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 In November 2011, the applicant was declared, pursuant to s 23 of the now repealed Criminal Law (Sentencing) Act 1988 (SA), to be incapable of controlling his sexual instincts.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KOURAKIS CJ: This is the resumption of an application for release on licence pursuant to s 24(1) of the now repealed Criminal Law (Sentencing) Act 1988 (SA) (the repealed Sentencing Act).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 affirmed by the Court of Appeal on 7 May 2021. On a further appeal to the High Court, the primary judgment was unanimously set aside and Mr Wichen’s application for release on licence was remitted to me to be determined according to law and in particular, the reasons of the High Court.
The error of law, which the High Court held affected the order dismissing Mr Wichen’s application, was a failure to answer the statutory test in its proper context which included the supervision and therapeutic support to be provided to Mr Wichen in accordance with the matrix of conditions on which Mr Wichen might be released on licence.
For the reasons which follow I am satisfied that there is not a significant risk that Mr Wichen will fail to exercise appropriate control of his sexual instincts if he is released on licence into appropriate accommodation and on the conditions proposed by the Director of Public Prosecutions (SA) (the DPP) and Mr Wichen. It is necessary, however, to defer making a final order until the Parole Board of South Australia has indicated the conditions it will impose.
Section 59 of the Sentencing Act
By operation of the transitional provisions of Schedule 1 of the Sentencing Act 2017 (SA) (the Sentencing Act) Mr Wichen’s application for release on licence is governed by s 59 of the Act:
59—Release on licence
(1) The Supreme Court may, on application by the DPP or the person, authorise the release on licence of a person detained in custody under this Division.
(1a) A person detained in custody under this Division cannot be released on licence unless the person 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.
(2) The Supreme Court must, before determining an application under this section for the release on licence of a person detained in custody under this Division, 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 the person and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person's sexual instincts.
(3) The paramount consideration of the Supreme Court when determining an application under this section for the release on licence of a person detained in custody under this Division must be to protect the safety of the community (whether as individuals or in general).
(4) The Supreme Court must also take the following matters into consideration when determining an application under this section for the release on licence of a person detained in custody under this Division:
(a) the reports of the medical practitioners (as directed and nominated under subsection (2)) provided to the Court;
(b) any relevant evidence or representations that the person may desire to put to the Court;
(c) a report provided to the Court by the appropriate board in accordance with the direction of the Court for the purposes of assisting the Court to determine the application, including—
(i)any opinion of the appropriate board on the effect that the release on licence of the person would have on the safety of the community; and
(ii) a report as to the probable circumstances of the person if the person is released on licence; and
(iii) the recommendation of the appropriate board as to whether the person should be released on licence;
(d)evidence tendered to the Court of the estimated costs directly related to the release of the person on licence;
(e) the reports resulting from the periodic reviews under section 57(15) on the progress and circumstances of the person tendered to the Court;
(f)      any other report required by the Court under section 61;
(g)      any other matter that the Court thinks relevant.
(4a) The Supreme Court, when determining an application under this section, must not have regard to the length of time that the person has spent in custody or may spend in custody if the person is not released on licence.
(5) A copy of any report provided to the Supreme Court under subsection (4) must be given to each party to the proceedings or to counsel for those parties.
(6) On the Supreme Court authorising the release of a person under subsection (1), the appropriate board must order the release of the person on licence on the day specified by the Court.
(7) Subject to this Act, every release of a person on licence under this section is subject to the following conditions:
(a) a condition prohibiting the person from possessing a firearm or ammunition or any part of a firearm;
(b) a condition requiring the person to submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by a person or class of persons or body specified by the appropriate board.
(8) Without limiting subsection (7), the release of a person on licence under this section will be subject to such conditions as the appropriate board thinks fit and specifies in the licence (including a condition that the person be monitored by use of an electronic device approved under section 4 of the Correctional Services Act 1982).
(9) If the Supreme Court has refused a person's application for release on licence, the person may not further apply for release for a period of 6 months, or such lesser or greater period as the Court may have directed on refusing the application.
(10) The appropriate board may—
(a) on application by the DPP or the person, or on its own initiative, vary or revoke a condition of a licence or impose further conditions; or
(b) on application by the DPP, or on its own initiative, cancel the release of a person on licence, if satisfied that—
(i) in the case of a person released on licence on the ground referred to in subsection (1a)(b)—there is evidence suggesting that the person may now present an appreciable risk to the safety of the community (whether as individuals or in general); or
(ii) in any case—the person has contravened, or is likely to contravene, a condition of the licence.
…
(15) A member of the appropriate board may apply to a magistrate for a warrant for the apprehension and return to custody of a person whose release on licence has been cancelled by the board.
(16) A magistrate must, on application under this section, issue a warrant for the apprehension and detention of a person or for the apprehension and return to custody of a person, as the case may require, unless it is apparent, on the face of the application, that no reasonable grounds exist for the issue of the warrant.
