Wichen v The Queen

Case [2021] SASCA 30

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

WICHEN v THE QUEEN

[2021] SASCA 30

Judgment of the Court of Appeal  

(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Bleby)

7 May 2021

CRIMINAL LAW - APPEAL AND NEW TRIAL

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE

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

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES

Appeal against a refusal of an application for release from custody on licence, pursuant to s 59 of the Sentencing Act 2017 (SA).

On 4 November 2011, this Court found the appellant to be incapable of controlling his sexual instincts. It directed that the appellant be detained in custody until further order, pursuant to s 23 of the now-repealed Criminal Law (Sentencing) Act 1988 (SA) (the repealed Act).

On 6 November 2017, the appellant filed an application for release on licence pursuant to s 24(1) of the repealed Act. That Act was replaced by the Sentencing Act 2017 (SA) (Sentencing Act) in April 2018. By operation of the transitional provisions in Sch 1 of the Sentencing Act, the application was required to be determined pursuant to s 59 of that Act.

On 26 August 2020, Kourakis CJ refused the application, having found that he was precluded from being satisfied that the appellant was ‘willing’ to control his sexual instincts within the meaning of s 59(1a) of the Sentencing Act. Having made that finding, he referred to the evidence of the psychiatrist, Dr Nambiar, to the effect that it would be ideal for the appellant to be released gradually into the community under a ‘stepped down’ model. However, he held that this approach was not permitted by s 59.

The appellant challenges Kourakis CJ’s finding that the word ‘willing’ in s 59(1a) has a meaning that is the converse of the defined term ‘unwilling’ in s 57, and his finding that a ‘stepped down’ approach is not permitted by s 59 of the Sentencing Act.

Held, dismissing the appeal:

1. The word ‘willing’ in s 59(1a)(a) has a meaning that is the opposite to the defined term ‘unwilling’ in s 57(1).

2. Section 59(1a)(a) makes it clear that a person detained cannot be released on licence unless they satisfy the Court of the matters specified therein. The power to release on licence is enlivened only on satisfaction of those matters. The question of the conditions to be imposed on release only arises once the Court is so satisfied.

Sentencing Act 2017 (SA) ss 57, 58, 59, Sch 1; Criminal Law (Sentencing) Act 1988 (SA) ss 23, 24(1); Criminal Law Consolidation Act 1935 (SA) ss 170(2), 270B, referred to.

Wichen v The Queen [2020] SASC 157, discussed.

R v Iwanczenko [2019] SASC 140; R v Wichen (No 2) [2011] SASC…

Continue reading Wichen v The Queen

Sign in free to access the full text

Details
AGLC
Wichen v The Queen [2021] SASCA 30
Case
[2021] SASCA 30
Decision Date

CaseChat Overview and Summary

The appeal concerned the interpretation of provisions relating to the release on licence of a dangerous sexual offender. The appellant, who had pleaded guilty to aggravated serious criminal trespass and assault with intent to rape, had previously been found incapable of controlling his sexual instincts and detained in custody. He subsequently applied for release on licence, which was refused by the Chief Justice on the basis that the appellant was not "willing" to control his sexual instincts as required by s 59(1a)(a) of the Sentencing Act 2017 (SA). The appeal was heard by the Full Court of the Supreme Court of South Australia.

The central legal issue before the Full Court was whether s 59 of the Sentencing Act permitted a "stepped down" approach to release on licence, whereby a person unable to satisfy the court of their willingness to control their sexual instincts might still be released if such release, under licence conditions, would render them willing in the statutory sense. This involved determining the meaning of the word "willing" in s 59(1a)(a) and the sequence in which the statutory requirements for release on licence must be satisfied.

The Full Court dismissed the appeal, holding that the word "willing" in s 59(1a)(a) is the direct opposite of "unwilling". It reasoned that s 59(1a)(a) clearly mandates that a person detained cannot be released on licence unless they first satisfy the court of the matters specified therein, including being willing to control their sexual instincts. The power to release on licence is only enlivened upon satisfaction of these threshold matters. Consequently, the question of imposing conditions on release, such as those contemplated by a "stepped down" model, only arises after the court is satisfied of the appellant's willingness to control his sexual instincts. The court affirmed that even if satisfied on these threshold questions, the court retains a discretion regarding release.

