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Supreme Court of South Australia Decisions |
SCOBIE 
No. SCCRM-01-231, SCCRM-01-336, SCCRM-01-08, SCCRM-01-144, SCCRM-01-9, SCCRM-01-108 [2003] SASC 85 (24 March 2003)
Last Updated: 30 March 2003
Judgment of the Honourable Justice Gray
ABORIGINALS --- CRIMES BY ABORIGINALS --- SENTENCE --- FACTORS TO BE CONSIDERED CRIMINAL LAW --- JURISDICTION, PRACTICE AND PROCEDURE --- BAIL --- GROUNDS FOR GRANTING OR REFUSING --- BEFORE TRIAL --- REMAND CASES CRIMINAL LAW --- PARTICULAR OFFENCES --- OFFENCES AGAINST THE PERSON --- OTHER OFFENCES AGAINST THE PERSON --- SEXUAL OFFENCES CRIMINAL LAW --- JURISDICTION, PRACTICE AND PROCEDURE --- JUDGMENT AND PUNISHMENT --- SENTENCE --- FACTORS TO BE TAKEN INTO ACCOUNT --- PURPOSE OF SENTENCE --- REHABILITATION CRIMINAL LAW --- JURISDICTION, PRACTICE AND PROCEDURE --- JUDGMENT AND PUNISHMENT --- SENTENCE --- FACTORS TO BE TAKEN INTO ACCOUNT --- PURPOSE OF SENTENCE --- PROTECTION OF COMMUNITY AND PREVENTIVE DETENTION CRIMINAL LAW --- JURISDICTION, PRACTICE AND PROCEDURE --- JUDGMENT AND PUNISHMENT --- RECOGNISANCES, PROBATION AND OTHER NON-CUSTODIAL ORDERS CRIMINAL LAW --- JURISDICTION, PRACTICE AND PROCEDURE --- JUDGMENT AND PUNISHMENT --- SENTENCE --- MISCELLANEOUS MATTERS --- TAKING OUTSTANDING OFFENCES INTO ACCOUNT CRIMINAL LAW --- JURISDICTION, PRACTICE AND PROCEDURE --- JUDGMENT AND PUNISHMENT --- SENTENCE --- MISCELLANEOUS MATTERS --- SEX OFFENDERS INCAPABLE OF CONTROLLING SEXUAL INSTINCTS
SECTION 23 APPLICATION Traditional Pitjantjatjara man with a lengthy history and a past involvement in sexual offending against children - offending of a sexual nature continued to occur - paedophile restraining order made - further offending - Crown concerned about community protection and made a section 23 application to this court to have the defendant detained until further order - assertion that he could not control his sexual instincts - for section 23 application to succeed two medical practitioners had to report to the court that the defendant was unable to control his sexual instincts - difference of opinion - one psychiatrist was of the view that the defendant could not control his sexual instincts - the other psychiatrist observed that the defendant had not previously had the benefit of assessment and that without further investigations and a rigorous assessment being undertaken he was not able to conclude that the defendant could not control his sexual instincts - given differing opinions Crown accepted that section 23 application could not succeed - application dismissed. Assessment and subsequent treatment process began and continued for over 18 months - considerable difficulties encountered - these difficulties highlighted the importance of compliance with the recommendations from the 1991 Royal Commission Report into Aboriginal Deaths in Custody - ultimately compliance achieved on ad hoc basis in response to the court's direction - benefits of recommendations should be readily accessible by indigenous persons. Further offences including breaches of bail and the paedophile restraining order committed by the defendant whilst assessment and treatment process underway - counsel agreed that sentencing should be deferred - insufficient information before the court as to the defendant's personal circumstances. Investigations and assessment process continued - the defendant had borderline intellectual capacity - substance abuse - serious alcohol dependency - considerable time spent `in and out of' custody - finding an appropriate residence proved difficult - whether Port Augusta or indigenous community on the Anangu Pitjantjatjara lands most appropriate - considerable community fear and anxiety about the defendant's proposed release - lengthy process of fashioning terms to enable release from custody - counsel agreed that without support and necessary assistance release would be counterproductive - altering of terms to enable compliance - ultimately the terms fashioned were successful and the defendant was released into indigenous community without incident. The defendant's course of medical treatment was designed, implemented and overseen by a psychiatrist and the court - the defendant continues with the course of injective anti libidinal medication - the necessary medical services made available on the Anangu Pitjantjatjara lands, a remote location with significant indigenous population. SENTENCE Given that the assessment was complete and the course of treatment underway Crown not seeking an immediate custodial order - Supreme Court travelled to Fregon on the Anangu Pitjantjatjara lands to sentence the defendant within his community - after community consultation the defendant released on a bond with strict terms as to his continued supervision and treatment - paedophile restraining order remains. Royal Commission recommendations considered including the court's role in assessment and treatment of indigenous offenders - custody and prison conditions - the location of prisons - bail - access to health care services in remote locations - the delivery of essential services - the use of and access to interpreters - non-custodial sentencing options - departmental supervision of non-custodial orders and parole and probation - the court's role in sentencing - community consultation in sentencing - mental health - alcohol consumption and petrol sniffing - the importance of rehabilitation.
- Pitjantjatjara Land Rights Act 1981 (SA);
- Summary Procedure Act 1921 (SA), s 99AA;
- Criminal Law (Sentencing) Act 1988 (SA), s 23;
- Criminal Law Consolidation Act 1935 (SA), s 77A;
- repealed by Statutes Amendment and Repeal (Sentencing) Act 1988 (SA);
- Bail Act 1988 (SA), s 11;
- Guardian and Administration Act 1933 (SA) ss 3, 29, referred to.
- R v Fernando (1992) 76 A Crim R 58;
- Veen v The Queen (No 1) [1979] HCA 7; (1979) 143 CLR 458;
- Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611;
- R v Mitakiki Sentencing Remarks delivered 17 December 2002 ;
- Ebatarinja v Deland [1998] HCA 62; (1988) 194 CLR 444;
- Royal Commission into Aboriginal Deaths in Custody Report 1991;
- Recommendations discussed in detail 89,144,181,168,173,198,251,264-266,112,101,94,119,187,80,287,99,100;
- Also referred to recommendations 88, 113, 195, 238, 265, 286;
- Attorney Generals Department's 2001-2003 Strategic Plan and 2000-2001 Annual Report ;
- International Covenant on Civil and Political Rights Article 14(3);
- `Investigating to Save Lives: Coroners and Aboriginal Deaths in Custody' (2000) 4(27);
- Indigenous Law Bulletin 8 P Vines and O McFarlane;
- `Moving Beyond Royal Commission' (2001) 5(8);
- Indigenous Law Bulletin 24, considered.
Respondent: JOHNNY SCOBIE
Counsel: MR P BENNETT - Solicitors: ABORIGINAL LEGAL RIGHTS MOVEMENT
SCCRM-01-231, SCCRM-01-336, SCCRM-01-08, SCCRM-01-144, SCCRM-01-9, SCCRM-01-108
Judgment No. [2003] SASC 85
24 March 2003
(Criminal)
R v SCOBIE
[2003] SASC
Gray J
Introduction
Scobie detained until further order. He was said to be incapable of controlling
his sexual instincts. The proceedings were extended to include the sentencing of Mr Scobie for a number of criminal offences. Scobie 's case. It contains the reasons for the orders made during the course of the hearing
and explains why appropriate protocols should be implemented to prevent the problems experienced from occurring in future cases. Scobie , a traditional Pitjantjatjara man, was initiated when aged 16 or 17 years. He frequently called himself Johnny Scobie .[1] He was aged between 35 and 55 years.[2] His birthplace was unknown.[3] He had limited contact with his immediate family due to geographic dislocation. His parents separated when he was young. Mr Scobie 's
mother remarried. She resided in Alice Springs. His father was no longer alive. Mr Scobie was raised by his maternal grandmother. Scobie spent most of his life at Indulkana.[4] He attended school for a time. He was taught English but his ability was limited. He worked in indigenous communities and on outback
stations. Scobie experimented with petrol sniffing when aged 14 years. This continued for approximately five years. He had a long standing
alcohol dependency. His problems with petrol sniffing and alcohol were said to reflect the socio-economic circumstances and environment
in which he lived. It was accepted that there was a significant indigenous population on the Anangu Pitjantjatjara lands[5] spread through a number of communities. The Royal Commission reported in detail about these matters. The court in cases such as Fernando[6] recognised the importance of assessing the significance of socio-economic circumstances when sentencing. Scobie had a lengthy criminal history that commenced in 1981.[7] He was involved in serious sexual offending towards a child in late 1988.[8] In late 1999 and early 2000 he engaged in further sexually related offending towards children. The Crown applied for a paedophile
restraining order.[9] On 7 April 2000 this order was made ex parte, served on 11 April 2000 and confirmed inter partes on 17 April 2000.[1] Mr Scobie was granted bail. Less serious offending primarily of a sexual nature continued to occur.[11] This included a number of failures to comply with the paedophile restraining order and breaches of Mr Scobie 's bail agreements. Mr
Scobie 's bail was revoked and he spent time in custody. Further periodic grants of bail occurred. All proceedings concerning Mr Scobie
were referred to this court.Section 23 Application
Scobie should be detained until further order because he was incapable of controlling his sexual instincts.
There was concern about his repeat offending. The Crown sought to minimise Mr Scobie 's contact with children and alleviate the apparent
threat that his behaviour posed to the community. Scobie was incapable of controlling his sexual
instincts. Reports were received from psychiatrists Dr Craig Raeside[14] and Dr Kenneth O'Brien[15]. Dr Raeside reported that Mr Scobie was incapable of controlling his sexual instincts.[16] He suggested that Mr Scobie may be suffering from brain damage as a result of petrol sniffing, marijuana and alcohol abuse. This
led to Mr Scobie being assessed by a neuro-psychologist Dr John Bell. Dr Bell concluded that Mr Scobie had mild to moderate memory
and frontal lobe functioning deficits. However he was of the view that these impairments alone were unlikely to impact upon Mr Scobie 's
capacity to control his sexual instincts. Dr Bell said that if Mr Scobie was affected by alcohol further impairment of his frontal
lobe functioning would occur. This would reduce his capacity for control. Dr Bell reported that it was critical that this problem
be addressed.[17] Scobie had not previously had the advantage of medical assessment and reported that a closer investigation
of his mental state and current circumstances was required. Dr O'Brien said that a process of "rigorous assessment" was necessary
before he could express a definitive opinion.[18] He recommended that Mr Scobie undergo an assessment of his abnormal sexual proclivities, a determination of the control mechanisms
that he has used if any over time with respect to the proclivities, the utility of the control mechanisms and the teaching of new
control mechanisms. However Dr O'Brien cautioned that due to Mr Scobie 's background, educational history and level of "organic brain
function" this approach may be of limited use. Dr O'Brien was of the view that if this was the case then consideration should then
be given to the use of anti-libidinal agents."...it is the Director's position that it is quite clear that it has not been satisfied in the circumstances of this matter, so your Honour is now left in the position of, in fact, sentencing Mr
The section 23 application was dismissed.
Scobie 's personal circumstances and the cause of his sexually related
offending required further investigation. A lengthy course of medical assessment and treatment followed. Given the lack of information
about Mr Scobie and the ongoing investigations and treatment counsel agreed that it would be premature to immediately sentence Mr
Scobie . Over two years a program was devised. The interests of community protection and Mr Scobie 's rehabilitation were addressed.[19] The program included an ongoing course of regular anti libidinal injections. Arrangements were made for Mr Scobie 's treatment at
Fregon a community on the Anangu Pitjantjatjara lands. This community eventually agreed to accept Mr Scobie . He was ultimately sentenced
within that community.Bail
Scobie posed considerable difficulties.
Without assessment and treatment it was initially impossible to fairly consider the issue of Mr Scobie 's release. Scobie found himself in custody because of breaches of his paedophile restraining order
and his bail agreement. On a number of occasions counsel for Mr Scobie did not make application for bail. Both counsel agreed that
it would be unwise to release Mr Scobie without ensuring that suitable accommodation was available and that he had an adequate support
network. It was submitted that to do otherwise would be "setting up" Mr Scobie for failure thereby perpetuating his cycle of offending. Scobie would seemingly commit an offence and then remain in custody for a period of weeks without this court being informed. By
May 2001 Mr Scobie had been "in and out of" custody for a total of seven months[20] awaiting the resolution of his outstanding charges. The principle that a term of imprisonment should be a sentence of last resort
was rapidly losing relevance. This situation was of grave concern given the nature of Mr Scobie 's offending and the recommendations
of the Royal Commission. Recommendation 89 is of particular relevance:"That, the operation of bail legislation should be closely monitored by each Government to ensure that the entitlement to bail, as set out in the legislation, is being recognised in practice. Furthermore the Commission recommends that the factors highlighted in this report as relevant to the granting of bail be closely considered by police administrators."
Scobie 's problems in the short term and at the same time provide community protection. Counsel for the Crown observed:"The Director's submission is that this matter has got to be come to grips with and not [allowed] to drift as it appears to have been probably over the last 10 years. The Director is certainly anxious to see or hear of a suitable regime and structure in relation to what is obviously - I mean Mr
Eventually an arrangement was reached whereby prompt notice would be given to this court if Mr
"That in all cases, unless there are substantial grounds for believing that the wellbeing of the detainee or other persons detained would be prejudiced, an Aboriginal detainee should not be placed alone in a police cell. Wherever possible an Aboriginal detainee should be accommodated with another Aboriginal person. The views of the Aboriginal detainee and other such detainee as may be affected should be sought. Where placement in a cell alone is the only alternative the detainee should thereafter be treated as a person who requires careful surveillance."
"That Corrective Services should recognise that it is undesirable in the highest degree that an Aboriginal prisoner should be placed in segregation or isolated detention. In any event, Corrective Services authorities should provide certain minimum standards for segregation including fresh air, lighting, daily exercise, adequate clothing and heating, adequate food, water and sanitation facilities and some access to visitors."
Scobie 's offending no other area in the prison was available.
The conditions were equivalent to a high security division. They dictated that Mr Scobie spend 23 hours a day in his cell. It was
recommended that Mr Scobie should not remain in these conditions. Regrettably these recommendations could not be complied with at
Port Augusta. The prison was not designed to house an offender of this type with traditional needs. It was said that a transfer to
Yatala would be an alternative as Mr Scobie could be released from his cell for a more extended period. However this suggestion could
have created further problems. Mr Scobie was unfamiliar with the Adelaide environs and would be even more remote from his traditional
homeland. Recommendations 168 and 173 are as follows:"That Corrective Services effect the placement and transfer of Aboriginal prisoners according to the principle that, where possible, an Aboriginal prisoner should be placed in an institution as close as possible to the place of residence of his or her family. Where an Aboriginal prisoner is subject to a transfer to an institution further away from his or her family the prisoner should be given the right to appeal that decision."
"That initiatives directed to providing a more humane environment through introducing shared accommodation facilities for community living, and other means should be supported, and pursued in accordance with experience and subject to security requirements."
However there was no evidence before the court as to whether Pt Augusta was in fact preferable to Yatala in Mr
Scobie to remain in custody whilst the assessment and sentencing process
was completed. However counsel submitted that Dr O'Brien's preliminary report:"holds out some light for Mr
Dr O'Brien observed that the opportunities for sexual offenders to access and undergo treatment and rehabilitative services varied depending on their culture, creed, gender, occupation and social class. He said that members of the indigenous community, particularly traditional Aboriginals such as Mr
Scobie could
be transferred to James Nash House[21] to undergo the assessment process as he was not suffering from an active psychiatric disorder. Residence on outback stations proved
difficult to arrange as children were generally present. Mr Scobies' relatives were either too elderly, unwilling or unable to have
him reside with them. In the light of these difficulties Mimili and the Offenders Aid and Rehabilitation Services' hostels at Port
Augusta were investigated. Should Mr Scobie reside in Port Augusta? This was more convenient for the purposes of facilitating his
ongoing assessment but less appropriate for his traditional lifestyle and cultural needs. The hostels at Port Augusta were home to
families with children and there were schools in close proximity.[22] Mr Scobie 's ability to abstain from alcohol would prove problematic given the ease with which it could be obtained at Port Augusta.
Mr Scobie did not have family at Port Augusta. Others persons known to him were unwilling to have him reside with them. Scobie that it would be more appropriate for him to reside in an indigenous community. Mr Scobie
had previously resided on the Anangu Pitjantjatjara lands. Mimili was said to be appropriate.[23] It was also said that the Mimili community was willing to re-accept Mr Scobie . It was a small community and its members could "keep
their eye" on him. Counsel submitted that alcohol was not permitted on the Anangu Pitjantjatjara lands. This was said to reduce the
likelihood of alcohol being readily accessible. If Mr Scobie returned he would not be subjected to "pay-back". Supervision was possible.
A community corrections officer and field officer from Marla visited weekly."...the concern of the director at Mimili is there would be no professional assistance in the sense of trained psychologists, trained psychiatrists."
This raised the issue of the availability of medical treatment in remote South Australia. Mimili was closer to Alice Springs than Port Augusta. There was no police or police aid presence. Marla, the town with the closest police station, was a minimum of a two hour 4 wheel drive trip away.