…
(20) For the purposes of this section, the appropriate board, in relation to proceedings under this section, means—
(a) if the person the subject of the proceedings is being detained in a training centre, or has been released on licence from a training centre—the Training Centre Review Board;
(b)      in any other case—the Parole Board.
I construe s 59(4)(a) of the Sentencing Act narrowly so that it precludes, as a relevant consideration, the length of indefinite detention in itself. It is, in a sense, the converse of s 59(3) which renders the safety of the community the paramount consideration. The deprivation of the liberty of the applicant, for however long, cannot be accorded any countervailing weight whatsoever. However, it would bind this Court to an absurd counterfactual if subsection (4a) were construed to preclude a consideration of changes in the psychological makeup and degree of self‑control of the applicant in the period during which he or she has been detained whilst in custody.
Section 57(1) of the Sentencing Act defines unwilling to mean:
unwilling—a person to whom this section applies will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of the person's sexual instincts.
I proceed on the basis that significant is not merely the antonym of insignificant. There are some risks which may be neither insignificant nor significant. However, a risk may be significant even it its occurrence is not a probability. The latter proposition falls within the ordinary meaning of the term and is reinforced by s 59(3) of the Sentencing Act.
The reasons of the High Court
The High Court held that the question of whether or not there was a significant risk that an applicant would fail to appropriately control his sexual instincts and the licence conditions which might be imposed were inextricably linked.[1]
[1] Hore v The Queen and Wichen v The Queen (2022) 273 CLR 153 at [55]-[57] (Keane, Gordon, Edelman, Steward and Gleeson JJ).
High Court held that in determining whether to order release for a person on licence pursuant to s 59(1A) (a), this Court is not obliged to reach the state of satisfaction required by the statutory definition of ‘willing’ by excluding from consideration the likely effect of the conditions of the release on licence upon the person’s willingness to exercise appropriate self‑control of his or her sexual instincts.
The High Court’s reasons were as follows:
[55]The courts below adopted the approach urged by the respondent in construing s 59(1a)(a) as if it required a determination of “willingness” as a condition precedent to final consideration of the application for release on licence. One cannot reconcile that approach with the text of s 59(1), which is clear that there is but one determination to be made by the Supreme Court, that determination being whether the person should be granted release on licence. Section 59(1a)(a) simply does not call for a determination as to willingness as an exercise separate from, and anterior to, the determination whether or not to grant release on licence.
[56]True it is that s 59(1a) commands that a determination under s 59(1) may not be made in favour of release on licence unless the person satisfies the Court of the matters in either s 59(1a)(a) or s 59(1a)(b); but the satisfaction required by s 59(1a) is not required to be established by an exercise separate from, and carried out without regard to, the likely behaviour of the person in the circumstances in which the extent of the risk of a failure to exercise appropriate self-control is to be assessed by the Court. The likely effect of the conditions of release on licence upon the strength of the person's commitment to exercising appropriate self-control may have a bearing on the assessment required by the Court. The power conferred by s 59(1) is concerned with whether the Supreme Court should “authorise the release on licence of a person detained in custody under [Div 5]”. Integral to the exercise of that power is consideration of the conditions referred to in s 59(7) and (8).
[57]The evaluation of the person’s capability and willingness for the purposes of s 59(1a)(a) is not concerned, or more precisely not solely concerned, with the person’s capability and willingness at the point in time at which the application for release on licence is determined. Rather, s 59(1a)(a) is vitally concerned with the person’s ongoing capability and willingness to exercise appropriate self-control, on the assumption that the person is released, when any occasion for the exercise of self‑control arises. Since the person cannot be released on licence without the conditions required by s 59(7) and (8), the evaluation of the person’s likely response to an occasion calling for the exercise of the person’s ability to control his or her sexual instincts must also proceed on the assumption that the conditions of the licence are in place on the hypothetical occasion for the exercise of appropriate control. If this assumption is not made, the evaluation of the person’s likely behaviour would proceed by reference to a state of affairs that can never arise under s 59, that is, release on licence without conditions. An intention to enlist the Supreme Court in such an arid exercise cannot be discerned in the legislation.
The possibility of non-compliance with licence conditions must be considered in determining the question of significant risk. The High Court explained:[2]
[58]Section 59, unlike s 58, is concerned with release on licence. There is no suggestion in the text of s 59 that the Court is required or permitted to disregard the likely effect of the conditions of release on licence on the person’s willingness to control the person’s sexual instincts when the Court is assessing whether there is a “significant risk” that the person would, if given an opportunity to commit a relevant offence, fail to exercise appropriate self-control. To say that the conditions of release on licence may have some bearing upon the Court’s assessment of the person’s willingness to control his or her sexual instincts is not to say that the Court must assume that the person will comply with the conditions, or that the Court must ignore the possibility that the conditions will not be effective in bolstering the person’s willingness to exercise self-control. It is simply to acknowledge that consideration of the effect of the conditions on the person’s willingness is integral to the determination whether there is not a “significant risk” that the person will fail to exercise appropriate control upon the person’s release on licence.
