we have to bear in mind which is how much he will benefit from treatment when he’s actually there. It may be possible to physically make him go but I’ve seen nothing in the reports and in my interview of Mr Thomas to suggest that he’s necessarily going to engage very well and benefit from it when he’s there.
QWell, so far whilst in custody the department’s been unable to effectively offer him a course, on the one hand, and whilst in the community he has been offered two courses but has failed to take up attendance apart from on one or two occasions. So he hasn’t sufficiently, at least, attended as opposed to engaged. Clearly electronic monitoring in the community could at least coerce him into attending, do you agree with that.
AIt’s certainly a measure would help coerce him to attend, yes.
HIS HONOUR
QI’m not sure I understand that, doctor. Why would the fact he’s being electronically monitored - you use the word ‘coerce’ but I think that was a word that was suggested by Mr Vadasz, I’ll use the word ‘encourage’ - why would the fact that he was being electronically monitored encourage him to attend a course at Owenia House.
AI suppose what you’re doing is you’re ramping up the layers of supervision to a degree to which he is aware that he is supervised, he’s monitored. So I think it does, I suppose, increase levels of encouragement for him. But as I said to start off with, whether or not it would be highly effective remains to be seen and I have my doubts, given what I’ve seen so far.
Mr Sim was called by the Attorney-General to give evidence of the treatment options available to Mr Thomas. He testified that the SBC in custody program is run over a nine to 10-month period in addition to pre and post‑program work, which involves an assessment of individual dynamic risk factors which transform into treatment targets of the program. Mr Sim gave evidence that the next program would begin at Port Lincoln Prison in October 2018 and would finish in approximately August 2019. He stated prisoners subject to an indefinite detention order are prioritised because they do not have an anticipated release date, and because they require greater assistance before their release on licence. Mr Sim agreed with the opinions of Dr Furst and Dr Brereton. Mr Sim opined that the best treatment option for Mr Thomas was the custodial treatment program because it was most likely to produce positive behavioural changes.
In cross-examination, Mr Sim agreed that an ESO with a home detention condition would encourage Mr Thomas to attend the program. As to the possibility of participation in the program, Mr Sim testified:
Q.How many people participate in for example the course starting in Port Lincoln in October this year, how many places are there available.
A.There are 12, a maximum of 12 participants.
Q.How many prisoners are waiting to go into the course.
A.We have approximately 100 participants on the wait list, however we allocate a priority system in terms of sentence dates, so they are rated according to their priority in terms of their sentence dates.
Q.Is that the sentence start date or sentence finish date.
A.We use a combination of conditional release and sentence end date so our aim is to provide an individual with treatment prior to original release date, parole eligibility date, we are not always to achieve that, so our bottom line is the sentence end date. So if someone is in custody and still has sufficient time on his sentence then we will allocate them to a suitable program.
…
A.In Mr Thomas’ case if a s.23 order was granted we would provide extra priority for him to be included in that program so I can certainly confirm that we would be able to include him in that program if all the other suitability assessments and serious offending committee endorsement was provided.
…
A.No, I am not able to guarantee that because there are questions that need to be answered prior to that confirmation.
Q.So the possibility is he might not start the program in October this year if he were in custody.
A.I think that would be unlikely but it is not possible to guarantee that.
Q.There is only one course offered at one time; is that correct.
A.Yes, and typically there is one SBC program per year. We adjust our program scheduling depending on the demand so if for instance there was a lot more than two programs we would look to try to run another one, we certainly have to balance our resources with other program. For instance we have much stronger pressure on the violence prevention program so we try to allocate a proportional amount of the resources to that programming.
The respondent did not call any evidence.
On that evidence the Attorney-General’s application fell to be determined against the following essential facts:
·Mr Thomas was unwilling to control his sexual instincts;
·Completion of either the SBC custody course or the community based Owenia House course was an important rehabilitative step which would reduce the risk of reoffending but its effectiveness was open to substantial doubt;
·Mr Thomas was more likely to complete the course if compelled to attend whilst in custody; and
·Mr Thomas was more likely to reoffend by breaching an ANCOR or ESO condition than by committing a contact offence.