"Mr
Scobie 's proposed release.[26] Members of the indigenous community did not want Mr Scobie residing with or near them. There was the added difficulty of the close
proximity of children as they resided in all of the communities on the Anangu Pitjantjatjara lands. The school at Mimili was said
to be in the centre of the community. In its report the Ngaanyatjarra Pitjantjatjara Yunkunytjatjara Women's Council Aboriginal Corporation
(NPYWC) emphasised the court's role in the protection of women and children.[27] It was submitted that sending Mr Scobie to Mimili would be "setting him up to fail".Release on Bail
"Obviously during the course of this matter, it is quite clear that the director's position is that Mr
Scobie was granted bail on strict conditions to reside at Port Augusta.[28] The court fashioned bail terms which provided sufficient community protection and allowed Mr Scobie to be released from custody.
However his release created several practical difficulties. Departmental officers and the police were conscious of his previous sexual
offending. They were quick to strictly enforce the bail conditions. The Crown submitted:"It is general knowledge with the uniformed police who [Mr
There were acknowledged breaches of both the bail agreement and the paedophile restraining order. A number of breaches could fairly be described as technical. Mr
Scobie 's bail agreement and the paedophile restraining order were varied on a number of occasions. The terms were
relaxed to enable reasonable compliance to be effected. Abstinence from the use of alcohol was one such condition. Another was the
distance that Mr Scobie was allowed to be from children and schools. At one time Mr Scobie 's place of residence also had to be changed
after the family with whom he was residing at Port Augusta unexpectedly returned to the Anangu Pitjantjatjara lands.[29] Scobie assessed. The fear and discontent expressed
by the wider community compounded the problem. Scobie 's release from custody had to be delayed
so that the necessary support was available to enable him to reach his required destination. Scobie had spent a total of more than 10 months in custody. This occurred because there had been no assessment
or apparent understanding of Mr Scobie 's personal circumstances over the preceding two decades. The failure to address his problems
at an earlier time might have allowed his offending behaviour to continue. The only available control mechanism previously used was
a blunt instrument - the criminal law. Implementation of some of the Royal Commission recommendations might have assisted Mr Scobie
and might have prevented his further offending. Had the Royal Commission recommendations been implemented sooner then it is likely
that Mr Scobie 's problems could have been addressed earlier thereby eliminating the need for the section 23 application. What has
occurred in Mr Scobie 's case demonstrates the need for the close monitoring referred to in Royal Commission recommendation 89. Scobie 's problems were assessed and treatment commenced before
sentencing. This proved beneficial to Mr Scobie as ultimately when he was sentenced his course of treatment was underway. This allowed
the court to be satisfied that a real measure of community protection was already in existence.The Royal Commission Recommendations
Scobie . This process took more than 18 months. His treatment continues. However the assessment process was necessary because
of the lack of information about Mr Scobie and his offending. Without this information the issue of community protection could not
be addressed. Scobie 's offending occurred prior to the making of the Royal Commission recommendations, a passage of transcript
from 1989[30] highlights that the issues of assessment and treatment were only superficially canvassed and were not advanced:"Judge:
I wonder if there is any question of a mental problem. ...
Counsel for Mr
There is certainly a possibility that there may be some damage as a result of the petrol sniffing and our office was certainly concerned about that. But we are certainly not in a position to say categorically that he has brain damage...
Judge:
I wonder whether he needs any psychiatric treatment.
Counsel for Mr
It is certainly a possibility that he may need some treatment.
Judge:
I don't know if a person of his race is a good enough candidate for psychiatric treatment but it is almost a course of conduct isn't it.
Counsel for Mr
I can't see really whether the assessment could go past a clinical assessment of whether he has any residual damage, and then of course the issue arises whether what is happening is related to these other matters that he has raised through my interpreter, or whether it is just a matter of through the petrol sniffing, so it actually becomes quite a complicated issue.
Judge:
What do you think, you haven't suggested it, and I have originally raised it. Are you asking that he should be assessed psychiatrically?
Counsel for Mr
Perhaps I hadn't made myself clear. I just feel that if he was assessed I just don't know that it would take us that further.
Judge:
You don't think it is worth it?
Counsel for Mr
I certainly would like to think that it was worth him receiving some sort of treatment while he is custody, whether that treatment can occur without an assessment, I just don't know.
Judge:
I wonder if I were to simply deal with him, whether once he was in prison, he is now any way, whether an assessment would be carried out. I suppose officer you can't tell me that. Do people get assessed once they are in custody, once they are in prison?
Prison Officer:
Psychiatric assessment?
Judge:
Yes
Prison Officer:
Not to my knowledge.
Counsel for the Crown:
It is my understanding that it doesn't occur spontaneously without an order or some initiation from outside.
Judge:
Not even if I mentioned it in the sentencing remarks? ... May be the best thing is for me to mention it despite what I said a minute ago, mention it in the sentencing remarks and hope that between what I say and what you can do, something will come of it because it sounds to me that the man who is doing this sort of thing needs some medical help....
Counsel for the Crown:
...The matter your Honour has raised in terms of the psychiatric considerations are of some concern and if your Honour was in any doubt, then I would support any application my friend wants to make to get a psychiatric assessment."
In his sentencing remarks[31] the judge observed:
"That you have done much the same dreadful thing twice within a little over three months makes me think that you may need psychiatric help, the help of a doctor. [Your counsel] did not apply for psychiatric assessment, but after discussion it was agreed that I should say that you may need psychiatric help and [your counsel] will talk to the authorities in gaol about it. I hope indeed that you will now be assessed and given any psychiatric treatment which may help you to get over what looks to be a very un-healthy attitude towards little girls."
Scobie 's interests. Mr
Scobie was overlooked by a system designed for non indigenous offenders. Perhaps he has been a victim of circumstances, language
difficulties, differing cultural ideals and expectations. Whatever the reasons, he has spent the majority of his adult life in institutions.
Mr Scobie 's successful rehabilitation is the best protection the community could have. Scobie has been assessed, released from custody, treated, supervised and sentenced. He has been
sentenced within his geographically remote community. The community has been protected but at what cost? Scobie would have spent less
time in custody and that his rehabilitation would have progressed more rapidly if protocols facilitating compliance with the recommendations
as a matter of course, rather than on an ad hoc basis, had been established. This was accepted by the Crown. A report from the Justice
Strategy Unit of the Attorney General's Department[32] formed part of the Crown's submissions. This report provided:"It is evident that there is a need to explore more comprehensive strategies at a whole of Government level for the effective treatment, support and the provision of services to people on the Anangu Pitjantjatjara lands, including those in contact with the Criminal Justice system.
Cases such as Mr
The Prisoner and Offender Health Services Memorandum Of Understanding is valuable to the extent that it outlines the broad principles of duty of care and good faith that underpin the collaboration that is required between Department for Human Services and Department for Correctional Services in relation to the provision of services. It also carries the potential for service integration and co-ordination around the case management requirements of offenders on the Anangu Pitjantjatjara lands.
Department for Human Services has begun re-examining the case management plan of Mr
The government is examining mechanisms to better respond to the needs of Anangu on the Anangu Pitjantjatjara lands through the Anangu Pitjantjatjara Inter-Government Inter-Agency Collaboration Committee. This committee, chaired by the Chief Executive of Department for Human Services engages a number of Chief Executives and Senior Executives and Advisors in both State and Commonwealth governments.
It also carries the potential for service integration and co-ordination around the case management requirements of offenders on the Anangu Pitjantjatjara lands."
Scobie 's personal circumstances and the cause of his previous sexual offending. Many details were inherently
inconsistent and difficult to piece together. Constant judicial monitoring was necessary at every stage of the process. Proactive
directions had to be given by the court. At times, to produce a just result, it was necessary for the court with the consent of counsel
to act in an interventionist and inquisitorial manner. On occasions the court operated "nunga style".[33] The court was involved in this case in a way that a court would not normally be involved. There has been a significant difficulty
in creating a management plan that provided a satisfactory level of protection to the community whilst at the same time catering
for the needs of a traditional Aboriginal man with limited English and impaired cognitive functioning. Scobie 's particular needs were only met in this case on an ad hoc basis in response to the court's
directions. The Royal Commission recommendations were not intended to apply on a reactive, "knee-jerk" basis. The recommendations
were intended to ensure that members of indigenous communities had the benefit of the recommendations as a matter of course. Scobie 's offending and his personal circumstances had not been compiled. Mr Scobie
had been "in and out" of the criminal justice system for several decades without any form of proper medical or personal assessment
being undertaken or any rehabilitation plan made.[34] This is of concern. As earlier observed, one effect was to delay Mr Scobie 's assessment and release from custody.Consideration of the Recommendations
"The case of R v John
The case also raises further questions about the capacity of DCS, DHS, Aboriginal communities and the non-Government sector to provide services and support for offenders with exceptional needs on the Anangu Pitjantjatjara Lands.
It further highlights that access to and nature and availability of therapeutic services are limited and problematic and such services further constrained in scope by provision within existing memoranda of understanding."
This was an important acknowledgment by counsel for the Crown. It demonstrates that the South Australian Government accepted its responsibilities, was aware of the inadequacy in the deployment of resources and recognised the need to properly implement the Royal Commission recommendations.
"That Governments commit themselves to achieving the objective that aboriginal people are not discriminated against in the delivery of essential services and, in particular, are not disadvantaged by the fact that the low levels of income received by aboriginal people reduce their ability to contribute to the provision of such services to the same extent as would be possible by non-aboriginal Australians living in similar circumstances and locations."
"That access to health care services and facilities, including specialised diagnostic facilities, in areas of aboriginal population should be brought up to community standards. The greater needs, for the time being, of aboriginal people should be fully recognised by the responsible authorities in their consideration of the allocation of staff and equipment."
"Nganampa Health Council is the Aboriginal community-controlled health service on the [Anangu Pitjantjatjara] Lands. Nganampa Health provides primary clinical care services, public health programs and an aged and disability care program. The total Government funding to Nganampa Health Council is almost $9M. About $1.9M comes from the Department of Human Services and the remainder mostly from the Commonwealth. There are areas of service delivery which are not being adequately addressed at present, this includes the needs of young adults who have acquired brain injury through petrol sniffing and youth health programs, which the review of Nganampa Health identified as a priority area for action."
Scobie should be reviewed in Port Augusta or be brought to Adelaide. Later when it was
established that he required regular injections of an anti-libidinal drug similar difficulties were encountered. The availability
of doctors and medical staff on the Anangu Pitjantjatjara lands to administer and monitor Mr Scobie 's treatment program was problematic.
Mr Scobie 's participation in programs for sexual offenders was also hampered by cultural factors, geographic location, staffing and
supervision difficulties. The Department was unable to accommodate Mr Scobie 's specific needs."That there be a substantial expansion in Aboriginal mental health services within the framework of the development, on the basis of community consultation, of a new national mental health policy..."
"That as an immediate step towards overcoming the poorly developed level of mental health services for Aboriginal people, priority should be given to complementing the training of psychiatrists and other non-Aboriginal mental health professionals with the development of a cadre of Aboriginal health workers with appropriate mental health training, as well as their general mental health training. The integration of the two groups, both in their training and in mental health service delivery, should receive close attention. In addition, resources should be allocated for the training and employment of Aboriginal mental health workers by aboriginal health services."
"That the linking or integrating of mental health services for Aboriginal people with local health and other support services be a feature of current and expanded Aboriginal mental health services."
Scobie his ongoing management could have been more easily effected. The Justice Strategy Unit report observed:"Where available, Aboriginal community controlled health services will be engaged for the provision of culturally appropriate health care to Aboriginal people in Correctional Services care and control. The inclusion of Nganampa Health Council in the current review of the [memorandum of understanding] between [the Department of Correctional Services] and [the Department of Human Services].
To date the provision of Prisoner and Offender Health Care Services and the redevelopment of the [memorandum of understanding] has been considered an internal matter between [the Department of Human Services] and [the Department of Correctional Services]. The
Scobie had not been medically or psychiatrically assessed prior to the section 23 application. It was proposed
that Mr Scobie be transported to Adelaide to facilitate the assessment process. The difficulties encountered were with a traditional
Aboriginal man with limited cognitive capacity managing in Adelaide. Who would accompany him? Where would he reside? Who would ensure
that he attended necessary appointments? Who would ensure that he kept out of trouble? Similar questions arose on a number of occasions.
Eventually the necessary funding and support was provided. However as earlier observed this was a response to the court's specific
directions rather than Mr Scobie accessing routinely available resources. The Justice Strategy Unit acknowledged this unsatisfactory
state of affairs:"There is lack of clarity in relation to which agency is responsible for costs associated with Mr
It is suggested that the issue of transport and associated accommodation costs for offenders to meet the treatment and rehabilitation requirements of a court order would best be resolved in principle for future cases rather than relying on the issue being dealt with on a case by case basis. This would provide both the offender and the Court with a degree of certainty that is not unreasonable to expect."
"As a component of the Mental Health Action Plan for the Reform of Mental Health Services, Department of Human Services are working through Aboriginal Health Partnership to progress the development of an Aboriginal mental health strategy within the context of social and emotional well being, which includes:
increasing Aboriginal community access to mental health services
involving non-aboriginal care providers to be aware of Aboriginal holistic concepts of health and mental health
developing the capacity of the primary care sector (including Aboriginal Health Workers) in the provision of mental health services, through skill development, specialist support and increased partnership development
developing the capacity of specialist mental health services to provide appropriate consultation and liaison services to service providers
increasing early intervention through better awareness, detection and referral of Aboriginal people with mental health problems
maintaining 24 hour Emergency Triage and Liaison Service and Telepsychiatry and Teleconferencing services to rural areas
recognising the role of traditional healers in Mental Health and programs dealing with suicide prevention.
...
Department of Community Services is currently involved in recruiting a Principal Psychologist who will provide strategic leadership around the provision of psychological services to prisoners and offenders. Although having an extensive background in sex offender treatment this will not be the sole domain of his proposed role. A second initiative underway [as at May 2002] relates to the recruitment of a senior psychologist to work with aboriginal prisoners in Port Augusta. Department of Community Services is also preparing a submission to government for prison based sex offender treatment programs. However it is noted that none of these initiatives will bring immediate impact on Mr
...
Mental Health funding totalling $150,000 is directed to the Ngaanyatjarra Pitjantjatjara Yunkunytjatjara Women's Council Aboriginal Corporation for the provision of traditional healers (Ngankaris) and $30,000 is also provided to Nganampa Health for the same purpose in the Anangu Pitjantjatjara lands."
Non-Custodial Sentencing Options
"That adequate resources be made available to provide support by way of personnel and infrastructure so as to ensure that non-custodial sentencing options which are made available by legislation are capable of implementation in practice. It is particularly important that such support be provided in rural and remote areas of significant Aboriginal population."
Scobie had been dealt with by the courts frequently with orders for imprisonment. The breaches of the paedophile restraining
order and his bail conditions, although serious breaches of court orders, were not of a nature that any sentence other than imprisonment
was inappropriate. As earlier observed Mr Scobie spent over 10 months in custody whilst these matters were pending.[36] The medical and treatment process was ongoing. It was critical that sentencing options other than imprisonment be explored. The court
was again frustrated in its attempts to find a workable solution to address Mr Scobie 's difficulties. Scobie had to be undertaken to determine whether there was any suitable treatment. However all that was
available was psychiatric review at Adelaide or Port Augusta when a visiting psychiatrist attended the prison to conduct his one
day monthly list. The Sexual Offenders Treatment and Assessment Program[37] could provide no real assistance to Mr Scobie . There was no rehabilitative treatment provided to sexual offenders whilst in jail.
There was no provision for a treatment regime to be followed through. It was clear that if a rehabilitation program was to be developed
then it would have to be prepared on a "one off" basis. Scobie . It had no experience dealing with indigenous clientele. The only part time staff member available
at Port Augusta was a psychologist, who for cultural and gender reasons, was unable to assess or treat Mr Scobie . Scobie was unable to abstain from alcohol abuse. She could no longer see the utility of pursuing
counselling. Scobie was later received into his community
without serious incident. Scobie committed further offences and his subsequent imprisonment facilitated
the assessment process. Scobie 's assessment took place. Special arrangements had
to be made for Mr Scobie to be assessed by a specialist neuro-psychologist. Special arrangements had to be made for Mr Scobie to
be assessed by the Sexual Offenders Treatment and Assessment Program. Before Mr Scobie 's release on bail extraordinary lengths were
gone to in an effort to ensure that he had a suitable place of residence. As earlier observed, special arrangements were required
to transport Mr Scobie from Port Augusta to Adelaide. This led to departmental disputes about who was responsible for payment and
who would physically accompany him. The court was left to contact Nunkawarrin Yunti,[38] a third party agency, to obtain assistance. A representative came to court on a number of occasions at short notice to assist. The
representative also took Mr Scobie late one Friday evening to Port Augusta so that he would not have to remain in Adelaide in custody
over the weekend."That authorities concerned with the administration of non-custodial sentencing orders take responsibility for advising sentencing authorities as to the scope and effectiveness of such programs."
