Wichen v The King - [2022] SASC 158

Supreme Court of South Australia
(Criminal: Application)

WICHEN v THE KING
[2022] SASC 158
Judgment of the Honourable Chief Justice Kourakis
22 December 2022
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - CONDITIONS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
Application for release on licence.
In February 2003, the applicant pleaded guilty in the District Court to the offences of serious criminal trespass in a place of residence and assault with intent to rape. In July 2005, the applicant was sentenced by a judge of the Supreme Court to imprisonment for a term of 10 years. In November 2011, the applicant was declared, pursuant to s 23 of the now repealed Criminal Law (Sentencing) Act 1988 (SA), to be incapable of controlling his sexual instincts. An order was made directing that the applicant be detained in custody until further order.
On 6 November 2017 the applicant filed an application for release on licence pursuant to s 24(1) of the Criminal Law (Sentencing) Act 1988 (SA). The application was dismissed by this Court on the basis that there was a significant risk that if an opportunity to commit a sexual offence arose, the applicant would fail to exercise control of his sexual instincts. That conclusion was affirmed by the Court of Appeal but was ultimately set aside by the High Court and remitted to this Court for determination of the application in accordance with the reasons of the High Court.
Held (allowing the application):
1.There is not a significant risk that the applicant will fail to exercise appropriate control of his sexual instincts if released on the proposed licence conditions, despite the risk that the applicant will not abide by all of the conditions of his release at all times.
2.The making of a final order is deferred until the Parole Board of South Australia has indicated the conditions it will impose.

Criminal Law (Sentencing) Act 1988 (SA) ss 23, 24(1); Sentencing Act 2017 (SA) Sch 1, s 59, referred to.
Hore v The Queen and Wichen v The Queen (2022) 273 CLR 153; Wichen v The Queen [2020] SASC 157, considered.

WICHEN v THE KING
[2022] SASC 158
Criminal

KOURAKIS CJ: This is the resumption of an application for release on licence pursuant to s 24(1) of the now repealed Criminal Law (Sentencing) Act 1988 (SA) (the repealed Sentencing Act). The initiating application was filed by Mr Wichen on 6 November 2017. The hearing commenced before another Judge of this Court but was subsequently heard and determined by me (the first hearing).
I dismissed Mr Wichen’s application on 26 August 2020 after concluding that there was a significant risk that if an opportunity to commit a sexual offence arose, Mr Wichen would fail to exercise control of his sexual instincts (the primary judgment). That conclusion was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wichen v The King

Details

AGLC: Wichen v The King [2022] SASC 158
Case: [2022] SASC 158
Decision Date: 22 December 2022

CaseChat Overview and Summary

In the case of Wichen v The King, the applicant, Mr. Wichen, applied for a post-custodial order for release on licence. The case was heard in the Supreme Court of South Australia. The primary issue before the court was whether Mr. Wichen, who had a history of sexual offences and was deemed to have a significant risk of reoffending, was suitable for release on licence, and what conditions should be imposed to ensure the safety of the community.

The court considered the psychiatric evidence provided by Dr. Nambiar and Dr. Nguyen, which highlighted Mr. Wichen's risk factors and his current circumstances in prison. The court also examined the proposed release on licence conditions, which included high levels of supervision, accommodation, and support plans. The court noted that the ultimate decision on Mr. Wichen's suitability for release rested with the judge, who had to make an evaluative judgment based on the evidence and personal judicial experience.

After considering the evidence and expert opinions, the court found that although Mr. Wichen had a history of reoffending, his progress during imprisonment and the proposed conditions for release on licence provided a reasonable assurance that he would not reoffend. The court imposed specific conditions, including electronic monitoring, restrictions on alcohol and drug use, and limitations on his freedom of movement, to mitigate the risk of reoffending.

The court ultimately granted the application for release on licence, subject to the conditions imposed. The decision highlighted the importance of balancing the rights of the offender with the need to protect the community and the role of the court in making an evaluative judgment based on the evidence and personal judicial experience.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

