Wichen v The Queen - [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 It directed that the appellant be detained in custody until further order, pursuant to s 23 of the now-repealed Criminal Law (Sentencing) Act 1988 (SA) (the repealed Act).
On 6 November 2017, the appellant filed an application for release on licence pursuant to s 24(1) of the repealed Act.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 194; Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309; Coco v The Queen (1994) 179 CLR 427; Lacey v Attorney-General (Qld) (2011) 242 CLR 573; Lee v NSW Crime Commission (2013) 251 CLR 196; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459; Attorney-General (SA) v Moyle [2018] SASC 106; Attorney-General (SA) v Duroux (2019) 278 A Crim R 375; Thomas v Attorney-General (SA) (2019) 133 SASR 302; R v Hore [2020] SASC 194, considered.

WICHEN v THE QUEEN
[2021] SASCA 30

Court of Appeal – Criminal: Kelly P, Lovell and Bleby JJA

THE COURT: Division 5 of Part 3 of the Sentencing Act 2017 (SA) (‘SentencingAct’), which encompasses ss 56 to 67 of that Act, is expressed to apply in respect of offenders incapable of controlling, or unwilling to control, their sexual instincts. This appeal, being against a refusal of an application for release from custody on licence pursuant to s 59, raises two issues of construction of that section.
Pursuant to s 57(7) of the Sentencing Act, the Supreme Court may order that a person to whom the section applies be detained in custody until further order if satisfied that the order is appropriate. One consideration relevant to making such an order is whether the person is incapable of controlling, or unwilling to control, their sexual instincts. Where a person is so detained, s 59 permits the Court to authorise release of the person on licence. To this end, s 59(1a) imposes a threshold test: the person must satisfy the Court that they are both capable of controlling and willing to control their sexual instincts. The first issue arising on the appeal is whether the word ‘willing’ in this section has a meaning that is the converse of the defined term ‘unwilling’ in s 57.
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.
The Chief Justice observed that such a course would be optimal from the perspective of maximising the appellant’s potential for rehabilitation:[7]
I am confident that if he were released on licence with conditions properly safeguarding against reoffending, Mr Wichen is likely to be appropriately socialised into the community in a way which would, over time, show that there is not a significant risk of re-offending.
[7] Wichen v The Queen [2020] SASC 157 at [124].
However, he held that this approach was not permitted by s 59 of the Sentencing Act, observing that absent such an opportunity, there was little prospect that the appellant would be released until he met the criterion of infirmity provided in s 59(1a)(b), a result of the legislative scheme that he described as ‘undoubtedly harsh, and some may say cruel’.[8]
[8] Wichen v The Queen [2020] SASC 157 at [124].
The appeal
The two issues that we have identified as arising are voiced in the three grounds of appeal that the appellant advances:
1.The learned Chief Justice erred in concluding ([2020] SASC 157 at [110]) that the meaning of the word “willing” in s59(1a) of the Sentencing Act 2017 (SA) (“the Act”) is the converse of the definition of the word “unwilling” in s57 of the Act.
2.The learned Chief Justice erred in finding ([2020] SASC 157 at [110]) that ss 57, 58 and 59 of the Act only provide a coherent regime if the word ‘willing’ in s59 is the converse of the word ‘unwilling’ in s57.
3.The learned Chief Justice erred in finding ([2020] SASC 157 at [124]) that a “stepped down” approach is not permitted by s59 of the Act.
The Sentencing Act
Section 57(7) of the Sentencing Act permits the Supreme Court to order that ‘a person to whom this section applies be detained in custody until further order, if satisfied that the order is appropriate’. Section 57(1) contains various definitions which, on their face, are given for the purpose of s 57. Thus a ‘person to whom this section applies’ is defined in the following way:
(1) In this section—
…
person to whom this section applies means—
(a) a person convicted by the Supreme Court of a relevant offence; or
(b)a person remanded by the District Court or the Magistrates Court under subsection (2) to be dealt with by the Supreme Court under this section; or
(c)a person who is the subject of an application by the Attorney‑General under subsection (3);
That definition exists for the purpose of delineating the class of persons susceptible to an order under s 57(7). Section 57(6) places a directive upon the Court as to a step it must take before determining whether to make an order under s 57(7):
(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.
(Emphasis added)
‘Unwilling’ is defined in the section in terms that differ from the ordinary meaning of the word, that is, not being disposed, ready, prepared or eager to do something. The statutory definition appears as follows:
(1) In this section—
…
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.