Scobie on many occasions, arranged
for other medical experts to assist and reported to the court with a clear analysis of Mr Scobie 's problems. Where necessary he made
recommendations to advance Mr Scobie 's care and treatment. Dr O'Brien also took on the role of liasing with Ms Taite and other departmental
officers. Ms Taite spent a considerable period supervising Mr Scobie on the Anangu Pitjantjatjara lands. She and her supervisor,
Mr Thompson, reported to this court on numerous occasions both orally and in writing about the effectiveness of Mr Scobie 's bail
and paedophile restraining order conditions. Both gave evidence of Mr Scobie 's response to the treatment regime. Their opinions assisted
in the formulation of the court's orders."...consistent with the object of ensuring that offenders do not re-offend, approval should be given, where appropriate, for offenders to perform Community Service work by pursuing personal development courses, which might provide the offender with skills, knowledge, interests, treatment or counselling likely to reduce the risk of re-offending."
The Justice Strategy Unit addressed this recommendation as follows:
"The Justice Strategy Unit is currently undertaking project work to consider the development of a wider range of non-custodial sentencing options, including those that address the specific needs of Aboriginal offenders.
The audit acknowledges the role of the Judiciary in ordering that persons undertake rehabilitation programs. Mr
Scobie than a community service order. However the necessary
supervision and programs were not available in the same way that they were in city and suburban areas. The opportunities for offenders
to perform meaningful work and undertake courses, treatment and counselling likely to reduce the risk of re-offending were non-existent
and were not available unless special arrangements were made. Recommendations 119 and 187 are as follows:"That Corrective Service authorities ensure that Aboriginal offenders are not being denied the opportunities for probation or parole by virtue of the lack of adequate numbers of trained support staff or infrastructure to ensure monitoring of such orders."
"That experience in and the results of community corrections rather than institutional custodial corrections should be closely studied by Corrective Services and that the greater involvement of communities and Aboriginal organizations in correctional processes be supported."
Scobie 's case the Department witnessed the difficulties associated with an attempt
to design and implement a program specifically tailored to Mr Scobie 's needs. The Department has also seen what can be achieved with
co-operation, assistance, perseverance and determination. Appropriate programs should be designed and implemented without the need
for directions and close supervision by the court. Possible long term benefits to the community are evident. However they can only
be achieved in other cases if appropriately qualified and trained staff are available in remote locations. Scobie should be available to offenders in remote areas where there is a significant
indigenous population. This is the intended effect of the Royal Commission recommendations. Distance should not be a barrier to the
provision of programs, supervision and other basic services. Recommendation 104 is in the following terms:"That in the case of discrete or remote communities sentencing authorities consult with Aboriginal communities and organizations as to the general range of sentences which the community considers appropriate for offences committed within the communities by members of those communities and, further, that subject to preserving the civil and legal rights of offenders and victims such consultation should in appropriate circumstances relate to sentences in individual cases."
This recommendation was implemented in this case over a lengthy period at the court's instigation. Consultation took place with the community on the lands and specifically at Fregon. Other persons and agencies were also involved.
Scobie overcame his petrol sniffing difficulties many years ago. However as reported, this might have left him with cognitive impairment.
Mr Scobie had a history of alcohol dependency. This had been a recurrent feature of his lifestyle and a cause of his offending. Treatment,
counselling and educative programs were not provided on the Anangu Pitjantjatjara lands. Drunkeness on the lands was said to be endemic.
These are matters of major concern. Recommendations 80 and 287 are as follows:"That the abolition of the offence of drunkenness should be accompanied by adequately funded programs to establish and maintain non-custodial facilities for the care and treatment of intoxicated persons."
"That the Commonwealth, States and Territories give higher priority to the provision of alcohol and other drug prevention, intervention and treatment programs for Aboriginal people which are functionally accessible to potential clients and are staffed by suitably trained Aboriginal workers..."
However there was no evidence before the court that Mr
'In Fernando[41] the court outlined a number of propositions relevant to the sentencing of aboriginal offenders. I propose to read some of these:
'It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.
Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.
While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stress on them, reinforcing their resort to alcohol and compounding its worst effects.'
Despite [the Anangu Pitjantjatjara lands] being dry it is apparent that alcohol is readily available. Social, economic and cultural factors all played their part in your consumption of alcohol. I accept that within your community there are socio-economic factors which place you in a position of disadvantage. These include the frequency with which administrators come and go and the instability and lack of continuity that accompanies this state of affairs, the lack of constant police presence on the lands, the deprivation, dislocation, substance abuse and stressors involved in living in close proximity to other families within an aboriginal community in remote South Australia, the lack of education, rehabilitation and treatment services available, the lack of worthwhile employment opportunities and the logistical difficulties that often accompany the court's listing and attendance at the communities. These difficulties provide a context in which I can view your criminal conduct and your personal circumstances.
Considerable evidence was placed before me about the problems associated with petrol sniffing. I have received and reviewed extensive submissions from both counsel. In 1991 the Royal Commission into Aboriginal Deaths in Custody observed;
'Petrol sniffing and offending are clearly related but, as in the case of alcohol discussed above, one must be cautious in ascribing causality...Nevertheless, it is clear that petrol sniffing is one of the drug using behaviours that contributes to the over-representation of Aboriginal people, especially Aboriginal youths, in contact with the police and the courts, and in custody.
As recently as September 2002 the South Australian Coroner observed:
'It can be seen that simply by analysing the facts and circumstances of these three deaths, and the circumstances which still exist on the Anangu Pitjantjatjara Lands at the moment, those recommendations of the Royal Commission into Aboriginal Deaths in Custody[42] have not been complied with, either by Commonwealth or State Governments.
This is a great tragedy which I have no doubt will, if it is not addressed, lead to severe disability and further deaths, not to mention continuing social dislocation, crime, loss of culture and general community degradation and loss.'
His recommendations included:
'That Commonwealth, State and Territory Governments recognise that petrol sniffing poses an urgent threat to the very substance of the Anangu communities on the Anangu Pitjantjatjara Lands. It threatens not only death and serious and permanent disability, but also the peace, order and security of communities, cultural and family structures, education, health and community development.
Socio-economic factors such as poverty, hunger, illness, lack of education, unemployment, boredom, and general feelings of hopelessness must be addressed, as they provide the environment in which substance abuse will be resorted to, and any rehabilitation measures will be ineffective if the person returns to live in such conditions after treatment.
The fact that the wider Australian community has a responsibility to assist the Anangu to address the problem of petrol sniffing, which has no precedent in traditional culture, is clear. Governments should not approach the task on the basis that the solutions must come from Anangu communities alone.'
The Coroner's observations and recommendations are of great importance to the general community. They emphasise the seriousness of the problems that [face indigenous Australians on the lands and] provide a general context to ...offending.
Many authors draw similarities between the use of alcohol and the use of petrol. As with alcohol petrol is a disinhibitor and produces a high. However there are significant differences. Petrol produces a mind altering state that differs from alcohol. Users experience hallucinations and mild euphoria. Petrol sniffing has been described as leading to a state of excitation, followed by central nervous system depression. There are serious consequences associated with chronic petrol sniffing. It may lead to brain damage...
There is no reason in principle to treat recurrent petrol sniffing any differently than sustained alcohol abuse. Although the long-term effects on mental functioning differ petrol sniffing is in essence another form of substance abuse. When it is reflective of an aboriginal offender's social and economic environment it may legitimately be viewed as mitigatory..."
The observations of the Coroner and these remarks are apposite. Mr Scobie 's problems with petrol sniffing and alcoholism are a result
of the socio-economic factors in which he lived and which placed him in a position of disadvantage.
Interpreters
Scobie 's sentencing. However none attended. An elder was designated to translate but he
was unable to assist adequately. Another elder then interpreted. Scobie obviously understood the word "jail" and believed that he was facing an immediate custodial sentence. He grabbed
his wrists as if to shake off imagined handcuffs, shouted out and then fled the court. The court temporarily adjourned. Mr Scobie 's
community corrections officer chased after him as did his counsel. Other members of the community drove after him to explain the
situation and allay his fears. The community brought him back. The court resumed. This situation was unfortunate. It highlighted
wider difficulties faced by indigenous defendants. There is an obligation to ensure that a competent and reliable interpreter is
available to assist in court at all times. This is a critical aspect of access to justice."That legislation in all jurisdictions should provide that where an Aboriginal defendant appears before a court and there is doubt as to whether the person has the ability to fully understand proceedings in the English language and is fully able to express himself or herself in the English language, the court be obliged to satisfy itself that the person has that ability. Where there is doubt or reservations as to these matters proceedings should not continue until a competent interpreter is provided to the person without cost to the person."
"That Governments should take more positive steps to recruit and train Aboriginal people as court staff and interpreters in locations where significant numbers of Aboriginal people appear before the courts."
"On a trial for a criminal offence, it is well established that the defendant should not only be physically present but should also be able to understand the proceedings and the nature of the evidence against him or her...If the defendant does not speak the language in which the proceedings are being conducted, the absence of an interpreter will result in an unfair trial."
These basic principles are also contained in Article 14(3) of the International Covenant on Civil and Political Rights:
"In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him; ...
(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;"
Scobie 's case illustrates this need. There was information before the court to the effect that the nature
of Mr Scobie 's offending and the likelihood that "private matters" would be discussed discouraged or precluded a number of interpreters."The matter of access and availability of interpreters to support Aboriginal defendants in the criminal justice system continues to be an area of concern.
The Justice Portfolio is currently engaged in two projects around improving availability and access to accredited interpreters. One aspect refers specifically to the need for court interpreters and the second relates to a 'whole of government' initiative examining the requirements of key portfolios in the development and employment of Indigenous Language and Cultural Specialists in various Aboriginal languages."
Scobie that in many cases the financial reward for interpreters was viewed as inadequate because
of substantial periods of unpaid travelling time. In addition the use of cheques was unsatisfactory due to difficulties obtaining
payment in remote areas. It was said that a daily fee should be paid in cash. Scobie
was provided with treatment and assistance but only because of unusual insistence by the court. This case proved to be an extraordinarily
inefficient way of tackling the problems faced by the community and Mr Scobie . As the Justice Strategy Unit acknowledged protocols
should be devised for use in future cases. These protocols should be available to directly assist a court charged with the responsibility
of sentencing an indigenous offender. Scobie does not appear to have received any benefit from the Royal Commission recommendations through the 1990's. Had these recommendations
been implemented his problems might have been identified, his treatment commenced and his condition resolved more than a decade earlier.
The community might have been protected and Mr Scobie could have avoided years of imprisonment. Commentators have remarked about
the failure of governments to implement the Royal Commission recommendations despite their general support.[44] It is unlikely that Mr Scobie 's experience is an isolated one.The Sentencing Process Continued
Scobie for a number of offences. Magistrates would in the normal course be charged with sentencing for
offences of this kind. They would usually do so on circuit on the lands. However for the most part Mr Scobie 's offending occurred
whilst the section 23 application and the assessment and treatment process were current. It was appropriate for this court to perform
the sentencing task. Scobie 's behaviour and the danger he posed
to children. The Crown submitted that he could not control his sexual instincts and something had to be done. Members of the community
were hostile, anxious and frightened of Mr Scobie and saw him as creating a risk to their children. Mr Scobie 's bail agreements were
circulated within the community. The Department also expressed alarm at Mr Scobie 's situation and contacted the court with concerns
about Mr Scobie remaining on bail. In substance it was said that he would be better off in jail than living the way he was in the
sand hills at Davenport near Port Augusta. When it became clear that Mr Scobie 's guarantor sought to be released from her obligations
the Crown sought to have bail revoked. Mr Scobie was arrested. Further bail was opposed by the Crown. Mr Scobie 's position was viewed
as hopeless. He was seen to be a danger to children. No one wanted him near them. No one knew the cause of his offending. No medical
assessment had been undertaken. Mr Scobie had difficulties with representation at Port Augusta. There were no constructive suggestions
advanced on his behalf. No one really knew what to do. At first glance the medical assessment appeared hopeless for Mr Scobie , but
then Dr O'Brien's report provided a glimmer of hope. Counsel for the Crown submitted:"[Dr O'Brien's preliminary report] holds out some light for Mr
Scobie 's rehabilitation, the
views of the Crown, counsel for Mr Scobie , the community, the police and the department began to alter. As the process of assessment
and the provision of medical treatment progressed all agreed that treatment and rehabilitation were the way forward. Mr Scobie 's
position went from hopeless to hopeful. At the time Mr Scobie was sentenced in May 2002 the views of all interested parties had altered.
The Crown submitted:"It is pleasing to see that when [Mr
Scobie for all outstanding offences. There
was a need to consult with Mr Scobie 's community. The court had to gauge an understanding of their willingness to re-accept Mr Scobie
and their general view as to sentence. This was a matter of understanding and assessing the views of different sections of the community.
The process could not have been successfully undertaken without the court travelling to the lands and speaking with the indigenous
and wider community. The ability to discuss matters on the lands was invaluable in aiding understanding and gaining an appreciation
of the lands environs.[45] Scobie was arraigned and pleaded guilty. Evidence was given from the community corrections officer involved in managing Mr Scobie 's
supervision and bail conditions. After hearing submissions from both counsel the court invited submissions from other members of
the community. Submissions were made by two elders of the indigenous community. They spoke on Mr Scobie 's behalf and assured the
court that they "would look after him" and ensure that he obeyed "white fella's law" and "black fella's" law. Both said that Mr Scobie
was "now a good man". These statements made in the presence of the community were significant. They showed a recognition and understanding
of the problems which had confronted Mr Scobie in the past and the way that his problems were being addressed. They also showed acceptance
of Mr Scobie as a valued member of the community and demonstrated responsibility to provide him with future support. These public
utterances were invaluable. Scobie 's rehabilitation and treatment program had been developed and partly implemented. The Crown no
longer sought an immediate custodial sentence. It was accepted that Mr Scobie should be released into the community. All agreed that
he should continue with his treatment and rehabilitation Scobie was sentenced within his community on the Anangu Pitjantjatjara lands. The sentencing remarks are annexure
A to these reasons. A non-custodial sentence was imposed. Mr Scobie was released on a bond. The terms of the bond will continue to
facilitate the treatment program devised for his rehabilitation. The paedophile restraining order continues in force. Mr Scobie is
residing at Fregon on the Anangu Pitjantjatjara lands. His medical needs are currently being met and his sexual offending has apparently
ceased. Scobie 's
progress. The court agreed to do so. There was a particular concern that the terms of any bond may need to be modified when the bond's
efficacy could be evaluated. The case was called on in November 2002. Counsel provided further information. Additional reports were
received from Dr O'Brien[46] and Ms Taite[47]. The reports disclosed that Mr Scobie was a valued community member and had assumed a level of responsibility by working in and around
the Fregon community. Mr Scobie was continuing with his course of medical treatment.[48] The traditional healers appeared to be making progress. The elders in the community had formed the view that consideration should
be given to Mr Scobie 's marriage. This important step would involve a reconsideration of Mr Scobie 's treatment regime. Scobie 's case. Counsel expressed concern that Mr Scobie may need further assistance
and supervision following the expiration of his bond.[49] To this end assistance was sought from the Guardianship Board, the Public Advocate and the Department for Human Services.[50] It was thought that given Mr Scobie 's level of intellectual capacity the services of the Guardianship Board may be invoked.[51] Such a course would ensure that ongoing supervision would be available to assist Mr Scobie in the longer term. Scobie 's case was again before the court in February 2003. On this occasion a further report from Ms Taite was received.[52] Mr Scobie 's rehabilitation was continuing without incident. The court was informed that with the assistance of the Public Advocate
Mr Scobie would be making application on the expiration of the bond for a guardianship order to enable him to receive ongoing assistance.
A letter from the Exceptional Needs Unit of the Department for Human Services dated 25 February 2003 provided:"We are aware that the court has concerns about Mr
A considerable period has now passed since Mr
Scobie you have pleaded guilty to seven counts of failing to comply with a paedophile restraining order and three counts of
failing to comply with your bail agreement. You have also pleaded guilty to exhibiting indecent material to a minor and the offence
of larceny.| - | be of good behaviour |
| - | undergo medical treatment as directed or recommended by Dr O'Brien |
| - | be under the supervision of a community corrections officer for a period of three years |
| - | obey the lawful directions of that community corrections officer |
| - | be subject to the usual reporting conditions and attend within 2 working days of signing the bond at the office of Coober Pedy Corrections unless subject to other directions |
| - | be under the supervision of William Garside, manager, correctional services North West Region |
| - | reside at West Bore unless otherwise directed |
| - | not enter or be within a school, kindergarten or childcare facility as previously ordered. |
LIST OF CITATIONS AS THEY APPEAR IN THE JUDGMENT
1 The names John Scobie , Coopie Brown, Johnny Brown and Johnnie Scobie appear in the court documents.
2 Birth dates used by the authorities include 1 February 1945, 1 January 1957, 8 April 1964, 25 June 1964 and 25 June 1965. At the time of the present proceedings it is probable that he was in his mid forties.
3 The papers record the following as possibilities: Coober Pedy or Port Augusta in South Australia or Warburton in Western Australia.
