ATTORNEY-GENERAL (SA) v PETER WARSAP [2024] SASC 14

Applicant: ATTORNEY-GENERAL (SA) Counsel: MS A HEDGER - Solicitor: CROWN SOLICITOR (SA) Respondent: PETER WARSAP Counsel: MR G MEAD SC - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 17/08/2022, 31/08/2022, 07/10/2022, 22/02/2023, 01/05/2023, 17/05/2023, 15/08/2023, 31/08/2023, 20/11/2023, 21/11/2023, 05/12/2023, 12/12/2023 File No/s: SCCRM-22-325, SCCRM-22-326 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. ATTORNEY-GENERAL (SA) v WARSAP [2024] SASC 14 Judgment of the Honourable Justice McDonald 6 February 2024 CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS On 29 April 2011, the respondent was sentenced to a term of 13 years imprisonment with a 9-year non-parole period for the offence of persistent exploitation of a child. Prior to the expiry of the respondent’s head sentence on 10 September 2022, the applicant filed two applications. The first sought an order pursuant to s 57 of the Sentencing Act 2017 (SA) detaining the respondent in custody until further order of the Court on the basis that he is either incapable of or unwilling to control his sexual instincts. The second sought an order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 making the respondent the subject of an extended supervision order. Whilst the former of these two orders was contested, the latter was not opposed. Court-ordered reports were received from Dr Craig Raeside and Dr Amisha Jayawant, both of whom opined that the respondent met the criteria for a diagnosis of a paedophilic disorder and that he was unwilling to control his sexual instincts. As such, his risk of committing a further serious sexual offence remained high. During the proceedings, the respondent privately engaged Ms Susan Heinrich, a forensic psychologist, who produced a report reflecting positively on Mr Warsap’s progress while in custody. Drs Raeside and Jayawant subsequently produced addendum reports following Mr Warsap’s engagement with Ms Heinrich. All three experts, as well as the respondent himself, gave evidence during the proceedings. Held, declining to make an order under s 57 but granting the extended supervision order, given the respondent’s circumstances, as well as the limited progress that he will likely make if kept in custody, the protection of the community from the risk posed by the respondent is best achieved through the granting of an extended supervision order for a period of three years. -- 1 of 17 -- Sentencing Act 2017 (SA) s 57; Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, referred to. R v Hoare [2017] SASC 7; R v Schuster [2016] SASCFC 86, considered. -- 2 of 17 -- ATTORNEY-GENERAL (SA) v WARSAP [2024] SASC 14 Criminal: Application 1 McDONALD J: The Attorney-General has made an application pursuant to s 57 of the Sentencing Act 2017 (SA) that Mr Warsap be detained in custody until further order of the Court on the basis that he is either incapable of or unwilling to control his sexual instincts.1 2 In the alternative the Attorney-General seeks an order that Mr Warsap be the subject of an extended supervision order (“ESO”) pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“HRO Act”).2 3 Mr Warsap opposes the making of an indefinite detention order, however, does not oppose the imposition of an ESO. The Attorney-General’s application pursuant to s 57 of the Sentencing Act 4 Section 57 of the Sentencing Act creates a regime under which orders can be made to detain a defendant in custody until further order of the Court in a number of circumstances. Relevant, to this application s 57(3) provides: (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. 5 Section 57(5) enables a Court to make an interim order if the Attorney- General has made an application under subsection 57(3) to ensure that the person remains in custody until the application has been determined. 6 Section 57(7) confers this Court the power to order that a person to whom this section applies be detained in custody indefinitely. It reads: (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. 7 The section applies to a person who has committed a “relevant sexual offence.” There is no dispute that Mr Warsap is a person to whom the section applies. 8 Before determining whether such an order is made, the Court is required to order relevant medical reports pursuant to s 57(6): (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 1 FDN 1 dated 10 August 2022 (SCCRM-22-326). 2 FDN 1 dated 10 August 2022 (SCCRM-22-325). -- 3 of 17 -- [2024] SASC 14 McDonald J 2 section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person’s sexual instincts. 9 It follows that, whilst not explicit, the power to make an order pursuant to s 57 requires as a threshold question, that the Court be satisfied that the person who is the subject of the application, is either incapable of controlling or unwilling to control his or her sexual instincts. Even if so satisfied, the Court must then consider whether it is “appropriate” to exercise the discretion to make an order pursuant to s 57(7). That will necessarily involve engaging in the exercise of balancing the interests of the need to protect the community against the significant deprivation of liberty that would result from an order for indefinite detention. Section 57(8), however, provides that the paramount consideration will always be the need to protect the safety of the community. 