Not only does this definition depart from the ordinary meaning, but there is a further curiosity about it. The balance of the definitions in s 57(1) are expressed in the same form as is the definition of ‘a person to whom this section applies’, that is, in the form:
(1) In this section—
…
person to whom this section applies means—
[…]
By contrast, the definition of ‘unwilling’ does not use the form ‘In this section… means...’. The definition of the word is still prefaced with the words, ‘In this section…’, so there nevertheless remains a textual confinement of the definition to the section.
Section 58 then provides for the discharging of an order for detention. As is logical, s 58(1) makes that provision in respect of ‘a person subject to an order for detention under section 57’. At the risk of dwelling on the obvious, such a person was, at the time that order was made, a person to whom s 57 applied and was made the subject of at least two reports on whether they were incapable of controlling, or unwilling to control, their sexual instincts.
Section 58(1a) then imposes a threshold test before an order under s 57 can be discharged:
(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.
To this end, s 58(2) then places a directive on the Supreme Court that is, in terms, of the same effect as the directive in s 57(6):
(2)The Supreme Court must, before determining an application under this section for the discharge of an order for detention under section 57, 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 subject to the order and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person's sexual instincts.
Section 59 provides for a regime of release on licence of a person detained in custody ‘under this Division’. While it uses different language from that in s 58(1), it can still only be referring to a person detained in custody under s 57. Again, any such person was, at the time, made the subject of at least two reports on whether they were incapable of controlling, or unwilling to control, their sexual instincts.
Section 59 then imposes the same preconditions to release on licence as exist for a discharge under s 58:
(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.
Interpretation of the word ‘willing’ in s 59
The Chief Justice concluded that the serious abuse to which the appellant was exposed as a child and his innate disposition manifested by his previous offending precluded him from being satisfied that the appellant was ‘willing’, within the statutory meaning of that term, to control his sexual instincts.[9] In doing so, he rejected a submission that the word ‘willing’ should be read according to its natural meaning, defined in the New Oxford Dictionary as, ‘ready to, prepared to, eager to do something’, or in the Macquarie Dictionary as ‘disposed or consenting’ rather than as the converse of the term ‘unwilling’, as defined in s 57:[10]
I acknowledge the force of Mr Mead’s submission, based as it is on the limitation of the definition of unwilling in s 57 of the Sentencing Act, but the construction for which he contends must be rejected. The word ‘unwilling’ is defined in s 57 of the Sentencing Act because it is not used in its ordinary meaning. The word ‘unwilling’ does not simply mean someone who is not disposed, not ready, prepared, or eager to do something. It is defined instead by reference to a risk assessment as to whether a person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of their sexual instincts. The more obvious explanation limiting the definition of unwilling to s 57 of the Sentencing Act is that s 59, focussed as it is on an order for release on licence, conditions that order on a finding that the applicant is willing to control his sexual instincts. It naturally uses its converse. True it is that the word ‘willing’ might have been defined in s 59 as the converse of unwilling. However, it was simply unnecessary to do so. Reading ss 57 and 59 of the Sentencing Act together, they can only provide a coherent regime for the detention and then, if circumstances warrant, the release on licence of a person if the word ‘willing’ in s 59 is the converse of the word ‘unwilling’ in s 57. So too for s 58.
[9] Wichen v The Queen [2020] SASC 157 at [123].
[10] Wichen v The Queen [2020] SASC 157 at [110].
His Honour agreed with the statement by Parker J in R v Iwanczenko:[11]
I therefore consider that the test in s 57(1) as to when a person will be regarded as being ‘unwilling to control sexual instincts’ must also be applied for the purposes of s 59. As a result, the phrase ‘willing to control … sexual instincts’ in s 59(1a)(a) can be interpreted as the inverse of the definition in s 57(1). Thus, for the purposes of s 59(1a)(a), a person is willing to control their sexual instincts where there is not a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of their sexual instincts.
[11] R v Iwanczenko [2019] SASC 140 at [112].
The appellant’s challenge to this conclusion relies in the first instance on the observation that the definition of ‘unwilling’ in s 57 is preceded by the words, ‘In this section’. It does not, for example, appear on its face to extend the definition across the Division. Absent any express expansion of the term, he argues that the principle of legality requires the Court to presume against such an expansion. That is, Parliament would not intend to abrogate human rights or freedoms unless such an intention was expressed clearly and unambiguously in the language of the statute.[12] To this end, as Gleeson CJ explained in Electrolux Home Products Pty Ltd v Australian Workers’ Union:[13]
The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to the Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.
