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 QUEEN
[2020] SASC 157
Criminal

KOURAKIS CJ: This is an application by Mr Wichen for release on licence pursuant to s 24(1) of the now repealed Criminal Law (Sentencing) Act 1988 (SA) (the repealed Sentencing Act).
Mr Wichen was convicted of the offences of aggravated serious criminal trespass in a place of residence[1] and assault with intent to rape,[2] on his pleas of guilty in the District Court on 5 February 2003. On 6 February 2003, on the application of the Director of Public Prosecutions (the Director) pursuant to s 23 of the repealed Sentencing Act, the Judge referred the sentencing of Mr Wichen to the Supreme Court. When the matter proceeded before this Court, the Director made an application for an order declaring that Mr Wichen was incapable of controlling his sexual instincts and for an order for indeterminate detention pursuant to s 23 (the s 23 application).
[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).
On 26 July 2005, Gray J sentenced Mr Wichen to imprisonment for 10 years commencing on 29 April 2002. Justice Gray was satisfied that Mr Wichen was incapable of controlling his sexual instincts, but adjourned the s 23 application because of his concerns over the adequacy of treatment available to Mr Wichen in prison.[3] The fixing of the non-parole period was also adjourned.
[3] R v Wichen (No 2) [2011] SASC 194 at [8]-[9].
On 4 November 2011, pursuant to s 23 of the repealed Sentencing Act, Gray J declared that Mr Wichen 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 in 2012.[4]
[4] [2011] SASC 194 at [30].
The present application for release on licence was filed on 6 November 2017 and was initially heard before Hinton J. I heard the application on 28 August 2019, and 2, 3 and 10 December 2019.
The offending
The offending, in respect of which the s 23 application was made, was committed on 25 April 2002 (the April 2002 offending). Mr Wichen was born on 20 December 1973 and was then aged 28 years. The circumstances of the offences, described by Gray J as ‘grave’, are set out in his Honour’s judgment:[5]
[5] … The victim was a 65-year-old woman who lived alone at Port Augusta. On the Crown case, on the evening of 24 April 2002 the defendant had been drinking with Ritchie Aitken at Hotel Augusta before attending a party. Early the following morning, the defendant was seen walking in the vicinity of the victim’s address.
[6]At around 8.30am on 25 April 2002, the victim, asleep in her home, was awoken by a knock at the door. She decided to ignore the knock and go back to sleep. Not long after, the victim was awoken by a loud bang. As she got up out of bed, the victim observed a man of Aboriginal descent coming through her bedroom window. The victim described the man as taller than she was, but shorter than six foot; very slim; muscular; in about his mid-twenties, with hair pulled back in a pony-tail. She said he was wearing jeans and runners with no shirt. On the Crown case, the defendant was the man who entered the victim’s home.
[7]Once in the victim’s bedroom, the defendant hit or pushed the victim backwards and onto the floor. The victim began shrieking, and the defendant told her to be quiet. The victim continued to create noise in the hope that her neighbours would be alerted and come to her assistance. She hit out at the defendant several times. The defendant then stood over the victim, holding her down by her shoulder before punching her in the left eye. The impact of this punch caused the victim to fall to the floor and hit her head on a wooden boot box. The defendant grabbed the victim’s head and repeatedly hit it against the bedroom floor. He then rolled the victim onto her front and yelled, ‘Don’t look at my face,’ and pushed her face away. The victim told the defendant to cover his face with one of her t-shirts in an attempt to stop him pushing her face into the floor.
[8]The defendant began to remove the victim’s underpants and eventually ripped them off by tearing them. During the course of the attack the victim came to be lying face down on the bed. The defendant attempted to tie her hands behind her back with a computer cord. The victim managed to struggle free. The defendant then attempted to rape the victim. The victim recalls seeing the defendant’s penis in front of her. However she does not specifically recall any penetration.
[9]The victim asked the defendant whether he wanted money, and he replied, ‘Where is it?’ The victim was able to walk into the lounge room and locate her purse. The defendant took the purse.
[10]In an attempt to save herself from a further attack, the victim began acting as if she was having a seizure. The defendant said, ‘Don’t you die on me!’ and left the house through the front door. The victim called the police immediately.
[11]The victim went to Port Augusta Hospital. Her injuries included head and eye injuries and were consistent with an assault. Police obtained a statement from the victim. Around 9am on 25 April 2002, police attended the victim’s home and commenced door knocking in the area. They apprehended the defendant some days later.
[5] R v Wichen (No 2) [2005] SASC 323 at [5]-[11].
Mr Wichen’s police antecedent record shows an extensive history of criminal offending, including convictions for attempted rape, in 1992 and in 1994, and indecent assault in 1998.[6]
[6] Exhibit P15.
The first of the attempted rapes occurred in 1991. Mr Wichen was riding in a taxi driven by a 53-year-old female taxi driver whom he had known since he was a boy. He was intoxicated. He gave the driver directions to a dead-end street with the intention of running away without paying his fare because he had no money. When the car stopped, he exposed his penis, touched the woman on her leg and pulled her hair. In his report dated 2 June 2003, Dr Raeside recorded that Mr Wichen was unsure why he sexually assaulted the taxi driver but denied any pre‑meditated intention to rape her. Mr Wichen was sentenced to three years imprisonment with a non-parole period of 18 months for this offence.
On 29 April 1994, Mr Wichen was sentenced to four years and three months’ imprisonment for two counts of attempted rape and one count of false imprisonment, to be served cumulatively on his unexpired sentence for another offence. The non‑parole period was fixed at four years. The attempted rapes were committed in November 1993, less than six weeks after Mr Wichen had been released on parole. Mr Wichen, again intoxicated, walked into a classroom, out of school hours, and began talking to a schoolteacher who was not known to him. He proceeded to rub her body. When she pushed him away, Mr Wichen wrestled with her and punched her in the face. He removed her shorts in an attempt to have sexual intercourse with her. Mr Wichen told Dr Raeside that he ran away when he realised that what he was doing was wrong.
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.