4 The papers also suggested that Mr Scobie was raised in Coober Pedy.
5 The Anangu Pitjantjatjara lands were proclaimed as the Pitjantjatjara lands by the Pitjantjatjara Land Rights Act 1981 (SA). The lands are situated in the far north of South Australia. Within the lands are a number of established and 'non-transient' communities including Fregon, Mimili and Ernabella. An administration centre has been established at Umuwa which includes a health care centre. The communities are the home of significant populations of indigenous persons. Others reside nearby in communities in the Northern Territory and Western Australia. Although there may be considerable contact between family groups and the communities their populations fluctuate as persons move between Port Augusta and other major centres such as Coober Pedy and Whyalla.
6 (1992) 76 A Crim R 58
7 Mr Scobie 's criminal history consists of some 70 offences. Many were property offences that were linked to his alcohol dependency.
8 In the late 1980's he was involved in serious sexual offending which involved abduction and indecent assault. Around this time he also pleaded guilty to assault with intent to rape. These sexual offences were serious and involved a danger to young children. However this type of offending appears to have been confined to this period. Later offending during the mid 1990's can be described as less serious sexual offending. It involved charges of gross indecency and indecent behaviour, behaving in an indecent manner and inciting the commission by a child of an indecent act.
9 Section 99 AA of the Summary Procedure Act 1921 (SA) provides:
"(1) On a complaint under this Division, the Court may make a restraining order against the defendant if-
(a) the defendant has been found loitering near children; and
(b) -
(i) the defendant has been found guilty of a child sexual offence within the previous five years; or
(ii) the defendant, having been sentenced to imprisonment for a child sexual offence, has been released from prison within the previous five years; or
(iii) the defendant has been found loitering near children on at least one previous occasion and there is reason to think that the defendant may, unless restrained, again loiter near children; and
(c) the Court is satisfied that the making of the order is appropriate in the circumstances.
(2) A restraining order under this section may restrain the defendant from-
(a) loitering near children at or in the vicinity of a specified place or class of places or in specified circumstances; or
(b) loitering near children in any circumstances.
(3) In considering whether or not to make a restraining order under this section and in considering the terms of the restraining order, the Court must have regard to the following:
(a) whether the defendant's behaviour has aroused, or may arouse, reasonable apprehension or fear in a child or other person;
(b) whether there is reason to think that the defendant may, unless restrained, commit a child sexual offence or otherwise act inappropriately in relation to a child;
(c) the prior criminal record (if any) of the defendant;
(d) any evidence of sexual dysfunction suffered by the defendant;
(e) any apparent pattern in the defendant's behaviour, any apparent connection between the defendant's behaviour and the presence of children and any apparent justification for the defendant's behaviour;
(f) any other matter that, in the circumstances of the case, the Court considers relevant..."
10 "The terms included restraining Mr Scobie from:
- loitering near or in the vicinity of children.
- remaining on any premises occupied by him, if any person under the age of 16 years comes within those premises.
- associating with or attempting to associate with any person under the age of 16 years, whether or not that person is in the company of any adults.
- attending at or approaching within 100 metres of any school, kindergarten or child care centre."
11 14 July 2000 Mr Scobie and other local aboriginal people entered a clothing store. Mr Scobie selected a black and grey FILA brand
jacket and left without paying. He was found wearing the jacket. Mr Scobie denied the offence. He was described as being "difficult
to understand." Due to his level of intoxication he was not formally interviewed. Mr Scobie was granted police bail. On 28 November
2000 he pleaded guilty to the offence.
On 8 August 2000 Mr Scobie attended at the Coober Pedy Area School between 2:15 -2:45 pm on four occasions. He was seen amongst junior
primary children and arrested upon leaving the school on the last occasion.
The following facts pertain to the four allegations of failing to comply with a paedophile restraining order. On the first occasion
there were a number of children nearby between the ages of five and seven years. Mr Scobie was asked to leave and then escorted off
the school grounds by the deputy principal.
Mr Scobie then returned five minutes later via another entrance. This time he was looking at the children in the childcare centre
adjacent to the school. All were under four years of age. Again Mr Scobie was escorted from the school by the deputy principal.
Shortly after Mr Scobie re-entered the school through the same entrance. He walked towards children who were standing nearby. He was
intercepted by the deputy principal who told him in no uncertain terms to leave and that he was not permitted on the school grounds.
Mr Scobie then walked away from the school.
On the final occasion at 2.45 pm Mr Scobie was observed by a school employee standing on the school oval looking at children playing.
He was about 20 metres from the nearest child. The police were called and at 2.50 pm they observed Mr Scobie leaving the school premises.
He was arrested. He was described as being "moderately affected by liquor". Due to his level of intoxication he was not formally
interviewed. He said that he "took a wrong turn."
On 2 June 2001 Mr Scobie attended at the home of a wheel-chair bound woman who was in the company of her three children aged three,
five and seven years. She said that she heard a male voice coming from outside the front door. She said the voice was unknown and
calling out in aboriginal language which she could not understand. She called for the man to leave. He did not and moved down the
side of her home and into the backyard where he stood by the back door and continued to call out. She again told him to leave but
he remained. The police were called. They located Mr Scobie and arrested him. He was said to have been affected by alcohol. Mr Scobie
said that he had gone to that home because he was looking for someone who owed him money. He was then granted police bail to appear
before the Port Augusta magistrate's court on 9 July 2001. On 8 August 2001 Mr Scobie pleaded guilty to the offence in the Port Augusta
magistrate's court. He was imprisoned for 7 days by the magistrate. The sentence commenced from 8 August 2001.
On 7 June 2001 Mr Scobie breached the conditions of his bail agreement. At about 8.55 pm Mr Scobie was located at the Davenport community
in a grossly intoxicated state. He was conveyed to the Port Augusta police station for breath analysis as directed by his supervising
correctional services officer. At 9.55 pm his breath analysis was recorded at 0.234 grams of alcohol per 100 ml of blood. Mr Scobie
was arrested for breaching his bail conditions (the bail agreement entered into on 25 May 2001 was that he not exceed 0.05 grams
of alcohol per 100 ml of blood.) Mr Scobie was refused police bail and remanded in custody. He was later granted bail by this court.
On 21 July 2001 Mr Scobie again failed to comply with a paedophile restraining order and bail agreement. At around midday he stopped
a nine year old boy who was riding his bike at the beach at the rear of the Port Augusta Hospital. He showed him a magazine containing
pictures of naked women. The boy rode home and complained to his grandmother who contacted the police. The boy and his grandmother
later identified Mr Scobie from photos after Mr Scobie declined to participate in a line up. Mr Scobie was arrested on 8 August 2001.
He exercised his right to silence. He was refused bail and remanded in custody. On 9 August 2001 Mr Scobie pleaded guilty to both
charges in the Port Augusta Magistrate's court. He was granted bail by this court on 14 September 2001. He was released from custody
after signing the bail agreement on 18 September 2001.
On 1 November 2001 Mr Scobie again failed to comply with a paedophile restraining order and bail agreement. It was alleged that Mr
Scobie attended a school disco that was held on the basketball courts at Fregon School. Approximately 30-40 children aged between
seven and 15 years were in attendance. Between 7.45 pm and 8.00 pm Mr Scobie was observed standing in the shadows near the administration
building in the school grounds. He appeared to be watching the children and was within six metres from where they were dancing. Mr
Scobie was asked to leave but he remained. He was then approached by the principal and asked to leave. Mr Scobie left the school
grounds via the front gate. Police attended and Mr Scobie was arrested at about 9.15 pm. He admitted being at the school and stated
that he understood the terms of the paedophile restraining order and bail agreement and then exercised his right to silence. Mr Scobie
was refused police bail and was remanded in custody. He was granted bail by this court on 5 December 2001 and released from Port
Augusta prison after entering into his bail agreement on 6 December 2001.
12 Section 23 relevantly provides:
" ...(2) Where a defendant is convicted of an offence to which this section applies by the District Court or the Magistrates Court, the court may, if of the opinion that the powers under this section should be exercised in relation to the defendant, remand the defendant in custody or on bail to appear for sentence before the Supreme Court.
(3) The Supreme Court may, in relation to-
(a) a defendant convicted of an offence to which this section applies by the Court; or
(b) a defendant remanded to appear for sentence before the Court pursuant to subsection (2),
before determining sentence, direct that at least two legally qualified medical practitioners, specified by the Court, inquire into the defendant's mental condition and report to the Court as to whether the defendant is incapable of controlling his or her sexual instincts.
...
(5) If-
(a) each of the medical practitioners reports to the Supreme Court, on oath, that the defendant is incapable of controlling his or her sexual instincts; and
(b) the Court, after hearing any evidence or representations adduced or made by the defendant, is satisfied that the defendant is so incapable,
the Court may declare accordingly and direct that the defendant be detained in custody until further order."
13 Veen v The Queen (No 1) [1979] HCA 7; (1979) 143 CLR 458 at 467-468; Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611 at 619
14 Dr Raeside was employed by the Forensic Mental Health Service South Australia as a consultant forensic psychiatrist based at James Nash House, the state psychiatric inpatient unit for prisoners.
15 Dr O'Brien was the acting director and clinical director of Forensic Mental Health Service South Australia.
16 Dr Raeside was unable to diagnose Mr Scobie with any formal psychiatric disorder. However he was of the view that his previous
offending showed poor impulse control and judgment and that there appeared to be a strong association, although not exclusively,
between his offending and alcohol consumption. Dr Raeside reported on 3 April 2001:
"... I believe that there is sufficient evidence to suggest that [Mr Scobie ] is unable to adequately control his sexual impulses as
evidenced by his longstanding and ongoing sexual offending against young children. I believe that he represents a significant risk
to the community and there is little to indicate that this is likely to change in the near future. I would therefore support the
proposition that he is incapable of controlling his sexual instincts pursuant to section 23(3) of the Criminal Law (Sentencing) Act and would recommend that he be incarcerated indefinitely..."
Dr Raeside observed that the voices described by Mr Scobie were not in the form of auditory hallucinations. They were possibly associated
with alcohol intoxication but may also have had their origins at his initiation and may have been associated with the procedures
and punishment he received at that time. Dr Raeside noted that Mr Scobie had never received medical assessment or treatment for the
voices or for his sexual behaviour, apart from assistance by local church people.
Dr Raeside recommended that whilst incarcerated, the voices Mr Scobie was hearing should be investigated and a trial of anti-psychotic
medication implemented. However, he thought it was possible that the voices would improve "simply by being abstinent from alcohol."
He also suggested that a traditional healer might provide some assistance for Mr Scobie , although he did not feel qualified to elaborate
further.
17 Dr Bell was a Senior Clinical Psychologist (specialist neuro-psychologist) from Forensic Mental Health Service James Nash House.
In his report dated 29 March 2001 he found that Mr Scobie as not suffering from a major illness or disorder:
"...Mr Scobie was assessed as having a premorbid intelligence which is likely to be within the borderline range. His current level
of cognitive functioning was compared against this premorbid level. There was no evidence observed of the presence of aphasia, agnosia
or apraxia in his performance on formal testing, or in observation of his behaviour throughout the interview. The neuropsychological
screening battery implied that he demonstrated no evidence for visual perceptual deficits. He was seen to have mild to moderate memory
deficits, and mild executive (frontal lobe) functioning deficits...
On a practical level, the impairments seen in Mr Scobie are in my respectful opinion mild to moderate, and are unlikely to impact
significantly on his memory and frontal lobe functioning relative to his premorbid level of functioning. Further, it is my respectful
opinion that his executive (frontal lobe) functioning was not found to be so significantly impaired as to be likely to impact upon
his impulse control capacities, such as those governing his sexual instincts. This conclusion would apply only at times when Mr Scobie
is unaffected by alcohol. Alcohol consumption is widely regarded as leading to temporary impairment of executive/frontal lobe functioning."
18 Dr O'Brien provided a provisional report dated 5 April 2001:
"Mr Scobie has a history of sexual offending...A variety of sanctions against him has not to date, apparently curtailed his offending
sexual behaviour. To my knowledge, and confirmed by Mr Scobie , he has never been offered or provided with any professional assistance
for, what appears to be an abnormal sexual interest in children. A review of Mr Scobie 's health history together with my psychiatric
assessment of him does not reveal the presence of any major mental illness or disorder. He has a history of petrol sniffing and there
is also evidence of intermittent alcohol abuse. He smokes marijuana daily. Furthermore and as a result of Mr Bell's detailed neuropsychological
testing, some deficits are revealed...I am satisfied that Mr Scobie suffers from a paedophilic disturbance, usually, though not exclusively,
heterosexual in nature. From my interview with him, it would appear that at times he is able to control these urges. On other occasions
he is unsuccessful furthermore, it is important to acknowledge that, to the best of my knowledge, Mr Scobie has never been offered
professional assistance for his disorder. In conducting previous assessments pursuant to section 23(3) of the Criminal Law (Sentencing) Act I have taken this into account in proffering an opinion. In the absence of such services being provided to Mr Scobie to date, I consider
that this is an additional reason to state that Mr Scobie has some capacity to control his sexual instincts. I cannot, therefore,
at this juncture, support the current application on professional grounds."
On 3 May 2001 Dr O'Brien provided a further report:
"Although a variety of legal sanctions has been attempted or directed against Mr Scobie , to the best of my knowledge, he has never
been offered any treatment of rehabilitative services. Given the nature of his offending behaviour, I find this lack of offers of
assistance surprising and troubling although the area in general is poorly resourced even for non indigenous, metropolitan based
sexual offenders...
[Mr Scobie ] has some awareness about [his] propensity [for sexual offending against children]. These abnormal urges do not appear
to be present at all times. Even in the presence, or in the sight, of a young girl the urge in not necessarily present but only 'sometimes'...
When the urge is present, at least at times, he is able to consider the consequences of such unacceptable behaviour and sometimes
these consequences frighten him and in that context he is able to resist the urge. On other occasions, he is less successful and
acts on the urge. If he is using/abusing alcohol and/or drugs, the abnormal urge tends to be stronger and more intensive and, therefore,
more difficult to resist...
As I stated in my earlier report, I believe that Mr Scobie has some ability although this is not always exercised in a regular or
consistent fashion and in the past has failed him, leading to offences being committed. There may well be a capacity within Mr Scobie
to improve his control (with respect to abnormal sexual urges) mechanisms. This has been untested, to date, given the absence of
services offered or provided to Mr Scobie . This is an important omission, in my opinion, with respect to his capacity to control
or otherwise. As I stated in my previous report until such services are offered to him, a reasonable trial of their efficacy is conducted
and the outcome monitored, then it is impossible to label him as "uncontrollable" with respect to those self-same urges. In imparting
this opinion, I am not in any sense underestimating the very real barriers that undoubtedly exist with respect to making available
to Mr Scobie such services as I have described. Nonetheless, previous courts have taken the question of availability and provision
of services into account and the current court may wish to further consider this particular perspective."
19 Dr O'Brien's progress report dated 2 April 2002 provided:
"I had previously advised the court, that given the failure of non-pharmacological methods of treatment, the use of anti-libidinal
medication ought to be considered. Only two medications were available, one a tablet and the other an injection. Anticipating possible
problems with compliance it was my view that a regular depot preparation should be considered. In that respect, I elected to consider
the drug Depo-Provera. Initially, I arranged for Mr Scobie to have an endocrinological examination at the Royal Adelaide Hospital
less there be any contra-indications, on health grounds, for the administration of this preparation. I was advised by the Endocrinology
Department that no such contra-indication was identified...on 24 October 2001 I explained to him in detail my proposed action ...He
appeared to understand my explanation and gave me permission to proceed.
I elected to commence him on 400 mg intramuscularly every four weeks with regular blood tests (measuring his serum testosterone and related levels) at regular intervals...I should add that the giving of the medication is the responsibility of the nurse at the Fregon Health Centre whilst his general medical supervision, the ordering of the blood tests etc is the responsibility of his general medical practitioner Dr Gell.
The prescribing of medication (and associated blood testing) should be regarded as adjunctive only. However, taking into account the blood levels to date and the information I have received about his progress (particularly from Ms Tait), it would seem to me that the present management plan, in supervisory and psychiatric terms, is progressing reasonably well. I caution, however, that it is far to early to draw any intermediate or particularly any long term conclusions about these findings other than to state that at this early stage of his management matters are progressing as well as I could have expected.
Regarding his ultimate disposition, should Mr Scobie be given a non-custodial sentence and particularly one that requires him to remain
in his present geographical location then it would be my intention to see him at regular intervals. I will continue to liase with
Ms Tait and with Dr Gell. I am hopeful that an arrangement can be made with the Department of Community Corrections, Port Augusta,
to enable me to see Mr Scobie on future occasions at Port Augusta. As it happens, I visit the town on a monthly basis but it would
be difficult to accommodate me seeing Mr Scobie on those days (given my other commitments). However, I am prepared to make an extended
visit to Port Augusta from time to time and on such occasions to see Mr Scobie , possibly, at the community corrections office at
Port Augusta."
20 Mr Scobie was in custody during the periods August 2000 to January 2001 and March 2001 to May 2001.
21 James Nash House is proximate to Yatala Prison.
22 here are two OARS hostels at Port Augusta one a men's hostel and the other for resident families. The family hostel was inappropriate
for Mr Scobie and the men's hostel had no vacancies.