[2] Hore v The Queen and Wichen v The Queen (2022) 273 CLR 153 at [58].
The reference to this Court’s obligation to consider the possibility that the conditions will not be effective in bolstering the person’s willingness to exercise self-control suggests that the context in which the conditions operate must also be taken into account. That is to say it is not the bare conditions of the licence which must be considered. The nature of the support services with which the person is obliged to engage must also be considered. It is, in any event, impossible to assess the effect of conditions in bolstering willingness, or the possibility that breaches of the conditions may undermine it, in a therapeutic vacuum.
Earlier findings
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)
The opinion expressed in the last sentence of the cited passage is to the effect that the statutory pre-condition for Mr Wichen’s release is satisfied.
Dr Nambiar and Dr Nguyen were called on the resumed hearing and gave their evidence concurrently. Dr Nambiar testified that, in his opinion, Mr Wichen did have an ability to control his sexual instinct, but that his ability was impaired by intoxication. He noted that Mr Wichen was intoxicated when he committed most of his offences. Dr Nguyen agreed that when not intoxicated Mr Wichen had the ability to control his sexual instincts. He agreed that alcohol impaired but did not take away altogether his ability to control his sexual instincts.
Dr Nambiar opined that Mr Wichen had incorporated his childhood experiences of domestic violence and sexual abuse into his own behaviours. Dr Nambiar also identified the fact that before his imprisonment, Mr Wichen’s life was unstructured and he had no opportunity to adopt a more ‘prosocial’ way of living. Dr Nguyen agreed with the identification of those risk factors and for that reason stressed the importance of building supports around Mr Wichen. Dr Nguyen observed that imprisonment had obstructed Mr Wichen from making ‘further progress prosocially’.
Dr Nambiar emphasised that because Mr Wichen has been in custody, there is little to go on other than his past behaviour. However, I interpolate that a historical perspective must take into account differences in the supportive regimes available to Mr Wichen then and now.
Dr Nambiar accepted that there have been no reports of impulsive behaviour in prison in the last four years, and that in a general sense people become less impulsive as they mature and grow older. However, he cautioned that the degree to which they do so varies from individual to individual and is difficult to assess.
Dr Nambiar accepted, after having spent so much time in prison, Mr Wichen would intellectually understand the prospect of returning to prison should he re‑offend, and would incorporate that prospect as an internal deterrent. In Dr Nambiar’s opinion, that may check his impulsivity to some extent but would not remove the risk that Mr Wichen might act impulsively and breach a condition of his licence.
Dr Nambiar expressed concern that there was a heightened risk of offending when Mr Wichen was stressed or bored, and that providing purpose in life and activities to develop ‘more prosocial’ tendencies when stressed was an important safeguard against re-offending. Those supports included therapy, simply having someone to talk to, and reading or other activities of a domestic nature. Dr Nguyen warned that it was important not to be over confident about Mr Wichen’s coping capacities when stressed or bored.
Both Dr Nambiar and Dr Nguyen commented that Mr Wichen’s sexual offending was often opportunistic and consequential upon, or related to, either general aimlessness or other offending.
Taking up with a poor group of peers or acquaintances was identified by both Dr Nambiar and Dr Nguyen as a risk. Dr Nguyen warned that it was not possible to predict the nature and quality of Mr Wichen’s future social contacts and that undesirable acquaintances and friendships were a risk factor.
Dr Nambiar addressed Mr Wichen’s progress since the last hearing. Dr Nambiar noted that at Mount Gambier Prison, Mr Wichen shared cottage style accommodation with other prisoners. Notwithstanding the potential for conflict with other prisoners in shared accommodation, there was no reported incident of that kind involving Mr Wichen. Nor were there any incidents which manifested in oppositional traits or a disorder. Dr Nambiar noted Mr Wichen’s improved literacy and numeracy skills and his developing sophistication in those skills. Nonetheless, Dr Nambiar cautioned that the environment in prison is an artificial one in that it is carefully controlled and very different to living in the community.
Dr Nguyen viewed favourably Mr Wichen’s ability to convey his understanding of the issues he would face on release. Dr Nguyen explained that Mr Wichen had ‘been able to internalise the information that he’s learnt’. Mr Wichen appeared to be able to ‘apply the things that he had read to various aspects of his life’.
Dr Nambiar stressed the importance of finding appropriate accommodation in locations where more resources were available such as the metropolitan area. Dr Nguyen agreed.