When interviewed by Dr Nambiar, Mr Wichen described himself as a ‘binge drinker’, who would purchase and consume significant amounts of alcohol whenever he had the money and when he felt ‘down’ or bored. He reported having consumed up to four bottles of whiskey, beers and casks of wine as well as cannabis in the 24 hours prior to offending in April 2002. Dr Nambiar also noted Mr Wichen’s history of petrol sniffing and use of other illicit substances and that he continued to use cannabis whilst in prison.
Dr Nambiar reported that Mr Wichen was a victim of childhood sexual abuse. Mr Wichen told him that he considered himself to have a normal sex drive, which had reduced with age since his incarceration.
Dr Nambiar characterised Mr Wichen’s sexual offending as ‘impulsive and opportunistic’, often committed against older females. Dr Nambiar expressed the opinion that ‘if presented with an opportunity, given the fact Mr Wichen remains sexually active, there is still a risk that he would offend again in such a manner’.
Dr Nambiar referred to reports provided on Mr Wichen’s participation in the prison Sexual Behaviour Clinic (SBC). Positive progress was made when Mr Wichen undertook 11 sessions of individual treatment, in which he obtained some insight into the reasons for his offending and substance use. Dr Nambiar described his attendance record in the SBC-Me program as extremely good. In the interview with Dr Nambiar, Mr Wichen identified strategies to cease offending and minimise his stress and boredom.
On 13 September 2018, Dr Nambiar testified as to his understanding of a significant risk for the purposes of the statutory definition of a person who is unwilling to control their sexual instincts:
A.Well, there is no definition as far as I can find apart from what I guess the dictionary might define it as being but in terms of a sexual offence I would suggest that anything above zero is significant.
Q.So what about your understanding of being given an opportunity to commit a relevant offence, what do you understand by that in terms of Mr Wichen.
A.That if he was in the community amongst other people that would be an opportunity for him to possibly reoffend.
Q.In terms of failing to exercise appropriate control, what's your understanding of what that is intended to convey.
A.That is his ability to, even if he thought about reoffending, stop himself from doing so.
Q.In your report you make use of the terminology of ‘an appreciable risk’ in your mind is there any difference between an appreciable risk and significant risk.
A.No.
Dr Nambiar then agreed that there would always be an appreciable risk that Mr Wichen would reoffend because of the static factors. It is as well to immediately record my view that, on a proper construction of the definition of unwilling in s 57 of the Sentencing Act 2017 (SA) (the Sentencing Act), that a significant risk must mean something more than any risk at all.
Dr Nambiar agreed with an observation made by Hinton J that the risk arising from Mr Wichen’s static factors were such that he could not ‘get away from his history’. However, when asked how Mr Wichen might attain a level of improvement, where the risk of release on licence might be justified, Dr Nambiar said:
It’s important in terms of if the circumstances that he finds himself in, if he were to be released were different. So in the past whenever he’s been released he’s basically been left to his own devices. If that were to change and if structure were provided for him with the adequate supports, that may change.
Dr Nambiar described those supports and structure as follows:
… So you have to have purpose, you use your time whether you’re working, studying, volunteering, whatever it might be, you find ways to occupy your time so you don’t have the stress of boredom.
… you have satisfaction in life rather than feeling unhappy with life.
… [finding a job] would be one part of the puzzle … .
Dr Nambiar, however, accepted that very few community programs would assist Mr Wichen.
A little later, Dr Nambiar continued:
So 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.
Dr Nguyen also interviewed Mr Wichen for the purposes of his report and had access to the same documentation as Dr Nambiar.
At the time of the first interview, on 16 April 2018, Mr Wichen reported no problems with his appetite, energy, concentration, feelings of hopefulness and mental health, nor had he experienced any recent suicidal thoughts.
On questioning about his personal history, Mr Wichen told Dr Nguyen that his mother was very supportive, but that he had only met his biological father once. He left school in Year 6 and began working at a cattle station when he was aged 13 years. When Mr Wichen was 17 years old, his mother passed away and Mr Wichen felt as if his support had disappeared. Mr Wichen also reported to Dr Nguyen the sexual abuse he suffered as a child by an older male cousin.
Dr Nguyen adverted to Mr Wichen’s history of alcohol and drug use, and Mr Wichen’s view that cannabis helped him relieve stress.
Mr Wichen also told Dr Nguyen that he had gained a better understanding of the effects of alcohol and drugs through the SBC‑Me program. He now realised they were no solution to his problems. Dr Nguyen noted Mr Wichen’s statement that he did not get much out of the SBC program, but did gain insight into his ‘trigger points’ and ‘danger zones’. Mr Wichen also identified, as triggers, others gossiping about him, angrily reflecting on his past, and alcohol consumption. When asked about what he would do if he found himself having one or two beers, Mr Wichen responded, ‘that’s my limit. Go home. Sleep it off.’ When asked why he thought he wouldn’t resume a pattern of alcohol consumption, Mr Wichen said he would use ‘empathy’ and ‘[d]o things that can occupy my mind’. Dr Nguyen stated that Mr Wichen appeared to only have ‘partial insight into the nature and relation of his problem and risk’.

Dr Nguyen asked Mr Wichen to reflect on his past sexual offending. Mr Wichen recounted each occasion and was able to identify some consequences of his offending on his victim.
In assessing risk, Dr Nguyen relied on Static‑99R, an actuarial risk assessment tool, and the Risk of Sexual Violence Protocol (the Protocol), a structured professional judgment tool. Dr Nguyen noted that some caution should be exercised with results from these tools, because of cultural biases. On the Static‑99R results, which only considers historical factors, which are impervious to change, Mr Wichen was assessed as being in the high-risk category for sexual reoffending. The Protocol takes into account static and dynamic factors, totalling 22 risk factors across five areas (sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability). On the Protocol results, Dr Nguyen assessed Mr Wichen at a moderate risk of further, opportunistic, sexual offending against, more likely, women of older age. Some of the factors considered by Dr Nguyen included:
·The pattern of chronicity in Mr Wichen’s sexual offending.
·The offending did not display significant diversity in nature or severity, nor escalation in sexual violence.
