Attorney-General (NT) v JF
[2022] NTSC 89
•1 December 2022
CITATION:Attorney-General (NT) v JF [2022] NTSC 89
PARTIES:ATTORNEY-GENERAL OF THE NORTHERN TERRITORY
v
JF
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:18 of 2020 (22034945)
DELIVERED: 1 December 2022
HEARING DATES: 28 April, 24 October 2022
JUDGMENT OF: Brownhill J
CATCHWORDS:
ADMINISTRATIVE LAW – PREVENTATIVE DETENTION LEGISLATION
Application pursuant to the Serious Sex Offenders Act (NT) on the basis the respondent breached his continuing supervision order and interim supervision order – Onus of satisfying the Court the respondent contravened the order rests upon the applicant – Onus of satisfying the Court the continuing supervision order should not be revoked rests upon the respondent - Paramount consideration is the need to protect victims or potential victims, their families and members of the community generally – Secondary consideration is the desirability of providing rehabilitation, care and treatment for the person subject to the order – Respondent contravened the orders – Respondent has not committed any further sexual offending – Risk status of respondent remains the same as when the continuing supervision order was originally made – Continuing supervision order is not revoked – Interim continuing detention order is to be revoked – Order 4(j) of the continuing supervision order is amended to make possession of certain internet-capable devices a contravention.
Attorney-General (NT) v JF [2021] NTSC 14, referred to.
Serious Sex Offenders Act (NT) ss 9, 14, 31, 48, 49, 50, 54, 55, 56, 57, 58, 59, 60, 65, 88, 95.
Police Administration Act 1978 (NT) s 124.
REPRESENTATION:
Counsel:
Applicant:T Moses with T Dunham
Respondent: P Bellach
Solicitors:
Applicant:Solicitor for the Northern Territory
Respondent: Not applicable
Judgment category classification: B
Judgment ID Number: Bro2213
Number of pages: 27
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINAttorney-General (NT) v JF [2022] NTSC 89
No. 18 of 2020 (22034945)
BETWEEN:
ATTORNEY-GENERAL OF THE NORTHERN TERRITORY
Applicant
AND:
JF
Respondent
CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 1 December 2022)
The history of the proceedings
On 12 February 2021, I made a final continuing supervision order (‘CSO’) in respect of the respondent, effective from 25 February 2021 for a period of five years, on the basis that he presented a serious danger to the community pursuant to the Serious Sex Offenders Act (NT) (‘SSO Act’).[1]
The CSO required the respondent, amongst other things: to report to a probation and parole officer (‘PPO’) as directed by a PPO (order 2(b)); to comply with directions from a PPO (order 2(f)); to reside and remain at a location specified by a PPO and not leave without prior permission from a PPO (order 4(a)); not to purchase, possess or consume any dangerous drug and to submit to testing as directed by a PPO for the purpose of detecting the presence of such drug (order 4(c)); to comply with any direction given by a PPO to participate in specified rehabilitation, care or treatment (order 4(h)); not to own or use any phone or devices with storage or internet capabilities without permission from a PPO (order 4(j)); and not to possess or view any form of pornography (order 4(k)).
On 20 December 2021, the applicant sought the issue of a summons, under s 49 of the SSO Act, for the respondent to attend before the Court to consider alleged contraventions of the CSO by the respondent. Eighteen alleged contraventions were set out in the summons and in an affidavit filed in support.
On 22 December 2021, the respondent appeared before the Court on the application, but was not legally represented. The respondent was at that time in custody serving a sentence of imprisonment imposed by the Local Court for offending committed whilst subject to the CSO. As that sentence was to expire on 3 January 2022, I made an interim continuing detention order (‘ICDO’) pursuant to s 54(3) of the SSO Act, pending completion of the Court’s consideration of the alleged contraventions. Further ICDOs were made as a consequence of various listings of the hearing dates.