Dr Nambiar emphasised the desirability of a step-down approach in transitioning Mr Wichen from detention to the community. He referred to those persons with major psychiatric conditions who are detained on the ground of unfitness to plead or incompetence to commit a crime. Their re-integration into the community commences with around the clock close supervision. Support services are available on call. However, at the same time some flexibility is allowed to give them time alone.
Dr Nambiar thought that passive overnight attendance was necessary even if Mr Wichen was subject to electronic monitoring, so that should Mr Wichen break out, the supervisor could trigger an alarm. Dr Nambiar continued:
Now, it’s hard to say what he would do, you know, whether he would run away so that he couldn’t be found easily, use drugs, possibly offend. I mean, that’s the risk I’m talking about. Supports are a different thing in terms of therapy, so for example, if he felt stressed and needed to speak to someone, either someone in person or someone he could ring on the phone whom he trusts I think that is important too.
Dr Nambiar elaborated on why he thought that close all day and night personal supervision was necessary. First, he mentioned the institutionalisation of Mr Wichen in the decades of imprisonment in which he had been effectively supervised 24 hours a day. Secondly, the monitoring of Mr Wichen would reveal how Mr Wichen reacts when he is bored, and whether he employs useful strategies to alleviate boredom or, on the other hand looks to break out of his confinement. Thirdly, a supervisor might be able to ‘talk him down’ and persuade him to stick to the conditions of his licence. Dr Nambiar did not think that monitoring by using a smart phone or associated applications was a substitute for someone being present.
Dr Nambiar explained his hope that close supervision would reduce any material risk that Mr Wichen would harm another after his release on licence as follows:
‘It’s mainly in terms of the level of supervision. So the reporting is one thing, but it’s accounting for him 24 hours a day, and I think that there are large gaps, and that’s my concern, that in those periods of time if he were to run away, break his bracelet, his phone wasn’t charged, how could we account for where he was and what he was doing in that short space of time. All he needed to do was drink some alcohol perhaps if he craved for it, and it’s commonly known that people who leave custody who have an alcohol problem in the past or use drugs, tend to crave it because it’s available, even if they say they won’t. If he were to do that, we know what he is capable of, the last thing I would want for him would be to harm another person in that way in that period of time when he can’t be accounted for. So I think in the first instance he needs to be accounted for 24 hours a day.’
I interpolate here that the fear expressed in the penultimate sentence of that passage is universally shared. The legislation precludes Mr Wichen’s release on licence if there is a significant risk that, given the opportunity, he will fail to exercise appropriate control of his sexual instincts. The question on this application is not whether all risk has been eliminated. It is whether there is no significant risk that he will fail to exercise appropriate control. Section 59 of the Sentencing Act places the burden of answering that question, not on reporting medical practitioners, but on the judges of this Court.
Dr Nguyen thought that the proposed conditions ‘on face value’ provide much ‘support’ and limit his ability to be in a situation where he might have an opportunity to commit another offence. Dr Nambiar agreed that the structure proposed by the conditions would be very useful in relieving boredom and stress but he reiterated his concern was that it did not provide 24 hour supervision.
Dr Nguyen agreed that Mr Wichen would benefit from the programs described n Mr Wichen’s proposed draft weekly schedule (Appendix A).
Dr Nambiar explained that he had assessed and reported on a high number of releases on licence of offenders subject to orders under the Criminal Law (High Risk Offenders) Act 2015 (SA), but that very few sexual offenders had been released on licence pursuant to s 59 of the Sentencing Act or its predecessor. Dr Nambiar elaborated that very few sex offenders had re-offended but all had returned to prison for breaching the conditions of their release. In respect of the supervised released of persons with mental impairment, a major risk which had been encountered was visits from persons who supplied drugs or alcohol.
However, in Dr Nambiar’s opinion was it was more likely than not that Mr Wichen would breach a condition during his period of release on licence given his past history.
Dr Nguyen acknowledged that his experience in making assessments for release ‘is much more limited’ than Dr Nambiar’s. He is not experienced in reviews of release on licence. Both Dr Nambiar and Dr Nguyen considered it significant that Mr Wichen had not tested positive for drug use for some years. A test in 2020 and another in 2021 were negative. He has been tested three times in 2022 and all tests were negative.
As to the proposed conditions and supports Dr Nguyen testified that he had ‘weighed heavily on the aspect of being given an opportunity’. He continued:
… at face value given the supports that were outlined I suppose in principle I think that he could be willing to control his sexual instincts if he was highly supported’.
Dr Nambiar was cautious about making a prediction concerning Mr Wichen’s likely level of co-operation with the supports that might be incorporated into licence conditions. He noted that historically Mr Wichen’s co‑operation had not been good but continued:
‘I guess the incentive for him is that he’s being released and he has freedom, so he may be more willing to cooperate with that given the length of time as you mentioned he spent in custody.’