·Past evidence of denial of sexual violence evidenced by his initial pleas of not guilty. Dr Nguyen noted this may no longer be a current issue given Mr Wichen had been relatively frank about his past sexual violence.
·Past problems with self-awareness evidenced by his reoffending. While Mr Wichen had demonstrated improved self-awareness, Dr Nguyen noted that Mr Wichen only offered simple solutions to problems.
·Ongoing issues around coping with stress and historically using maladaptive coping skills.
·No evidence of sexual deviance.
·Problems with intimate and non-intimate relationships.
·Past problems with planning and developing significant plans for the future.
·Past problems with treatment, but Mr Wichen had demonstrated a willingness to engage.
·Past problems with supervision.
Dr Nguyen’s opinion was that:
… Mr Wichen is capable of controlling his sexual instincts. Further to this, there is no evidence that he has a severe mental illness that may reduce his capacity to do so.
… Based on my clinical assessment, use of the Static 99 and RSVP Mr Wichen would be at a high risk of further sexual reoffending if he was intoxicated. This risk is reduced if he is not intoxicated. I note that Mr Wichen had continued to use cannabis during his time in custody up until 2017. Despite a period of apparent abstinence, his risk of relapse into alcohol and drug use upon release into the community is elevated. Therefore, if Mr Wichen is intoxicated, I believe that there is a significant risk that he would fail to exercise appropriate control over his sexual instincts and is therefore unwilling to control his sexual instincts within the meaning of the Act.
(Emphasis in original)
If Mr Wichen were to be released, Dr Nguyen recommended including conditions that he abstain from alcohol, not visit licensed venues, participate in drug and alcohol programs and that he receive psychological support to maintain what he has learnt from the SBC-Me program.
Dr Nguyen gave the following evidence on 13 September 2018 before Hinton J:
Q.Just to be clear, if he’s not intoxicated your opinion is that there is not a significant risk that he would, given an opportunity to commit a relevant offence, fail to exercise appropriate control.
A.Yes, that’s correct.
XN
Q.And that is even in light of your diagnosis of him with having a dissocial personality disorder.
A.Yes, that’s correct.
Q.And in light of his history in terms of his exposure to violence in the early part of his life.
A.Yes, that’s correct.
Q.And even taking into account the early sexual offending against him that has been reported.
A.Yes.
Q.And even in combination those extra factors, are you still of that view: that he is willing in terms of the definition.
A.Yes, that’s correct.
HIS HONOUR
Q.So am I to understand your evidence to be: control his drinking then you control his risk.
A.There’s probably more to it than that, more to just controlling his drinking but that’s a large part of controlling his risk, yes.
Q.If you control his drinking, as I understand your opinion, then he’s not unwilling in the legal sense.
A.Yes, that’s correct.
Dr Nguyen went on to clarify that that was his opinion in the absence of any disinhibitor. Dr Nguyen agreed that if Mr Wichen was simply alone in a taxi but without intoxication he would meet the legal definition of willing to control his sexual instincts. Dr Nguyen qualified that opinion, identifying a risk of sexual offending, even if sober, if an opportunity were to arise whilst Mr Wichen was engaged in other offending.
When asked whether he saw a difference between an appreciable risk and a significant risk, Dr Nguyen answered:
Well, I understand it to mean things like, I suppose the - well, one would need to consider the impact of the commission of the offence and I think that there could be some serious consequences which would lead me to think that there was an appreciable risk.
Dr Nguyen agreed that Mr Wichen would meet the statutory definition of willing if he were visited by a woman at his place of home detention, unless he was affected by alcohol.
Mr Wichen’s testimony
Mr Wichen testified that he was sexually abused by an older cousin when he was between six and eight years of age. His cousin was 17 or 18. He did not report it or complain to anyone because of shame.
After leaving school in Year 6, Mr Wichen worked mustering cattle.
Mr Wichen testified that he never had a relationship with his biological father. Mr Wichen’s mother died when he was 17 after which time he started to drink heavily. Mr Wichen testified that his mother’s partner, Max, who was not his biological father, ‘grew me up’.
Mr Wichen gave this description of the violence between his mother and Max:[8]
[8] T 35.16-36.4.
Q.You talked about seeing your parents be violent towards each other.
A.Yeah.
Q.Describe that violence.
A.Yeah, that was weapons. Bottles, sticks, boiling water. Yeah.
Q.How often would you see things like that.
A.Maybe once a week or once every second week. When they drank.
Q.Was it one sided or both sided. Would a fight just break out and it happened between both of you or would there be someone who would start it more than the other.
A.It was always both sided but the male was always the dominant one, you know.
Q.And would generally start it. Max would generally start the fights.
A.A bit of both. It depends, you know. It depended on - you know, they both started on each other and one might start this week and another one of them might start next week.
Q.When you talked about Max being the male and the dominant, you mean he would soon get the best of the fight.
A.Yes, he is the male, you know.
Q.Is that what you meant, he would normally cause the most damage.
A.Yeah.
Mr Wichen gave the following evidence, in which there is a surprising absence of any emotional reaction to witnessing the violence which unfolded before him as a young child:[9]
[9] T 69.38-70.34.
Q.Taking you back to the fighting between your parents, did you ever get involved in that fighting, get in between them or were you ever hurt as part of it or did you ever take part in the violence.
A.No, I just witnessed it all, I just sat down and witnessed it all unfolding in front of my eyes, you know.
Q.Would you stay there while it was happening.
A.Yes.
Q.Wouldn't go outside or into your room.
A.No.
Q.You'd just watch it.
A.Just stand there and watch it, yes.
Q.Would you be saying anything to them at the time.
A.No, just, maybe too scared to, just in case I was hit or you know some of the times it was I guess because I was another man's kid and I would just sort of hear what the conversation was about, what the fight was about and I just sat there and listened to it.
Q.You said Max would get the better of the fights so you saw your mum hurt.
A.Yes.
Q.How did you feel about the fact that she'd been hurt while you sat there.
A.I think there was a part of me probably felt sorry for her but probably there might have been a part of me that never felt sorry for her because she probably lied to him, you know, about probably my identity, you know.
Q.Is that what the fights were often about.
A.Yes.