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
After the Court reserved its decision, it invited further submissions on the nature of the appeal.
The appeal was brought pursuant to s 157(1)(a)(iii) of the Criminal Procedure Act 1921 (SA) (Criminal Procedure Act). ‘Sentence’ is defined by s 151 of the Criminal Procedure Act to include any order made on or in connection with a conviction. Accordingly, it was held in R v Ainsworth that an order made under s 23 of the repealed Sentencing Act was subject to appeal as an order made in connection with a conviction within the meaning of the definition of sentence then found in s 348 of the Criminal Law Consolidation Act 1935 (SA). [21] There is no reason to come to any different conclusion with respect to s 57 of the repealed Sentencing Act and s 157 of the Criminal Procedure Act.
[21] (2008) 100 SASR 238 at [27]-[33].
As has been seen, between the making of the indefinite detention order and the hearing of this appeal, s 57 of the Sentencing Act 2017 has radically changed the nature of an indefinite detention order. For the future, when determining whether an ESO should be made pursuant to the HRO Act, or an order for indefinite detention pursuant to s 57 of the Sentencing Act 2017, even though the paramount consideration remains the protection of the public, the draconian transformation of the nature of an indefinite detention order will be an important consideration. If it is shown that a defendant is likely to spend all, or almost all, of his or her life in detention, but that close supervision under an ESO will expose the public to a very small risk of serious harm, a court will naturally hesitate before making an indefinite detention order. In pausing before making an indefinite detention order, the arbitrariness of that order, in the sense used in Article 9 of the ICCPR, when considered against the defendant’s particular circumstances, will be a weighty consideration. The evaluation is consistent with the common law’s protection of personal liberty.
The question therefore arose on this appeal about whether or not the correctness of the final result, that is the making of the indefinite detention order, should be evaluated against the current sentencing regime or by reference to whether or not an error was made by the Judge at the time he made the indefinite detention order. That question turns on whether the nature of the appeal is by way of re‑hearing in the sense that the appellate court is to consider the law as it stands at the time of the appeal or whether it is an appeal stricto sensu. Section 157(1)(a)(iii) of the Criminal Procedure Act provides:
(1)Appeals lie to the Full Court as follows:
(a) if a person is convicted on information—
…
(iii)subject to subsection (2), the convicted person or the Director of Public Prosecutions may appeal against sentence passed on the conviction (other than a sentence fixed by law), or a decision of the court to defer sentencing the convicted person, on any ground with the permission of the Full Court;
…
Section 158(7)(a)(i) provides:
(7)Subject to subsection (8), on an appeal against sentence, the Full Court must—
(a) if it thinks that the sentence is affected by error such that the defendant should be re sentenced—
(i)quash the sentence passed at the trial and substitute such other sentence as the Court thinks ought to have been passed (whether more or less severe); or
…
The mandate that the Full Court pass the sentence which ‘ought to have been passed’ suggests that the appeal is stricto sensu in the sense that it is the sentence that should have been passed at the time of sentence and in accordance with the laws then applicable which the Full Court must pass. That was the conclusion of the High Court in Elliott v The Queen (Elliott).[22]
[22] (2007) 234 CLR 38 per Gummow, Hayne, Heydon, Crennan and Kiefel JJ.
There is a distinction between s 6(3) of the Criminal Appeal Act 1912 (NSW), which was the relevant provision the High Court considered in Elliott, and ss 157 and 158 of the Criminal Procedure Act. In particular, s 157(1)(a)(iii) provides that the Court is to set aside a sentence affected by error. An error may be found in the unreasonableness of a result on the applicable law at the time of the appeal. In this case: the making of an indefinite detention order when viewed against the statutory consequences of that order.
There are obviously strong reasons, exemplified by the facts of this case, for so holding. On the other hand, courts have, in the past, been more concerned that an appeal by way of a rehearing would expose a defendant to increases in the minimum or maximum statutory penalties between sentence and appeals.