10 In R v Hoare,3 Hinton J undertook a thorough and detailed analysis of the statutory scheme and applicable legal principles for an application made pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA). This section was the predecessor of s 57 and was substantially the same. During the course of that analysis, Hinton J made the following observations about the operation and purposes of such an order:4 Whilst the exercise of the power contained in s 23(4) is not expressly conditioned upon the Court finding that the offender subject of an application is incapable of controlling, or unwilling to control, his or her sexual instincts, the Full Court has stated that the question whether the subject is incapable or unwilling to control his or her sexual instincts is a threshold question that must be answered yes or no, otherwise, bearing in mind the scheme created by Part 2 Division 3 of the Sentencing Act, no proper foundation exists for the Court to consider the risk that the offender poses to the safety of the community. Having answered the threshold question, there remains vested in the Court a residual discretion – despite the Court finding that a person to whom the section applies is incapable or unwilling to control his or her sexual instincts, it may be inappropriate that an order for indeterminate detention be made. Here it is important to bear in mind, for example, that the application may be made well in advance of the completion of an offender’s determinate sentence, when there is much time remaining for the offender to take advantage of courses and programs offered by the Department for Correctional Services. While a conviction for a “relevant offence” is a precondition to the engagement of the scheme, the scheme’s purpose is not punitive. Rather, it is concerned with preventing recidivist sexual offending through incapacitation and rehabilitation. The scheme does not punish an offender twice for the same offences or increase the punishment for those offences. While it operates by reference to an offender’s status as a person convicted of a relevant offence, it sets up its own normative structure. The purpose of an order of indeterminate detention is to protect the community from sexual offenders where the risk posed by such a person is such that it is inappropriate that they be released, even when they have completed what would otherwise be their period of imprisonment for the offences that they have committed. Additionally it is to ensure that the person “receives appropriate treatment, review and supervision”. 3 [2017] SASC 7 at [62]-[74]. 4 [2017] SASC 7 at [63]-[64]. -- 4 of 17 -- [2024] SASC 14 McDonald J 3 (Footnotes omitted). These considerations apply equally to a s 57 order. The circumstances in which the applications have been made 11 Mr Warsap has an extensive criminal history. For the purpose of these applications, the most relevant convictions are for multiple sexual offences that extend back to 1983. 12 On 16 November 1983 Mr Warsap was convicted of two counts of unlawful sexual intercourse with a person under the age of 12 and two counts of incident assault for which he was sentenced to 6 years imprisonment with a non-parole period of 4 years. The victim of these offences was an 11 year old boy. Mr Warsap had commenced a relationship with the boy’s mother and then took advantage of that relationship to offend against the child. 13 In 2002 Mr Warsap was convicted of a further two offences of indecent assault. The victims of these offences were a 9 year old and 11 year old boy. Both offences involved opportunistic conduct which involved Mr Warsap taking advantage of his relationship with the boys to sexually offend against them. For these offences Mr Warsap was sentenced to 4 years imprisonment with a non- parole period of two years and 6 months. That sentence was suspended upon Mr Warsap entering into a bond to be of good behaviour for three years. 14 Mr Warsap’s most recent sexual offending occurred in 2007. As a consequence of which on 29 April 2011 he was sentenced to 13 years imprisonment for the offence of persistent exploitation of a child. A non-parole period of 9 years was fixed. The victim of this offence was a 15 year old boy who was said to have an intellectual age of eight to ten years old. The course of offending occurred over a period of about 6 months and involved numerous sexual acts. Again, Mr Warsap gained access to the boy by forming a relationship with his mother. He achieved a position of trust in her household and then abused that trust for his sexual gratification. 15 At the time that Mr Warsap was sentenced for this offence the Director of Public Prosecutions made an application pursuant to s 23 of the Sentencing Act for Mr Warsap to be detained in custody until further order on the basis that he was unwilling to control his sexual instincts. For that purpose, reports had been obtained from Dr Brereton, Dr Raeside and Dr O’Brien. They also gave evidence. All three psychiatrists assessed Mr Warsap as “unwilling” to control his sexual instincts. 16 Despite this, the Sentencing Judge, Vanstone J declined to make the continuing detention order. In her sentencing remarks, Vanstone J made some observations about the opinions expressed by the psychiatrists. Her Honour said: -- 5 of 17 -- [2024] SASC 14 McDonald J 4 I have heard evidence from three forensic psychiatrists who have expertise and long experience in these matters. Each of those has expressed the opinion that if you are given the opportunity to participate in sexual behaviour clinic program in gaol – sooner rather than later – it is very likely that you will achieve a much greater insight into your offending and that upon your eventual release you will have a much better chance of avoiding reoffending. I recommend to the prison authorities that everything possible be done to ensure that you are assessed for eligibility for such a program as soon as possible. Certainly you will be in custody long enough to complete the program. 