23 Mimili is a small, kin based community approximately 70 kilometres east of the Stuart highway situated in the Everard ranges. The
buildings or structures that make up the community are spread out around the rocky outcrop of hills that form part of the Everard
ranges. Mimili community is made up of a number of families who have separate and interlocking relationships through marriage. The
people and families who make up Mimili are closely related to the communities of Indulkana and Coober Pedy who have rejected Mr Scobie .
They are largely Yankunytjatjara speakers. Mimili has a store; community office; school situated in the middle of the community;
a health clinic staffed by nurses and indigenous health workers and serviced by the medical officer based at Fregon.
24 A report from the Parole Board dated 28 February 2001 provided:
"[Mr Scobie ] was first released on parole on 11 March, 1987 having served six months imprisonment of an eighteenmonth head sentence
for offences of drive without consent. He served only five months of this parole term prior to the cancellation of parole as a consequence
of his further imprisonment for the offences of illegal use and drive under the influence committed whilst on parole.
On 2 March, 1992 [Mr Scobie ] was released on parole in respect of a sentence of imprisonment imposed by the Supreme Court on 22 November
1989.
On 6 December, 1994 [Mr Scobie 's] parole was cancelled as a result of his imprisonment for the offences of gross indecency and indecent
behaviour committed on 28 October 1994. He was not further released on parole.
During his parole release in 1992-94, [ Mr Scobie ] was supervised in the Pitjantjatjara Lands (Mimili) through the Marla office of
the Department of Correctional Services....His supervising parole officer at the time considered that there might well be a link
between his isolation and his offending behaviour coupled with his abuse of alcohol and/or petrol sniffing ...
Parole supervision in the Pitjantjatjara Lands is restricted to contact with a community corrections (parole) officer based at Marla. That officer travels through the community each week. There is limited opportunity for any therapeutic intervention to address offending behaviour due to the remoteness of the area. The local community police officers and police aids provide a level of oversight in cooperation with the community corrections officers and report those breaches of parole that are apparent."
25 The report was dated 1 July 2001.
26 Ms Taite's report of 2 November 2001 provided:
"All traditional persons residing in Fregon including the two community police aids stated to the writer that Mr Scobie had been staying
away from children, was always in an responsible adult's presence and that [Mr Scobie ] had been working hard...
Community members also stressed to the writer that [Mr Scobie ] is having traditional counselling etc and the offender did not want
to get into any trouble stating 'Johnie wants to stay on the lands and have a happy life and live like all of the Anangu people.'
All persons residing within the Pitjantjatjara Lands are now aware of the offences that [Mr Scobie ] has committed and most persons
the writer has spoken to are willing to support Mr Scobie . The strong (traditional men) in the community have stated to the writer
the importance of them helping [Mr Scobie ] and [Mr Scobie ] appears happy enough to accept their support.
The writer did experience a lot of difficulty in regards to the offender being placed within the proximity of the Fregon community.
All concerns were from the European community that were apparently privy to information in regards to Mr Scobie being a sexual offender,
having a paedophile restraining order and being placed on supervised bail under the Department of Correctional Services.
This caused a lot of concern to the offender and on one occasion he threatened to commit suicide. He appeared to be under a lot of
pressure in regards to him 'not being welcome in his own country within the Pitjantjatjara Lands'. However Mr Scobie was able to
accept the fact that certain persons were aware of his previous offences and continued participating with his officer and Ngangkari
in regards to rehabilitation and complying with both orders he had been placed on."
27 The NPYWC's report dated 26 November 2001 provided:
"There is no way that anyone subject to a paedophile restraining order could be allowed to live at a small community like Mimili.
Within the community there are no delineated spaces separating the adult world from the children's world. The community is made up
of adults and children who are kin. Obligations, familiarity, trust, shared living spaces, contact and demand sharing are some of
the features of kin relationships. Loyalties to kin dominate over other issues such as child protection. There is no fence surrounding
the school from the rest of the community. Adults enter and move through the school as easily as children move about the community
unaccompanied by adults. The school is directly opposite the health clinic. There are play areas and walking tracks that children
use crisscrossing the community. Not all the spaces that children use can be observed by adults. Mr Scobie would have unrestricted
access to children at Mimili...
Despite the evidence given in court, our experience of the Department of Correctional Services supervision of offenders from Marla is particularly poor. We would question that a probation officer would visit Mimili on a weekly basis. Even after repeated notifications of breaches they have failed to act until we have notified Port Augusta...
Dr Kerry Gell the senior medical officer based at Fregon visits Mimili on a regular basis. She said that they had no capacity to support
Mr Scobie . There are no trained psychologists or psychiatrists who visit Mimili. Patients requiring specialist psychiatric or psychological
treatment are sent to Adelaide or Alice Springs...
Ngangkari work for Anangu people living on the cross boarder region of the Ngaanyatjarra Pitjantjatjara and Yankunytjatjara lands. They describe themselves as spirit doctors and they are in great demand for a wide range of emotional and physical complaints. However, they say that they are unable to make any impact on the health of people whose bodies are saturated with modern drugs such as petrol fumes, marijuana smoke, or alcohol...
The ngankari...described the behaviour of a paedophile as being essentially outside of traditional understandings and traditional
codes of morality and acceptable behaviour. They say [Mr Scobie ] has his "own ideas" which they are unable to change through ngankari
healing treatments."
28 The Crown did not oppose this arrangement.
29 The Department reported on 21 February 2002:
"Mr Scobie was released to bail on the 6th December 2001, the offender was taken to Fregon community via Marla and placed in the care of RK, who facilitated his taking up residence
at Westbore homeland. Mr Scobie 's nominated place of residence. Mr Scobie initially resided at Westbore homeland however, it was
jointly agreed by his supervising officer, Mr Scobie and Mr RK that he relocate into the Fregon community...the reason for Mr Scobie 's
relocation related to a family with young children taking up residence at the homeland...Marla community correctional centre has
conducted weekly field trips to Fregon community for the purpose of monitoring Mr Scobie , checking on his well being and addressing
any concerns/issues that may have arisen in relation to the offender, traditional community members or European persons residing
in the community...
The writer has constant contact with YS, community police constable at Fregon, Mr RK, chairperson at Fregon and elders in the community and clinic staff. The following information has been provided:
'Mr Scobie is not a concern and they have not sighted the offender in the presence of children. He is also attending and participating
in Ngangkari traditional medicine
The staff at the Fregon clinic have advised, Mr Scobie has visited the clinic on a weekly basis to collect his prescription medicine
for his hypertension, and once a month has attended for his Depo-Provera...Mr Scobie has not needed to be reminded to attend the
clinic and has acted in a responsible manner in regards to his medical needs.
...In February 2002 Mr Scobie made himself available for and participated in the aboriginal ending offending program held on the Pitjantjatjara
lands, facilitated by a social worker from Whyalla and community correctional services officers from Marla. The writer attended the
program and noted the offender participated well and interacted appropriately with his peers. He stated, 'He was looking forward
to the next program in April-May 2002'.
...The sexual offenders treatment program has not been implemented with Mr Scobie at this point in time. It is hoped to commence this
program following sentencing.
...In summary, the offender has adjusted well to life in the Fregon community. He attends church on a regular basis, collects fire
wood for the old persons in the community, attends hunting trips with Mr RK and other elders, has grown a vegetable garden at his
place of residence, keeps appointments at the clinic and has apparently adhered to the conditions of both orders. Mr Scobie has also
gained part time employment cleaning up the oval, collecting rubbish etc, for which he was paid with purchase orders (for food) from
the Fregon community council office."
30 17 November 1989 Port Augusta Supreme Court Circuit per Millhouse J
31 22 November 1989 Port Augusta Supreme Court. It appears from Dr O'Brien's reports that there is no record that any psychiatric follow up occurred in response to these remarks.
32 The Attorney-General's Department's 2001-2003 Strategic Plan provides that the Justice Strategy Unit is a division of the Attorney General's Department. It provides strategic policy advice to the Department and the Justice Portfolio.
The 2000-2001 Annual Report provides that the goal of the Justice Strategy Unit is to work in partnership with justice agencies and the community to ensure a justice system that is fair, affordable, effective and accessible, and to promote an understanding of contemporary issues in the provision of justice in South Australia. The role of the Justice Strategy Unit provides executive support to the Chief Executive, the Deputy Chief Executive and the Ministers in:
- strategic planning and policy development;
- reviewing current operations and assessing the impact of legislation;
- reviewing and developing new strategies and initiatives;
- monitoring the implementation of strategies and initiatives, in particular the Justice Portfolio Strategic Directions.
The Justice Strategy Unit's focus is on a collaborative and consultative approach to issues that impact across the portfolio as well as issues spanning the Justice Portfolio and other government agencies. The Aboriginal Justice Plan includes:
"A priority for Action for the Justice Portfolio is to ensure a fair and just outcome for aboriginal people. The Justice Strategy Unit has commenced working with agencies within the Justice Portfolio and the aboriginal community to develop an Aboriginal Justice Plan and a Justice Portfolio Aboriginal Reconciliation Statement."
33 The nunga court has been operating as a specialist part of the magistrates court in Port Adelaide since June 1999. In March 2001 a nunga court began operating regularly in Murray Bridge. Nunga court practices are also adopted during the magistrate's circuits on the Anangu Pitjantjatjara lands and other places.
The nunga court sits to sentence aboriginal offenders who plead guilty to offences. The magistrate sits off the bench at the same level as the offender. An aboriginal justice officer is responsible for educating the aboriginal community in the operation of the court and the criminal justice system. They assist aboriginal people with bail conditions and court outcomes and foster links between the aboriginal community and the court. They act as consultants on aboriginal issues and cultural awareness. A senior aboriginal person may sit beside the magistrate to advise on cultural and community matters. The offender sits at the bar table. Legal representatives sit alongside the offender and relatives or friends are also permitted to sit alongside and participate in the proceedings. Once the police prosecutor and defence counsel have put submissions the family and community members or the victims can engage in discussion with the magistrate. The magistrate takes on an inquisitorial role often asking a number of questions to clarify matters or to assist in determining the most appropriate sentencing outcome for the particular offender. Family and community members are encouraged by the court to attend. The court is staffed by aboriginal court orderlies. They are often called upon to assist in proceedings.
Anecdotally it is said that the attendance rate of offenders is over 80 per cent. This is considerably more than the attendance in other courts by Aboriginal persons.
34 As a juvenile Mr Scobie entered into a bond in 1982. In 1997 another 12 month bond was imposed by a magistrate sitting at Port
Augusta the terms of which were:
to be of good behaviour and comply with all the conditions of this bond
to be under the supervision of a probation officer for a period of 12 months and obey all the lawful directions given by the probation officer.
to report within two working days of having signed this bond at the offices of the department of correctional services probation and parole branch in Port Augusta
to undertake psychological assessment and any psychological counselling considered appropriate in the light of his prior convictions re his sexually deviant behaviour.
To participate in any alcohol abuse treatment programmes or counselling also considered appropriate and any other programmes or counselling considered appropriate to his particular circumstances.
It appears that although the conditions were designed to assist Mr Scobie and prevent further offending there is no evidence that
any rehabilitative procedures were undertaken or followed through.
35 The Manager Department of Correctional Services office at Marla dated 12 September 2001 reported:
"The writer has been advised of the court's expectation that Correctional Services will bear the cost of transporting Mr Scobie to
Port Augusta or Adelaide on the occasions that he will be required for assessment. The Department is not funded for these services
and it would not be possible to provide this in Mr Scobie 's case.
I understand that the court has in mind the recommendations of the Royal Commission into Aboriginal Deaths in Custody, in particular the need for medical services to not be denied to residents in remote areas.
The lack of clarity as to which government department has responsibility for services in aboriginal communities is a longstanding
one, and not one I wish to reignite here. However, Mr Scobie is not a sentenced prisoner. If granted bail, it is assumed the court
will require his compliance with bail conditions to be supervised by community corrections. It is difficult to see how this renders
this Department responsible for funding his compliance.
That said, Mr Scobie might be eligible for the financial assistance offered by the SA Health Commission to people in remote areas
to attend specialist services. His allocated case-worker would certainly advocate for this on Mr Scobie 's behalf."
36 Much of Mr Scobie 's time in custody was spent awaiting matters to be heard in court. He would be arrested, come before the magistrate
at Port Augusta and plead guilty. Eventually the matters were referred to the Supreme Court. Then after further delay Mr Scobie would
either be transported to Adelaide or the court would attend Port Augusta. While the court did everything it could to minimise the
effect of these delays they occurred primarily because of an inability to find a suitable residence for Mr Scobie , the difficulties
encountered in the assessment process and the submissions made that there was insufficient information on which to sentence Mr Scobie
without the assessment and treatment regime being put in place. Given the lengthy period served in custody and the circumstances
of the breaches (caused by alcohol and lack of support) the court was of the view that Mr Scobie ultimately merited different treatment.
In substance however, the implementation of a non-custodial treatment option was hampered by resources not being available.
37 50 per cent of clients are mandated with the remainder voluntary and referred to SOTAP by other agencies. SOTAP services have been
referred to earlier in these reasons. As earlier observed SOTAP does not provide treatment services for persons in prison. SOTAP
services only operate communitybased programs in Norwood, Murray Bridge and Port Augusta one day per fortnight. No accommodation
or transport is provided. SOTAP provides support to Department on an ongoing basis. The co-ordinator of SOTAP has visited Port Augusta
to discuss a general plan of service for Mr Scobie and has provided ongoing telephone support for him. This is not a service that
SOTAP ordinarily provides.
38 First incorporated in 1971 Nunkuwarrin Yunti of South Australia Inc's purpose is:
"to promote and deliver improvement in the health and well being of all Aboriginal and Torres Straight Islander people in the greater metropolitan area of Adelaide to advance their health, social, cultural and economic status."
Its vision is:
"a centre of excellence operating in a culturally appropriate environment to deliver services which will instil a sense of belonging and provide for the enrichment of the Aboriginal and Torres Strait Islander identity, traditions and cultural beliefs. The organisation is community controlled and managed by an all Aboriginal and Torres Strait Islander Board whose members are chosen by the Aboriginal and Torres Straight Islander community."
39 Following the sentencing of Mr Scobie but whilst the court continued its process of review.
40 Sentencing Remarks delivered 17 December 2002 at [17-19], [23] and [14-15]
41 (1992) 76 A Crim R 58
42 Recommendations 88, 113, 195, 238, 265 and 286
43 [1998] HCA 62; (1998) 194 CLR 444 at [26] and [27]
44 See for example P Vines and O McFarlane "Investigating to Save Lives: Coroners and Aboriginal Deaths in Custody" (2000) 4(27) Indigenous Law Bulletin 8 at 12:
"At present, governments show signs of complacency about their response to the Royal Commission. Senator Aden Ridgeway drew attention to this in December 1999 when he said:
'We as senators of the Australian Parliament have a responsibility to all Australians, aboriginal and non aboriginal, to truly give effect to all of the recommendations of the Royal Commission. Hansard 9 December 1999.'"
T Balgi "Moving Beyond Royal Commission" (2001) 5(8) Indigenous Law Bulletin 24 at 25:
"The Royal Commission thoroughly examined why aboriginal people are over-represented in the justice system and stands as probably the most intense research on aboriginal justice issues ever done. However there have been a number of problems with its recommendations. Many of them are process oriented, some are hard to define and there is a range of issues not addressed by the Royal Commission or that have arisen since it handed down its findings. There have been some significant changes since the Royal Commission but there remain many issues that have not changed or have in fact become worse. We have had a real struggle in getting government agencies to report against their responsibility to implement the recommendations pertinent to their portfolio. They were just regurgitating initiatives that fitted under headings. It was not an actuality of that agency addressing the recommendations and coming up with findings that were reflective of that recommendation. We want to move from simply reporting on Royal Commission recommendations to focus more directly on the issues that the Royal Commission identified. It's about identifying a more qualitative way to actually ensure that the problems it identified are addressed."
45 The Department reported on 3 May 2002:
"Up until last year (2001) when [Mr Scobie ] was placed under supervision of the Department for Correctional Services on the Anangu
Pitjantjatjara Lands pending court appearances. It appears that this has been the only time in his life where he has been supported
by extended family, traditional elders, ngangkaris and other Anangu persons residing on the Anangu Pitjantjatjara Lands. Other departments
have also been involved in Mr Scobie 's possible rehabilitation to curb his offending behaviour...
The strict supervision by the Department for Correctional Service, along with specific medication has appeared to put him in a lower
position of reoffending. With ongoing support from Forensic Mental Health, the Anangu Pitjantjatjara persons, ngangkaris, Department
for Correctional Services and SOTAP, I feel confident that the offender may successfully complete a period of supervision with the
possibility of Mr Scobie not reoffending."
46 Dr O'Brien's report dated 6 November 2002 provided:
"Since I last reported on Mr Scobie on 24/4/02, I have continued to be involved in his psychiatric treatment. Primarily, this has
been through regular telephone communication with Dr Kerrie Gell, who visits Fregon from Sydney on an intermittent basis, Mr Brad
Smith nurse at Fregon and Ms Elaine Tait community corrections officer, Marla. I am kept informed of his progress whilst Dr Gell
sends me copies of his blood results which I review and, if necessary, discuss further with her....