In Radenkovic v R, Mason CJ and McHugh J stated the following as a matter of general principle:[23]
Both context and principle lend support to the T. approach. In the context of an appeal against sentence, when a court of criminal appeal is called upon to resentence because it has quashed the sentence initially imposed, considerations of justice and equity ordinarily require that the convicted person be resentenced according to the law as it stood at the time when he was initially sentenced, particularly when that law was more favourable to him than the law as it existed at the hearing of the appeal. The convicted person had an entitlement when he was sentenced by the sentencing judge to a sentence imposed in conformity with the requirements of the law as it then stood. He should not be denied that entitlement simply because the sentencing judge made a mistake, whether that mistake resulted in a sentence that was too harsh or too lenient. In our view it would require a very clear indication of statutory intention to displace that entitlement. And, as we have noted, the Act is astute, in those matters to which it gives specific attention, to ensure that persons sentenced under the old regime are not disadvantaged by the legislative changes.
[23] (1990) 170 CLR 623 at 632.
Be that as it may, it is not necessary to consider that difficult question further, for reasons which are explained below.
On the hearing of the appeal, counsel for Mr Thomas submitted on the composite ground I identified in paragraph [5] above, that:
The Judge’s discretion miscarried by failing, firstly, to consider whether the making of a s23 order was appropriate and, secondly, confining the exercise of his discretion to a question of which of the two applications by the Attorney-General would be more effective in protecting the community. The protection of the community, at least in the short term, may always be best effected by the indefinite detention of the subject given a situation where the discretion is based on only two competing factors; namely, indefinite detention versus supervision in the community.
In response the Crown Solicitor submitted:
[The submission that the Judge] misapprehended the principle of paramountcy imposed by s 23(5) by regarding himself as bound to make the order sought under s 23(4), if to do so would be more protective than allowing supervised release should be rejected because:
1 Submissions were put to [the Judge] that it was necessary to balance the need to protect the community against other relevant factors: AB 377.20-26.
2 The nature of the balancing exercise was appropriately articulated in [the Judge’s reasons]: [6], [7], and [9].
3 … [the Judge] expressly stated that, “The exercise to be undertaken by the Court remains a balancing exercise”. This exercise was central to His Honour’s reasoning: [21]-[22].
Discussion
From the underlined passages in [66] above, it can be seen that the Judge’s essential reasoning was:
1The community will be best protected by Mr Thomas undertaking a sexual behaviour treatment program.
2Mr Thomas may not attend the sexual behaviour treatment program at Owenia House if he were released into the community on an extended supervision order.
3The community will be best protected by not releasing Mr Thomas before he has completed a sexual behaviour treatment program in prison.
The major premise is accepted by the Attorney-General. The minor premise can also be accepted given Mr Thomas’ poor record of compliance with community based orders. However, the conclusion ignores the power of the court to order detention if a condition of an ESO is breached. If Mr Thomas were released on an ESO, a failure to diligently attend and apply himself to the treatment course offered by Owenia House would breach one or more of the conditions of that order. So, too, would any breach of any other terms and conditions of the ESO designed to protect the public from further offending. It will be remembered that it was Dr Furst’s evidence that it was significantly more likely, if Mr Thomas were to reoffend, that he would do so by breaching a reporting condition or by possessing Child Exploitation Material, rather than by committing a sexual assault. If Mr Thomas were to breach a condition of an ESO, or be found in possession of child pornography, the provisions of the HRO Act and, in particular, s 18 would be invoked. The Court, dealing with Mr Thomas on such a breach, would then impose a CDO for a period of time that would allow Mr Thomas to complete a sexual behaviour treatment program in prison. It follows, therefore, that the Judge did not have regard to the likelihood that a failure to complete the Owenia House program would still result in Mr Thomas completing a sexual behaviour program in prison and with a relatively low risk to the community in the intervening period. The Judge proceeded as if there was only a binary choice to be made, one which would see Mr Thomas complete a sexual offender treatment program and one which would not. For the reasons I have given, the making of an ESO would also have resulted in the completion of a sexual behaviour program whilst, at the same time, affording Mr Thomas a meaningful opportunity to rehabilitate in a low-risk setting.