17 Mr Warsap was not granted parole in relation to the 2007 offending and as a consequence served the entirety of his head sentence. His sentence expired on 10 September 2022. 18 In August 2022 the Attorney-General filed the two applications. The matter first came before the Court on 17 August 2022. On 7 September 2022, I made orders that two legally qualified medical practitioners inquire into Mr Warsap’s mental condition and report back to the Court on whether he is incapable of controlling or unwilling to control his sexual instincts.5 Additionally, that the experts report back on the likelihood of Mr Warsap committing a further serious sexual offence.6 I also ordered that Mr Warsap be the subject of an interim detention order until such time that the primary application was determined. 19 Reports were received from Dr Craig Raeside and Dr Amisha Jayawant on 28 October 2022 and on 27 January 2023 respectively. In their reports both doctors expressed the view that Mr Warsap met the criteria for a diagnosis of a paedophilic disorder, that he was “unwilling to control his sexual instincts” and that his risk of committing a further serious sexual offence was high. The matter was listed for the two psychiatrists to give evidence on 2 May 2023. An unexpected development 20 On the application of Mr Mead SC who acted for Mr Warsap, the matter was called on in advance of the hearing on 1 May 2023. On that occasion Mr Mead SC made an application that the hearing date for the experts to give their evidence be vacated in order to enable Mr Warsap to obtain further counselling to assist in his rehabilitation. 21 Mr Mead SC set out the various steps that had been undertaken by Mr Warsap in an attempt to obtain treatment whilst in custody. He explained that between 2011 and 2017 nothing was achieved in respect of Mr Warsap’s rehabilitation. Between 2017 and 2018, Mr Warsap participated in the Sexual Behaviour Clinic (“SBC”). Mr Warsap participated in all components of the SBC and attended 100% of the group sessions. He received approximately 216 hours of group treatment and 19 individual treatment hours. 5 s 57(6) Sentencing Act 1988 (SA). 6 s 7(3) Criminal Law (High Risk Offenders) Act 2015 (SA). -- 6 of 17 -- [2024] SASC 14 McDonald J 5 22 Prior to treatment Mr Warsap was estimated being at very high risk of reoffending. Following completion of the program, he was evaluated as being at high risk. Overall the feedback provided to Mr Warsap, at the completion of the program was mixed. His progress was summarised in the following terms:7 Mr Warsap was noted to have actively engaged in treatment and while some positive change was observed, this occurred within the confines of the program and Mr Warsap was yet to have the opportunity to demonstrate such change in the community. Despite the development of some increased insight into his sexual offending and other problematic behaviours, on occasions he continued to attribute his offending behaviours to external factors rather than the result of choices he made. 23 Mr Mead SC advised the Court that since that time Mr Warsap has of his own initiative undertaken a number of steps in an attempt to progress his rehabilitation. Mr Warsap requested to be placed on the domestic violence program and more importantly he made contact with a forensic psychologist, Susan Heinrich and started corresponding with her about the possibility of her providing some counselling or therapy on a private basis in the prison system. A highly unusual feature of Mr Warsap’s circumstances is that over the years that he has been in custody he has managed to accrue sufficient funds from his prison earnings to enable him to privately fund Ms Heinrich’s services. At the time that Mr Mead SC made these submissions, Ms Heinrich had agreed to provide psychological treatment and counselling however I was told that the stumbling block was DCS. I indicated on that occasion that DCS should endeavour to do all that they could to facilitate Mr Warsap in receiving psychological counselling and therapy. I vacated the hearing date of 2 May 2023. 24 The matter next came before the Court about 2 weeks later on 17 May 2023. 25 I was advised that in the intervening period arrangements had been made for Ms Heinrich to commence therapeutic sessions with Mr Warsap. On that basis the matter was adjourned for three months to afford Ms Heinrich an opportunity to commence working with Mr Warsap and potentially report back to the Court. 26 On 8 August 2023 Ms Heinrich provided a “treatment update” report in relation to her meetings with Mr Warsap. At the time of preparing the report Ms Heinrich had consulted with Mr Warsap on six occasions, each for between 1 and 1.25 hours. Ms Heinrich described Mr Warsap as an active participant at all appointments, attending with a notebook, pen and therapeutic sheets that had been sent to him in advance of the session. It was evident to Ms Heinrich that Mr Warsap had read the material ahead of time and would write down reflections between the appointments which he would share during the sessions. Ms Heinrich observed that Mr Warsap presented in a more open manner than had previously been described by other psychiatrists. She summarised his presentation in their sessions in the following terms: 7 Exhibit AMC-17 to the Affidavit of Angela Catherine Marsh dated 10 August 2022 p 122. -- 7 of 17 -- [2024] SASC 14 McDonald J 6 As noted above, Mr Warsap has been an active participant in all appointments. A good level of therapeutic rapport has been established. During our appointments, Mr Warsap has been observed to freely provide information which does not portray him in a positive light and has not minimized his offending when speaking to me. He has acknowledged that others have deemed him to be at risk, stating he understands why this is the case. He has frequently referred to the material he has learnt through the SBC program and has actively sought to apply and relate this learning to the material we have discussed in sessions. Mr Warsap has repeatedly expressed a sense of anger toward himself for not engaging in treatment programs which were available to him through SOTAP (now Owenia House), stating if he had done so, he may not have committed the offence for which he is currently incarcerated. 