[12] Coco v The Queen (1994) 179 CLR 427 at 437-438; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 591-593; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 258-259.
[13] Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 at [21] (Gleeson CJ).

The principle operates as a presumption that the Parliament would not abrogate a fundamental right, freedom or immunity without expressing its intention with irresistible clearness.[14] The conclusion that Parliament has so expressed itself must be a necessary one:[15]
In Coco v The Queen, it was explained that the insistence on express authorisation of an abrogation of a fundamental right, freedom or immunity must be understood as a requirement for a manifestation or indication that the legislature not only directed its attention to the question of abrogation, but has also determined to abrogate the right, freedom or immunity. General words will rarely be sufficient to show a clear manifestation of such an intention because they will often be ambiguous on the aspect of interference with fundamental rights. The same requirement must apply to any interference with fundamental principles or departure from the general system of law to which Potter v Minahan drew attention.
The applicable rule of construction recognises that legislation may be taken necessarily to intend that a fundamental right, freedom or immunity be abrogated. As was pointed out in X7, it is not sufficient for such a conclusion that an implication be available or somehow thought to be desirable. The emphasis must be on the condition that the intendment is “necessary”, which suggests that it is compelled by a reading of the statute. Assumptions cannot be made. It will not suffice that a statute's language and purpose might permit of such a construction, given what was said in Coco v The Queen.
(Footnotes omitted)
[14] Lee v NSW Crime Commission (2013) 251 CLR 196 at [171] (Kiefel J).
[15] Lee v NSW Crime Commission (2013) 251 CLR 196 at [172]-[173] (Kiefel J).
However, that does not somehow limit the ordinary tools of statutory interpretation that are to be deployed. It remains the case, even where the principle of legality has a visible operation as a presumption in a given exercise of statutory interpretation, that:[16]
[t]he primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions.
(Footnotes omitted)
[16] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[70] (McHugh, Gummow, Kirby and Hayne JJ).
It is this orthodox expression of the discipline of statutory construction that then informs the operation of the principle of legality in a given case and the limits of its application in instances where the legislation is directed in some material aspect to interfering with rights, freedoms or immunities. In Lee v NSW Crime Commission, Gageler and Keane JJ explained those limits in terms which deployed this orthodoxy:[17]
The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.
The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that “[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve”.
(Footnote omitted)
[17] Lee v NSW Crime Commission (2013) 251 CLR 196 at [313]-[314] (Gageler and Keane JJ).
It is a necessary conclusion that the word ‘willing’ in s 59(1a)(a) has a meaning that is the opposite to the defined term ‘unwilling’ in s 57(1). The presumption, sourced in the principle of legality, against a construction of ‘willing’ that would have a more deleterious effect on the liberty of the individual than would the ordinary meaning of the word, is displaced. Our reasons follow.
The Division heading, which forms part of the Act, is ‘Offenders incapable of controlling, or unwilling to control, sexual instincts’. While this is on its own a weak contextual indicator, it draws attention to the concept of unwillingness as a character of offenders for the purposes of the Division. To that end, as the Director submitted, ss 57, 58 and 59 form part of a single legislative scheme. Each section requires separate inquiries by at least two legally qualified medical practitioners into the mental condition of the person subject to the order. These practitioners are to report to the Court on whether the person is incapable of controlling, or unwilling to control, their sexual instincts.
In the cases of ss 58 and 59, those inquiries are manifestly for the purposes of the person subject to an order satisfying the Court that they are both capable of controlling and willing to control their sexual instincts. So, notwithstanding that the inquiry is expressed in identical terms across the three sections, it would be a necessary consequence of the construction urged by the appellant that the inquiries under ss 58 and 59 would be directed to different ends.
That is not necessarily determinative. However, it points to a more fundamental difficulty with the construction. As the Chief Justice observed, when reading ss 57 and 59 together, they can only provide a coherent regime for detention and then release on licence if the word ‘willing’ in s 59 is read as the converse of ‘unwilling’ in s 57.[18] The reason for this is straightforward. Were it not so, a person would be detained under one test, but potentially amenable to immediate release on licence (or discharge under s 58) under another. Such a result would not only be capricious, it would be nonsensical and would frustrate the manifest purpose of a legislative scheme that takes the form of a highly prescriptive regime for the detention and prospective release of persons to whom s 57 applies. The observations of Gageler J in R v Independent Broad-based Anti-corruption Commissioner are apposite:[19]
Legislation is sometimes harsh. It is rarely incoherent. It should not be reduced to incoherence by judicial construction…
…any common law principle or presumption of interpretation must surely have reached the limit of its operation where its application to read down legislation plain on its face would frustrate an object of that legislation or render means by which the legislation sets out to achieve that object inoperative or nonsensical.
