Wichen v The Queen

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

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

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