27 Overall, Ms Heinrich’s report on Mr Warsap was very positive, she noted however that there was a limit as to how far he could progress whilst in custody. Mr Heinrich summarised the position that Mr Warsap found himself at that time: From a clinical perspective, providing ongoing prison in-reach to Mr Warsap to reduce his recidivism risk will provide diminishing returns. Consistent with the SBC post-treatment report, Mr Warsap is able to demonstrate clear learning from the SBC program but has not had the opportunity to put these skills into place in the community. From a risk assessment perspective, it will be difficult for Mr Warsap to prove changes in dynamic risk factors when so much of his day-to-day life is controlled. This is even more the case now he has reduced freedoms as he is no longer a sentenced prisoner. To Mr Warsap’s credit, despite losing his status as a sentenced prisoner, being remanded beyond his total sentence and losing privileges, Mr Warsap has not become resentful of his sanctions, instead accepting his situation as the natural consequence of his actions. Naturally he is disappointed by his situation regardless. From a clinical perspective, rapport has now been established with Mr Warsap and Mr Warsap presents as motivated to remain engaged in treatment (evidenced by his ongoing communication, engagement in and between sessions, and willingness to fund his treatment). Clinically, this rapport can be transferred to appointments in the community. In the community, the therapeutic focus will be on managing risk factors as they arise. To help manage this, clear and regular communication is recommended between Mr Warsap’s supervisors, his treating psychologist and any other treatment providers to promote accountability and provide for community safety. It is respectfully recommended the Court make a decision soon about Mr Warsap’s future. I note Mr Warsap has completed the SBC program and has been proactive about engaging with further supports since completing the program. He has requested to engage in a domestic violence program as recommended but has not been offered a place. He has been accepting of his situation and losing freedoms due to prison policy rather than through direct fault of his own. Prolonging the process of deciding his future runs the risk of Mr Warsap developing resentment. Should this occur, Mr Warsap would be at greater risk of disengaging from supervision on his release which would amplify his risk. 28 Ms Heinrich’s report was provided to Dr Raeside and Dr Jayawant in order for them to report back to the Court about whether the recent developments impacted on the opinions that they had previously provided. 29 In his addendum report, Dr Raeside noted that the positive developments described by Ms Heinrich were consistent with the progress that he had described -- 8 of 17 -- [2024] SASC 14 McDonald J 7 in his report. Despite these developments Dr Raeside maintained his position that it was difficult for Mr Warsap to reduce his risk assessment whilst in a custodial environment. He explained: Overall, Ms Heinrich’s report on recent psychological therapy with Mr Warsap is consistent with the positive features I noted in my earlier report. It further confirms evidence he is genuine in wanting to address these issues and reduce his future risk. However, my opinions expressed in my earlier report remain unchanged. This is not due to anything Mr Warsap has or hasn’t done since. Rather his risk profile remains high notwithstanding any recent gains in a therapeutic setting. Further, as expressed by Ms Heinrich, the only way to determine if Mr Warsap has integrated therapy (as well as self-reflection and learning over his many years in custody) will be upon his release into the community, rather than the artificial environment of the prison. Essentially Mr Warsap remains at risk of further sexual offending if he was in a position to do so (or put himself in such a position). In that regard, despite positive comments from Ms Heinrich, it is my opinion he remains unwilling. Whether Mr Warsap should remain in custody for the remainder of his life is clearly for the Court to decide. His risk profile will not drop significantly over time. 30 Dr Jayawant expressed a similar view in her addendum report, she said: Despite his engagement and learnings from the SBC in prison and in psychological sessions with Ms Heinrich, Mr Warsap’s dynamic risk factors are untested in the community since he has been in a secure, controlled custodial environment. Expert Evidence 31 All three experts supplemented their reports by giving evidence. Ms Heinrich 32 By the time Ms Heinrich came to give evidence she had conducted a further five therapeutic sessions with Mr Warsap. It follows that she had spent considerably more time with Mr Warsap than the other two experts and that time was spent in a therapeutic as opposed to forensic context. 