I would like to draw to the court's attention an issue that may have to be addressed at a later date. It is my understanding that
local aboriginal elders consider that in due course a wife/partner should be found for him. I believe that Mr Scobie would be interested
in such an arrangement. At such time, he may well have sexual performance difficulties by virtue of his current anti-libidinal medication
which could in turn interfere with or damage such a relationship. Indeed such a relationship might well, in its own right, be therapeutic
for him and in turn reduce potential risk to children. As I say, it is not necessarily an issue that needs to be addressed at this
juncture but may have to be. Finally, there is the question about the maintenance of his treatment once his current supervision expires
in, I believe, May 2005. Certainly consideration could be given to the making of an application to the Guardianship Board. Whilst
I am prepared to make such an application at an appropriate time, I am by no means confident that the Board will entertain such an
application in the absence of specific mental illness or intellectual difficulties. "
47 The report of Mr Scobie 's supervising community corrections officer and the Department for Correctional Services dated 6 November
2002 provided:
"...Mr Scobie has gained full time employment [with Fregon Community Development Program], attends work five days a week and has been
classed by the CDEP Coordinator as a 'star worker, always keen to lend a hand and carry out all tasks required of him.'...
Mr Scobie was directed to attend the Fregon Community Health clinic on a weekly basis for medical checks in regards to hypertension,
every three weeks [for his depo-provera injections. Mr Scobie ] has attended as and when directed.
Mr Scobie has attended programs facilitated by a social worker from Whyalla. The programs were Aboriginal Ending Offending, Alcohol
other Drugs and Crime...[Mr Scobie ] participated well, he advised he gained knowledge/awareness from the programs and appeared to
enjoy the interaction with other clients present at the program.
Mr Scobie ...has attended both appointments with [Dr O'Brien for the monitoring of his depo-provera medication].
The Ngangkari's (traditional healers) at Fregon community play a big role in Mr Scobie 's life, he attends cultural business with the
doctors on a monthly basis. [Mr Scobie ] has a strong relationship with all elders...within and around the community of Fregon, he
respects their decisions in regards to his general well being and traditional medicine.
The european persons residing in the Fregon community appear to have a lot of respect for [Mr Scobie ] now, they advised the writer
he is not a concern and is always willing to have input into the community's well being...
The Ngangkari's have also decided the time is near for [Mr Scobie ] to marry a girl, move into his own house...the writer is unsure
of when this will take place.
The writer has noted that within the time she has supervised [Mr Scobie ] he has achieved most goals set by him and his supervising
officer, [Mr Scobie ] has built strong relationships with his extended family and european persons, he is an outstanding person within
the community of Fregon. The writer commends Mr Scobie in regards to responding so well to case management and compliance towards
his order...All reports from european persons, Marla police ...and Anangu persons have been of a positive nature."
48 Dr O'Brien's opinion as at 6 November 2002 was that:
"[Mr Scobie ] denied any particular problems, including sexual problems and informed me that he was keeping out of trouble...He confirmed
that he was having his regular injections and blood tests and seemed quite happy with these arrangements...His blood tests indicate
that his depot medication is having the desired psysiological effect, namely a drop in the level of the male sex hormone and associated
indicators. Furthermore, Mr Scobie denies having any particular sexual problems or arousal difficulties at the present time...I am
satisfied with the progress of Mr Scobie 's management/treatment. The present supervisory/treatment measures, should therefore, continue
unchanged."
49 Dr O'Brien's report dated 24 April 2002 provided:
"Returning to the question of Mr Scobie 's supervision, I would argue that it is both in the interest of society, and Mr Scobie , that
his supervision should be for an extended period of time. I further understand that conditions of supervision (including medical
treatment) are necessarily tied to the length of any bond period and will automatically cease at the end of that period. However,
an order such as a paedophilia restraining order allows both greater flexibility and longevity. That being so, I would favour the
latter over the former although it may well be possible for both to operate concurrently for a period of time."
50 A letter dated 20 November 2002 from the Aboriginal Project Officer in the Exceptional Needs Unit Department of Human Services states:
"As previously stated the Exceptional Needs Unit received the referral on 12th November 2002 from the Department for Correctional Services. The next step is to collate all existing information and to talk with
the agencies involved about what they can/have offered Mr Scobie .
The Role of the Unit is to provide independent facilitation of the range of Department of Human Services and other services that are relevant to the needs of the individual. Where there are gaps in service provision or difficulties in accessing services due to the remote location of the client, we can work with senior levels within the Department of Human Services to try and ensure an adequate level of response.
The responsibility for service provision remains with the agencies involved the Unit's role is around facilitation and advice. We are now merged into one Unit with the Management Assessment Panel, which has worked extensively with the Courts for many years.
Late January or early February it is anticipated that a multi agency service plan could be submitted to the court describing the outcomes from the process."
51 Section 3 of the Guardianship and Administration Act 1993 (SA) defines:
"mental incapacity" as the inability of a person to look after his or her
own health, safety or welfare or to manage his or her own affairs, as a result
of-
(a) any damage to, or any illness, disorder, imperfect or delayed
development, impairment or deterioration, of the brain or mind..."
Section 29 provides:
"(1) If the Board is satisfied, on an application made under this Division-
(a) that the person the subject of the application has a
mental incapacity; and
(b) that the person the subject of the application does not have an
enduring guardian; and
(c) that an order under this section should be made in respect of the
person, the Board may, by order, place the person under-
(d) the limited guardianship; or
(e) if satisfied that an order under paragraph (d) would not be
appropriate, the full guardianship, of such person or persons as the
Board considers, in all the circumstances of the case, to be the most
suitable for the purpose.
(2) A limited guardianship order is an order by which the Board specifies the
particular aspects of the protected person's care or welfare that are to be
the responsibility of the appointed guardian or guardians.
...
(4) The Public Advocate may be appointed as the guardian, or one of the
guardians, of the person, but only if the Board considers that no other order
under this section would be appropriate.
...
(6) A guardianship order may be subject to such conditions or limitations
(including a limitation as to the duration of the order) as the Board thinks
fit and specifies in the order."
52 The Department's report dated 21 February 2003 states:
"[Mr Scobie ] is still being supervised by the writer, he continues to report weekly, has held employment with the Community Development
program since 26 June 2002...The co-ordinator states Mr Scobie is by far the best worker he has seen on the Pitjantjatjara Lands.
He advised that Mr Scobie works on machinery, general maintenance ct on the cemetery. Johney Scobie has been classed as a "consistent
worker, who stands out within the Fregon Community."...Mr Scobie stated to the writer he had "traditional medicine" [on the recent
men's business between November 2002 and February 2003] and the problem was in his stomach, he is healed from the medicine and the
"sickness". He indicated the sickness from his stomach had gone over the hill into the sun...There have been no adverse reports from
the European persons residing within the Fregon community or from the Marla police... The writer has monitored strictly [the condition
that Mr Scobie is not to be in the presence of children under the age of 16 years without another adult]...Johney is abiding with
his order.
53 The letter from the Exceptional Needs Unit of 25 February 2003 continued:
"In relation to Mr Scobie 's particular situation the Exceptional Needs Unit will continue to liase with Disabilities and Mental Health
Services to endeavour to deliver any relevant services to Mr Scobie on the lands..."
54 During the course of submissions and when counsel for the Crown spoke of "jail" albeit in the context of a suspended term Mr Scobie
began speaking very loudly. He then held his wrists together as if to make a handcuff gesture. He shook his head. One of the elders
next to him attempted to calm him however he continued speaking loudly and then stood up and walked quickly out of the room. Court
was adjourned for 10 minutes to locate Mr Scobie . The community corrections officer took off her shoes and ran after Mr Scobie across
an open area. Counsel for Mr Scobie also took off his wig and ran after Mr Scobie still in his robes. The courtroom quickly emptied
and the elders also followed Mr Scobie and brought him back in one of their vehicles. Court resumed and counsel for Mr Scobie advised
that Mr Scobie had a great fear of being "locked up again" and that he had heard the term "jail" and believed that he was to be given
an immediate custodial sentence. Given the lack of appropriate interpreters he had misunderstood the context of the Crown submissions.
He then was given assistance from another elder who seemingly translated more of the proceedings for him. It was carefully and slowly
explained to Mr Scobie that the Crown was not seeking an immediate custodial order and that he would not be "locked up". He was told
that he was to remain in court until the court business was concluded. Mr Scobie appeared to be more relaxed after this explanation.
[1] The names John Scobie , Coopie Brown, Johnny Brown and Johnnie Scobie appear in the court documents.
[2] Birth dates used by the authorities include 1 February 1945, 1 January 1957, 8 April 1964, 25 June 1964 and 25 June 1965. At the time of the present proceedings it is probable that he was in his mid forties.
[3] The papers record the following as possibilities: Coober Pedy or Port Augusta in South Australia or Warburton in Western Australia.
[4] The papers also suggested that Mr Scobie was raised in Coober Pedy.
[5] The Anangu Pitjantjatjara lands were proclaimed as the Pitjantjatjara lands by the Pitjantjatjara Land Rights Act 1981 (SA). The lands are situated in the far north of South Australia. Within the lands are a number of established and 'non-transient' communities including Fregon, Mimili and Ernabella. An administration centre has been established at Umuwa which includes a health care centre. The communities are the home of significant populations of indigenous persons. Others reside nearby in communities in the Northern Territory and Western Australia. Although there may be considerable contact between family groups and the communities their populations fluctuate as persons move between Port Augusta and other major centres such as Coober Pedy and Whyalla.
7 Mr Scobie 's criminal history consists of some 70 offences. Many were property offences that were linked to his alcohol dependency.
[]
8 In the late 1980's he was involved in serious sexual offending which involved abduction and indecent assault. Around this time he also pleaded guilty to assault with intent to rape. These sexual offences were serious and involved a danger to young children. However this type of offending appears to have been confined to this period. Later offending during the mid 1990's can be described as less serious sexual offending. It involved charges of gross indecency and indecent behaviour, behaving in an indecent manner and inciting the commission by a child of an indecent act.
[9] Section 99 AA of the Summary Procedure Act 1921 (SA) provides:
"(1) On a complaint under this Division, the Court may make a restraining order against the defendant if-(a) the defendant has been found loitering near children; and
(b) -
(i) the defendant has been found guilty of a child sexual offence within the previous five years; or
(ii) the defendant, having been sentenced to imprisonment for a child sexual offence, has been released from prison within the previous five years; or
(iii) the defendant has been found loitering near children on at least one previous occasion and there is reason to think that the defendant may, unless restrained, again loiter near children; and
(c) the Court is satisfied that the making of the order is appropriate in the circumstances.
(2) A restraining order under this section may restrain the defendant from-
(a) loitering near children at or in the vicinity of a specified place or class of places or in specified circumstances; or
(b) loitering near children in any circumstances.
(3) In considering whether or not to make a restraining order under this section and in considering the terms of the restraining order, the Court must have regard to the following:
(a) whether the defendant's behaviour has aroused, or may arouse, reasonable apprehension or fear in a child or other person;
(b) whether there is reason to think that the defendant may, unless restrained, commit a child sexual offence or otherwise act inappropriately in relation to a child;
(c) the prior criminal record (if any) of the defendant;
(d) any evidence of sexual dysfunction suffered by the defendant;
(e) any apparent pattern in the defendant's behaviour, any apparent connection between the defendant's behaviour and the presence of children and any apparent justification for the defendant's behaviour;
(f) any other matter that, in the circumstances of the case, the Court considers relevant..."[]
10 "The terms included restraining Mr
- loitering near or in the vicinity of children.
- remaining on any premises occupied by him, if any person under the age of 16 years comes within those premises.
- associating with or attempting to associate with any person under the age of 16 years, whether or not that person is in the company of any adults.
- attending at or approaching within 100 metres of any school, kindergarten or child care centre."
[11] On 14 July 2000 Mr Scobie and other local aboriginal people entered a clothing store. Mr Scobie selected a black and grey FILA brand
jacket and left without paying. He was found wearing the jacket. Mr Scobie denied the offence. He was described as being "difficult
to understand." Due to his level of intoxication he was not formally interviewed. Mr Scobie was granted police bail. On 28 November
2000 he pleaded guilty to the offence.
On 8 August 2000 Mr Scobie attended at the Coober Pedy Area School between 2:15 -2:45 pm on four occasions. He was seen amongst junior
primary children and arrested upon leaving the school on the last occasion.
The following facts pertain to the four allegations of failing to comply with a paedophile restraining order. On the first occasion
there were a number of children nearby between the ages of five and seven years. Mr Scobie was asked to leave and then escorted off
the school grounds by the deputy principal.
Mr Scobie then returned five minutes later via another entrance. This time he was looking at the children in the childcare centre
adjacent to the school. All were under four years of age. Again Mr Scobie was escorted from the school by the deputy principal.
Shortly after Mr Scobie re-entered the school through the same entrance. He walked towards children who were standing nearby. He was
intercepted by the deputy principal who told him in no uncertain terms to leave and that he was not permitted on the school grounds.
Mr Scobie then walked away from the school.
On the final occasion at 2.45 pm Mr Scobie was observed by a school employee standing on the school oval looking at children playing.
He was about 20 metres from the nearest child. The police were called and at 2.50 pm they observed Mr Scobie leaving the school premises.
He was arrested. He was described as being "moderately affected by liquor". Due to his level of intoxication he was not formally
interviewed. He said that he "took a wrong turn."
On 2 June 2001 Mr Scobie attended at the home of a wheel-chair bound woman who was in the company of her three children aged three,
five and seven years. She said that she heard a male voice coming from outside the front door. She said the voice was unknown and
calling out in aboriginal language which she could not understand. She called for the man to leave. He did not and moved down the
side of her home and into the backyard where he stood by the back door and continued to call out. She again told him to leave but
he remained. The police were called. They located Mr Scobie and arrested him. He was said to have been affected by alcohol. Mr Scobie
said that he had gone to that home because he was looking for someone who owed him money. He was then granted police bail to appear
before the Port Augusta magistrate's court on 9 July 2001. On 8 August 2001 Mr Scobie pleaded guilty to the offence in the Port Augusta
magistrate's court. He was imprisoned for 7 days by the magistrate. The sentence commenced from 8 August 2001.
On 7 June 2001 Mr Scobie breached the conditions of his bail agreement. At about 8.55 pm Mr Scobie was located at the Davenport community
in a grossly intoxicated state. He was conveyed to the Port Augusta police station for breath analysis as directed by his supervising
correctional services officer. At 9.55 pm his breath analysis was recorded at 0.234 grams of alcohol per 100 ml of blood. Mr Scobie
was arrested for breaching his bail conditions (the bail agreement entered into on 25 May 2001 was that he not exceed 0.05 grams
of alcohol per 100 ml of blood.) Mr Scobie was refused police bail and remanded in custody. He was later granted bail by this court.
On 21 July 2001 Mr Scobie again failed to comply with a paedophile restraining order and bail agreement. At around midday he stopped
a nine year old boy who was riding his bike at the beach at the rear of the Port Augusta Hospital. He showed him a magazine containing
pictures of naked women. The boy rode home and complained to his grandmother who contacted the police. The boy and his grandmother
later identified Mr Scobie from photos after Mr Scobie declined to participate in a line up. Mr Scobie was arrested on 8 August 2001.
He exercised his right to silence. He was refused bail and remanded in custody. On 9 August 2001 Mr Scobie pleaded guilty to both
charges in the Port Augusta Magistrate's court. He was granted bail by this court on 14 September 2001. He was released from custody
after signing the bail agreement on 18 September 2001.
On 1 November 2001 Mr Scobie again failed to comply with a paedophile restraining order and bail agreement. It was alleged that Mr
Scobie attended a school disco that was held on the basketball courts at Fregon School. Approximately 30-40 children aged between
seven and 15 years were in attendance. Between 7.45 pm and 8.00 pm Mr Scobie was observed standing in the shadows near the administration
building in the school grounds. He appeared to be watching the children and was within six metres from where they were dancing. Mr
Scobie was asked to leave but he remained. He was then approached by the principal and asked to leave. Mr Scobie left the school
grounds via the front gate. Police attended and Mr Scobie was arrested at about 9.15 pm. He admitted being at the school and stated
that he understood the terms of the paedophile restraining order and bail agreement and then exercised his right to silence. Mr Scobie
was refused police bail and was remanded in custody. He was granted bail by this court on 5 December 2001 and released from Port
Augusta prison after entering into his bail agreement on 6 December 2001.
[12] Section 23 relevantly provides:" ...(2) Where a defendant is convicted of an offence to which this section applies by the District Court or the Magistrates Court, the court may, if of the opinion that the powers under this section should be exercised in relation to the defendant, remand the defendant in custody or on bail to appear for sentence before the Supreme Court.
(3) The Supreme Court may, in relation to-
(a) a defendant convicted of an offence to which this section applies by the Court; or
(b) a defendant remanded to appear for sentence before the Court pursuant to subsection (2),
before determining sentence, direct that at least two legally qualified medical practitioners, specified by the Court, inquire into the defendant's mental condition and report to the Court as to whether the defendant is incapable of controlling his or her sexual instincts.