Q.By lying to him about the identity do you mean that she said to Max that you were his kid.
A.Yes.
Q.And you heard them arguing about that.
A.Yeah.
Mr Wichen maintains a relationship with his auntie, Ms Wilton, who gave evidence before me. He has a daughter, with whom he communicates regularly. Mr Wichen has an eight-year-old granddaughter.
Mr Wichen spoke positively about his detention in the cottages, a low security prison environment. He explained that the prisoners had separate living quarters and were responsible for their own cooking and cleaning. They managed a ‘household’ budget for their groceries.
Mr Wichen actively engages in sport: soccer, football, boxing and weights. His reading has improved to the extent that he can read a recipe, and some articles in a newspaper.
Mr Wichen was cross-examined about displays of aggression whilst in prison. He testified that an incident in 2015 was ‘play fighting’. His account was not contradicted by oral testimony. I accept Mr Wichen’s account. He was confident in his denials.
Mr Wichen gave the following evidence about an incident in which he threatened to shoot two prison officers:[10]
[10] T 37.30-39.27.
Q.In October 2012 were you warned for threatening to shoot some officers.
A.Yeah.
Q.And did you say that they were officers that played mind games with you when you were released.
A.Not when I was released. It was when I was in custody, yeah.
Q.You thought those officers had been playing mind games on you.
A.Yes.
Q.And you threatened to shoot them.
A.Yes, out of anger.
HIS HONOUR
Q.What were the mind games.
A.Because Port Augusta is a small town, as you know, officers are locals and I’m a local and for what I went to gaol for, things can - people can be - things can get personal there, being professional can sort of - goes out of the window sometimes and people take things personal and treat you lesser than another prisoner or turn other prisoners against you or - you know.
Q.You are telling me that these things can happen.
A.It does happen.
Q.What did they actually do that caused you to threaten to shoot them.
A.It’s just at the time where I was placed, I was not placed in the unit where I believe I should have been placed where I should have been employed - in employment.
Q.What was the unit that they did place you in.
A.It was - back at that time it was called - it was just like an induction unit.
Q.It was an induction unit but you didn’t need to be inducted.
A.Yeah, at the time, yeah.
Q.What was the employment unit that you wanted to be in.
A.Well, work you know, like -
Q.What sort of work would you have done.
A.In education or work in the joinery or the metal shop or in the laundry.
Q.But if you were in the induction unit you can’t be doing those things.
A.Yeah, there is nothing there.
Q.Did you become angry because you thought you were being treated unfairly.
A.Yeah, I get that a lot - yeah, I get that a lot in gaol.
Q.You mean becoming angry or being treated unfairly or both.
A.Yes, being treated unfairly, that makes a person angry, getting treated unfairly and yeah.
Q.Where were you when you threatened the officers.
A.I was in -
Q.In a cell or a common room or in a corridor.
A.In a wing.
Q.An open area.
A.Yes, the office, in front of the office.
Q.What were you doing there. Why were you in that office at that time.
A.I think at the time I was asking for a request form or something.
Q.How many officers were in that room or in the office.
A.Maybe one or two.
Q.And was there any separation between them. Between you and them.
A.Nah.
Q.And when you threatened to shoot them what did they do.
A.They - I got secured in my cell.
Q.How did they do that.
A.They just explained that I couldn’t talk to them like that and told me to go to my cell, so I went to my cell.
Q.Did they escort you to your cell.
A.They asked me to go to my cell so I went to my cell.
Q.Did anything else happen after that.
A.Yes.
Mr Wichen’s account of his reasons for threatening the prison officers was not contradicted. I accept his explanation. His threat may have been borne out of his frustration at his indefinite detention. It was plainly a serious threat even though it was unlikely that Mr Wichen had the means in prison to carry it out. The threat must also be placed in its entire context, which includes the response of the officers, which was to do no more than order him to return to his cell, and his compliance with that order. I do not regard that aggressive response to be a strong indicator of his likely response to stressors in the community.
Mr Wichen was also questioned about his defiant attitude to commands given by prison officers:[11]
[11] T 40.24-42.9.
Q.Have you had an incident where you were told to go back to your cell because you were going into cells that weren’t yours. Is that something that has happened recently.
A.Yeah, yeah.
Q.Was that on 18 August this year.
A.Yeah, yeah.
Q.So just about 10 days ago.
A.Yep.
Q.And you were seen coming out of a cell that wasn’t yours.
A.Yeah.
Q.And had you had repeated warnings that day not to go into cells that weren’t yours.
A.Everyone does, yeah.
HIS HONOUR
Q.Everyone gets warnings or everyone goes into other people’s cells.
A.It’s just a place where everyone just walks into people’s cells and asks for a smoke or asks for hot water to fill their cup up because there is no hot water system going on.
Q.Which prison.
A.Port Augusta.
Q.Which wing.
A.Banksia. It is a new unit, it has only been open for a couple of years now.
Q.How many people in the unit in Banksia.
A.23 cells that are doubled up so you know -
Q.46.
A.Yeah.
XXN
Q.Whether or not it’s something that everyone does, you were asked that day to stop it on more than one occasion, weren’t you.
A.Yeah, I think yeah.
Q.And you kept doing it.
A.Yeah.
Q.And eventually you were reminded of what the rules were.
A.Yeah.
Q.Were you told that you had to comply otherwise you might get moved somewhere else.
NOT ANSWERED
Q.What was said to you about complying with the rules.
A.I don’t think I was told about the rules. I think I was told more to just keep out of people’s cells. I wasn’t told about the rules. And, I mean, going into someone’s cells is going to the doorframe and how is that some someone’s cell?
Q.So you don’t agree with the way you were treated that day.
A.Yeah, when you don’t agree with something in prison it’s not – it’s not what you think, it’s what they think.
Q.Did you think that the officers who were telling you not to go into other cells were not behaving reasonably.
A.Yeah, I suppose you could say that.
Q.Because you didn’t see that there was anything wrong with the way you were behaving.
A.Well, I don’t think I was going into someone’s cell, all I was doing was going to the door, the frame, and asking someone for hot water for my cup - so I can have a cup of coffee.