(Footnotes omitted)
[18] Wichen v The Queen [2020] SASC 157 at [110].
[19] R v Independent Broad-based Anti-corruption Commissioner (2016) 256 CLR 459 at [76]-[77] (Gageler J).
Counsel for the appellant, Mr Mead SC, argued that in circumstances where ss 58(1a) and 59(1a) operate as threshold questions for the exercise of the relevant powers to release, to read ‘willing’ as the converse of ‘unwilling’ in s 57 would have the effect of making it effectively impossible for the person to be released under either section, notwithstanding that the sections themselves purport to provide regimes for release. On that account, such a reading of ‘willing’ would frustrate the purpose of these sections.
We do not accept that argument. Parliament can both create regimes for release and maintain narrow windows for release within those regimes. To do so is not internally inconsistent.
In the course of oral argument, counsel and the Court explored the logical consequences of various hypothetical scenarios. One such hypothesis involved comparing the positions where a medical practitioner, when considering the question asked of them for the purposes of each of ss 57 and 59, reached the view that they could not say, on balance, that the person was ‘unwilling’ to control their sexual instincts and could at best only give an equivocal answer (putting the question of capability to one side for the sake of the example). This was on the assumption that ‘unwilling’ and ‘willing’ had converse meanings.
If the medical practitioner expressed that conclusion of equivocation on an application under s 57, that would likely be influential in the Court determining not to detain the person under s 57(7), noting that the onus on such an application would be with the Attorney-General.
If the same answer was given on an application for release on licence under s 59, however, the onus would still be on the person detained to satisfy the Court that they were ‘willing’ to control their sexual instincts. That different onus might now mean that in the circumstances of the answer given by the medical practitioner, the person has been unable to demonstrate that they were ‘willing’ to control their sexual instincts. Theoretically, at least, a person in detention might be in a position whereby at this point in time, they would not have been detained under s 57, but given that they were (the situation presumably having been different at that earlier time) they now cannot be released.
Questions might arise as to the proper characterisation of the scheme in ss 57, 58 and 59 as, indeed, they have previously, given that ss 58 and 59 impose relatively harsh threshold tests before release can be considered when compared with the more discretionary regime under s 57.[20] However, we do not think that the hypothesis identified above demonstrates incoherence in the scheme if ‘willing’ and ‘unwilling’ are read conversely.
[20] See Attorney-General (SA) v Moyle [2018] SASC 106 at 146 (Hinton J); Attorney-General (SA) v Duroux (2019) 278 A Crim R 375 at [24]-[29] (Hinton J); Thomas v Attorney-General (SA) (2019) 133 SASR 302 at [48]-[50] (Kourakis CJ, Nicholson and Parker JJ agreeing).
The alteration of the burden of proof following detention under s 57 does have at least the potential, in rare cases, to lead to the curious result described above. However, that is a consequence of the Legislature’s policy determination as to how to implement the manifestly paramount objective of protecting the safety of the community. While it may be said to demonstrate a further potential unfairness, it does not create any incoherence that would cause us to alter our conclusion as to the interpretation of the word ‘willing’ in ss 58 and 59.
It follows that we dismiss Grounds 1 and 2.
A ‘stepped down’ approach?
Ground 3 challenges the Chief Justice’s conclusion that s 59 does not permit a ‘stepped down’ approach of the kind for which Dr Nambiar advocated in evidence. The appellant’s argument is to the effect that as ss 58 and 59 are expressed to operate under the same threshold tests, the scheme is such that a person looks to satisfy the Court that they are both capable of and willing to control their sexual instincts. If they are unable to do so, 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. That is to say, in the context of the section, releasing on licence provides a different framework within which to consider the threshold questions.
We do not accept this argument. 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 (or of the infirmity criterion under s 59(1a)(b)). It is only once the Court is so satisfied that the question of conditions arises. This much is illustrated by the fact that under s 59(8), determination of the conditions to be imposed is a matter for the appropriate Board.
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.