Wichen v The Queen

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.