The primary risks identified by Dr Nambiar and Dr Nguyen were:
·Boredom – if Mr Wichen’s activities were not structured and occupied him fully during the day, and at night when he was not supervised, the regime under which he was released might not be sufficient to reduce the risk of reoffending.
·Associations with people who drink or take drugs – such associations may pull Mr Wichen back into alcohol abuse or drug taking with a consequential diminution in his ability or inclination to control his sexual instincts.
The evidence of Dr Nambiar and Dr Nguyen about the importance of appropriate accommodation prompted me to ask Mr Wichen’s counsel to provide me with information about his accommodation and living circumstances at the time of his earlier offending. At the time of the assault with intent to rape and associated offences committed on 25 October 1991 at Port Augusta, Mr Wichen’s address was Davenport Reserve via Port Augusta. In sentencing submissions made in respect of that offence, Mr Wichen’s counsel explained that he had lived with his mother in Port Augusta until her death ten months before the offending. At the time of that offending, Mr Wichen was living with his father at Davenport Reserve and was drinking heavily.
In respect of the offences of attempted rape and unlawful imprisonment committed on 13 November 1993 at Port Augusta, Mr Wichen’s address on the Information was again Davenport Reserve. The offences were committed in Port Augusta not quite four weeks after his release on parole on 5 October 1993. He was homeless at the time of that offending. He had not returned to live with his father because of conflict between them.
In respect of the offences of robbery with violence and assault with intent to rape at Port Lincoln on 6 October 1997, Mr Wichen’s address on the Information was Forster Street Port Augusta. Mr Wichen had been released from prison early in 1997. In sentencing submissions in respect of those offences, it was said that Mr Wichen was living with aunts on Davenport Reserve but would often leave that community and live on the streets. Immediately before the offences, he went to Port Lincoln to watch the football grand final but then stayed there. He did not have stable accommodation: he reported that he was ‘couch sleeping’.
At the time of the assault with intent to rape and aggravated serious criminal trespass offending on 25 April 2002 at Port Augusta, Mr Wichen was living with his partner in what was an unstable personal relationship motivated primarily by his own desire to secure accommodation for himself.
The DPP obtained addendum reports from Dr Nambiar and Dr Nguyen on the significance of the circumstances disclosed in the letter from Mr Wichen’s counsel. In Dr Nambiar’s further supplementary report of dated 8 December 2022, Dr Nambiar expressed the following opinion:
As previously stated in my supplementary report dated 10/10/2022, Mr Wichen’s capacity for rehabilitation is limited in the context of a well-established anti-social Personality Disorder. His ability to follow direction under supervision has previously been a problem and potentially remains a problem for the future. Although stable accommodation improves his level of supervision and is a necessary component of a successful release plan, Mr Wichen’s performance in custody, particularly in relation to his learnings derived from the SBC-Me Program are yet to be tested.
In his report dated 16 December 2022, Dr Nguyen described the disclosed ‘pattern of unstable housing’, together with troubled relationships as ‘destabilising influences’. He expressed concern that accommodation for Mr Wichen was yet to be confirmed. He repeated his concern that the support to transition to the community ‘be at all times and as a proximate stand-by arrangement at the least’.
In a reversal of the opinion given in his first report, Dr Nguyen expressed the opinion that Mr Wichen would be ‘unwilling to control his sexual instincts as defined by the Act’.
I accept, and find, that Mr Wichen’s offending has been the product, primarily, of his psychosexual dysfunction which developed in the course of his youth. However, it is the institutional experience of this Court that unstable accommodation and an unstructured aimless lifestyle are commonly associated with a wide range of offending. In that sense they may be described as criminogenic factors. Put in another way, it is a matter of human experience that secure and stable accommodation, sufficient financial and other support to ensure a basic standard of living, and interpersonal and community connectivity can engender, what both Dr Nambiar and Dr Nguyen described as, a ‘prosocial’ approach to life. By that I understand them to mean a respectful and empathetic outlook and an acceptance of social norms.
In the course of the evidence Mr Wichen gave in the first hearing, he explained that he wanted to live in a flat with a small second bedroom in which his daughter might sleep if she visited. He described how, applying skills he had learnt from his detention in cottage style accommodation, he would budget and buy groceries and other foodstuffs to cook his own meals. I was left with the strong impression that taking responsibility for his own life in that way had assumed great importance for Mr Wichen.
The provision of the basic needs to which I referred contributes to a pro‑social outlook for a number of reasons: it integrates the individual with the broader community and counteracts marginalisation and a sense of otherness.
Persons with financial security and supportive connections with their community are likely to be reluctant to jeopardise their position by engaging in antisocial behaviour. The critical question is whether there is a significant risk that Mr Wichen’s psychosexual dysfunction will break through despite those supports and compromise his willingness to exercise appropriate control of his sexual instincts.