Orders

Orders of the court

Held, dismissing the appeal:

1. The word ‘willing’ in s 59(1a)(a) has a meaning that is the opposite to the defined term ‘unwilling’ in s 57(1).

2. Section 59(1a)(a) makes it clear that a person detained cannot be released on licence unless they satisfy the Court of the matters specified therein. The power to release on licence is enlivened only on satisfaction of those matters. The question of the conditions to be imposed on release only arises once the Court is so satisfied.

Background

Background to the litigation

The second issue is whether s 59 permits what may be described as a ‘stepped down’ approach to release on licence. This contemplates that if a person is unable to satisfy the Court that they are both capable of and willing to control their sexual instincts, the Court then turns to s 59 to ascertain whether, if released on licence under conditions mandated by s 59(7) and permitted by s 59(8), they would in that circumstance be capable and willing in the statutory sense.Background On 5 February 2003, the appellant pleaded guilty to one count of aggravated serious criminal trespass[1] and one count of assault with intent to rape.[2] The offending occurred on 25 April 2002, when the appellant broke into the home of a 65-year-old woman and attacked her. The appellant was 28 years old at the time of the offending. On 26 July 2005, he was sentenced to 10 years’ imprisonment. The appellant has a lengthy antecedent history of serious sexual offending.[3][1] Contrary to s 170(2) of the Criminal Law Consolidation Act 1935 (SA).[2] Contrary to s 270B of the Criminal Law Consolidation Act 1935 (SA).[3] Wichen v The Queen [2020] SASC 157 at [6]-[10], R v Wichen (No 2) [2011] SASC 194 at [26]. On 4 November 2011, following an application by the Director of Public Prosecutions, this Court found the appellant to be incapable of controlling his sexual instincts. It directed that he be detained in custody until further order, pursuant to s 23 of the now-repealed Criminal Law (Sentencing) Act1988 (SA) (‘the repealed Act’).[4][4] R v Wichen(No 2) [2011] SASC 194. On 6 November 2017, the appellant filed an application for release on licence pursuant to s 24(1) of the repealed Act. That Act was repealed and replaced by the Sentencing Act in April 2018. By operation of the transitional provisions in Sch 1 of the Sentencing Act, the application was required to be determined pursuant to s 59 of that Act. On 26 August 2020, the Chief Justice refused the application, having found that he was precluded from being satisfied that the appellant was ‘willing’ to control his sexual instincts within the meaning of s 59(1a) of the Sentencing Act.[5] Having made that finding, he referred to the evidence of the psychiatrist, Dr Nambiar, to the effect that it would be ideal for the appellant to be released gradually into the community under a ‘stepped down’ model, which Dr Nambiar explained in oral evidence:[6]ASo as I alluded to earlier, it’s best to take a stepped down approach. So he’s currently in an environment where there is total control, within reason. The next step, if he were moved to the community, would be to have him monitored at all times and one way that’s currently being employed to do that is electronic monitoring and home detention, obviously it’s not for me to advise the court about that but that’s what I’m aware of and that would be the obvious next step.[5] Wichen v The Queen [2020] SASC 157 at [123]-[125].[6] Appeal Book 108-109. The appellant’s counsel went on to explain an ideal model, which resource restrictions within the Department of Corrections may not have allowed for, but with which Dr Nambiar agreed: QBecause ideally would it be better if he were moved to a regime within the walls of the prison where he had greater autonomy over his day-to-day activities, determining when he got up, when he showered, cooking for himself, cleaning his own unit and then from there had accompanied leave into the community and then accompanied leave to a job in the community and then unaccompanied leave to his job, each night coming back to the custodial environment, and then slowly relaxing to the point where he’s in the community ultimately on his own…AYes, that’s an alternative model, yes.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

To this end, we agree with the reasoning of Hughes J in R v Hore.[21] Where the Court is satisfied that the person is both capable of controlling and willing to control their sexual instincts, that does not mean that all risk is removed. Further, the Court still has a discretion. We agree with Hughes J that the balance of s 59 is directed to other factors to be incorporated into the decision whether to release, following determination of the threshold questions. We dismiss Ground 3.[21] R v Hore [2020] SASC 194 at [99]–[101].Conclusion For these reasons, we dismiss the appeal.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.