Attorney-General (SA) v Abel

[2024] SASC 24

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

ATTORNEY-GENERAL (SA) v ABEL

[2024] SASC 24

Judgment of the Honourable Justice McIntyre  

16 February 2024

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – SERIOUS OR VIOLENT OFFENDER

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS CRIMINAL

On 16 November 2022, the respondent was made subject to an extended supervision order (‘ESO’) pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘The Act’). On 4 June 2023 a warrant was issued for his arrest due to alleged breaches of the ESO under s 15 of the Act and the respondent has been detained in custody pending consideration of a continuing detention order since then.

Held:

1.The respondent poses an appreciable risk to the safety of the community if not detained in custody. 

2.The application for a continuing detention order is granted until 15 May 2024.

Criminal Law (High Risk Offenders) Act 2015 (SA) ss 15, 17, 18; Criminal Law Consolidation Act 1935 (SA) s 20, referred to.
Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11 at [85]; Attorney General v Coaby [2019] SASC 137; R v Schuster [2016] SASFC 86, considered.

ATTORNEY-GENERAL (SA) v ABEL
[2024] SASC 24

Criminal: Application

1. McINTYRE J:   The respondent, Christopher Abel, was made subject to an extended supervision order (‘ESO’) on 16 November 2022 for a period of 18 months.  That ESO expires on 15 May 2024.

2. On 3 June 2023, the respondent was arrested by South Australian Police for disorderly conduct in North Adelaide. On 4 June 2023, due to allegations that the respondent had breached several conditions of his ESO, a warrant was issued for his arrest under s 15 of the High Risk Offenders Act 2015 (SA) (‘HRO Act’). On 19 July 2023, the Parole Board was satisfied that the respondent had breached his ESO and directed he is to remain in custody pending attendance before this Court for determination as to whether a continuing detention order (‘CDO’) should be made under s 17(1)(b)(ii) of the HRO Act.

3. For the reasons that follow I grant the application for a CDO until 15 May 2024.

   Background

4. On 18 October 2021, the respondent was sentenced to imprisonment of one year, four months and four days with a non-parole period of 12 months for the offence of aggravated assault causing harm by the use of an offensive weapon contrary to s 20(4)(c) of the Criminal Law Consolidation Act 1935 (‘CLCA’) (‘the index offending’). The sentencing remarks, that set out the circumstances of this offending, are attached to the affidavit of Andrew Duncan.[1] 

   [1]    Exhibit A4.

5. The respondent’s antecedent history[2] indicates that the respondent has a number of prior convictions for offences of violence including three counts of common assault, assault police in 2015 and 2016, aggravated assault and two counts of basic assault in 2015, basic assault in 2020 and two counts aggravated assault causing harm with a weapon in 2020.  His antecedent report also shows convictions for carrying offensive weapons, compliance with bail bonds and intervention orders. 

   [2]    Exhibit CGP 2 of Exhibit A1.

6. In May 2016, Department for Correctional Services (‘DCS’) clinicians assessed the respondent to be at a high risk of violence reoffending and he was found suitable to participate in the Violence Prevention Program (‘VPP’).  Following completion in the VPP in 2017, DCS clinicians again assessed the respondent and estimating him to remain at a high risk of violent reoffending, notwithstanding his successful completion of that program.[3]

   [3]    Exhibit A4 at [8] - [9].

7. The ESO was made on the basis that the respondent is a high-risk offender under s 5(c) of the HRO Act.  Specifically, he was found to be a serious violent offender.  The Court was further satisfied that the respondent posed an appreciable risk to the safety of the community if not supervised under an ESO.  The decision to impose the ESO was informed by a report of a clinical psychologist, Ms Susan Heinrich,[4] in which Ms Heinrich indicated that, whilst the respondent was willing to receive help which would be beneficial to reducing his recidivism risk, a return to substance use is likely to quickly escalate his risk.  The other report was a report of Dr Craig Raeside, forensic psychiatrist, dated 22 February 2022.[5]  Dr Raeside supported the application for an ESO saying there was little doubt that the respondent remained at a high risk of further violent offending and non-violent offending more generally.  This was particularly the case if he continued to use illicit drugs.  The respondent acknowledged to Dr Raeside that abstinence from drugs would be difficult for him. 

   [4]    Exhibit AJD 8 of Exhibit A4.

   [5]    Exhibit CGP 7 of Exhibit A1.

8. From 20 June 2022 to the making of the ESO on 16 November 2022 the respondent was subject to an interim supervision order (‘ISO’).  There was a Parole Board warrant issued and the respondent was taken into custody on 2 November 2022 as a result of a breach of the ISO.  On 16 November 2022 the respondent was made subject to an ESO for a period of 18 months.  That ESO expires on 15 May 2024. 

9. The respondent’s compliance with his ESO has been poor as set out in the affidavit material.  He was released from custody on the ESO on 16 November 2022.  He was in the community until 18 December 2022.  Breaches alleged during that period related to breach of curfew, tampering with a urine sample, a positive drug test for methylamphetamine, curfew breaches, failure to charge his monitoring device, failure to report for supervision, failure to maintain telephone contact regarding non-attendance at supervision and DFVIP assessment.  He was remanded in custody from 18 December 2022 to 17 January 2023. 

