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

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.
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.
For the reasons that follow I grant the application for a CDO until 15 May 2024.
Background
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.
The respondent’s antecedent history[2] indicates that the respondent has a number of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General (SA) v Abel

Details

AGLC: Attorney-General (SA) v Abel [2024] SASC 24
Case: [2024] SASC 24
Decision Date: 16 February 2024

CaseChat Overview and Summary

In Attorney-General (SA) v Abel, the respondent, who had been sentenced to imprisonment for aggravated assault causing harm, was subject to a supervision order under the High Risk Offenders Act 2006 (SA). Following a breach of that order, the Attorney-General applied for a continuing detention order (CDO) to detain the respondent until the expiration of his supervision order on 15 May 2024. The court had to determine whether the respondent's breach of the supervision order warranted a CDO and whether the safety of the community could be adequately safeguarded through alternative measures.

The court considered the respondent's history of violent offending, his failure to engage in rehabilitation in the community, and the evidence suggesting that his risk of violent reoffending would remain significant if his drug use was not addressed. The court also noted that the respondent had been assessed as being at high risk of violent reoffending and that a supervision order had previously failed to prevent him from breaching its terms. The court was required to balance the need to protect the community against the respondent's right to liberty and the principles of proportionality and rehabilitation.

The court found that the breach of the supervision order was minor but noted the respondent's failure to engage in rehabilitation in the community and his lack of insight into the link between his offending and drug use. The court accepted the evidence that the treatment offered in custody was appropriate to address the respondent's risk factors and that continuing detention orders ought not be lightly made. However, the court concluded that the paramount consideration was the safety of the community, and the respondent needed appropriate rehabilitation to reduce his risk of violent reoffending. The court found that the assistance available to the respondent in the community had failed to address his risk of reoffending due to his conduct and lack of compliance with the terms of his supervision order.

The court ordered the detention of the respondent under s 18(2) of the HRO Act until 15 May 2024, considering it necessary and appropriate to make such an order to safeguard the community. The court's decision was based on the respondent's history of violent offending, his failure to engage in rehabilitation in the community, and the evidence suggesting that his risk of violent reoffending would remain significant if his drug use was not addressed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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 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]. 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]. 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. 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.