The proceeding was first heard on 28 April 2022. During that hearing, the Court received into evidence the following:
(a)an affidavit made on 20 December 2021 by Kate Scobell, a PPO appointed under s 25 of the Correctional Services Act 2014 (NT) and employed by Northern Territory Correctional Services who has been the respondent’s PPO since 9 November 2021 (‘Scobell Affidavit’);
(b)pursuant to s 57 of the SSO Act, a report dated 14 January 2022 from Dr Danny Sullivan, a Consultant Forensic Psychiatrist (‘First Sullivan Report’);
(c)a report dated 2 February 2022 from Dr Natalie Walker, the Senior Clinician / Forensic Psychologist within the Offender Services and Programs section of NT Correctional Services, dealing with the treatment and other options available to the respondent whilst in custody;
(d)pursuant to s 56 of the SSO Act:
(i) a supervision report prepared pursuant to s 88 of the SSO Act dated 24 January 2022 from the Commissioner for Correctional Services (‘First Supervision Report’); and
(ii) an updated supervision report prepared pursuant to s 88 of the SSO Act dated 26 April 2022 from the Assistant Commissioner, Community Corrections (‘Second Supervision Report’).
No victim submissions were received. The Director of the Crime Victims Services Unit sought victim submissions about the offender from registered victims pursuant to s 55 of the SSO Act and no submissions were received.
At the hearing on 28 April 2022, the respondent indicated (through counsel) that he admitted the 18 contraventions of the CSO alleged in the Scobell Affidavit.
At the close of the hearing on 28 April 2022, with the consent of both parties, I revoked the ICDO and made an interim supervision order (‘ISO’) in the same terms as the CSO made on 12 February 2021, and adjourned the proceedings for six months, to give the respondent a reasonable opportunity to demonstrate his commitment to his rehabilitation by complying with the conditions of the ISO. The respondent was released from custody on that date.
On 10 August 2022, the respondent was arrested for breach of the terms of the ISO. I remanded him in custody until 17 August 2022.
On 17 August 2022, an affidavit of Jennifer Scott was filed on behalf of the applicant, alleging 12 contraventions of the ISO since it was made on 28 April 2022. On 17 August 2022, I made an ICDO with effect until 5 September 2022.
On 5 September 2022, I extended the ICDO until 24 October 2022 and made orders programming a hearing of the alleged contraventions referred to in the Scobell and Scott Affidavits to be heard on 24 October 2022.
During the hearing on 24 October 2022, the Court received into evidence the following:
(a)an affidavit made on 17 August 2022 by Jennifer Scott, a PPO appointed under s 25 of the Correctional Services Act 2014 (NT) and Specialist Case Manager employed by Northern Territory Correctional Services who has been responsible for the management of the respondent in the community since 28 April 2022 (‘Scott Affidavit’);
(b)pursuant to s 57 of the SSO Act, a further report dated 4 October 2022 from Dr Danny Sullivan (‘Second Sullivan Report’);
(c)pursuant to s 56 of the SSO Act, two further supervision reports prepared pursuant to s 88 of the SSO Act dated 5 August and 7 October 2022 from the Assistant Commissioner for Correctional Services (‘Third Supervision Report’ and ‘Fourth Supervision Report’); and
(d)an affidavit from the respondent’s counsel, Peter Bellach, made on 20 October 2022, addressing an aspect of the Second Sullivan Report (‘Bellach Affidavit’).[2]
Orders on consideration of alleged contravention
If satisfied that the respondent has contravened or is likely to contravene the CSO, the Court is obliged by s 58(1) of the SSO Act to revoke the CSO and make a final continuing detention order. However, by s 58(2), the Court need not do so if satisfied it would not be appropriate to do so.
If not satisfied that the respondent has contravened or is likely to contravene the CSO, or if satisfied it would not be appropriate to revoke the CSO and make a final continuing detention order, the Court is permitted, by s 59(2) of the SSO Act to amend the CSO as it considers appropriate.
Section 9 of the SSO Act applies when a court is deciding whether to make, confirm or revoke a continuing detention order (s 9(1)). Section 14 of the SSO Act applies when a court is deciding whether to make, amend or revoke a supervision order (s 14(1)). Consequently, in deciding whether it would not be appropriate to revoke the CSO and make a final continuing detention order as required by s 58(2) of the Act, the Court must regard as the paramount consideration the need to protect victims of serious sex offences committed or likely to be committed by the respondent, the victims’ families and members of the community generally (ss 9(1)(a), 14(2)(a)), and as a secondary consideration, the desirability of providing rehabilitation, care and treatment for the respondent (ss 9(1)(b), 14(2)(b)). Further, in considering the need for protection, the Court must have regard to: the likelihood of the respondent committing another serious sex offence (ss 9(2)(a), 14(3)(a)); whether adequate protection could reasonably be provided (s 9(2)(b)) or only be provided (s 14(3)(c)) by making a supervision order in relation to the person; and whether it will be reasonably practicable for the Commissioner of Correctional Services to ensure that the respondent is appropriately managed and supervised (s 14(3)(b)).