Parole Board report
The Parole Board provided a report which was received on the first hearing. A further report dated 4 October 2022 was provided for the resumed hearing. The Parole Board interviewed Mr Wichen on 4 May 2021 but did not interview him again after the decision of the High Court, or for the specific purpose of providing a report on the particular questions which that decision requires me to address. The report does not indicate the conditions which the Parole Board would be minded to impose if Mr Wichen were released on licence.
The Parole Board report makes the unsurprising observation that Mr Wichen is highly institutionalised; he has been in custody for more than two decades. The Parole Board made the equally unsurprising observation that it would be challenging to release Mr Wichen without extensive re-socialisation and noted that it was a matter for the Department for Correctional Services whether it would make that support available to Mr Wichen.
The opinion of the Parole Board was that it would be best to place Mr Wichen in supported accommodation, but again observed that there was a shortage of supported accommodation and, indeed, public housing more generally. The Parole Board also reported that Mr Wichen had no family support. That is not strictly correct. He has maintained contact with his aunt, Lily Wilton, who came and sat in Court during both hearings. Of course, after two decades of imprisonment, Mr Wichen does not have a wide social circle to support him on his release. The Parole Board observed that Mr Wichen requires psychological intervention and recommended that he be monitored for substance abuse and attend substance abuse counselling. The Parole Board also recommended that Mr Wichen be provided with a daily living structure with the assistance of an external agency. The Board recommended that a case manager, who was experienced in working with individuals released on licence with limited cognitive capacity and a history of sexual offending, be assigned to Mr Wichen because he would require intensive supervision.

The Parole Board’s report of its interview of Mr Wichen on 4 May 2021 is as follows:
He said that he accepted that what he did when he raped the 65‑year‑old in her own home was wrong, but denied that there was any “sexual idea in my mind in the first place”. He asserted that he was intoxicated, although the evidence at trial indicated that he was not affected by alcohol. It was pointed out to Mr Wichen that he had a history of sexual offending including on at least two occasions when he sexually assaulted a woman in her own home. He again asserted that he “never went there with the intentions of doing a sexual crime” and “I did go and do a house‑break, there was no sexual things in my mind to go and sexually assault someone” but “because I come in contact with a woman I thought in a different way when I should not have”. The Parole Board considered that Mr Wichen had little, if any, insight into his motivation for sexual offending and did not appreciate his risk. He has had significant intervention to deal with those factors and, in our view, has not benefited sufficiently from that intervention to the extent could be safely managed in the community.
Pre-Sentence report
A pre‑sentence report prepared by Mr Jason Meyer, an officer of the Community Courts Unit, was received into evidence. Mr Meyer explained that the Department of Correctional Services could not arrange day leave during a period of transition from detention into the community on licence whilst he was at Mount Gambier Prison.
4.2. The ability of the Department of Correctional Services to provide adequate supervision for the applicant to be released for certain hours during the day in preparation for a full release on licence
The Department for Correctional Services does not have the ability to provide adequate supervision for the applicant to be released for certain hours during the day in preparation for a full release on licence.
The defendant’s current location at the Mount Gambier Prison reflects the applicant’s risk profile. This profile has previously been established based on the applicant’s ‘sentence type, security rating, escape history, and his assessed level of re-offending’. Mount Gambier Prison does not facilitate off-site reintegration programs that would enable the applicant to be released for certain hours during the day. A similar institution where prisoners with similar risk profiles are held also does not facilitate off-site reintegration programs.
Institutions that provide off-site opportunities are considered low security facilities and enable prisoners as part of their individual ‘structured release’ program to participate. The criteria for prisoners to be able to engage in such programs that include off-site opportunities are that they are accommodated at the department’s low security facility.
The opportunity for the applicant to be located at a low security facility is unavailable based on the applicant’s risk and offending profile.
A ‘release for certain hours’ for the applicant is therefore not an available option.
His release to full licence would therefore be the only option available given the ability of the department to facilitate such a process, but more especially as a reflection of the applicant’s risk and offending profile and subsequent programmes available at each of the facilities.
If the applicant were to be released to full licence, the department requests the court acknowledge and provide an amount of time commensurate with organising and coordinating the specialised supports, accommodation, services and resources required to successfully help the applicant reintegrate into the community.
I have foreshadowed my finding that there is not a significant risk that Mr Wichen will fail to exercise appropriate self‑control if properly accommodated and the proposed conditions are imposed, but plainly enough a period of transition is likely to safeguard against such lesser risk as there may be. It is for the Department of Correctional Services to consider its placement of Mr Wichen at Mount Gambier and consider whether or not to transfer him to a location in Adelaide which allows for some continued transitional periods of release before Mr Wichen is released.
Importantly, Mr Meyer’s report outlines the potentially transformative support from the NDIS and the ALRM Prisoner Core Program which would be available to Mr Wichen on his release which were not available when he was last released into the community in 2001.
