Terrible consequences in case of sex predator Gavin Schuster, says top SA judge

THE state’s top judge says his retired peer may have decided the public “will just have to wear” the risk of releasing serial sex predator Gavin Shaun Schuster.

Gavin Shaun Schuster. Art: Tim Ide.

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THE state’s top judge says his retired peer may have decided the public “will just have to wear” the risk of releasing serial sex predator Gavin Shaun Schuster.

In the Court of Criminal Appeal on Thursday, Chief Justice Chris Kourakis said former Justice John Sulan faced “two terrible consequences” when deciding Schuster’s fate.

On the second day of argument he questioned whether, by ordering Schuster’s release, Justice Sulan had placed rehabilitation above the risk he posed to the community.

“There were two terrible choices here ... presenting one of the most difficult choices courts have to make,” he said.

“On the one hand, you keep a man in custody not for a crime but for preventive reasons, indefinitely, with no real human dignity for the rest of his life.

“On the other hand, if he’s released a young child might suffer terrible trauma that he or she should never suffer.

“But here, (the law) says that when you’re stuck with two equally terrible consequences, you come down on the side of public safety ... did His Honour address that?

“If he didn’t, really one is left with the feeling he’s said ‘if he doesn’t get out now, he never will, and the public will just have to wear some risk here to avoid a terrible consequence.”

Supreme Court Chief Justice Chris Kourakis.

Retired Supreme Court Justice John Sulan.

Schuster, 40, has offended since the age of 12 and has been in prison since 2000.

Justice Sulan last month ordered his release to a facility in Kilburn, conceding he would “always” be a risk but “nothing is perfect in this world”.

Prosecutors have challenged that “unreasonable and unjust” decision, arguing Justice Sulan made four substantial errors and failed to properly consider the requirements of state law.

On Thursday, Justice Malcolm Blue said the legislation was clear.

“This state has three pieces of legislation dealing with indeterminate detention and, in all three, it’s explicit that the safety of the community is of paramount consideration,” he said.

“Did Justice Sulan, at the end of the day, give paramount consideration to the safety of the community?”

Andrew English, for Schuster, said His Honour had, noting his comments about the lack of rehabilitative programs available to imprisoned sex offenders.

Chief Justice Kourakis, however, said that was not the same thing.

“No one has spoken positively that release will lead to Schuster’s rehabilitation,” he said.

“It was more the negative, that continuing incarceration was not going to help and would in fact jeopardise his rehabilitation.

“What His Honour did not do is make the point that there would be not much point in exposing the community to any further risk if there’s no real hope of rehabilitation.

“By law, the scales are weighted with a finger on public safety’s side, and that’s what His Honour hasn’t done.

“What he saw as a terrible consequence was what the failure to fully facilitate (correctional) institutions will cause.”

Chief Justice Kourakis, Justice Blue and Justice Sam Doyle will hand down their decision on a date to be set.

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