Onus and standard of proof
The Attorney-General has the onus of satisfying the Court that the respondent has contravened or is likely to contravene his CSO (s 60(1)). The respondent has the onus of satisfying the Court that it would not be appropriate to revoke the CSO and make a continuing detention order (s 60(2)). The standard of proof for these matters is the balance of probabilities (s 95(2)).
Alleged contraventions
All of the alleged contraventions bar two were admitted. The two that were not admitted were withdrawn on the basis that the evidence about them did not establish the contraventions on the balance of probabilities.
Offending involving contraventions
On 26 November 2021, the respondent pleaded guilty in the Local Court to four charges, comprising the following:
(a)Unlawful assault of a worker in performance of their duties, contrary to s 188A(1) and (2)(a) of the Criminal Code. On 6 November 2021, the respondent’s PPO took the respondent to his father’s house by car, the respondent was directed to remain in the car while the PPO went to the front door of the house, but instead he followed the PPO to the door, ‘belly bumped’ him, then pushed him to the back causing him to fall onto the bonnet of a car.
(b)Damage to property contrary to s 241(1) of the Criminal Code. On 23 November 2021, the respondent was at the Community Corrections office and in possession of a phone with internet capabilities. He was instructed by his PPO about that, became agitated and aggressive and hit the front glass door of the office three times, causing the glass and rubber shrouds to fall on the floor.
(c)Behaving in a disorderly manner in a public place contrary to s 47(a) of the Summary Offences Act. On 23 November 2021, after being arrested and placed in a police vehicle, the respondent began yelling and kicking at the caged door of the vehicle.
(d)Possessing less than a traffickable quantity of a dangerous drug contrary to s 7B(1) of the Misuse of Drugs Act. On 23 November 2021, after being arrested and taken into custody for the offending in paragraph (c) above, the respondent was searched and found in possession of one gram of cannabis.
I find that the offending in paragraph (a) comprised a contravention of order 2(f) of the CSO and paragraph (d) comprised a contravention of order 4(c) of the CSO.
Drug use
Over the period from 5 June 2021 to 10 August 2022, urinalysis testing of the respondent yielded positive results for cannabis on 15 occasions, being 5 June, 12 June, 16 June, 22 July, 5 August, 28 August, 11 September, 25 September, 9 October, 16 October and 17 November 2021, and 15 June, 29 June, 14 July and 27 July 2022.
I find that the respondent consumed cannabis on these 15 occasions in contravention of order 4(c) of the CSO or the ISO.
Drug testing
On 9 November 2021 and 28 June and 26 July 2022, the respondent was directed to attend for urinalysis drug testing. On those occasions, he failed to attend.
I find that the respondent’s three failures to attend for drug testing were in contravention of order 4(c) of the CSO or the ISO.
Possession of mobile phones
On 16 June 2021, the respondent handed a PPO his approved phone (which had no SIM card) and while the PPO held that phone, he heard the sound of a phone ringing from the respondent’s pocket. The respondent then admitted he was in possession of a phone contrary to the terms of his CSO.
On 14 October 2021, officers attended the respondent’s home and found two unapproved phones. The respondent said they belonged to his family members.
On 19 November 2021, the respondent called Community Corrections using his grandmother’s phone, which was internet capable. On 22 November 2021, he admitted to officers that he still had possession of that phone. He was directed to return it to his grandmother.
On 23 November 2021, the respondent admitted to officers that he still had possession of the phone.
I find that the respondent’s possession of a phone on these four occasions was in contravention of order 4(j) of the CSO or the ISO.
Leaving residence without permission
On 13 November 2021, the respondent was directed by PPOs not to leave his residence for the rest of the weekend because he had not scheduled outings and thereby obtained permission from a PPO to leave. On 14 November 2021, the respondent left his residence at about 10am and returned at about 7pm.
On 19 November 2021, the respondent was given permission to visit family at a particular location. The respondent’s electronic monitoring device indicated he had been in the company of another offender with a device and driving around to various locations during the day.
I find that these two instances comprise contraventions of order 4(a) of the CSO.
Failure to follow directions
On 11 November 2021, the respondent’s PPO directed him to contact them by phone or in person on 12 November 2021 to organise his movements. The respondent did not do so.