The Prisoner Care Program (Aboriginal Legal Rights Movement)
The Court received into evidence a letter from Ms Pippa Edge, Prisoner Care Program Coordinator for the Aboriginal Legal Rights Movement, in support of Mr Wichen’s application. The report sets out Mr Wichen’s participation in the Prisoner Care Program:
To date, Mr Wichen has engaged with the PCP program on 4 occasions via phone link during which rapport was established and a description of the program, client rights and responsibilities was exchanged. He presents as friendly, cooperative and speaks with honesty and conviction. Whilst a formal assessment has not yet been conducted, Mr Wichen has engaged in informal case plan discussions identifying his needs and goals. It is anticipated that his assessment will be conducted over the next 2-3 sessions for formal case plan development to follow.
PCP have agreed to collaborate with other stakeholders to be a part of the support network reviewing Mr Wichen’s pre-release plan. As aforementioned, PCP can continue support post release for a duration of 2 years. Support includes 1:1 case management with an Aboriginal Case Worker who can assist with implementation, review and monitoring of case plan goals, transport to appointments, referrals to agencies, advocacy and liaison with other stakeholders and supports and provision of small funding grants to aid achievement of case plan related goals.
During his time in prison, Mr Wichen has been actively involved in sport and fitness activities, education (Literacy and Numeracy), Smart Recovery Program, Our Way My Choice and Alcohol and Other Drug counselling. Mr Wichen used his initiative to further progress his reading skills by accessing self-help resources to learn more about mental health and trauma management. He has ascertained an increased self-awareness and insight into his mental health and alcohol use in the context of past trauma which has motivated him to seek out further professional help. He has been referred to a private psychologist, Mr Kym Schellen, who will conduct phone link therapy sessions with Mr Wichen which can continue post release.
…
Mr Wichen has identified a number of goals he is keen to pursue in the future including;
-TAFE studies to further advance his literacy and numeracy skills
-Alcohol and other drug counselling engagement
-Psychological intervention
-Accessing stable and affordable housing
-Cultural connection
-Men’s group attendance for social engagement and prevention of loneliness and isolation
-Employment in a hand on/manual labour role (worked on cattle stations in the past)
-Obtaining his driver’s licence
-Engaging in hobbies including sport, bush activities, cultural activities, horse and motorbike riding
Achievement of these goals and others can be supported via Mr Wichen’s NDIS support in conjunction with his other support networks including;
-Prisoner Care Program (PCP) – (Case Worker, Sandra Traeger and PCP Coordinator, Pippa Edge)
-SYC Navigation Service – Justin
-Timmy (AOD Counsellor – Mission Australia, Life Without Barriers)
-Kym Schellen (Private Psychologist)
-Case Manager Coordinator (DCS – Amanda Stephenson)
…
PCP remain committed to working with Mr Wichen as he continues to strive and focus towards his psychosocial and emotional wellbeing goals and future ambitions. He has shown commitment, willingness and motivation to seek and access support and has been able to identify some clear and achievable short, medium and long-term goals. Furthermore, the appointment of an NDIS Support Coordinator will allow more specific goals and support to be incorporated into his release plan.
Mr Wichen is entitled to a substantial NDIS package which is likely to be augmented on his release. It currently provides funding as follows:
Core supports   $48,001.72
Transport 1184.00  $1,784.00
Capacity building supports         $20,585.51
I attach as Appendix A a day to day activity schedule which Mr Wichen’s counsel submits is, on the material provided, achievable.
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.
The structured support and safeguards which are contemplated are substantial. In particular the proposed supervision and case management by ALRM’s Prisoner Care Program is likely to be culturally calibrated, thereby enhancing its prospects of success, unlike mainstream services. The resources provided by NDIS will also substantially contribute to the supports which will strengthen Mr Wichen’s resolve to control his sexual instincts appropriately.
I accept that there is a material risk that Mr Wichen will not always comply with all of the conditions of his release. However, that risk, in large part, is the product of the comprehensive set of conditions on which he would be released and which are calculated to bolster his willingness to exercise appropriate self-control. A breach of a condition may lead to his detention before the point is reached at which he is no longer minded to exercise self-control, or at least before an opportunity to commit a sexual offence presents itself. That is the experience of Dr Nambiar in respect of other persons released on licence. I am satisfied that there is not a significant risk that Mr Wichen will fail to exercise appropriate control of his sexual instincts if released under the proposed licence conditions, despite the risk that he will not abide by all of the conditions of his release at all times.
