Wichen v The Queen - [2020] SASC 157

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Criminal)
WICHEN v THE QUEEN
[2020] SASC 157
Judgment of The Honourable Chief Justice Kourakis
26 August 2020
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
Application for release on licence.
The applicant was convicted of the offences of aggravated serious criminal trespass in a place of residence and assault with intent to rape, on his pleas of guilty in the District Court. On the application of the Director of Public Prosecutions, the District Court Judge referred the sentencing of the applicant to the Supreme Court. The Director also made an application to this Court for an order declaring that the applicant was incapable of controlling his sexual instincts and for an order of indefinite detention.
In 2005, the applicant was sentenced to 10 years’ imprisonment, commencing on 29 April 2002. The sentencing Judge adjourned the application and fixing of the non-parole period. In 2011, pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA), the sentencing Judge declared that the applicant was incapable of controlling his sexual instincts and directed that he be detained in custody until further order, commencing at the expiration of his sentence.
On 6 November 2017, the applicant filed this application for release on licence pursuant to s 24 of the Criminal Law (Sentencing) Act 1988 (SA).
Held, per Kourakis CJ, dismissing the application:
1. The word ‘willing’ in s 59 of the Sentencing Act 2017 (SA) is intended to mean the converse of the special definition given to the word ‘unwilling’ in s 57. Reading ss 57 and 59 together, they can only provide a coherent regime for the detention and then, if the 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.
2. I cannot be satisfied that the applicant is now willing, within the statutory definition of the term, to control his sexual instincts. This is due to the serious abuse to which he was exposed as a child and the innate disposition manifested by his previous offending. If an opportunity to commit an offence were to arise, there is a significant risk that the applicant would fail to exercise appropriate control.
Criminal Law (Sentencing) Act 1988 (SA) s 24; Criminal Law Consolidation Act 1935 (SA) ss 170(2), 270B; Sentencing (Release on Licence) Amendment Act 2018 (SA); Sentencing Act 2017 (SA) ss 57, 58 , 59, sch 1, pt 3, referred to.
R v Iwanczenko [2019] SASC 140, applied.
R v Iwanczenko [2019] SASC 140; R v Whtye [2006] SASC 56; R v Wichen [2005] SASC 323; R v Wichen (No 2) [2011] SASC 194, discussed.
Boughey v The Queen (1986) 161 CLR 10, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"unwilling", "willing"

WICHEN v THE…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Wichen v The Queen

Details

AGLC: Wichen v The Queen [2020] SASC 157
Case: [2020] SASC 157
Decision Date: 26 August 2020

CaseChat Overview and Summary

In the case of Wichen v The Queen, the applicant, Mr Wichen, sought release on licence from his sentence of imprisonment for robbery with violence and indecent assault. The case was heard in the Supreme Court of South Australia, where the primary judge, Hinton J, was tasked with deciding whether Mr Wichen met the statutory criteria for release on licence as outlined in the Sentencing Act 1997. The primary issue before the court was whether Mr Wichen was willing to control his sexual instincts. The applicant argued that he had developed insight and a capacity for empathy during his incarceration, which would prevent him from reoffending if released on licence. The Attorney General, acting on behalf of the Crown, contended that despite Mr Wichen's claims, he remained a significant risk to the community due to his extensive history of sexual offending and poor compliance with parole conditions.

The court considered the psychiatric evidence provided by Drs Nambiar and Nguyen, who both expressed concerns about Mr Wichen's ability to control his sexual instincts, particularly when intoxicated. However, the court also accepted Mr Wichen's evidence of remorse, his limited history of non-compliance with parole, and his expressed desire to change his lifestyle. The court found that Mr Wichen had developed some level of empathy and insight, though not to the extent of the average person, which was attributed to his past experiences of abuse. Despite acknowledging Mr Wichen's efforts to reform, the court ultimately concluded that he was not willing to control his sexual instincts to the extent required by law, given the risk he posed to the community. Consequently, the application for release on licence was dismissed.