10. The Parole Board released the respondent following an interview on 17 January 2023.  His ESO was varied to include with intensive electronic monitoring and additional conditions targeted at monitoring his compliance with intervention orders.  Following his release, the respondent attended a psychological appointment.  He was also referred to the “Domestic Violence Family Intervention Program (‘DVFIP’) in March 2023.  He was withdrawn from the program due to making racist and sexually explicit remarks and generally disrupting the program.  The respondent was alleged to have breached the conditions of his ESO.  These alleged breaches included breach of his curfew conditions, providing positive drug samples, a breach of home detention pass and a positive sample for alcohol.  He was remanded in custody from 2 May 2023 to 29 May 2023 on a Parole Board warrant. 

11. The High Intensity Treatment Team (‘HITT’) asked that the respondent be released to enable further work to be done with him, and as a result he was released from custody on 29 May 2023.  The respondent was arrested five days later, and subsequently another Parole Board warrant was issued which led to the current application.  Following his arrest on 4 June 2023, on 5 June 2023 the respondent was convicted for disturbing the peace (‘the new offending’) but discharged without penalty.  The details of the new offending are set out in the affidavit of Chol Pager dated 15 August 2023.  The respondent has been remanded in custody since 4 June 2023.  

    The Hearing

12. The hearing in this matter was delayed on several occasions due to changes in the respondent’s legal representation.  Ultimately, the hearing proceeded on 15 February 2024.  The applicant relied upon a number of affidavits tendered as follows: 

    ·Exhibit A1: Chol Garang Pager dated 15 August 2023 (FDN 3); 12 September 2023 (FDN15) and 23 October 2023 (FDN20).

    ·Exhibit A2: Kate Lauren Bulling dated 28 November 2023 (FDN28), 29 November 2023 (FDN34) and 13 February 2024 (FDN40).

    ·Exhibit A3: Ryan Barber dated 18 October 2023 (FDN19).

    ·Exhibit A4: Andrew James Duncan dated 8 June 2021 filed in SCCRM-22-225 (ESO application).

    ·In addition, various documents were tendered as exhibits:

    ·Exhibit A5: Minute from Department for Correctional Services, Sentencing Management Unit (FDN14).

    ·Exhibit A6: Report of Dr Craig Raeside dated 1 September 2023.

13. Oral evidence was called from Dr Raeside.

    Legislation

14. The test that the Court must apply is whether the respondent has breached the supervision order and whether he poses an appreciable risk to the safety of the community if not detained in custody.  If those jurisdictional facts are established, the Court must decide whether an order should be made.  The Court is required to give paramount consideration to the safety of the community in exercising its discretion.[6]  The purpose of the order is protective rather than punitive.[7] 

    [6]    High Risk Offenders Act 2015 (SA) s 18(3).

    [7]    Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11 at [85].

    Has the respondent breached a condition of his ESO?

15. It is not contested that the respondent breached condition 1 of his ESO which requires that he not commit any offence.  It is conceded that he was convicted of the new offending and that this is sufficient to establish the jurisdictional fact.  I note also that the Parole Board found that this conduct breached condition 9 that the respondent be subject to a curfew between 10:30 pm and 6:00 am.  He was absent from his residence between those hours on 3 June 2023 when he arrested in North Adelaide. 

    Does the respondent pose an appreciable risk to the safety of the community of not detained in custody?

16. I am satisfied that the respondent presents an appreciable risk to the community based upon his history, Dr Raeside’s opinion, and the material from the Parole Board and DCS.  However, I must also be satisfied that detention is required to address that risk for the safety of the community. 

17. The applicant relies on Dr Raeside’s opinion as expressed in his report and in his evidence.  Dr Raeside considers that the respondent’s primary psychiatric diagnosis is borderline personality disorder and antisocial personality disorder.  He has, at times, experienced psychotic episodes secondary to his longstanding substance abuse disorder particularly cannabis and methamphetamine.  He is vulnerable to depressive symptoms when stressed as well as thoughts of self-harm and suicide.  He does not cope well with stress, and he responds to stressful circumstances with maladaptive behaviours which causes further difficulties.  His condition is not easily amenable to treatment.  He is likely to present an appreciable risk of further violent offending.  This risk increases if he continues to abuse drugs.  The respondent appears to lack insight into the link between his offending and drug use.  

18. Dr Raeside considers that a CDO is only likely to be of benefit if there is a reasonable chance that the respondent will benefit from prison based violence and domestic violence programs. 

19. Whilst in custody the respondent has been assessed as suitable for inclusion in the DFVIP.  He has further been assessed as likely to benefit from one on one program in a controlled environment as he was withdrawn from the community DFVIP in March 2023 for poor behaviour in a group setting.  Ms Tegan Cotton a specialist clinician in the Sentence Management Unit of DCS has supplied two minutes setting out the treatment programs made available to the respondent in custody.  The most recent confirms that the respondent has attended four motivational sessions with a clinician on 1 December 2023, 8 December 2023, 2 February 2024 and 9 February 2024.  He is scheduled to commence the domestic violence focussed component of treatment on 16 February 2024.  Up to 12 sessions will be provided on a weekly basis. 