33 It was Ms Heinrich’s evidence that in the time between preparing her report and giving evidence she had observed some further progress in Mr Warsap in that there appeared to have been a shift in his thinking. She explained that prior to his attendance at the SBC program, Mr Warsap believed that his deviant sexual attraction and his behaviour in acting on that attraction was genetic and was beyond his control. She said that Mr Warsap now accepts that he can control this behaviour and take responsibility for his actions and make positive choices. In furtherance of that Mr Warsap had developed strategies to avoid acting on his sexual urges. -- 9 of 17 -- [2024] SASC 14 McDonald J 8 34 In evidence Ms Heinrich expressed a firm view that to retain Mr Warsap in custody for any further length of time would be counterproductive. In response to a question about whether there was any future treatment that may be beneficial to Mr Warsap, either in custody or in the community, she said: 8 If I address custody first. I am not aware of any other programs that would be of benefit to Mr Warsap in custody. The research that I’m aware of in the area sort of suggests that when people have completed treatment, if they are held in custody and remain in custody for extended periods of time, that over time that period can lose its effectiveness because they can't apply those skills. One of the biggest risk factors towards recidivism generally, not just sexual recidivism, is a sense of resentment towards authority, towards courts, towards the law and there is a risk that the longer Mr Warsap remains in custody, that at some point, especially given his complete sentence I understand is now over, that at some point he might start to experience that resentment. That is not there at this point. I can't think of any useful treatment programs, but I think if the court is inclined to release Mr Warsap, holding him for an extended period of time before releasing may actually have the risk of increasing, the effect of increasing his risk in the community. Helping Mr Warsap to adapt to the community in the first instance. He has been in custody for a very long time and coming out to the community is naturally going to be quite a shock for him. So when he is first released, I would see a range of appropriate supports in place, things like supervision from Community Corrections. He has indicated a desire and I would be happy to see him for psychology appointments. I also think the COSA programs through OARS will also provide him with another supportive kind of outlet. I would see that there be an initial need for treatment to begin with, to be able to - I'm not sure if I'm using the right word - tweak his plans to fit his actual setting in the community, depending on where he's living and what he actually does with his day. So looking at really honing that risk management strategy, I think open communication between all the people working, supervising Mr Warsap so we can be monitoring risk factors and his engagement. I would anticipate that over time as he settles into the community, some of those treatment needs might reduce a little bit, but it would probably be that ongoing monitoring, especially noting that his historic offending - it's been 19 years and then nine years between convictions - it's that ongoing monitoring and providing him with that support in the long-term and that constant reminder, I suppose, of the things he's learnt and helping him to apply the things he's learnt in different settings as life changes for him. 35 Ms Heinrich gave evidence that a further factor that will assist Mr Warsap in his ability to remain resolute in his intention to not reoffend in the future, is the high level of self-control that he has been able to demonstrate in custody – successfully saving a considerable amount of money by relinquishing his ability to purchase any of the “luxuries” available in prison that may make the life of a prisoner more tolerable. This has to be contrasted with Mr Warsap’s previous highly impulsive conduct. 36 Ms Heinrich told the Court that if Mr Warsap is released from custody it is her plan to continue to work with him. It is the intention of both Ms Heinrich and Mr Warsap that this will be a long term arrangement and she envisages working together with other service providers to provide Mr Warsap support in the community. Measures would be put in place to ensure that if for whatever reason 8 TX 12-13. -- 10 of 17 -- [2024] SASC 14 McDonald J 9 she was to become unavailable there would be someone else in her practice to take over for her. 37 When asked whether in her view, Mr Warsap was unwilling to control his sexual instincts, Ms Heinrich gave lengthy and detailed answers that make it plain that this is a complex issue. In summary, her evidence was that historically Mr Warsap was clearly unwilling to control his sexual instincts. Since that time there has been a “massive” attitudinal shift with Mr Warsap seeking all the help that he can find to assist him in not reoffending. She described him as genuinely hoping to be a positive member of society. 