There are two differences between the alternative applications of the Attorney-General. First, if Mr Thomas were placed on an ESO, there would be a period of time during which he would be released in the community whilst he was completing the course and, therefore, before any rehabilitation and reformation was realised. It can be accepted that in that period of time there was, at least potentially, a greater risk to the community than if Mr Thomas was detained until he had finished the course. However, the substantial risk identified in the evidence, as I observed earlier, was a breach of a reporting condition or the commission of an offence of possession of Child Exploitation Material and not the commission of a sexual assault. Dr Brereton classified even that risk as high if measured over a period of years. The Owenia House course would be completed within a year of release unless Mr Thomas were returned to custody earlier for a breach of a condition.
Secondly, an ESO cannot be made for any period longer than five years. If, in that time, Mr Thomas was imprisoned for child pornography offences, the Attorney-General could bring a fresh application pursuant to s 57 of the Sentencing Act 2017. If Mr Thomas completed the course, and complied with all of the terms of the ESO, there would be little remaining risk to the community on its completion. There is, of course, a risk that Mr Thomas would commit a sexual assault in that time, but, if constantly monitored, the evidence shows that that risk is not great.
It is therefore important to place close attention to the framing of the terms and conditions of an ESO. Electronic GPS monitoring is a very powerful tool. There is no reason why Mr Thomas could not, as a term of that electronic monitoring, be required to reside at a particular address and be precluded from moving out of a defined radius from that address. Within that closely circumscribed location, exclusion zones could be imposed with respect to places at which Mr Thomas is more likely to have an opportunity to meet children. Moreover, Mr Thomas’ nominated residence might be organised through Offenders Aid and Rehabilitation Services, or similar supported accommodation where there are other residents and supervision. It will be remembered that the Judge was satisfied only that Mr Thomas presented a high risk of further sexual offending which involved sexual conduct ‘where the circumstances are propitious’. The very point of careful electronic monitoring is that it reduces the scope for Mr Thomas to place himself in those circumstances.
Standing back and looking at Mr Thomas’ history, it is significant that the last offending sexual assault was in committed 1995, and that the last offending against any person was in 2004, when he took three children to Maslin Beach but had no sexual contact with them. Mr Thomas’ more recent offending has been limited to breach of terms and conditions of community release and the possession of child pornography. Moreover, the child pornography was procured from generally accessible sites on the internet operated by naturalist associations and societies. The pornography was at the lowest level of the hierarchical classification of child pornography, which comprises six levels.
For the above reasons, I would hold that the Judge erred in failing to take into account the consideration that even if Mr Thomas did not complete the Owenia House course, on his release on an ESO he would most probably be taken back into detention to complete the course pursuant to s 18 of the HRO Act with little intervening risk to the public.
Conclusion
I would grant permission to amend the notice of appeal to add ground 2.
I would allow the appeal.
I would set aside the order for indefinite detention as brought by the Attorney-General pursuant to s 23 of the repealed Sentencing Act.
I would order instead that an ESO be made.
I would hear the parties on the terms and conditions of the ESO.
Addendum
I wish to draw attention to an oversight in my reasons for judgment which was brought to my attention after the judgment was delivered. The reasons overlook s 59 of the Sentencing Act 2017 (SA), which allows for the release on licence of a person detained in custody under Division 5 of Part 3 of the Act but only on the Court being satisfied of the same preconditions necessary to support discharge of the order. The inter-relation between ss 59 and 58 of the Sentencing Act 2017 (SA) may arise for consideration in the future.
NICHOLSON J: I agree with the orders proposed by the Chief Justice and with his Honour’s reasons. I wish expressly to associate myself with his Honour’s analysis of the competing considerations material to the making of an indefinite detention order and to the making of an extended supervision order, particularly at paragraphs [42] to [50] of his Honour’s judgment.
PARKER J: I agree with the reasons of the Chief Justice and the orders that he proposes. I also consider it important to specifically record my concurrence with the analysis by the Chief Justice of the matters referred to at [38] to [50] and [73] of his Honour’s reasons.
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