I consider the significance of both of these prison incidents further in [121] below. Mr Wichen provided this insight into the causes of his offending:
I think every time back then I think every time I felt lonely or depressed or angry or angry at the world or whatever it was, I drank alcohol to try to solve it and deal with it but it just made things worser where now I feel those things I choose to make other options.
Mr Wichen identified his other options as meditating, exercise, talking to somebody else or ‘do something positive … that helps you get around the negative stuff’.
Mr Wichen testified that if he were to be released and again experience feelings of depression or anger, he would ring a family member or speak to his parole officer about his thoughts and emotions.
When asked whether he had thought about why a number of the victims of his sexual offending were older, Mr Wichen responded, ‘I think it was just something that happened. I think it just had nothing to do with the age of the women, … nothing to do with targeting a certain age or whatever’.
Mr Wichen gave this response to a question about his current attitude to alcohol:
… I’m not really interested in alcohol anymore. I know it’s sort of it’s a danger zone for me, it puts me at risk of hurting people and I don’t want to do that anymore, you know. So therefore I just, I don’t have any interest in drinking alcohol anymore.
When asked what he would do if offered a drink by friends, Mr Wichen responded ‘Just explain my past to them, hopefully they understand that and if not I’ve just got to be strong to walk away from it all and think about what’s better for me’. He proffered as a strategy that he would find someone who is not drinking or was, for example, going fishing or going to watch a game of football.
Mr Wichen admitted that he used cannabis in gaol and that he had done so throughout almost the entire period of his imprisonment. He smokes it in pipes.
Mr Wichen explained the differences in how alcohol and cannabis affected him in this way:
I think alcohol sort of makes me more aggressive where cannabis relaxes me … I think alcohol gives you that bravery, want to do something, where cannabis you shy away from it. … Just [cannabis] can take you into a positive mind, positive thinking, you know, like doing things positive but it can also take you in a negative way too if you have got no money and you need more cannabis you go and steal money to get more cannabis.
Mr Wichen gave evidence that alcohol was sometimes available to him even in prison because it was brewed from fruit by other prisoners. However, he testified that even when he had had the opportunity to drink alcohol he chose not to because he ‘started realising that alcohol wasn’t for me … wasn’t good for me … part of the reason I’m in gaol’. On the other hand, he thought that cannabis is ‘not a big problem for me … if I smoke cannabis I’m not going to go and do a crime on it or assault someone whereas alcohol is a big chance of doing it’.
Mr Wichen explained why he believed that he was now willing and able to control his sexual instincts:[12]
ABecause I want to, you know, and I’m going to, I am determined to do it now.
QWhat’s made you determined to do it.
AProbably empathy, just don’t want to drink anymore, I’m a lot older now as well, I changed, time changes as you get older, yeah, just willing to do it, you know, change.
QWhat difference is it that you are now older, what difference do you think that makes.
AWell, you think different to as you were a 20-year-old, I suppose the situation I’m in your sex drive is not as strong as it was I suppose, you can say that if you want, and, just, I’m a lot different now, a lot older, I just want to change.
[12] T 16.29-17.4.

When he was asked what he meant by empathy, Mr Wichen responded:[13]
Put yourself in another person’s shoes, in their shoes, you know, I wouldn’t like it done to me or my family member.
[13] T 16.18-20.
When asked about the effect of the long periods of imprisonment he has served, Mr Wichen responded:
… I don’t want to be there anymore, just I think just sick of doing the same old thing, realise there’s no life there, all you’re doing is just walking over your footprints every day, you know, doing that for quite some time now and it’s sort of getting to me a bit.
Mr Wichen testified that he would maintain contact with his daughter and granddaughter if he were released.
Mr Wichen said that if he were to be released he would undertake courses in literacy and numeracy at Aboriginal TAFE. He would attempt to obtain a driver’s licence and was particularly interested in training to be a welder.
In cross-examination, Mr Wichen said that the sexual abuse he had suffered as a child had made him angry and that the anger had stayed with him as an adult. He gave evidence that the abuse had continued over a period of six months to a couple of years.
Mr Wichen admitted using violence against his former partner, the mother of his daughter.
Mr Wichen admitted that from time to time he had not complied with parole conditions as to such matters as his residence, and that he had abused alcohol whilst on parole.
When cross-examined about his offences, Mr Wichen generally admitted the details that were put to him. He testified that he understood that his offending was a terrible thing and said, ‘I’ve always told that to myself every time I’ve done that’. He explained that he did not commit the offending thinking he would not get caught, rather, he just did not care whether he got caught or not. He attributed his recklessness to being drunk.
Mr Wichen gave evidence that he would cope with the transition from custody to independent living, because of his experience of the cottages. He said that he would keep professional appointments because his reading had improved. He was confident that he would seek out and find support if his emotional state deteriorated.
Lilian Wilton
Mr Wichen’s aunt, Ms Wilton, gave evidence. She is aged 61. She said she drank alcohol in the past, but had stopped drinking when she was about 58 years old. She did so because her grandchildren came into her care. She has visited Mr Wichen in gaol and has telephoned him. They have exchanged greeting cards. When asked what support she would offer, she responded ‘I’ll give him everything what I can’.
Further psychiatric evidence
The Director asked Dr Nambiar and Dr Nguyen to review their opinions having regard to 13 topics drawn from Mr Wichen’s testimony given on 28 August 2019.
Dr Nambiar expressed the view that Mr Wichen’s use of violence may have stemmed from his early development, in the context of an unstable family and his parents’ violent relationship. Dr Nambiar again noted that Mr Wichen reported childhood sexual abuse by an older cousin and referred to the strong statistical likelihood of victims of such offending, themselves perpetrating violent or sexual offences.
Dr Nambiar did not find convincing Mr Wichen’s evidence in cross‑examination that he would abstain from alcohol because he knew that there was ‘a big chance’ of re‑offending if he consumed alcohol. Dr Nambiar referred to Mr Wichen’s continuing consumption of cannabis in custody and his diluted urine testing results. The latter, in Dr Nambiar’s view, could suggest an attempt to avoid the detection of substance use. This, however, may also simply result from drinking more water for innocuous reasons. After noting Mr Wichen’s evidence of his interactions with correctional staff, Dr Nambiar also expressed concern that Mr Wichen may have chronic difficulty in complying with conditions given his ‘oppositional stance’.