There is no challenge to the findings of fact I made in the primary judgment. I refer in particular to the findings of fact in paragraphs [118] to [122] of the primary judgment.[3][3] Wichen v The Queen [2020] SASC 157.The psychiatric evidence On the resumption of the hearing, supplementary reports were received from Dr Nambiar and Dr Nguyen. Dr Nambiar observed that Mr Wichen’s historical risk factors remained unchanged:Important factors to consider would include an Antisocial Personality Disorder, limited numeracy and literacy skills, a history of sexual abuse, emotion neglect and domestic violence, instability with accommodation and both romantic and unromantic relationships, substance abuse, particularly binge drinking of alcohol and in addition to serious sex offending offences, there is also a broader range of general offending. Dr Nambiar made the following observations about Mr Wichen’s current circumstances:Mr Wichen has been moved down to Mount Gambier a lower security prison where he has been sharing with seven other individuals in that cottage. It would appear that his behaviour has been appropriate and he has allegedly stopped consuming illicit substances. It is important to note that this has occurred in a controlled environment and it is still unclear as to how Mr Wichen would conduct himself if afforded freedom in the community. Dr Nambiar gave the following opinion on Mr Wichen’s capacity and willingness to control his sexual instincts: In my opinion, Mr Wichen’s ability to control his sexual instincts still remains in doubt should he resume consuming alcohol or illicit substances.With regards to his willingness, it is my view that if unsupervised there is a significant risk that Mr Wichen would, given the opportunity to commit relevant offence, fail to exercise appropriate control of his sexual instincts. This risk further increases if he were intoxicated.Mr Wichen has never undergone antilibidinal treatment however this could not be enforced.I note that a fairly comprehensive support plan has been devised which would require planning towards a release date should the court consider this appropriate. I would stress that to manage the risk that Mr Wichen poses in the community, that his release program should include a high level of supervision.I have had an opportunity to read the proposed Section 59 release on licence condition provided by Greg Mead SC Chief Counsel of Legal Services Commission. Crucial to those conditions would be the nature of accommodation, the level of support provided and the addition of electronic monitoring to ensure that Mr Wichen is properly supervised.(Underlining added) I take the underlined sentence to mean that even with the proposed conditions and supports, if an opportunity presented itself at a time when a supervisor was not nearby, there was a significant risk that Mr Wichen would not exercise appropriate self-control. Dr Nambiar confirmed as much when he gave his evidence. Dr Nguyen’s opinion was expressed as follows:Mr Wichen does not have any mental illness or disabilities that influence his ability to control his sexual instincts. I opine that he has capability to control his sexual instincts. I understand that unwillingness is defined as being present if “there is a significant risk that a person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts.” I also understand that the paramount consideration of the court when determining an application under this section for the release on licence of a person detained in custody under this Division must be the safety of the community. Reducing Mr Wichen’s risk of reoffending are aspects including but not limited to, his expressed attitude and appraisal of his sexual offending history and risk. He has expressed an intention to comply with directions to abstain from alcohol use. He will also be monitored and tested for alcohol and other drug use which reduces his risk of relapse. Mr Wichen’s willingness to control his sexual instincts can be influenced by his housing arrangement and community supports offered. Mostly, he will be detained in his home and only have leave when accompanied by persons directed by his community corrections officer. Additionally, he will be subject to electronic monitoring which will significantly decrease his risk of re-offending.A significant unknown variable is the nature of the accommodation that will be available to Mr Wichen upon his release. In my opinion, individual accommodation would be preferable and present fewer potential destabilisers to him than say, in communal living. Potentially, this housing model could be funded through the NDIS or through public housing schemes but the availability of these places may be difficult to source. There appear to be several proposed safeguards that will limit Mr Wichen’s opportunities to commit a recidivist offence. Under the conditions discussed above, it is more probable than not, that Mr Wichen will be supported adequately to be willing to control his sexual instincts.(Original emphasis)

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

I attach as Appendix B the conditions of release on licence proposed by Mr Wichen. The DPP proposed the same conditions and an additional condition that Mr Wichen not take any illegal drug and take any medication only as prescribed.Consideration I doubt that there is any accepted area of expertise in predicting the likelihood that a particular offender in particular circumstances will reoffend. I accept of course that epidemiologically there are clearly identified risk factors and relatively well refined psychological tools for risk assessments generally. Dr Nambiar explained that a common tool used by psychiatrists in Australia to evaluate the risk of violent offending is known as ‘the RSVP’. It addresses the general risk factors for recidivism in sexual offenders but it is difficult to ‘drill down on each individual and say given conditions that they might be in, whether in fact they would breach or not’. The tools for analysis of risk factors were mostly developed in the United States and the United Kingdom. No Australian assessment tool has been developed. However, the more commonly used tools from the United States and the United Kingdom have been validated in Australia by a process of ‘inter-rate reliability’. A test is validated in that way if a number of clinicians evaluating the same individual, assess the same or similar risk. Dr Nambiar agreed that validation may only show that the clinicians think in the same way. I observe that alternatively, validation, in that sense, may show no more than that the tool has been designed to reduce differences in results as between clinicians. Nonetheless, in accordance with s 59(4)(a) of the Sentencing Act I have regard to, and indeed place substantial weight on, the opinions and concerns of Dr Nambiar and Dr Nguyen. Be that as it may, the ultimate decision rests with the judge hearing the application who must make an evaluative judgment based on the evidence and institutional and personal judicial experience. Mr Wichen’s history of offending and, in particular, the pattern of offending soon after his release from prison weighs heavily in support of a finding that there is a significant risk that if presented with an opportunity, he will fail to exercise appropriate control of his sexual instincts. However, the circumstances in which he would be released on licence now are markedly different to the environment into which he has been released on parole in the past. It has not been suggested that the findings of fact I made in the primary judgment should be reviewed. I proceed on the basis of those findings. I am impressed by Mr Wichen’s progress since that time. His level of insight and ability to articulate, both his culpability for his earlier offending, and the harm he caused his victims, is more sophisticated. I am satisfied that Mr Wichen’s age has given him greater emotional and intellectual stability. The content of his testimony, his demeanour and more recent assessments indicates that he is less likely to act impulsively. Moreover, Mr Wichen’s long imprisonment cannot have failed to have a strong deterrent effect. His greater understanding of the effect of his offending on others and the consequence of offending on him, appears to have been incorporated into his internal control mechanisms. Living autonomously in the community in his own home appears to have become very important to Mr Wichen. He will be reluctant to jeopardise it.