38 Ms Heinrich agreed with the diagnosis of a paedophilic disorder and explained that this diagnosis cannot be changed and will remain with Mr Warsap for the rest of his life. She drew an analogy with someone with a borderline personality disorder. The question is whether Mr Warsap can alter his behaviours around that disorder and not reoffend. She described Mr Warsap as being highly motivated and that he saw the conditions of an ESO as a positive measure to assist him in his rehabilitation. Importantly, Ms Heinrich explained that Mr Warsap was under no illusions about the consequence of him breaching any of the conditions of the ESO. I think he is aware that if the court is willing - well, he's told me that he's aware that if the court is willing to give him another chance, that the smallest break of his supervision orders will probably result in him being in custody for the rest of his life. I'm not sure whether that's legally the case, but that's mine and his understanding of that. So I think there’s a very high motivation to comply. I also think - well, naturally he hasn't enjoyed being in custody. I don't know too many people who do. You know, he has been compliant and he's also - can identify positive aspects of custody and supervision, which I think again seems to be a change from where his thinking was at in the past. So yes, naturally that is a risk but again, I think that there is a substantial change in Mr Warsap now compared to when he was first incarcerated on these offences. Dr Raeside 39 In evidence, Dr Raeside maintained his view that Mr Warsap remained at a high risk of reoffending if released. He qualified this however by making the point that in real terms his risk has reduced.9 He’s older, he’s spent a long time in custody, he’s undertaken a sexual behaviour clinic, which enabled him to address some of those issues that he hadn’t before. So I think although the weight of all the risk factors keeps him at a high level, I think in real terms he’s less a risk than he was certainly when he came into custody. 40 Dr Raeside regarded the relevantly recent development of Mr Warsap’s level of insight as an important matter in reducing his level of risk. He placed particular weight on the evidence of Ms Heinrich about Mr Warsap having read all of the materials in advance of their sessions and attending with a notebook and pen. Dr Raeside described that as indicative of Mr Warsap actively wanting to derive 9 TX 49. -- 11 of 17 -- [2024] SASC 14 McDonald J 10 some benefit from those sessions. He also considered that the therapeutic relationship that Mr Warsap has developed with Ms Heinrich will be a very positive and important factor if Mr Warsap is released into the community. Whilst Dr Raeside qualified his answers on this topic with the observation that the therapeutic relationship was still in its very early stages, he said that what it did show was that Mr Warsap was still willing to engage in and address some of his outstanding issues. 41 Dr Raeside also gave some evidence that motivation was a critical factor for Mr Warsap. He explained that it was relevant in two ways: One is if he’s motivated to do something positive, he has that capacity and has shown an ability to do that. On the other hand, if he’s not motivated, as with anyone, that is a significant barrier to them making the changes that are necessary. I found him to be motivated when I’ve talked to him, as I think he appears motivated to get his life in order when he gets out and to not re-offend. I think that’s a genuine motivation he has. Whether he’s able to deal with the added stressors and things that will come, that’s another issue. 42 When asked about the significance of Mr Warsap having saved $18,000 to engage a private psychologist, Dr Raeside gave the following response: I think Mr Warsap’s an outlier in that regard, that what he's done is commendable and certainly not common or again, as you’re pointing out, I can’t think of too many that have actually taken action. Many profess the things they want to do, but he's actually shown some action to show that he's at least genuine in his desires to get - keep working hard and get to where he wants to be. 43 In re-examination, Dr Raeside was asked how he saw the interaction between Mr Warsap’s genuine desire to not reoffend, with his risk of further offending. His answer neatly encapsulated the overall effect of his evidence. Yes, and obviously having a genuine desire is better than not having any desire and so that’s a positive factor, but however, it just means that he effectively is more likely to engage in programs, therapy, other supports that are available to him, that he can then utilise to continue to do what - the right thing in his mind. So that’s a positive factor. His ability to do so and when it gets difficult, his willingness to continue remains to be seen and that’s why it really needs being in the community in order to see whether he can translate that desire into actions into the community. But I think with the appropriate supports that we’ve talked about, assuming the monitoring and other things continue, I don’t think that in practice he’s more likely to engage positively in the community without any real desire or simply blame everyone else for his predicament. Dr Jayawant 44 Dr Jayawant’s evidence was focussed on the need for Mr Warsap to be supervised if released into the community. She maintained the view that Mr Warsap remains at high risk until he can demonstrate that he can exercise appropriate self-control when he is actually placed in a high risk situation. When asked whether her conclusion that Mr Warsap is likely to fail to exercise -- 12 of 17 -- [2024] SASC 14 McDonald J 11 appropriate control was based on the fact that his ability to demonstrate the skills taught in the SBC is untested in the community, she responded:10 Yes, its – I believe so, because it is very difficult to demonstrate any learnings unless you’re in a real life situation. I’d like to add, he has been in a fairly artificial situation in custody, where there’s a high level of security and lack of access to his victim group. 