I find that this instance comprises a contravention of order 2(f) of the CSO.
Failure to attend rehabilitation, care or treatment appointments
On 27 June and 19 July 2022, despite being reminded by his PPO earlier in the day on both occasions, the respondent failed to attend an appointment with his Alcohol and Other Drugs counsellor.
I find that these two instances comprise contraventions of order 4(h) of the ISO.
Possession of pornography
On 5 August 2022, the respondent left his backpack at the offices of Community Corrections. On 8 August 2022, the backpack was located and a USB storage device was found in the backpack. The USB storage device contained 80 pornographic images. The respondent told PPOs that it belonged to his cousin and had movies on it.
I find that this instance comprises a contravention of order 4(j) of the ISO.
Should the CSO be revoked and replaced by a continuing detention order?
Scobell Affidavit
The Scobell Affidavit describes the respondent’s conduct on 23 November 2021 when asked to show his PPO what was on the phone belonging to his grandmother which he had in his possession. That conduct included reluctance and then refusal to place the phone on the table, surreptitiously going through the browsing history, quickly exiting the room, slamming the room door and the entrance door of the building, and committing the property damage offence referred to in paragraph [17](b) above. The Scobell Affidavit deposed that:
[T]he respondent has become more erratic and openly defiant over the past months. He is often resistant to directions regarding his schedule. Based on test results, he continues to consume cannabis. He has obtained and uses unapproved mobile telephones. He regularly leaves his inclusion zones. Inclusion zones are zones that he is directed to stay within. He regularly misses his curfew.
… [The respondent] is difficult to manage and his behaviour has got progressively worse. He seems to have become more angry over time and he seems unwilling to engage in any meaningful attempts to change his behaviour. [The respondent] has really struggled to comply with the conditions of his [CSO]. I am concerned about [the respondent] returning to the community because he is a risk to NTCS staff and the community generally. Even on his current [CSO] and with a high level of supervision and management from NTCS, [the respondent] remains difficult to manage and supervise.
Scott Affidavit
The Scott Affidavit describes the respondent’s conduct on 8 August 2022 when asked about the contents of his backpack.
Inside the backpack, a number of identification cards belonging to other people were found in a wallet. When asked about them, the respondent said that his nephew had acquired them and, when he threw them away, the respondent picked them up and kept them. Asked what he intended to do with them, the respondent said he was going to use them to buy alcohol to give to a female. Asked if he intended to swap alcohol for sex he confirmed that.
Inside the backpack, a number of hose pieces were found. The respondent confirmed that he used them for smoking cannabis. Also found in the backpack was a syringe with a cap on it. The respondent said he found it in the street. He denied any intravenous drug use and denied he intended to use it on himself or others. He could not explain why he kept it.
Following a recommendation in the First Sullivan Report, on 11 May 2022 the respondent was taken to a General Practitioner in relation to obtaining SSRI medication to assist him to control negative emotional states, anger and impulsive outbursts. He was prescribed medication in tablet form to be taken daily. The script was filled via pre-packaged medication that day. On 6 August 2022, officers were informed by the pharmacy that the respondent had not collected his medications for the previous month. On 8 August 2022, the respondent admitted he had not been taking his medication as prescribed. On 11 August 2022, his SSRI medication was located at the Cottages, where it was noted that only two of the tablets from a pack of 28 had been consumed.
The Scott Affidavit deposed that:
The behaviour of [the respondent] has become more erratic and openly defiant over the past months. He is often resistant to directions regarding his schedule, and has increasingly not been compliant with the curfew attached to his electronic monitoring. Based on test results, he continues to consume cannabis, despite professional support. He has been in possession of unapproved mobile telephones, and most recently he was in possession of pornography. He has also not been compliant with the SSRI medication recommended by Dr Sullivan.
An interim progress report has been provided by his treating Psychologist [in which it] is noted that despite attending appointments regularly, [the respondent] has not demonstrated a willingness to genuinely acknowledge and address key factors related to his risk of reoffending; he appears to have only engaged superficially with his professional supports and has not identified and spoken openly about risky thoughts, feelings and behaviour in a manner sufficient to adequately manage this risk...
… The items located in [the respondent’s] backpack and his comments regarding plans of using the identification to procure alcohol in exchange for sexual activity are of concern. [The respondent] is engaged in offence focused treatment however he does not appear to be learning anything from this. … I am concerned about [the respondent] returning to the community because he is a risk to NTCS staff and the community generally. Even on his current [ISO] and with a high level of supervision and management from NTCS, [the respondent] remains averse to management and supervision.