In Dr Nambiar’s view, Mr Wichen’s testimony on his participation in rehabilitation programs demonstrated low retention of what he had learnt and an unsophisticated understanding of new strategies to minimise reoffending. However, Dr Nambiar accepted that Mr Wichen’s willingness to avoid offending was well-intended and that Mr Wichen was able to describe ‘a new approach to his lifestyle’.
Dr Nambiar observed that while Mr Wichen had expressed feelings of guilt after his offending, he did not appear to have ever shown empathy during the offending itself.
Dr Nambiar considered that Mr Wichen’s denial of sexual attraction to his victims suggested ‘either a lack of honesty or appreciation or … a degree of psychopathy in that he objectified his victims for sexual release’. As to the first possibility, is it not obvious to me why Mr Wichen might think it helpful to deny any sexual attraction. I therefore doubt that explanation. Dr Nambiar also postulated that Mr Wichen simply did not understand the concept of sexual attraction. Dr Nambiar thought that that was a reason for concern because it meant that Mr Wichen did not understand the gravity of what he did. I, with respect, find that explanation difficult to follow. It is difficult to see how a lack of understanding of the fact that he was sexually attracted in any way could diminish his understanding of the gravity of the violence he inflicted on his victims.
In my view, the most likely of Dr Nambiar’s proffered explanations is that Mr Wichen’s offending involved a degree of psychopathy, and objectification of his victims.
Dr Nambiar’s conclusion remained unchanged by the evidence given by Mr Wichen:
In summary, as per my previous report, it is my opinion that Mr Wichen is demonstrating a willingness to control his sexual instincts but my concern was whether he was able to control them in the context of alcohol and drug use. That behaviour has been well established in the past and given the easy availability of alcohol in the community, there is still a high risk that Mr Wichen may resort to consuming large amounts of alcohol which then in turn leads to offending and the possibility of further sex offending.
In addressing the legislation, Mr Wichen’s testimony has not changed my opinion in that there remains a significant risk that he would, given the opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts. Mr Wichen, based on his risk factors, remains at high risk of further offending in general and this is enhanced when intoxicated which also increases his risk of sexual re-offending.
It is important to note that despite having undertaken courses regarding abstinence from illicit substances and alcohol whilst in custody Mr Wichen had continued to use cannabis and I would imagine did not consume alcohol due to its restricted availability in custody.
If any consideration was being given to releasing Mr Wichen back into the community, he would require very close supervision particularly with regards to his access to alcohol and/or illicit substances and that he should be directed to continue to participate in appropriate programs to address that issue including maintenance therapy for sex offending.
Dr Nambiar was recalled on 2 December 2019. He described Mr Wichen’s exposure to violence as a static factor and not a dynamic factor affecting his risk of recidivism and offending. The static factor was simply his observation of the violence and ‘[i]t would be difficult for him to change because what we know of Mr Wichen is that his behaviour in the past has been very impulsive. Impulse control is something that is very difficult to change despite best efforts.’
Dr Nambiar’s observations about the difficulty of affecting a change to poor impulse control can be accepted. However, it is not obvious to me why the perception or experience of violence is considered a static factor. The effect of perception and experience on personality is dynamic and subject to change. Even though Dr Nambiar accepted that personality disorders and psychopathy can change over time, mainly through age, his opinion was that Mr Wichen’s major characteristics like opportunism were enduring. Dr Nambiar’s opinion was that Mr Wichen is driven by ‘immediate gratification’. Dr Nambiar thought that Mr Wichen might simply have been parroting ideas of empathy that he had learnt in the SBC-Me rehabilitation course. I would not put much emphasis on Mr Wichen’s occasional grammatical solecisms in using the word empathy, having regard to his poor command of English. I also take into account that Mr Wichen is a relatively concrete thinker.
Dr Nambiar’s opinion was that Mr Wichen demonstrated ‘fairly shallow remorse’ and ‘a complete disregard for rules throughout his life’. Dr Nambiar’s opinion was that Mr Wichen externalised blame and that he did not have a good understanding of empathy.
I can well understand how Dr Nambiar came to those conclusions; there is much evidence to support them. However, my assessment of Mr Wichen’s evidence, having regard to his history and the reports, is that, he has reached a stage in his life where he has an incipient understanding of the magnitude of his offending and its effect on others, and a strong commitment to change.
Nor do I accept that the mere fact of recidivism shows that his remorse is shallow. Even if there was a degree of psychopathy in Mr Wichen’s offending, I see no reason why he could not develop sufficient empathy to control his impulsive behaviour in the future.
However, Dr Nambiar was undoubtedly correct to emphasise that even though regret and empathy might be felt retrospectively, and Mr Wichen had expressed a desire to change and not reoffend, his impulsive qualities could very easily lead to recidivism.
In cross-examination, Dr Nambiar agreed that Mr Wichen was moving in the direction of empathy. However, he was concerned that he was not ‘really able to quantify to what extent [Mr Wichen] has had that empathy’.
Dr Nambiar explained:
So, rather than saying he’s sexually attracted, he just recognised that they are female and so in that moment decided to gratify himself and attempted to rape them. So for him they weren’t – what he’s saying is that they weren’t really someone that he felt attracted to, they were just a means by which he could relieve himself sexually, and that’s very concerning, and that is more of a psychopathic stance.
Dr Nambiar explained that Mr Wichen’s denial that there was any sexual attraction is a reason to conclude that there is a significant risk that Mr Wichen would reoffend if given an opportunity.
Dr Nambiar considered that Mr Wichen’s continuing use of cannabis showed poor judgment, but agreed that cannabis was possibly less likely than alcohol to make him impulsive. However, Dr Nambiar’s view was that, if Mr Wichen truly had insight, he would stop taking both substances.
Dr Nambiar emphasised that Mr Wichen’s sexual abuse as a child was a static factor which increased the risk of his offending. There was a higher prevalence of sexual offending amongst persons who had been abused as children.