20. Dr Raeside was asked to comment upon this rehabilitation plan.  He indicated that it was appropriate for the respondent. 

    Submissions

21. I am satisfied that the jurisdictional facts required under s 18(3) of the HRO Act are established. The question is whether it is appropriate in the circumstances to make the order sought by the Attorney General.

22. The applicant submits that it is apparent from the on-going breaches of the ESO that the respondent’s risk is unlikely to change whilst he is in the community.  It is said that the respondent has been released into the community on five occasions whilst subject to either the ISO or ESO.  He has breached these orders on multiple occasions.  The applicant contends that the respondent has had very little productive engagement with rehabilitation owing to these breaches and that attempts to rehabilitate him in the community have been ineffective.  The applicant points to the availability of appropriate rehabilitation in prison.  It is submitted that these sessions are not as vulnerable to disruption, distractions available in the community or the risk of the respondent relapsing into drug use.  It is said that the Court should treat with scepticism the submissions that the respondent is amenable to rehabilitation the community given his conduct in custody which has been far from exemplary, his prior lack of engagement with community rehabilitation and his continued breaches of his ESO.  None of these suggest he is presently able to engage productively with rehabilitation in the community. 

23. The applicant accepts that the breaching conduct on this occasion was not serious however it is indicative of pattern of conduct on the part of the respondent.  It is said that the consistent breaches are often related to drug use.  It’s clear from Dr Raeside’s evidence that the respondent has no insight into the link between illicit drug use and his offending.  The applicant submits that the respondent has shown a lack of awareness or ability address his risk factors. 

24. The respondent on the other hand contends that the extraordinary step of continued detention is not warranted.  The nature of the breach is minor.  It was disorderly conduct at the bottom of the scale.  There has been no violent reoffending on any prior breach of the ISO or ESO.  It is accepted that his progress with rehabilitation in the community has been limited but the nature of the breaches do not suggest that the supervision order has failed to safeguard the community.  Further it is said that the nature of the breaches do not elevate this matter to the level necessary to take the exceptional step of requiring the respondent to remain in custody. 

25. It is further contended that the respondent’s engagement with rehabilitation in custody demonstrates a willingness to engage in rehabilitation.  The respondent refers to Dr Raeside’s evidence that at 41 years of age the respondent is probably more receptive to rehabilitation assistance, particularly if this is provided on a one on one basis.  Whilst the proposed custodial program is scheduled to be completed some four days before the expiry of the proposed CDO, if anything happens to derail the program there may be an expiry of the CDO without the rehabilitation program being completed.  There are no such difficulties in the community.  The respondent moreover has accommodation available to him through the HITT which addresses one of the concerns raised by Dr Raeside. 

    Conclusion

26. There is no disagreement about the principles that ought to be applied.  In particular I was referred Hughes J’s comments in Attorney General v Coaby that:[8]

    A continuing detention order is not the only response that can be made to a breach of a supervision order if the circumstances or the nature of the breach does not indicate a failure of the supervision order to safeguard the community, or if the risk has been addressed since the breach, or if this can be addressed in another way such as further or different conditions on the supervision order than a detention order should not be made.

    [8]    Attorney General v Coaby [2019] SASC 137 at [19].

27. I further note the Full Court’s comments in R v Schuster:[9]

    The effect of making public safety the paramount consideration is that, speaking generally, relatively similar degrees of risk will outweigh considerations which even strongly, support release.  The exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those consideration namely public safety. 

    [9]    R v Schuster [2016] SASFC 86 at [80]. 

28. I accept that the breach of order was minor and that there has been no violent reoffending.  On the other hand, the respondent has signally failed to engage in rehabilitation in the community and appears to lack insight into the link between his offending and his drug use.  It is clear from the medical evidence and the respondent offender history that if his drug use is not addressed his risk of violent offending remains significant.  The respondent is at an age where his conditions would, as Dr Raeside said, “mellow” but as Dr Raeside also said, he lacks the skills to address his offending behaviour.  Dr Raeside’s evidence indicates that the treatment offered in custody is appropriate to address the respondent’s risk factors.

29. Continuing detention orders ought not be lightly made. However, the paramount consideration is the safety of the community. The respondent needs appropriate rehabilitation in order to reduce his risk of violent re-offending. The program of rehabilitation that has been commenced in custody is appropriate and, in my view, necessary to address the risk posed by the respondent. The assistance available to the respondent in the community has signally failed to address his risk of reoffending due to his conduct and his lack of compliance with the terms of his ESO. It is not possible to increase the level of supervision under the ESO. The Parole Board has already attempted that without success. The persistent breaches of the ESO indicates a failure of that order to safeguard the community. On the basis of the material before me I consider it necessary and appropriate to make an order for the detention of the respondent under s 18(2) of the HRO Act until 15 May 2024.