Attorney-General for the State of South Australia v Jesson - [2024] SASC 85

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v JESSON
[2024] SASC 85
Judgment of the Honourable Justice Stanley
1 July 2024
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS – OTHER MATTERS
CRIMINAL LAW - SENTENCE – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
Application by the Attorney-General for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
The respondent does not contest he is a high-risk offender, nor does he oppose the making of an extended supervision order (ESO). The issue is whether the ESO should include a condition requiring electronic monitoring.
Held:
1. The statutory obligation imposed upon a prescribed health professional pursuant to s (7)3 of the HRO Act is not to advise on what conditions the Court should impose on a respondent to ensure the safety of the community. The Court must decide what terms and conditions should be included in a supervision order.
2. The respondent is a high risk offender and poses an appreciable risk to the safety of the community if not supervised under an extended supervision order.
3. The respondent is to be subject to an extended supervision order for a period of 2 years. The extended supervision order is to include the following condition:
Unless the Parole Board orders otherwise, the Respondent must wear an electronic monitoring device, to be fitted and maintained as required by his Community Corrections Officer and at the direction of the Parole Board and to comply with the rules of electronic monitoring.
Criminal Law (High Risk Offenders) Act 2015 (SA); Criminal Law Consolidation Act 1935 (SA), referred to.

ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v JESSON
[2024] SASC 85
Criminal
STANLEY J:

On 8 August 2023, the Attorney-General applied to the Court for an Extended Supervision Order (ESO) pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (HRO Act). On 30 August 2023 the respondent was made subject to an Interim Supervision Order and a report pursuant to s 7(3) of the HRO Act was ordered. The ISO remains in force until the determination of this application.
On 6 October 2022 the respondent was sentenced to a term of imprisonment of one year and 28 days with a non-parole period of 10 months and 11 days for one count of communicating with the intention of making a child amenable to sexual activity contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 (SA) (index offence) and eight counts of breaching bail contrary to s 17(1) of the Bail Act 1985. The sentence was backdated to commence on 9 August 2022, making the relevant expiry date in this matter 3 September 2023. The victim of the index offence is the respondent’s 14-year-old niece. He sent her a series of text messages and Facebook Messenger messages expressing his desire to engage in sexual intercourse with her which subsequently escalated to become abusive. The charged offending relates to a message sent 14 November 2020.
The respondent has a history of drug offending and a poor record of compliance with court orders, especially bail. He has a history of offending from the age of 15 which, include property offences, driving offences and weapons offences. He has spent many years in gaol.
The index offence is the only conviction the respondent has for sexual offending, however, he has been charged with further sexual offences including communicate to make a child amenable to sexual activity (basic), possess child exploitation material (basic) and possess child exploitation material (aggravated).
I accept the Attorney-General’s submission that the index offence is a “serious sexual offence” within the meaning of s 4(1)(a)(i) of the HRO Act because it is punishable by a maximum term of imprisonment for a basic offence, being a term of “at least 5 years”. I am therefore satisfied the respondent is a High Risk Offender pursuant to s (5)(a) of the HRO Act.
In 2012, Dr Jack White provided a psychological report in relation to the respondent in the context of him being charged with ‘Aggravated Serious Criminal Trespass’ and ‘Breach of Parole Conditions’. He considered that the respondent’s intellectual ability was in the average range and that his extensive history of offending and incarceration suggested that he was institutionalised and had a tendency to cope with emotional distress by using illicit substances and criminal offending.
On 12 May 2024, clinical psychologist Mr Luke Williams provided a psychological report pursuant to s 7(3) of the HRO Act. The respondent is suffering from chronic ill health due to advanced cirrhosis of the liver. This has dramatically affected his functioning. He reported to Mr Williams that he sleeps for up to 23 hours per day and has ceased taking illicit substances. Mr Williams considered that these factors suggest that his risk of reoffending may be somewhat less than the result of the 2023 DCS Sexual Risk Assessment would indicate. However, these factors must be balanced against the seriousness of his offending and his almost complete lack of insight into the reasons for its commission.
Nevertheless, the respondent is on a wait list to be placed in a community based Sexual Behavioural Clinic (SBC) at Owenia House.
Mr Williams considers that the respondent is at high risk of committing another serious offence and will continue to pose an appreciable risk to community safety if not appropriately supervised. He suggests that the respondent be considered for a short-term order that will allow him to complete a SBC. Mr Williams is of the opinion that the respondent has limited insight into his sexual offending. He has a tendency to emotionally identify with children, which is a well-established risk factor for sexual offending. He was unable to provide Mr Williams with an explanation for his sexual offending other than that he was trying to hurt the victim as he perceived she had hurt him. Mr Williams found this explanation lacked credibility and failed to account for the overtly sexual content of the messages. At times the respondent questioned whether he actually sent the messages, stating he had no memory of sending the messages and did not know whether or not he had sent them, but he could not provide a credible alternate explanation for them. Mr Williams considers that all these factors are clear indicators of outstanding treatment needs in relation to sexual offending. Of concern is the fact that the respondent’s partner has four children whom he is prohibited from contacting.
The respondent does not oppose the making of an ESO. The issue is whether the ESO should include a condition requiring electronic monitoring. The Attorney-General submits that a condition should be included in the terms of the ESO as follows:
Unless the Parole Board orders otherwise, the Respondent must wear an electronic monitoring device, to be fitted and maintained as required by his Community Corrections Officer and at the direction of the Parole Board and to comply with the rules of electronic monitoring.
The Attorney-General submits that a condition requiring electronic monitoring is justified for three reasons, namely:
(i)that pursuant to the s 7 report, the respondent is at a high risk of committing another sexual offence if not appropriately supervised;
(ii)that the condition allows for a degree of oversight, which is not as onerous as home detention or curfew, and which also complements and allows enforcement of the other proposed conditions within the ESO; and
(iii)the respondent’s antecedent history, which demonstrates the failure to comply with supervision conditions, and includes a breach of the interim supervision order (ISO).
The Attorney-General submits that the electronic monitoring condition is consistent with ensuring the paramount consideration, namely, the safety of the community.
The respondent opposes the imposition of such a requirement on the basis that Mr Williams did not suggest in his report that electronic monitoring is necessary. Further the respondent submits the objective of ensuring community safety does not require the imposition of electronic monitoring but rather the respondent’s participation in the SBC program at Owenia House. He submits that by his participation in this program his risk of reoffending will be reduced, and the safety of the community achieved. A requirement for electronic monitoring will not contribute to ensuring his participation in the SBC program. That perhaps explains why Mr Williams did not recommend the imposition of electronic monitoring.
I do not accept the respondent’s submission that there is no need for electronic monitoring because Mr Williams did not consider electronic monitoring was necessary. Pursuant to s 7(3) of the HRO Act Mr Williams is required to examine the respondent and report to the Court on the results of the examination including an assessment of the likelihood of him committing a further serious sexual offence. The statutory obligation imposed on him pursuant to s 7(3) is not to advise on what conditions the Court should impose on a respondent to ensure the safety of the community. While I accept that he was required to examine the respondent and report to the Court on the results of that examination, the examination would not extend to recommending what conditions the Court should impose to meet the statutory obligation enshrined in s 7(5). The Court must decide what terms and conditions should be included in a supervision order. Accordingly, there is no significance in the failure of Mr Williams to recommend the imposition of electronic monitoring in his s 7(3) report.
I accept the submission of the Attorney-General that given the high risk of the respondent committing another serious sexual offence and the appreciable risk he poses to community safety if not appropriately supervised, there is a clear need for intensive supervision to ameliorate the risk. The fact is electronic monitoring provides the swiftest mechanism for procuring the attendance of police where the respondent is present at places he is prohibited from attending, in accordance with the conditions that will be imposed pursuant to the ESO I propose to order. I am satisfied electronic monitoring is necessary to address the risk he poses to community safety.
Conclusion
I will order an ESO in the terms proposed by the Attorney-General.