My finding is not premised on close personal supervision around the clock. The Department for Correctional Services does not propose to provide that supervision. Supervision overnight might be arranged in the transition period through the Prisoner Care Program and the NDIS but I treat that as a possibility only. Nonetheless, if Mr Wichen is provided the supports identified in Appendix A on conditions such as those proposed in Appendix B, I am satisfied that there is not a significant risk that he will fail to exercise control even if he is unsupervised for some part of the day or overnight. The activities in which he will have engaged during each day and his awareness of the activities which are scheduled for the next day, together with the ability to contact and speak with persons supporting him, will sufficiently manage and safeguard against the risk of breach and offending as to satisfy me that the risk is not significant.
I have published my findings of fact to the effect that there is not a significant risk that Mr Wichen will fail to exercise appropriate control of his sexual instincts if he is released on the proposed conditions and supported in the community in the way which is proposed to allow arrangements to be put in place for Mr Wichen’s release. I propose, subject to confirmation of the availability of suitable accommodation and the imposition of suitable conditions by the Parole Board, to order Mr Wichen’s release on licence in February 2023.   I will hear the parties as to when this application should be listed for the purposes of receiving reports on the conditions the Parole Board proposes to impose and on the accommodation which has been arranged for Mr Wichen.
Appendix A
Jacob Wichen
Draft weekly schedule
Monday
am           Attend Community Corrections Officer (CCO) at DCS office
pm                   Phone link or appointment with psychologist
Tuesday
am           Alcohol and Other Drugs course (Mission Australia)
pm            Personal fitness Nunkuwarrin Yunti gym
Wednesday
am           Tauondi College literacy and numeracy course
pm       Tauondi College literacy and numeracy course
Thursday
amAboriginal Community Connect men’s group
pmPersonal fitness Nunkuwarrin Yunti gym
Friday
amActivity as directed by ALRM Prisoner Care Program pm Attend CCO at DCS office
Saturday
am           Domestic duties
pmSupervised recreational activity eg watching or participating in local sporting activity
Sunday
am           Recreational reading
pm           Supervised recreational activity eg bushwalking
Appendix B
Wichen – Proposed Conditions
1.That you be of good behaviour and do not commit any breach of the law.
2.That you be under the supervision of a Community Corrections Officer appointed by the Parole Board of South Australia and that you obey the directions of the appointed officer (in this order referred to as your “Community Corrections Officer”).
3.That you carry out faithfully all instructions and requirements of the Community Corrections Officer and/or Home Detention Officer under whose supervision you have, from time to time, been placed.
4.That you attend for interviews as and when required by your Community Corrections Officer.
5.That you follow your Community Correction Officer’s direction in relation to the people with whom you associate.
6.That you do not depart or attempt to depart from the State of South Australia without the prior (written) permission of the Parole Board.
7.That unless and until an alternative residence is approved by the Parole Board, you shall reside at ...
8.That you wear a GPS tracking device.
9.That you do not change your place of residence without the prior written permission of the Parole Board.
10.That you report in person to, and meet with, your Community Corrections Officer under whose supervision you have from time to time been placed, when directed.
11.That you be subject to electronic monitoring [GPS]. Upon your release from custody the Parole Board directs that you be subject to an intensive supervision regime with the Intensive Compliance Unit (ICU), including electronic monitoring for such time as the Parole Board shall determine, and that you obey all directions, requirements and rules of the ICU program, and comply with the directions of the ICU officer under whose supervision you are placed. You are directed to travel directly to ... on your release and immediately telephone the ICU Office on tel: no ...
12.That you use the mobile telephone provided by your Community Corrections Officer only for the purpose of making contact with Home Detention Officers in a situation of emergency.
13.That you abstain from alcohol.
14.That you advise your Community Corrections Officer of any drug that has been prescribed to you by a legally qualified Medical Practitioner.
15.That you do not enter upon or remain upon any licensed premises.
16.That you comply with the planned schedule of weekly activities and appointments provided to you by your Community Corrections Officer and/or Home Detention Officer and comply with your approved leave passes.
17.That you undertake 1:1 counselling or other intervention as directed by your Community Corrections Officer to address your sexual offending.
18.That you attend the Special Needs Program of Community Service at the direction of your Community Corrections Officer and comply with any directions given by the program staff.
19.That you undertake and complete a psychiatric assessment at the direction of your Community Corrections Officer and that you thereafter undertake and co-operate with such treatment as is recommended.
20.That you take such medication as your treating psychiatrist shall prescribe.
21.That you undertake and complete a psychological assessment at the direction of your Community Corrections Officer and that you thereafter undertake and co-operate with such treatment as is recommended.
22.That you present yourself for urine testing as and where directed by your Community Corrections Officer and that you do all things and sign all such forms as may be necessary to enable this, the said urine to be analysed and the results of such analysis provided to your Community Corrections Officer and/or the Parole Board.
23.That you submit to any breath testing analysis as directed by your Community Corrections Officer.
24.That you shall not possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article unless you have first obtained the written permission of the Parole Board to do so and comply with the terms and conditions of that permission.