Sullivan Reports
The First Sullivan Report set out a record of Dr Sullivan’s discussions with the respondent on 14 January 2022 and a summary of the documents he had been provided with. The report then made the following observations or opinions. The respondent has not been able to comply with the conditions of the CSO due to his attitude to conditions and to cannabis dependence. The respondent remains affected by cannabis dependence and has relapsed into cannabis use, using frequently for nearly six months, with subjective withdrawal symptoms. The pattern of poor emotional regulation, rule breaking and disregard for consequences of his behaviour is consistent with dissocial personality disorder, which may be exacerbated by cannabis intoxication or withdrawal. The respondent appears anguished at his conditions of detention and would meet criteria for an adjustment disorder with depressed mood, mild in severity.
The First Sullivan Report opined that the respondent:
(a)has a high risk rating assessed on the STATIC-99 instrument, unchanged from his previous assessment; and
(b)has a significant ongoing range of risk factors in three of the domains under the Risk for Sexual Violence Protocol (‘RSVP’) model of assessment, and it is of marked concern that there has been no recent improvement in these three domains, with ongoing substance use and defiance of the CSO increasing the risk of future offending.
The First Sullivan Report ultimately opined that the respondent is at high risk of committing another serious sexual offence if not detained in custody or subject to a supervision order. The First Sullivan Report opined that the respondent could be managed on a supervision order in the future if he accepts assistance to comply with it and uses help effectively. It said that the respondent’s expressed intention to comply with the CSO is inconsistent with his patterns of behaviour over 2021. Dr Sullivan did not consider that the respondent could be successfully supervised unless there were increased levels of therapeutic input in which the respondent was an active participant. In particular, the First Sullivan Report stated that it is difficult to see how the respondent will comply with the conditions of the CSO, and Dr Sullivan would not support the same, without authentic engagement in interventions such as psychological treatment and sustained drug and alcohol counselling, as well as giving consideration to medication to assist in managing emotional regulation and possibly sexual preoccupation.
The Second Sullivan Report set out a record of his conversation with the respondent on 16 September 2022 and a summary of documents provided to him. He then made the following observations and opinions. The respondent has once again been unable to comply with the conditions of the CSO/ISO due to his attitude to conditions and to cannabis dependence. The pattern of behaviour was initial engagement followed by progressive and increasing breaches and the respondent appeared unable to engage honestly and truthfully with supervision and efforts to assist him to comply were eventually fruitless. The respondent has once more relapsed into cannabis use due to cannabis dependence and it does not appear that drug and alcohol counselling was of any benefit. The current diagnosis remains dissocial personality disorder which manifests in rule-breaking, irresponsibility and untruthfulness to supervising staff. While there is no evidence of sexual offending, it is of concern that he acknowledged efforts to have sex with a woman by offering her cannabis, and presumably using it himself, which is a risk behaviour associated with past offending. All risk assessment tool ratings are unchanged, which means that therapeutic interventions have not reduced the respondent’s risk, which remains high for reoffending. Dr Sullivan stated that, on this basis, it remains difficult to determine how he might return safely to the community. Dr Sullivan offered no opinion about whether the respondent warrants a Continuing Detention Order (CDO) or a CSO, or about the duration of a CDO if it were made. He said there is no indication that any specific duration of sentence will function to reduce his risk in the longer term in the community. Further, there is no indication that he requires specific interventions which have a preordained length or dosage, or in which an endpoint would satisfy clinicians that he had addressed the risk factors. Dr Sullivan noted that the efforts of Community Corrections staff to support the respondent to comply with the conditions do not appear to have benefitted him, and it might be considered whether he might better be assisted by a minimal threshold of contraventions (say one to three) which would result in his immediate return to custody. He said this might focus the respondent’s thinking onto immediate consequences of his actions rather than enabling him to repeatedly push the boundaries of conditions.