...
(5) If-
(a) each of the medical practitioners reports to the Supreme Court, on oath, that the defendant is incapable of controlling his or her sexual instincts; and
(b) the Court, after hearing any evidence or representations adduced or made by the defendant, is satisfied that the defendant is so incapable,
the Court may declare accordingly and direct that the defendant be detained in custody until further order."
[13] Veen v The Queen (No 1) [1979] HCA 7; (1979) 143 CLR 458 at 467-468; Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611 at 619
[14] Dr Raeside was employed by the Forensic Mental Health Service South Australia as a consultant forensic psychiatrist based at James Nash House, the state psychiatric inpatient unit for prisoners.
[15] Dr O'Brien was the acting director and clinical director of Forensic Mental Health Service South Australia.
[16] Dr Raeside was unable to diagnose Mr Scobie with any formal psychiatric disorder. However he was of the view that his previous offending
showed poor impulse control and judgment and that there appeared to be a strong association, although not exclusively, between his
offending and alcohol consumption. Dr Raeside reported on 3 April 2001:
"... I believe that there is sufficient evidence to suggest that [Mr
Dr Raeside observed that the voices described by Mr Scobie were not in the form of auditory hallucinations. They were possibly associated
with alcohol intoxication but may also have had their origins at his initiation and may have been associated with the procedures
and punishment he received at that time. Dr Raeside noted that Mr Scobie had never received medical assessment or treatment for the
voices or for his sexual behaviour, apart from assistance by local church people.
Dr Raeside recommended that whilst incarcerated, the voices Mr Scobie was hearing should be investigated and a trial of anti-psychotic
medication implemented. However, he thought it was possible that the voices would improve "simply by being abstinent from alcohol."
He also suggested that a traditional healer might provide some assistance for Mr Scobie , although he did not feel qualified to elaborate
further.
[17] Dr Bell was a Senior Clinical Psychologist (specialist neuro-psychologist) from Forensic Mental Health Service James Nash House.
In his report dated 29 March 2001 he found that Mr Scobie as not suffering from a major illness or disorder:
"...Mr Scobie was assessed as having a premorbid intelligence which is likely to be within the borderline range. His current level
of cognitive functioning was compared against this premorbid level. There was no evidence observed of the presence of aphasia, agnosia
or apraxia in his performance on formal testing, or in observation of his behaviour throughout the interview. The neuropsychological
screening battery implied that he demonstrated no evidence for visual perceptual deficits. He was seen to have mild to moderate memory
deficits, and mild executive (frontal lobe) functioning deficits...
On a practical level, the impairments seen in Mr Scobie are in my respectful opinion mild to moderate, and are unlikely to impact
significantly on his memory and frontal lobe functioning relative to his premorbid level of functioning. Further, it is my respectful
opinion that his executive (frontal lobe) functioning was not found to be so significantly impaired as to be likely to impact upon
his impulse control capacities, such as those governing his sexual instincts. This conclusion would apply only at times when Mr Scobie
is unaffected by alcohol. Alcohol consumption is widely regarded as leading to temporary impairment of executive/frontal lobe functioning."
[18] Dr O'Brien provided a provisional report dated 5 April 2001:
"Mr Scobie has a history of sexual offending...A variety of sanctions against him has not to date, apparently curtailed his offending
sexual behaviour. To my knowledge, and confirmed by Mr Scobie , he has never been offered or provided with any professional assistance
for, what appears to be an abnormal sexual interest in children. A review of Mr Scobie 's health history together with my psychiatric
assessment of him does not reveal the presence of any major mental illness or disorder. He has a history of petrol sniffing and there
is also evidence of intermittent alcohol abuse. He smokes marijuana daily. Furthermore and as a result of Mr Bell's detailed neuropsychological
testing, some deficits are revealed...I am satisfied that Mr Scobie suffers from a paedophilic disturbance, usually, though not exclusively,
heterosexual in nature. From my interview with him, it would appear that at times he is able to control these urges. On other occasions
he is unsuccessful furthermore, it is important to acknowledge that, to the best of my knowledge, Mr Scobie has never been offered
professional assistance for his disorder. In conducting previous assessments pursuant to section 23(3) of the Criminal Law (Sentencing) Act I have taken this into account in proffering an opinion. In the absence of such services being provided to Mr Scobie to date, I consider
that this is an additional reason to state that Mr Scobie has some capacity to control his sexual instincts. I cannot, therefore,
at this juncture, support the current application on professional grounds."
On 3 May 2001 Dr O'Brien provided a further report:
"Although a variety of legal sanctions has been attempted or directed against Mr Scobie , to the best of my knowledge, he has never
been offered any treatment of rehabilitative services. Given the nature of his offending behaviour, I find this lack of offers of
assistance surprising and troubling although the area in general is poorly resourced even for non indigenous, metropolitan based
sexual offenders...
[Mr Scobie ] has some awareness about [his] propensity [for sexual offending against children]. These abnormal urges do not appear
to be present at all times. Even in the presence, or in the sight, of a young girl the urge in not necessarily present but only 'sometimes'...
When the urge is present, at least at times, he is able to consider the consequences of such unacceptable behaviour and sometimes
these consequences frighten him and in that context he is able to resist the urge. On other occasions, he is less successful and
acts on the urge. If he is using/abusing alcohol and/or drugs, the abnormal urge tends to be stronger and more intensive and, therefore,
more difficult to resist...
As I stated in my earlier report, I believe that Mr Scobie has some ability although this is not always exercised in a regular or
consistent fashion and in the past has failed him, leading to offences being committed. There may well be a capacity within Mr Scobie
to improve his control (with respect to abnormal sexual urges) mechanisms. This has been untested, to date, given the absence of
services offered or provided to Mr Scobie . This is an important omission, in my opinion, with respect to his capacity to control
or otherwise. As I stated in my previous report until such services are offered to him, a reasonable trial of their efficacy is conducted
and the outcome monitored, then it is impossible to label him as "uncontrollable" with respect to those self-same urges. In imparting
this opinion, I am not in any sense underestimating the very real barriers that undoubtedly exist with respect to making available
to Mr Scobie such services as I have described. Nonetheless, previous courts have taken the question of availability and provision
of services into account and the current court may wish to further consider this particular perspective."
[19] Dr O'Brien's progress report dated 2 April 2002 provided:
"I had previously advised the court, that given the failure of non-pharmacological methods of treatment, the use of anti-libidinal
medication ought to be considered. Only two medications were available, one a tablet and the other an injection. Anticipating possible
problems with compliance it was my view that a regular depot preparation should be considered. In that respect, I elected to consider
the drug Depo-Provera. Initially, I arranged for Mr Scobie to have an endocrinological examination at the Royal Adelaide Hospital
less there be any contra-indications, on health grounds, for the administration of this preparation. I was advised by the Endocrinology
Department that no such contra-indication was identified...on 24 October 2001 I explained to him in detail my proposed action ...He
appeared to understand my explanation and gave me permission to proceed.
I elected to commence him on 400 mg intramuscularly every four weeks with regular blood tests (measuring his serum testosterone and related levels) at regular intervals...I should add that the giving of the medication is the responsibility of the nurse at the Fregon Health Centre whilst his general medical supervision, the ordering of the blood tests etc is the responsibility of his general medical practitioner Dr Gell.
The prescribing of medication (and associated blood testing) should be regarded as adjunctive only. However, taking into account the blood levels to date and the information I have received about his progress (particularly from Ms Tait), it would seem to me that the present management plan, in supervisory and psychiatric terms, is progressing reasonably well. I caution, however, that it is far to early to draw any intermediate or particularly any long term conclusions about these findings other than to state that at this early stage of his management matters are progressing as well as I could have expected.
Regarding his ultimate disposition, should Mr Scobie be given a non-custodial sentence and particularly one that requires him to remain
in his present geographical location then it would be my intention to see him at regular intervals. I will continue to liase with
Ms Tait and with Dr Gell. I am hopeful that an arrangement can be made with the Department of Community Corrections, Port Augusta,
to enable me to see Mr Scobie on future occasions at Port Augusta. As it happens, I visit the town on a monthly basis but it would
be difficult to accommodate me seeing Mr Scobie on those days (given my other commitments). However, I am prepared to make an extended
visit to Port Augusta from time to time and on such occasions to see Mr Scobie , possibly, at the community corrections office at
Port Augusta."
[20] Mr Scobie was in custody during the periods August 2000 to January 2001 and March 2001 to May 2001.
[21] James Nash House is proximate to Yatala Prison.
[22] There are two OARS hostels at Port Augusta one a men's hostel and the other for resident families. The family hostel was inappropriate
for Mr Scobie and the men's hostel had no vacancies.
[23] Mimili is a small, kin based community approximately 70 kilometres east of the Stuart highway situated in the Everard ranges. The
buildings or structures that make up the community are spread out around the rocky outcrop of hills that form part of the Everard
ranges. Mimili community is made up of a number of families who have separate and interlocking relationships through marriage. The
people and families who make up Mimili are closely related to the communities of Indulkana and Coober Pedy who have rejected Mr Scobie .
They are largely Yankunytjatjara speakers. Mimili has a store; community office; school situated in the middle of the community;
a health clinic staffed by nurses and indigenous health workers and serviced by the medical officer based at Fregon.
[24] A report from the Parole Board dated 28 February 2001 provided:
"[Mr Scobie ] was first released on parole on 11 March, 1987 having served six months imprisonment of an eighteenmonth head sentence
for offences of drive without consent. He served only five months of this parole term prior to the cancellation of parole as a consequence
of his further imprisonment for the offences of illegal use and drive under the influence committed whilst on parole.
On 2 March, 1992 [Mr Scobie ] was released on parole in respect of a sentence of imprisonment imposed by the Supreme Court on 22 November
1989.
On 6 December, 1994 [Mr Scobie 's] parole was cancelled as a result of his imprisonment for the offences of gross indecency and indecent
behaviour committed on 28 October 1994. He was not further released on parole.
During his parole release in 1992-94, [ Mr Scobie ] was supervised in the Pitjantjatjara Lands (Mimili) through the Marla office of
the Department of Correctional Services....His supervising parole officer at the time considered that there might well be a link
between his isolation and his offending behaviour coupled with his abuse of alcohol and/or petrol sniffing ...
Parole supervision in the Pitjantjatjara Lands is restricted to contact with a community corrections (parole) officer based at Marla. That officer travels through the community each week. There is limited opportunity for any therapeutic intervention to address offending behaviour due to the remoteness of the area. The local community police officers and police aids provide a level of oversight in cooperation with the community corrections officers and report those breaches of parole that are apparent."
[25] The report was dated 1 July 2001.
[26] Ms Taite's report of 2 November 2001 provided:
"All traditional persons residing in Fregon including the two community police aids stated to the writer that Mr Scobie had been staying
away from children, was always in an responsible adult's presence and that [Mr Scobie ] had been working hard...
Community members also stressed to the writer that [Mr Scobie ] is having traditional counselling etc and the offender did not want
to get into any trouble stating 'Johnie wants to stay on the lands and have a happy life and live like all of the Anangu people.'
All persons residing within the Pitjantjatjara Lands are now aware of the offences that [Mr Scobie ] has committed and most persons
the writer has spoken to are willing to support Mr Scobie . The strong (traditional men) in the community have stated to the writer
the importance of them helping [Mr Scobie ] and [Mr Scobie ] appears happy enough to accept their support.
The writer did experience a lot of difficulty in regards to the offender being placed within the proximity of the Fregon community.
All concerns were from the European community that were apparently privy to information in regards to Mr Scobie being a sexual offender,
having a paedophile restraining order and being placed on supervised bail under the Department of Correctional Services.
This caused a lot of concern to the offender and on one occasion he threatened to commit suicide. He appeared to be under a lot of
pressure in regards to him 'not being welcome in his own country within the Pitjantjatjara Lands'. However Mr Scobie was able to
accept the fact that certain persons were aware of his previous offences and continued participating with his officer and Ngangkari
in regards to rehabilitation and complying with both orders he had been placed on."
[27] The NPYWC's report dated 26 November 2001 provided:
"There is no way that anyone subject to a paedophile restraining order could be allowed to live at a small community like Mimili.
Within the community there are no delineated spaces separating the adult world from the children's world. The community is made up
of adults and children who are kin. Obligations, familiarity, trust, shared living spaces, contact and demand sharing are some of
the features of kin relationships. Loyalties to kin dominate over other issues such as child protection. There is no fence surrounding
the school from the rest of the community. Adults enter and move through the school as easily as children move about the community
unaccompanied by adults. The school is directly opposite the health clinic. There are play areas and walking tracks that children
use crisscrossing the community. Not all the spaces that children use can be observed by adults. Mr Scobie would have unrestricted
access to children at Mimili...
Despite the evidence given in court, our experience of the Department of Correctional Services supervision of offenders from Marla is particularly poor. We would question that a probation officer would visit Mimili on a weekly basis. Even after repeated notifications of breaches they have failed to act until we have notified Port Augusta...
Dr Kerry Gell the senior medical officer based at Fregon visits Mimili on a regular basis. She said that they had no capacity to support
Mr Scobie . There are no trained psychologists or psychiatrists who visit Mimili. Patients requiring specialist psychiatric or psychological
treatment are sent to Adelaide or Alice Springs...
Ngangkari work for Anangu people living on the cross boarder region of the Ngaanyatjarra Pitjantjatjara and Yankunytjatjara lands. They describe themselves as spirit doctors and they are in great demand for a wide range of emotional and physical complaints. However, they say that they are unable to make any impact on the health of people whose bodies are saturated with modern drugs such as petrol fumes, marijuana smoke, or alcohol...
The ngankari...described the behaviour of a paedophile as being essentially outside of traditional understandings and traditional
codes of morality and acceptable behaviour. They say [Mr Scobie ] has his "own ideas" which they are unable to change through ngankari
healing treatments."
[28] The Crown did not oppose this arrangement.
[29] The Department reported on 21 February 2002:
"Mr Scobie was released to bail on the 6th December 2001, the offender was taken to Fregon community via Marla and placed in the care of RK, who facilitated his taking up residence
at Westbore homeland. Mr Scobie 's nominated place of residence. Mr Scobie initially resided at Westbore homeland however, it was
jointly agreed by his supervising officer, Mr Scobie and Mr RK that he relocate into the Fregon community...the reason for Mr Scobie 's
relocation related to a family with young children taking up residence at the homeland...Marla community correctional centre has
conducted weekly field trips to Fregon community for the purpose of monitoring Mr Scobie , checking on his well being and addressing
any concerns/issues that may have arisen in relation to the offender, traditional community members or European persons residing
in the community...
The writer has constant contact with YS, community police constable at Fregon, Mr RK, chairperson at Fregon and elders in the community and clinic staff. The following information has been provided:
'Mr Scobie is not a concern and they have not sighted the offender in the presence of children. He is also attending and participating
in Ngangkari traditional medicine
The staff at the Fregon clinic have advised, Mr Scobie has visited the clinic on a weekly basis to collect his prescription medicine
for his hypertension, and once a month has attended for his Depo-Provera...Mr Scobie has not needed to be reminded to attend the
clinic and has acted in a responsible manner in regards to his medical needs.
...In February 2002 Mr Scobie made himself available for and participated in the aboriginal ending offending program held on the Pitjantjatjara
lands, facilitated by a social worker from Whyalla and community correctional services officers from Marla. The writer attended the
program and noted the offender participated well and interacted appropriately with his peers. He stated, 'He was looking forward
to the next program in April-May 2002'.
...The sexual offenders treatment program has not been implemented with Mr Scobie at this point in time. It is hoped to commence this
program following sentencing.
...In summary, the offender has adjusted well to life in the Fregon community. He attends church on a regular basis, collects fire
wood for the old persons in the community, attends hunting trips with Mr RK and other elders, has grown a vegetable garden at his
place of residence, keeps appointments at the clinic and has apparently adhered to the conditions of both orders. Mr Scobie has also
gained part time employment cleaning up the oval, collecting rubbish etc, for which he was paid with purchase orders (for food) from
the Fregon community council office."
[30] 17 November 1989 Port Augusta Supreme Court Circuit per Millhouse J
[31] 22 November 1989 Port Augusta Supreme Court. It appears from Dr O'Brien's reports that there is no record that any psychiatric follow up occurred in response to these remarks.
[32] The Attorney-General's Department's 2001-2003 Strategic Plan provides that the Justice Strategy Unit is a division of the Attorney General's Department. It provides strategic policy advice to the Department and the Justice Portfolio.
The 2000-2001 Annual Report provides that the goal of the Justice Strategy Unit is to work in partnership with justice agencies and the community to ensure a justice system that is fair, affordable, effective and accessible, and to promote an understanding of contemporary issues in the provision of justice in South Australia. The role of the Justice Strategy Unit provides executive support to the Chief Executive, the Deputy Chief Executive and the Ministers in:
- strategic planning and policy development;
- reviewing current operations and assessing the impact of legislation;
- reviewing and developing new strategies and initiatives;
- monitoring the implementation of strategies and initiatives, in particular the Justice Portfolio Strategic Directions.