Dr Nguyen reported his updated opinion on Mr Wichen’s capability to control, or willingness to control, his sexual instincts, after reading the transcript of his evidence as follows:
I have had regard for the transcript of the oral evidence provided by Mr Wichen and [his aunt]. The evidence that he provided was broadly similar to what he described to me. He continued to present with much improved capacity for empathy compared with what I assumed was at the period around his offending. The risk factors that I had identified in my original report still stand. However, there appeared to be some discrepancy and/or unreliability of his account of his pattern of cannabis use whilst in prison. The account of his conflict with the prison officers in August this year and his attitude that he expressed in providing his evidence gives rise to additional concern.
Overall, in light of the evidence that has been given, I would maintain my original opinion with respect to Mr Wichen’s capability of controlling and willingness to control his sexual instincts.
Dr Nguyen was recalled to give evidence on 3 December 2019. Dr Nguyen commented on Mr Wichen’s description of the violent relationship between his parents. Dr Nguyen expressed the view that his exposure to that violence made it more likely that he would use violence as a way of coping. Dr Nguyen’s opinion was that the violence had probably desensitised Mr Wichen. Dr Nguyen also considered that it was more likely that Mr Wichen would use violence in the course of committing a sexual offence because of his early exposure to violence within a relationship.
On Mr Wichen’s understanding of empathy, Dr Nguyen said:
From Mr Wichen’s account and from the transcripts of the decisions by the relevant judges, it would seem that Mr Wichen at the time of the offending had little empathy for his victims, I think that is fairly clear. However, when I put forward the opinion that Mr Wichen’s capacity for empathy has been much improved I based that upon Mr Wichen’s verbal explanations of the impact on his victims and his explanation of why he would not offend or repeat his offending and I think that also seems to be consistent with his expressed opinion when he was interviewed in court.
When asked about the depth of Mr Wichen’s capacity for empathy, Dr Nguyen agreed that it was uncertain to what degree Mr Wichen’s empathy would guide his responses to life experiences outside prison. Dr Nguyen was sure that Mr Wichen’s expressions of remorse and concern for his victims were genuine but he remained concerned that Mr Wichen’s capacity for empathy might be limited. Dr Nguyen testified:
I think that Mr Wichen’s expressed opinions and attitudes largely are quite prosocial and he has expressed a lot of good intent, however, it’s still unclear about his practical capacity to, I suppose, make things work out for him, for want of a better term.
On the question of alcohol and cannabis use, Dr Nguyen agreed that drug taking habits may change with age and that some drug abusers are able to effectively abstain from substance misuse in which they had previously engaged. Dr Nguyen had seen people move from alcohol and other more dangerous drugs like amphetamine to cannabis over time. Dr Nguyen was concerned that the use of cannabis might so relax Mr Wichen that he would more easily be tempted to drink alcohol. Dr Nguyen agreed that alcohol was more commonly associated with violent offending than cannabis. There remained, nonetheless, the potential for behavioural disturbances and disinhibition in cannabis use.
Dr Nguyen expressed some concern about Mr Wichen’s willingness to comply with the directions of a community corrections officer because of his, at times, defiant attitude to prison officers.
Dr Nguyen was asked about Mr Wichen’s statements that he was not sexually attracted to his victims. He noted the obvious contradiction between that statement and his conduct. When asked why Mr Wichen’s denial of sexual attraction posed an increased risk of recidivism, Dr Nguyen answered:
I think that his – I would have expected that a degree of sexual attraction towards his victim would have played a significant role in his decision or conduct to commit the offences, and so I think that if he is not cognisant of that risk then it’s difficult for him to address it, if given an opportunity again.
Dr Nguyen maintained his position that Mr Wichen was unwilling to control his sexual instincts and that he would, if given an opportunity to commit an offence of a sexual nature, fail to exercise the appropriate control over his sexual instinct. Dr Nguyen agreed that the lack of sexual attraction may result from Mr Wichen’s objectification of women.
Dr Nguyen accepted that he had testified before Hinton J that, absent alcohol intoxication, there was not a significant risk that Mr Wichen would reoffend. Dr Nguyen recanted from that view. He expressed the opinion that there may be an appreciable risk even without alcohol intoxication. He explained, in a way which is, with respect, difficult to follow, that he changed his opinion after considering more carefully the legislation.
The Legislation
Section 59 of the Sentencing Act was amended by the Sentencing (Release on Licence) Amendment Act 2018 (SA) (the Amendment Act) which came into effect on 25 June 2018. The Amendment Act also amended Schedule 1 of the Sentencing Act by adding a Part 3 to the Schedule. Part 3 of Schedule 1 of the Sentencing Act provides that s 59 as amended applies to applications for release on licence from an order of detention made under the repealed Sentencing Act or the Sentencing Act where the application, including an application under s 24 of the repealed Sentencing Act, was made but not finalised before the commencement of the Amendment Act. Mr Wichen’s application must therefore be determined in accordance with s 59 of the Sentencing Act as it now stands.
Section 59 of the Sentencing Act provides:
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.
The remaining provisions of s 59 of the Sentencing Act primarily deal with the setting of the licence conditions on which persons may be released and their apprehension if any of those conditions are breached.

Mr Mead SC, for Mr Wichen, submitted that the meaning of willing in ss 58 and 59 of the Sentencing Act was not necessarily the converse of unwilling, as defined in s 57. It is necessary therefore to set out the relevant parts of those sections.
Section 57 of the Sentencing Act relevantly provides:
57—Offenders incapable of controlling, or unwilling to control, sexual instincts
(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.
…
(3) If a person has been convicted of a relevant offence, the Attorney-General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section.
…
(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.
(7) The Supreme Court may order that a person to whom this section applies be detained in custody until further order if satisfied that the order is appropriate.
(8) The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be to protect the safety of the community (whether as individuals or in general).
(9) The Supreme Court must also take the following matters into consideration in determining whether to make an order that a person to whom this section applies be detained in custody until further order:
(a)     the reports of the medical practitioners (as directed and nominated under subsection (6)) provided to the Court;
(b)     any relevant evidence or representations that the person may desire to put to the Court;
(c)     any report required by the Court under section 61;
(d)     any other matter that the Court thinks relevant.