Supervision Reports
The Fourth Supervision Report is the most recent of the supervision reports received by the Court. It noted that the only accommodation option for the respondent is the Cottages. The respondent has previously expressed concerns that they are isolated and that he struggled to live there, but his most recently expressed position is that he would be happy to return there. It noted that the weekly scheduling to structure the respondent’s week with time for social and family outings, activities and home days could be continued if the respondent were released. It noted the respondent’s successful completion of a Certificate I in construction and his willingness to complete the Certificate II in construction, which is likely to run in early 2023. It also noted his completion of his resume and his expressed willingness to re-engage with his job network provider. The report noted his engagement in offence specific treatment with a psychiatrist, Dr Kynaston, which could continue if he were released.
The report also noted the respondent’s assault of the PPO and the property damage at the Community Corrections office committed in November 2021; that the respondent was charged with three counts of assaulting a worker, committed whilst in custody in August 2022; an alleged threat to throw faeces at a corrections officer whilst in custody in August 2022; the respondent’s failure to be compliant with his SSRI medications; and concerns for the safety of Community Corrections staff if the respondent does not manage his anger and impulsive outbursts. There is no material before the Court as to the outcome of the three charges of assaulting a worker alleged to have been committed in August 2022.
The report concluded that Community Corrections are unable to safely manage the high risk the respondent poses to the community if released into the community. It expressed the view that the risk could be better managed after a period of stability that includes no cannabis use, consistent and prolonged use of SSRI medication, completion of the Alternatives to Violence Program, completion of a drug rehabilitation program and continued offence specific treatment, whilst in custody under a CDO for a period of 12 months.
As regards the Certificate I in construction, the Third Supervision Report noted that the course co-ordinator reported that the respondent participated very well in the course and he would be offered a placement in the Certificate II course. I note that course is not available to the respondent whilst he remains in custody.
The Third Supervision Report also noted the respondent’s referral to the Darwin Indigenous Men’s Service, where he attended a weekly program involving mentoring, yarning circles, cultural and healing activities and leadership workshops.
Further information noted that the Certificate II in construction course sees a large number of participants secure employment on its completion. The course co-ordinator has agreed to be a referee for the respondent.
Respondent’s submissions
I accept the respondent’s submissions that:
(a)Completion of the Certificate I course was a significant indication of the respondent’s engagement and commitment to obtaining employment, which is an important protective factor in reducing the risk of reoffending. Completion of the Certificate II course (which is not available whilst in custody) would substantially enhance the respondent’s capacity to obtain employment.
(b)The respondent’s reporting to and engagement with his PPO has been good over the course of the first 10 months on the CSO and the further 3 ½ months on the ISO.
(c)The respondent complied with the requirements for electronic monitoring, meaning that his movements were able to be tracked even when they were not in accordance with the agreed schedule.
(d)The failure to take the SSRI medications were a consequence of side effects which the respondent did not communicate effectively to his PPO. Alternative SSRI medication could be trialled.
(e)The respondent attended all sessions of offence specific psychiatric treatment and he is willing to continue with it. While his progress has been slow, that is to be expected given his expressive language disorder (which equates his capacity with that of a child),[3] as is his ability to articulate what he has learnt from the treatment, which is the basis for demonstration of engagement.
(f)The respondent had contemplated the exchange of alcohol for sex, but had not acted on it, and honestly disclosed that to his PPO.
(g)The respondent did attend five of his six alcohol and drug counselling sessions, and was late for the other, before missing two sessions due to illness. Many people with substance abuse disorders relapse on their path to abstinence.
(h)The respondent may benefit from support with financial management, budgeting and planning.
(i)As Dr Sullivan clearly identified, the respondent’s contraventions are directly linked to his consumption of cannabis.
The applicant submitted that the Court should find all of the alleged contraventions proved and make a continuing detention order (‘CDO’) and set a review period of 12 months pursuant to ss 31(2) and 65(2) of the SSO Act. This submission was based on the extensive number of contraventions committed by the respondent, the availability to him in custody of offence specific psychiatric treatment, alcohol and drug counselling and alternatives to violence programs, and the risk to the safety of Community Corrections staff in managing him in the community, given his recent history of assaulting workers.
The respondent submitted that simply detaining the respondent in custody for a further period of 12 months would not permit him to rehabilitate. There would be no opportunity to learn and develop the skills he requires to successfully transition to living in the community and managing his risk. Any therapeutic supports or programs he undertakes in custody would not be able to be put into practice and would remain theoretical and unlikely to be retained. Twelve months from now, he is unlikely to be in any different position than he presently is.