The Justice Strategy Unit's focus is on a collaborative and consultative approach to issues that impact across the portfolio as well as issues spanning the Justice Portfolio and other government agencies. The Aboriginal Justice Plan includes:
"A priority for Action for the Justice Portfolio is to ensure a fair and just outcome for aboriginal people. The Justice Strategy Unit has commenced working with agencies within the Justice Portfolio and the aboriginal community to develop an Aboriginal Justice Plan and a Justice Portfolio Aboriginal Reconciliation Statement."
[33] The nunga court has been operating as a specialist part of the magistrates court in Port Adelaide since June 1999. In March 2001 a nunga court began operating regularly in Murray Bridge. Nunga court practices are also adopted during the magistrate's circuits on the Anangu Pitjantjatjara lands and other places.
The nunga court sits to sentence aboriginal offenders who plead guilty to offences. The magistrate sits off the bench at the same level as the offender. An aboriginal justice officer is responsible for educating the aboriginal community in the operation of the court and the criminal justice system. They assist aboriginal people with bail conditions and court outcomes and foster links between the aboriginal community and the court. They act as consultants on aboriginal issues and cultural awareness. A senior aboriginal person may sit beside the magistrate to advise on cultural and community matters. The offender sits at the bar table. Legal representatives sit alongside the offender and relatives or friends are also permitted to sit alongside and participate in the proceedings. Once the police prosecutor and defence counsel have put submissions the family and community members or the victims can engage in discussion with the magistrate. The magistrate takes on an inquisitorial role often asking a number of questions to clarify matters or to assist in determining the most appropriate sentencing outcome for the particular offender. Family and community members are encouraged by the court to attend. The court is staffed by aboriginal court orderlies. They are often called upon to assist in proceedings.
Anecdotally it is said that the attendance rate of offenders is over 80 per cent. This is considerably more than the attendance in other courts by Aboriginal persons.
[34] As a juvenile Mr Scobie entered into a bond in 1982. In 1997 another 12 month bond was imposed by a magistrate sitting at Port Augusta
the terms of which were:
- to be of good behaviour and comply with all the conditions of this bond
- to be under the supervision of a probation officer for a period of 12 months and obey all the lawful directions given by the probation officer.
- to report within two working days of having signed this bond at the offices of the department of correctional services probation and parole branch in Port Augusta
- to undertake psychological assessment and any psychological counselling considered appropriate in the light of his prior convictions re his sexually deviant behaviour.
- To participate in any alcohol abuse treatment programmes or counselling also considered appropriate and any other programmes or counselling considered appropriate to his particular circumstances.
It appears that although the conditions were designed to assist Mr Scobie and prevent further offending there is no evidence that
any rehabilitative procedures were undertaken or followed through.
[35] The manager Department of Correctional Services office at Marla dated 12 September 2001 reported:
"The writer has been advised of the court's expectation that Correctional Services will bear the cost of transporting Mr Scobie to
Port Augusta or Adelaide on the occasions that he will be required for assessment. The Department is not funded for these services
and it would not be possible to provide this in Mr Scobie 's case.
I understand that the court has in mind the recommendations of the Royal Commission into Aboriginal Deaths in Custody, in particular the need for medical services to not be denied to residents in remote areas.
The lack of clarity as to which government department has responsibility for services in aboriginal communities is a longstanding
one, and not one I wish to reignite here. However, Mr Scobie is not a sentenced prisoner. If granted bail, it is assumed the court
will require his compliance with bail conditionsto be supervised by community corrections. It is difficult to see how this renders
this Department responsible for funding his compliance.
That said, Mr Scobie might be eligible for the financial assistance offered by the SA Health Commission to people in remote areas
to attend specialist services. His allocated case-worker would certainly advocate for this on Mr Scobie 's behalf."
[36] Much of Mr Scobie 's time in custody was spent awaiting matters to be heard in court. He would be arrested, come before the magistrate
at Port Augusta and plead guilty. Eventually the matters were referred to the Supreme Court. Then after further delay Mr Scobie would
either be transported to Adelaide or the court would attend Port Augusta. While the court did everything it could to minimise the
effect of these delays they occurred primarily because of an inability to find a suitable residence for Mr Scobie , the difficulties
encountered in the assessment process and the submissions made that there was insufficient information on which to sentence Mr Scobie
without the assessment and treatment regime being put in place. Given the lengthy period served in custody and the circumstances
of the breaches (caused by alcohol and lack of support) the court was of the view that Mr Scobie ultimately merited different treatment.
In substance however, the implementation of a non-custodial treatment option was hampered by resources not being available.
[37] 50 per cent of clients are mandated with the remainder voluntary and referred to SOTAP by other agencies. SOTAP services have been
referred to earlier in these reasons. As earlier observed SOTAP does not provide treatment services for persons in prison. SOTAP
services only operate communitybased programs in Norwood, Murray Bridge and Port Augusta one day per fortnight. No accommodation
or transport is provided. SOTAP provides support to Department on an ongoing basis. The co-ordinator of SOTAP has visited Port Augusta
to discuss a general plan of service for Mr Scobie and has provided ongoing telephone support for him. This is not a service that
SOTAP ordinarily provides.
[38] First incorporated in 1971 Nunkuwarrin Yunti of South Australia Inc's purpose is:
"to promote and deliver improvement in the health and well being of all Aboriginal and Torres Straight Islander people in the greater metropolitan area of Adelaide to advance their health, social, cultural and economic status."
Its vision is:
"a centre of excellence operating in a culturally appropriate environment to deliver services which will instil a sense of belonging and provide for the enrichment of the Aboriginal and Torres Strait Islander identity, traditions and cultural beliefs. The organisation is community controlled and managed by an all Aboriginal and Torres Strait Islander Board whose members are chosen by the Aboriginal and Torres Straight Islander community."
[39] Following the sentencing of Mr Scobie but whilst the court continued its process of review.
[40] Sentencing Remarks delivered 17 December 2002 at [17-19], [23] and [14-15]
[41] (1992) 76 A Crim R 58
[42] Recommendations 88, 113, 195, 238, 265 and 286
[43] [1998] HCA 62; (1998) 194 CLR 444 at [26] and [27]
[44] See for example P Vines and O McFarlane "Investigating to Save Lives: Coroners and Aboriginal Deaths in Custody" (2000) 4(27) Indigenous Law Bulletin 8 at 12:
"At present, governments show signs of complacency about their response to the Royal Commission. Senator Aden Ridgeway drew attention to this in December 1999 when he said:
'We as senators of the Australian Parliament have a responsibility to all Australians, aboriginal and non aboriginal, to truly give effect to all of the recommendations of the Royal Commission. Hansard 9 December 1999.'"
T Balgi "Moving Beyond Royal Commission" (2001) 5(8) Indigenous Law Bulletin 24 at 25:
"The Royal Commission thoroughly examined why aboriginal people are over-represented in the justice system and stands as probably the most intense research on aboriginal justice issues ever done. However there have been a number of problems with its recommendations. Many of them are process oriented, some are hard to define and there is a range of issues not addressed by the Royal Commission or that have arisen since it handed down its findings. There have been some significant changes since the Royal Commission but there remain many issues that have not changed or have in fact become worse. We have had a real struggle in getting government agencies to report against their responsibility to implement the recommendations pertinent to their portfolio. They were just regurgitating initiatives that fitted under headings. It was not an actuality of that agency addressing the recommendations and coming up with findings that were reflective of that recommendation. We want to move from simply reporting on Royal Commission recommendations to focus more directly on the issues that the Royal Commission identified. It's about identifying a more qualitative way to actually ensure that the problems it identified are addressed."
[45] The Department reported on 3 May 2002:
"Up until last year (2001) when [Mr Scobie ] was placed under supervision of the Department for Correctional Services on the Anangu
Pitjantjatjara Lands pending court appearances. It appears that this has been the only time in his life where he has been supported
by extended family, traditional elders, ngangkaris and other Anangu persons residing on the Anangu Pitjantjatjara Lands. Other departments
have also been involved in Mr Scobie 's possible rehabilitation to curb his offending behaviour...
The strict supervision by the Department for Correctional Service, along with specific medication has appeared to put him in a lower
position of reoffending. With ongoing support from Forensic Mental Health, the Anangu Pitjantjatjara persons, ngangkaris, Department
for Correctional Services and SOTAP, I feel confident that the offender may successfully complete a period of supervision with the
possibility of Mr Scobie not reoffending."
[46] Dr O'Brien's report dated 6 November 2002 provided:
"Since I last reported on Mr Scobie on 24/4/02, I have continued to be involved in his psychiatric treatment. Primarily, this has
been through regular telephone communication with Dr Kerrie Gell, who visits Fregon from Sydney on an intermittent basis, Mr Brad
Smith nurse at Fregon and Ms Elaine Tait community corrections officer, Marla. I am kept informed of his progress whilst Dr Gell
sends me copies of his blood results which I review and, if necessary, discuss further with her....
I would like to draw to the court's attention an issue that may have to be addressed at a later date. It is my understanding that
local aboriginal elders consider that in due course a wife/partner should be found for him. I believe that Mr Scobie would be interested
in such an arrangement. At such time, he may well have sexual performance difficulties by virtue of his current anti-libidinal medication
which could in turn interfere with or damage such a relationship. Indeed such a relationship might well, in its own right, be therapeutic
for him and in turn reduce potential risk to children. As I say, it is not necessarily an issue that needs to be addressed at this
juncture but may have to be. Finally, there is the question about the maintenance of his treatment once his current supervision expires
in, I believe, May 2005. Certainly consideration could be given to the making of an application to the Guardianship Board. Whilst
I am prepared to make such an application at an appropriate time, I am by no means confident that the Board will entertain such an
application in the absence of specific mental illness or intellectual difficulties. "
[47] The report of Mr Scobie 's supervising community corrections officer and the Department for Correctional Services dated 6 November
2002 provided:
"...Mr Scobie has gained full time employment [with Fregon Community Development Program], attends work five days a week and has been
classed by the CDEP Coordinator as a 'star worker, always keen to lend a hand and carry out all tasks required of him.'...
Mr Scobie was directed to attend the Fregon Community Health clinic on a weekly basis for medical checks in regards to hypertension,
every three weeks [for his depo-provera injections. Mr Scobie ] has attended as and when directed.
Mr Scobie has attended programs facilitated by a social worker from Whyalla. The programs were Aboriginal Ending Offending, Alcohol
other Drugs and Crime...[Mr Scobie ] participated well, he advised he gained knowledge/awareness from the programs and appeared to
enjoy the interaction with other clients present at the program.
Mr Scobie ...has attended both appointments with [Dr O'Brien for the monitoring of his depo-provera medication].
The Ngangkari's (traditional healers) at Fregon community play a big role in Mr Scobie 's life, he attends cultural business with the
doctors on a monthly basis. [Mr Scobie ] has a strong relationship with all elders...within and around the community of Fregon, he
respects their decisions in regards to his general well being and traditional medicine.
The european persons residing in the Fregon community appear to have a lot of respect for [Mr Scobie ] now, they advised the writer
he is not a concern and is always willing to have input into the community's well being...
The Ngangkari's have also decided the time is near for [Mr Scobie ] to marry a girl, move into his own house...the writer is unsure
of when this will take place.
The writer has noted that within the time she has supervised [Mr Scobie ] he has achieved most goals set by him and his supervising
officer, [Mr Scobie ] has built strong relationships with his extended family and european persons, he is an outstanding person within
the community of Fregon. The writer commends Mr Scobie in regards to responding so well to case management and compliance towards
his order...All reports from european persons, Marla police ...and Anangu persons have been of a positive nature."
[48] Dr O'Brien's opinion as at 6 November 2002 was that:
"[Mr Scobie ] denied any particular problems, including sexual problems and informed me that he was keeping out of trouble...He confirmed
that he was having his regular injections and blood tests and seemed quite happy with these arrangements...His blood tests indicate
that his depot medication is having the desired psysiological effect, namely a drop in the level of the male sex hormone and associated
indicators. Furthermore, Mr Scobie denies having any particular sexual problems or arousal difficulties at the present time...I am
satisfied with the progress of Mr Scobie 's management/treatment. The present supervisory/treatment measures, should therefore, continue
unchanged."
[49] Dr O'Brien's report dated 24 April 2002 provided:
"Returning to the question of Mr Scobie 's supervision, I would argue that it is both in the interest of society, and Mr Scobie , that
his supervision should be for an extended period of time. I further understand that conditions of supervision (including medical
treatment) are necessarily tied to the length of any bond period and will automatically cease at the end of that period. However,
an order such as a paedophilia restraining order allows both greater flexibility and longevity. That being so, I would favour the
latter over the former although it may well be possible for both to operate concurrently for a period of time."
[50] A letter dated 20 November 2002 from the Aboriginal Project Officer in the Exceptional Needs Unit Department of Human Services states:
"As previously stated the Exceptional Needs Unit received the referral on 12th November 2002 from the Department for Correctional Services. The next step is to collate all existing information and to talk with
the agencies involved about what they can/have offered Mr Scobie .
The Role of the Unit is to provide independent facilitation of the range of Department of Human Services and other services that are relevant to the needs of the individual. Where there are gaps in service provision or difficulties in accessing services due to the remote location of the client, we can work with senior levels within the Department of Human Services to try and ensure an adequate level of response.
The responsibility for service provision remains with the agencies involved the Unit's role is around facilitation and advice. We are now merged into one Unit with the Management Assessment Panel, which has worked extensively with the Courts for many years.
Late January or early February it is anticipated that a multi agency service plan could be submitted to the court describing the outcomes from the process."
[51] Section 3 of the Guardianship and Administration Act 1993 (SA) defines:
"mental incapacity" as the inability of a person to look after his or her
own health, safety or welfare or to manage his or her own affairs, as a result
of-
(a) any damage to, or any illness, disorder, imperfect or delayed
development, impairment or deterioration, of the brain or mind..."
Section 29 provides:
"(1) If the Board is satisfied, on an application made under this Division-
(a) that the person the subject of the application has a
mental incapacity; and
(b) that the person the subject of the application does not have an
enduring guardian; and
(c) that an order under this section should be made in respect of the
person, the Board may, by order, place the person under-
(d) the limited guardianship; or
(e) if satisfied that an order under paragraph (d) would not be
appropriate, the full guardianship, of such person or persons as the
Board considers, in all the circumstances of the case, to be the most
suitable for the purpose.
(2) A limited guardianship order is an order by which the Board specifies the
particular aspects of the protected person's care or welfare that are to be
the responsibility of the appointed guardian or guardians.
...
(4) The Public Advocate may be appointed as the guardian, or one of the
guardians, of the person, but only if the Board considers that no other order
under this section would be appropriate.
...
(6) A guardianship order may be subject to such conditions or limitations
(including a limitation as to the duration of the order) as the Board thinks
fit and specifies in the order."
[52] The Department's report dated 21 February 2003 states:
"[Mr Scobie ] is still being supervised by the writer, he continues to report weekly, has held employment with the Community Development
program since 26 June 2002...The co-ordinator states Mr Scobie is by far the best worker he has seen on the Pitjantjatjara Lands.
He advised that Mr Scobie works on machinery, general maintenance ct on the cemetery. Johney Scobie has been classed as a "consistent
worker, who stands out within the Fregon Community."...Mr Scobie stated to the writer he had "traditional medicine" [on the recent
men's business between November 2002 and February 2003] and the problem was in his stomach, he is healed from the medicine and the
"sickness". He indicated the sickness from his stomach had gone over the hill into the sun...There have been no adverse reports from
the European persons residing within the Fregon community or from the Marla police... The writer has monitored strictly [the condition
that Mr Scobie is not to be in the presence of children under the age of 16 years without another adult]...Johney is abiding with
his order.
[53] The letter from the Exceptional Needs Unit of 25 February 2003 continued:
"In relation to Mr Scobie 's particular situation the Exceptional Needs Unit will continue to liase with Disabilities and Mental Health
Services to endeavour to deliver any relevant services to Mr Scobie on the lands..."
[54] During the course of submissions and when counsel for the Crown spoke of "jail" albeit in the context of a suspended term Mr Scobie
began speaking very loudly. He then held his wrists together as if to make a handcuff gesture. He shook his head. One of the elders
next to him attempted to calm him however he continued speaking loudly and then stood up and walked quickly out of the room. Court
was adjourned for 10 minutes to locate Mr Scobie . The community corrections officer took off her shoes and ran after Mr Scobie across
an open area. Counsel for Mr Scobie also took off his wig and ran after Mr Scobie still in his robes. The courtroom quickly emptied
and the elders also followed Mr Scobie and brought him back in one of their vehicles. Court resumed and counsel for Mr Scobie advised
that Mr Scobie had a great fear of being "locked up again" and that he had heard the term "jail" and believed that he was to be given
an immediate custodial sentence. Given the lack of appropriate interpreters he had misunderstood the context of the Crown submissions.
He then was given assistance from another elder who seemingly translated more of the proceedings for him. It was carefully and slowly
explained to Mr Scobie that the Crown was not seeking an immediate custodial order and that he would not be "locked up". He was told
that he was to remain in court until the court business was concluded. Mr Scobie appeared to be more relaxed after this explanation.
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