45 In cross-examination Dr Jayawant was taken to the passage of her addendum report in which she said “he’s unwilling to control his sexual instincts within the definition of s 57. However, I strongly support an Extended Supervision Order with strict conditions” and was asked whether what she was really saying was that in her opinion the better option is an ESO rather than indefinite detention. She responded: I agree with your comment but it is a matter for the Court; but if you are looking at both options and the fact that he hasn’t been able to test his skills in a real life situation, I would – hence I’ve used the words “strongly support an extended supervision order with very strict conditions” being mindful that in both the situations the level of risk has not changed because he hasn’t been able to demonstrate any learnings. Summary of the expert evidence 46 Ms Heinrich has spent considerably more time with Mr Warsap than Dr Raeside or Dr Jayawant. She is best placed to make an assessment of his level of insight and his motivation to not reoffend in the future. Whilst she was supportive of his release on an ESO, she was realistic about the challenges that he faces given his record of entrenched serious sexual offending. Ms Heinrich expressed the view that to give Mr Warsap the best opportunity of succeeding an ESO with strict conditions was necessary. She went so far as to say that absent such an order, it would be an unacceptable risk for the Court to allow Mr Warsap back into the community. 11 47 Ms Heinrich saw herself as an integral part of the supports that need to be put in place in order to safely release Mr Warsap from custody. This is a role that she has previously taken on with other clients. She said:12 I’ve worked with many people while they’ve been under corrections orders, and I believe I have quite a good working relationship with many community corrections officers. You know, usually quite early in treatment with people, I set up an arrangement with the community corrections officer, whether usually its on email – to verify attendance and all those sorts of things. Obviously, I can’t guarantee that the system won’t fail but, you know the risk of that failing can be significantly reduced. 48 Ms Heinrich explained that initially in the first transition phase her contact with Mr Warsap would be highly intensive with weekly appointments. The frequency of contact after that will depend on how Mr Warsap is coping, but all going to plan it would reduce down to monthly and then 3 monthly appointments. 10 TX 84. 11 TX 26.. 12 TX 29. -- 13 of 17 -- [2024] SASC 14 McDonald J 12 Ms Heinrich explained that she saw her involvement as being a “10 year plus” commitment. 49 Dr Raeside was also very positive about the therapeutic relationship that has been developed between Ms Heinrich and Mr Warsap. He described “that would be one of those things that would be a very positive factor in the community, to continue something like that, to do that.”13 He went on to say although it was too early to make any difference to an assessment of Mr Warsap’s overall risk “it does show that he’s willing to engage in that and to address some of the outstanding issues that need to be done.”14 50 Both Dr Jayawant and Dr Raeside expressed the view that whilst there is a limit to the extent to which Mr Warsap’s risk assessment can be reduced given his history of offending, and his prolonged removal from the community whilst in custody, he is doing all that he can to ensure that he does not reoffend in the future. Whilst careful not to usurp the role of the Court, both psychiatrists suggested that the only practical way forward for Mr Warsap was to put him to the test in the community with the restrictions and supports that an ESO offers. 51 It was the experts’ view that whilst Mr Warsap will always have a paedophilic disorder, the only way in which it could be assessed whether he could manage that disorder was by releasing him into the community. Mr Warsap’s Evidence 52 In a further unexpected twist, after the experts completed their evidence, Mr Warsap elected to enter the witness box and give evidence himself. 53 Overall, I was impressed by Mr Warsap’s evidence. He came across as candid, insightful and willing to make appropriate concessions. He took the Court through the plan he made to save money in order to fund consultation with a psychologist. He said that on average he was paid about $35 a week and from that amount he has saved $18,000. 54 Mr Warsap also gave evidence about his participation in the SBC program and the various lessons he learned from it as well as the insights that he had gained. It is not necessary for current purposes to traverse through the details of that aspect of his evidence other than to observe that he came across as genuinely positive about the impact that the course has had on him. He said he has set himself goals and in particular goals surrounding not reoffending. He explained:15 Well I have a main goal because I've been working hard on them, is my rehabilitation and I work many many years very hard on that rehabilitation and if I get a bad thought maybe, or an urge, I know not to act on it. I ask myself 'Will this urge help me in my ultimate goal in becoming a better person and if I do act on it, what will the consequences be?', and that 13 TX 57. 14 Ibid. 15 TX 89. -- 14 of 17 -- [2024] SASC 14 McDonald J 13 is, in my opinion, solving that problem, because the resolve being is 'No', and will not help me to achieve that goal. So I think trying to achieve that goal on the outside would overway - outweigh acting on my urge. 55 Mr Warsap told the Court that after completing the SBC program he started reading self-help books that he obtained from the library. He also made contact with Owenia House by writing and enquiring about whether there were any maintenance courses that he could undertake. They wrote back saying that they did not have any available courses however provided him with a list of psychologists that Mr Warsap could contact. That was how Mr Warsap came to make contact with Ms Heinrich. 