The respondent also submitted that, if Dr Sullivan’s suggestion of a ‘COMMIT style’ approach to future contraventions was adopted, particularly in relation to contraventions of order 4(c) (that he not possess or consume cannabis and submit to drug testing) that may be a useful means of assisting the respondent to comply with the conditions of the CSO and successfully transition to living in the community.
Respondent’s risk and the CSO
Having regard to the above body of evidence, and in the circumstances, I am satisfied that the respondent has contravened the CSO and the ISO.
However, I am satisfied that it would not be appropriate to revoke the CSO and make a final CDO.
Despite some 28 contraventions across the course of over 13 months, the respondent has not committed a serious sex offence or an offence of a sexual nature. Despite the observations and opinions expressed in the Scobell and Scott Affidavits set out in paragraphs [38] and [43] above, the risk that the respondent would do so (and the need to protect victims, their families and members of the community) is essentially unchanged from what it was when I made the CSO in February 2021. As regards the respondent’s offending or alleged offending, some of that was committed whilst he was in the community, and some is alleged to have been committed whilst in custody. The risk to staff posed by the respondent’s behaviour arises whether he is in custody or in the community. Consequently, it has little bearing on whether it would be appropriate to revoke the CSO.
I agree with the respondent’s submission that, ultimately, the respondent’s risk is better addressed by his rehabilitation in the community subject to a CSO than by continued detention.
I accept the applicant’s submission that it is not feasible to incorporate into the CSO a process modelled on the COMMIT program. That program contemplates swift responses to every breach of an order by initiating proceedings and bringing the person before the court to be dealt with, and prescribes sanctions for various kinds of breaches which are known in advance (which range from 1 to 30 days in custody). Division 2 of Part 5 of the SSO Act does not provide for such a process. For one to be adopted administratively would require systemic changes to be adopted by the relevant government agencies. The Court should not impose such systemic changes on those agencies.
In any event, a police officer or PPO may, if they suspect on reasonable grounds that a person has contravened, is contravening or is likely to contravene their supervision order, apply to a Supreme Court Judge for a warrant or summons to appear before the Supreme Court (s 48). The requirements are for an application for a summons to be made in writing (s 48(3)), but a warrant can even be sought by telephone (s 50). If a warrant is sought and the Judge is satisfied there are reasonable grounds for suspecting the alleged contravention has occurred, the Judge must issue a warrant unless satisfied there are exceptional circumstances, in which case a summons must issue (s 49). Police have power to arrest a person where a warrant for their apprehension has been issued (s 124 Police Administration Act 1978 (NT)). There are various requirements for notification of an arrest or summons and the provision of victim submissions or supervision reports (ss 55, 56).
Consequently, the SSO Act process for dealing with contraventions permits a swift response authorising the arrest of a person for contravention of a CSO. While the capacity of the Court to deal with the matter and apply a pre-determined sanction in a very short period of time (a matter of days) may be unlikely, the swift response and arrest of the respondent in relation to any contravention of order 4(c) (or any other order) is, in my view, likely to assist the respondent to understand that if he does contravene the CSO, he will be arrested and taken back into custody. That may well have the effect which Dr Sullivan identified. I recommend that such an approach be taken.
Variation of CSO
The applicant sought a variation to order 4(j) of the CSO to add reference to possession of a laptop, computer, phone or device with storage or internet capabilities. I accept this variation should be made because the risk mitigation effect of order 4(j) can be thwarted by possession of such an item which is not proved to be owned or used by the respondent.
Disposition
Pursuant to s 58(2) of the SSO Act, the CSO is not revoked.
Pursuant to s 59(2)(a), I will revoke the ICDO. I will hear the parties as to the appropriate time for that revocation which will permit arrangements for the respondent’s accommodation and management to be made before his release.
Pursuant to s 59(2)(b), the CSO is amended by amending order 4(j) to read as follows:
The Respondent must not own, possess or use any laptop, computer, phone and/or device with storage or internet capabilities without the permission of a probation and parole officer.
----------------------------------
[1] Attorney-General (NT) v JF [2021] NTSC 14.
[2] The Second Sullivan Report had stated that the respondent acknowledged he had viewed pornography on the mobile phones he had in his possession in contravention of the CSO or ISO. The Bellach Affidavit attested to a conversation with Dr Sullivan in which he indicated that this was simply Dr Sullivan’s interpretation of the materials and was not based on any admission made to him by the respondent.
[3] See the Patches Neurological Assessment Report prepared by Rachel Friend dated 27 April 2021.