The Supreme Court of South Australia upheld the decision of the primary judge, Hinton J, finding that Mr Wichen had not satisfied the statutory test for release on licence under the Sentencing Act 1997. The court's decision was based on the balance of evidence presented, which highlighted Mr Wichen's ongoing risk of reoffending due to his history of sexual offending and substance abuse, despite his expressed remorse and efforts at rehabilitation. The court expressed hope that Mr Wichen would continue to seek help and make progress in his rehabilitation, but ultimately determined that he was not ready for release on licence at that time. The appeal was dismissed, and Mr Wichen remained subject to his original sentence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The indecent assault was committed in Port Lincoln in 1997. Mr Wichen was again on parole at the time of the offending. He was walking around Port Lincoln, whilst under the influence of Rohypnol, trying to organise a way back to Port Augusta when he saw a woman, carrying a handbag, return to her home. He knocked on her door under the pretence of asking for directions. When she answered, he pushed her inside the house and dragged her into a room. He tore her track suit pants off and tried to tie her up. He then touched her vagina and rubbed his body against her genital area. Mr Wichen told Dr Raeside that he ‘didn’t want to have sex with her or rape her, but more or less just wanted to have sex with her’. Mr Wichen took approximately $1,200 before leaving, for which he was charged with robbery with violence. Mr Wichen pleaded guilty to both offences and was sentenced to two years, four months and 15 days’ imprisonment for each offence. The sentences were ordered to be served concurrently and to commence after the expiration of the unexpired balance of parole. The psychiatric evidence before Hinton J Two psychiatrists, Drs Nambiar and Nguyen, provided psychiatric reports and were called to give evidence in September 2018 and December 2019. Dr Nambiar’s report dated 16 July 2018 and Dr Nguyen’s report dated 21 August 2018 were admitted as Exhibit P1 and Exhibit P6, respectively. Addendum reports were obtained from both doctors on whether, having regard to the evidence given by Mr Wichen and his aunt on 28 August 2019, Mr Wichen was a person incapable of controlling, or unwilling to control, his sexual instincts. Exhibit P11 is the addendum report of Dr Nambiar dated 25 October 2019. Exhibit P12 is the addendum report of Dr Nguyen dated 30 September 2019. Dr Nambiar interviewed Mr Wichen on the same day as the date of the report. He had access to a range of information, including the medical reports received in the proceedings before Gray J. Dr Nambiar concluded that, even though Mr Wichen was willing to control his sexual instincts, he doubted his ability to do so. His opinion was that Mr Wichen would continue to be an appreciable risk to the safety of the community if unsupervised. Dr Nambiar noted that the likelihood of Mr Wichen sexually offending appears to be greater when he is intoxicated, but a wider analysis of his history suggested that that offending ‘has become part of his lifestyle’ regardless of the influence of alcohol or other substances. Dr Nambiar recommended strict conditions if Mr Wichen were to be released on licence, including home detention, electronic monitoring, therapy by a psychologist, abstinence from alcohol and illicit substances and frequent testing. In Dr Nambiar’s opinion, Mr Wichen ‘would require a great deal of support psychologically and emotionally … to reduce the risk of reoffending’. Dr Nambiar identified the following salient features in Mr Wichen’s past medical and psychiatric history: ·Mr Wichen’s history of self-harming. ·Mr Wichen had not required psychiatric intervention since his incarceration in 2002 apart from a brief, initial period of taking prescribed antidepressants.[7] ·Mr Wichen did not have a history of major medical conditions nor any significant family history of mental illness apart from social dysfunction and drug and alcohol use. [7] At the time of writing the initial report, Dr Nambiar was of the view that Mr Wichen did not suffer from any current psychiatric illness that warrants attention of psychiatric intervention.

Decision

Reasons for decision

Nonetheless, I am bound to conclude that Mr Wichen’s application must be refused. I can only hope that he does not lose heart and that further courses and intensive one-on-one counselling is provided to him. Only in that way can Mr Wichen hope to overcome the yoke of the past that weighs him down. Conclusion Mr Wichen’s application is dismissed.

Ratio Decidendi

Legal Principle Established

I respectfully agree.Consideration Accepting, then, that willing is intended to mean the converse of the special definition given to the word unwilling in s 57 of the Sentencing Act, I turn to consider the evidence which bears on that question, and the parties’ submissions. The Attorney submitted that, having regard to Mr Wichen’s extensive history of sexual offending, even when in intimate relationships, his poor history of compliance with parole and his defiant conduct in custody, together with his admitted drug abuse which exacerbated his unwillingness to control his sexual instincts, there continues to be a significant risk that he would reoffend if given the opportunity. Counsel for the Attorney submitted that Mr Wichen’s insight was limited, as was his concept of empathy. Mr Wichen’s denial of sexual attraction demonstrates a lack of understanding as to why he offended. Mr Mead forcefully submitted that Mr Wichen’s testimony should be accepted and that the insight which he had developed in prison should satisfy me that there was no significant risk that he would re-offend. I accept the expertise and reliability of the evidence of Dr Nambiar and Dr Nguyen. I accept that their opinions about Mr Wichen’s psychiatric and psychological states are sound. However, it is my function to determine whether the statutory test has been satisfied. I find that Mr Wichen is capable of empathy. I see no reason not to take his evidence at face value. Indeed, I found it convincing. I accept that his understanding of empathy is expressed in simple terms, but that merely reflects his poor education and grasp of language. I accept that his empathy is not as strong nor deep as it is for many others in the community, but that is largely a product of the abuse he suffered as a child. I find that his empathy for others, which age, reflection and the courses he has undertaken has engendered, will be a significantly greater constraint on his behaviour than it was before he was taken into custody in April 2002. I also accept Mr Wichen’s evidence of remorse for his offending. I found particularly convincing his evidence that he felt remorse ‘every time I’ve done that.’ I am also satisfied that Mr Wichen is determined to change. Again, his evidence that he was ‘just sick of doing the same old thing’ and ‘walking over your footprints every day’ was persuasive. I find too that Mr Wichen has sound insight into the danger which drinking alcohol poses for him. His description of alcohol as a ‘danger zone’ which puts him ‘at risk of hurting people’ is apt. I find that Mr Wichen has come to replace his dependence on alcohol and the use of alcohol with the use of cannabis. I am persuaded that Mr Wichen, as he testified, understands that alcohol makes him more aggressive but has found that cannabis does not. If he were released, I am confident that Mr Wichen would prefer to take cannabis than drink alcohol. Unfortunately for Mr Wichen, the drug which is more likely to precipitate reoffending is one which is legal and the drug which, to use his term, ‘relaxes’ him, is illegal.