56 In his evidence, Mr Warsap spoke about the benefits of an ESO and recognised that a curfew and electronic monitoring would assist him. 57 The most impressive aspect of Mr Warsap’s evidence were some of the answers that he gave during cross-examination. At times he came across as disarmingly honest. By way of example, when asked about whether despite what he had learnt there remained a risk that he may reoffend if released into the community he responded “I would have to agree with that.”16 58 At the end of his evidence, Mr Warsap demonstrated a genuine level of insight when he gave an explanation of what he had learned about his offending and the choices that he has made. Can I just say one more very quick thing? I'm sorry to be rude. I said to the psychiatrist this morning, when I had my interview about how, if you're not aware of your choices, you can't take responsibility, what I meant in saying that was in my early years I have had low self-esteem and when you get low self-esteem, unhelpful thoughts can come and be programmed in your mind. If you don't have the skills to combat these unhelpful thoughts, as I now have, they can fester and become your daily routine and you think - it's habit forming. It's not actually a choice you're making, it just becomes a daily routine, and that's how I was many years ago. Thinking 'Hang on, these aren't choices I'm making, they're just what I do'. It's like brushing your teeth in the morning; it can form a pathway in your brain - just like walking - when I was in Blue Fin - sorry, I do talk a lot, in Blue Fin I had a cell and to get to the kitchen to make a cup of coffee, I had to walk across the lawn and I wasn't aware that I was making a pathway across that lawn until somebody mentioned it. 'Why do you choose to walk across the lawn?'. I don't choose to do it, it just happens. I get up, I walk across. Until that was said. Now I make a conscious choice either turn left or turn right. I'm more mindful of the choices I'm now making. It's amazing how many choices we do make during a day that we're not really aware that they're our choices, and that's what I was trying to say, what I was meaning to say because I'm not very - I can't sort of explain myself that well, I think being in prison for so long. I do a lot of writing but not talking. You may be amazed with that. But I think that what I was trying to say is when you get up in the morning, for argument sake, and you brush your teeth and make a cup of coffee, a lot of people don't relate them as being choices. They relate them as just the normal done thing and if you're not aware that they are actually choices, you're not aware of how many choices you are making, it's very difficult to take responsibility for those choices if you're not aware they are choices. 16 TX 95. -- 15 of 17 -- [2024] SASC 14 McDonald J 14 59 I accept that Mr Warsap is genuine in his intent to not reoffend once back in the community. It is a further positive sign that he is realistic about the difficulties that he will face and for that reason welcomes the structure that an ESO provides. Is Mr Warsap incapable of or unwilling to control his sexual instincts? 60 There was no suggestion, nor has there ever been any suggestion that Mr Warsap is incapable of controlling his sexual instincts. To the contrary Mr Warsap has demonstrated extraordinary self-control and an ability to self- motivate. 61 The real question remains whether he is unwilling to control his sexual instincts. The statutory definition for “unwilling” is “if there is a significant risk that a person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control over their sexual instincts.”17 62 In their reports, both Dr Raeside and Dr Jayawant expressed the view that Mr Warsap meets the statutory test. In their evidence however, it was apparent that both shared the view that given his history there was no more that Mr Warsap could do to shed that nomenclature beyond that which he has already done. Should an order be made pursuant to s 57(7)? 63 The question that then arises is whether it is appropriate to make an order that Mr Warsap be detained in custody until further order of the Court, pursuant to s 57(7) of the Sentencing Act. 64 An order for indeterminate detention should only be made if it is necessary to protect the community from the risk that an offender poses. In R v Schuster,18 the Full Court considered the significance of making public safety the paramount consideration on the application for the release on licence. In that context the Court said:19 What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high would have been limited utility. 65 These observations apply equally to s 57(7). The exercise to be undertaken is a balancing exercise between competing considerations with the greatest weight to be placed upon the need for public safety. The question that must be considered 17 s 57(1) Sentencing Act 2017 (SA). 18 [2016] SASCFC 86. 19 Ibid at [79]. -- 16 of 17 -- [2024] SASC 14 McDonald J 15 is whether there is some other mechanism falling short of ongoing incarceration that will afford the public adequate protection. 66 In my view, in Mr Warsap’s circumstances, the balancing exercise is best satisfied by declining to make an order for continued detention but rather order that Mr Warsap be the subject of an extended supervision order for 3 years. -- 17 of 17 --