…
(11) If a person to whom this section applies refuses to cooperate with an inquiry or examination for the purposes of this section, the Supreme Court may, if satisfied that the order is appropriate, order that the person be detained in custody until further order having given—
(a)     paramount consideration to protecting the safety of the community (whether as individuals or in general); and
(b)            consideration to any relevant evidence and representations that the person may desire to put to the Court.
…
I earlier indicated my view that the term ‘significant risk’ in the definition of unwilling must mean something more than any risk at all. Nonetheless, I accept that the threshold is a relatively low one.
In R v Whyte,[14] White J said:
Before a Court concludes that a person is unwilling in the defined sense, it must be satisfied that the risk of failure to exercise appropriate control is ‘significant’. In context, the word “significant” has the meaning of ‘substantial’. Put more colloquially, the Court must be satisfied that there is a ‘good chance’ that the risk will eventuate. The mere possibility of a failure to exercise appropriate control of sexual instincts will not be sufficient. But on the other hand the Court does not have to predict that the offender will fail to exercise appropriate control, or even consider it probable that he will fail to exercise such control.
(Citations omitted; emphasis in original)
[14] [2006] SASC 56 at [30]; see also Boughey v The Queen (1986) 161 CLR 10.
An evaluative exercise is required of the Judge hearing the application, and not the expert witnesses who may express an opinion on the degree of risk. An evaluation of the risk requires close attention to the psychological drivers of the offender’s conduct and the way in which they have been addressed since the offending.
Section 58 of the Sentencing Act relevantly provides:
58—Discharge of detention order under section 57
(1) Subject to this Act, a person subject to an order for detention under section 57 will not be released from detention under that section until the Supreme Court, on application by the DPP or the person, discharges the order for detention.
(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.
(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.
(3) The paramount consideration of the Supreme Court when determining an application for the discharge of an order for detention under section 57 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 for the discharge of an order for detention under section 57:
(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 Training Centre Review Board or Parole Board (as the case may be) in accordance with the direction of the Court for the purposes of assisting the Court to determine the application, including—
(i) any opinion that the relevant Board may have about the effect the discharge of the order may have on the safety of the community; and
(ii) a report as to the probable circumstances of the person if the order is discharged; and
(iii) the recommendation of the relevant Board about whether the order should be discharged;
(d) the reports resulting from the periodic reviews under section 57(15) on the progress and circumstances of the person tendered to the Court;
(e)     any other report required by the Court under section 61;
(f)      any other matter that the Court thinks relevant.
…
I make three preliminary observations. First, the opening words of s 57(1) apply definitions set out in that subsection only to s 57. Secondly, the power to make an order of indefinite detention is not expressly conditional on a finding that the person is incapable of controlling, or unwilling to control, their sexual instincts. However, if the power is not implicitly so conditioned, an order is nonetheless unlikely to be made in the absence of such a finding.
Thirdly, it will be observed that the power to release on licence is expressly conditional on a finding that the person is both capable of controlling and willing to control their sexual instincts. It will also be observed that s 58 does not expressly define willing as the converse of the term unwilling in s 57 of the Sentencing Act.
Mr Mead contended that the word unwilling in s 59 of the Sentencing Act should be given its ordinary meaning. The New Oxford Dictionary definition of willing is ‘ready to, prepared to, eager to do something’.[15] The Macquarie Dictionary defines willing as ‘disposed or consenting’.
[15] New Oxford Dictionary.
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.
It will be observed that the word ‘incapable’ is not defined in s 57 of the Sentencing Act. In the absence of a definition, the word ‘capable’ in ss 58 and 59 of the Sentencing Act must be the converse of incapable.
In R v Iwanczenko,[16] Parker J said:
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.
(Emphasis in original)
[16] [2019] SASC 140 at [112].
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.
I do not consider that Mr Wichen’s attitude to authority in prison is a sound indicator of how he would respond to any licence conditions. It is not at all surprising that, having been imprisoned for as long as he has, and without a release date, Mr Wichen has occasionally attempted to claim back some small measure of freedom of movement within the prison system.
It follows that if the relevant condition for release on licence was whether Mr Wichen was willing to control his sexual instincts, in the ordinary meaning of that word, I would find that he is. However, that is not the statutory test.
Unfortunately, the serious abuse to which Mr Wichen was exposed as a child and the innate disposition manifested by his previous offending, precludes me from being satisfied that Mr Wichen is now willing, within the statutory definition of that term, to control his sexual instincts. That disposition endured for much of Mr Wichen’s adult life. Entrenched patterns of behaviour are difficult to escape. I find that, as much as I am sure Mr Wichen would make strong attempts to control his sexual instincts, there is more than a merely negligible risk of reoffending. I find that if an opportunity to commit an offence were to arise, there is a significant risk that Mr Wichen would fail to exercise appropriate control.
The result is that Mr Wichen is trapped in a paradox. He has already served close to the minimum non-parole period reserved for offences of murder. However, unless and until he has an opportunity to demonstrate his ability to exercise appropriate control in ordinary social circumstances outside prison, his fate is largely determined by his past. 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. However, s 59 of the Sentencing Act does not allow for that course until Mr Wichen can demonstrate, from within the artificial constraints of prison, that there is no significant risk that he will fail to exercise appropriate control. On the evidence given by Dr Nambiar and Dr Nguyen, and the weight they give to static factors, it is not easy to see how that can be done in the short term. The ‘stepped down’ approach to which Dr Nambiar testified might show that it is safe to release Mr Wichen, but is not permitted by s 59 of the Sentencing Act. Absent that opportunity there is little prospect that Mr Wichen will be released until he meets the criterion of infirmity in s 59(1a)(b) of the Sentencing Act. By that time he will have been imprisoned for longer than even the higher of the non-parole periods fixed for murder. That is the undoubtedly harsh, and some may say cruel, result of imposing the same test for release on licence as a discharge of the order. It is an unfortunate result in a society as advanced as, and with the resources of, our State.
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.