Attorney-General for the State of South Australia v Barnes - [2018] SASC 103

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v BARNES
[2018] SASC 103
Reasons for Decision of The Honourable Justice Vanstone
18 July 2018
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
Application for continuing detention order pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA). Where respondent placed on extended supervision order in September 2017 for three years. Whether respondent has breached the terms of that order - whether respondent poses an appreciable risk to the safety of the community.
Held: Appropriate to make a continuing detention order for six months to enable rehabilitation to take place.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 18(1), 18(3), referred to.

ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v BARNES
[2018] SASC 103
Criminal.

VANSTONE J: By force of s 18(1) of Criminal Law (High Risk Offenders) Act 2017 (SA) the respondent is before the Court to determine whether he should be ordered to be subject to a continuing detention order.
Background
On 28 September 2017 Doyle J made an extended supervision order for a period of three years pursuant to s 7(4) of the Act in relation to the respondent. That order followed an interim supervision order which had been made on 6 December 2016. The respondent’s response to the interim order was poor, the respondent being found to have breached the order in various ways.
The application for the extended supervision order was supported by reports from Dr Lim, psychiatrist and Mr Balfour, psychologist. Dr Lim expressed the view in his report dated 23 June 2017 that there was a significant likelihood that the respondent would commit a further offence of violence. Dr Lim said that the provision of an extended supervision order might provide the necessary support and supervision might address that risk. He said that the most likely victims of any future violence would be Barnes’ domestic partner or police officers attending to apprehend him. In his report dated 6 September 2017 Mr Balfour expressed the view that the responded was a severely psychologically damaged man who requires intense rehabilitation if he is to have a chance at breaking his offending cycle. Mr Balfour made numerous recommendations regarding the respondent’s rehabilitation in the community.
The first question which arises under s 18(1) is whether the respondent has breached the extended supervision order. Plainly he has. Among the terms of the extended supervision order imposed on 28 September 2017 were:
3.1     That the respondent would not commit any offence;
3.3     That the respondent was prohibited from possessing offensive weapons; and
3.13   That the respondent would not enter or remain on licenced premises.
Each of these conditions was breached by the commission of the offence of carrying an offensive weapon (a large knife) on 25 May at the Sky Tavern, Port Augusta. On 19 June 2018 the respondent was convicted and sentenced for that offence, receiving a sentence of 18 days imprisonment which was deemed to have commenced on 25 May 2018.
However, this was not the first breach of the extended supervision order. Indeed, on the day following his release the respondent was arrested for breaching the terms of the order by attending his partner’s address and causing property damage. The Parole Board found that breach proved, but released the respondent on 17 January 2018.
On 19 January 2018 the respondent was arrested for an alleged offence. A Parole Board warrant was issued. On 28 January the respondent returned a positive urinalysis for drugs including amphetamine and methylamphetamine. He was released from custody by the Parole Board on 7 February 2018. On the following day he again tested positive to methylamphetamine.
There were other episodes of the respondent presenting to the Port Augusta Hospital in an extremely agitated state leading up to his further arrest on a Parole Board warrant on 13 February 2018.
On 1 March 2018 the respondent was assessed by Dr Oliver Burgess as remaining at high risk for further violence and criminality.
On 9 May 2018 the respondent was released from custody. There was a further instance of him testing positive for methylamphetamine in May.
As mentioned, the offence was committed on 25 May 2018. On 26 June the Parole Board directed that the respondent be detained pending attendance before this Court.
The application
In determining whether to make a continuing detention order, the safety of the community is the paramount consideration: Section 18(3).
Attempts to obtain some intervention for the respondent in the community have been unsuccessful. Both the Aboriginal Sobriety Group and Footsteps, a drug and alcohol rehabilitation facility for indigenous people, have indicated that the respondent is not presently a suitable candidate for their program. Evidence before me from his case manager, which I accept, indicates that in the short periods when the respondent has been in the community since the extended suspension order was made, he has made no attempt to become drug and alcohol free. The evidence which I heard satisfies me that Mr Barnes’ case manager knows Mr Barnes well and has his best interests at heart. I conclude, on the basis of her evidence, that none of the community based intervention programs offered to Mr Barnes could proceed, either because he refused to participate, or because he denies he has a drug problem, or because when in the community, he is never drug free. Having said that, I also accept the evidence before me that Mr Barnes has the motivation to change.
Material has been presented to the Court outlining a number of programs which can be made available to the respondent if he remains in prison. These include programs designed to assist him in improving his literacy and numeracy, assessment of his risk of violent behaviour with a view to inform appropriate group placement, and a violence prevention program, which includes a substance abuse module. His case worker considers that, of these, the Violence Prevention Program targeted at Aboriginal men would be particularly beneficial. It is due to start in October 2018 and to conclude in July 2019.
Although the respondent has a history of rejecting the assistance provided by the health professionals who run such programs, it seems to me that unless the respondent engages positively with such intervention as is available to him, his prognosis in terms of future offending will be poor. In those circumstances the need for protection of the public will remain as the pre-eminent consideration. The respondent’s response to the terms of his extended supervision order, and indeed the interim supervision order which preceded it, has been poor in the extreme. There is no reason for confidence that, if released again, his performance would be any better. Indeed, in my view, and, I infer, his case worker’s, at present, he is a real risk to the public when in the community. This underlines the need for intervention.
In addition to the measures already mentioned, I have been told that Mr Balfour has agreed to provide one-on-one psychological therapy and counselling to the respondent on a weekly basis, if the respondent is in custody on a continuing detention order. This is a significant offer and could act as a circuit-breaker.
Consideration
In my opinion the respondent poses an appreciable risk to the safety of the community if not detained in custody. While detaining Mr Barnes for a further period is a drastic step to take, it seems as if it is his best chance of rehabilitation. If this opportunity is not taken, then the chances of further offending, including violent offending, are high. Therefore, I consider that Mr Barnes should be further detained to enable at least some of the various programs which have been outlined for him to be implemented.
Having said that, I am not able to accede to the request by counsel for the Attorney-General that the further detention should be for a full year. I recognise that is based on the length of the proposed Violence Prevention Program. However, in my mind it is simply too long. I anticipate that within six months Mr Balfour will be able to assess Mr Barnes’ needs more accurately and, hopefully, the respondent will be ready to complete further steps towards rehabilitation in the community.
Conclusion
Therefore, pursuant to s 18 of the Criminal Law (High Risk Offenders) Act I order that the respondent be detained in custody for a period of six months from today.