Attorney-General (SA) v Angus - [2023] SASC 181

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v ANGUS
[2023] SASC 181
Judgment of the Honourable Justice Stein
20 December 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AND OTHER MATTERS RELATING TO TERRORISM - CONTROL, EXTENDED SUPERVISION, PREVENTATIVE DETENTION AND CONTINUING DETENTION ORDERS
On 26 October 2022, the respondent was made subject to an extended supervision order (ESO) pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). On 12 July 2023, the respondent was taken into custody on a Parole Board warrant in respect of breaches of the ESO. On 12 September 2023, the Parole Board directed that the respondent be detained in custody pending the determination of this Court whether a continuing detention order should be made pursuant to s 18 of the Act.
The respondent has breached his current ESO on a number of occasions. Counsel for the applicant submitted that the respondent was at a high risk of reoffending, had not been effectively managed by a supervision order and should be detained in custody for the purpose of completing the SBC treatment program and drug counselling.
Counsel for the respondent submitted a continuing detention order should not be made as there had not been a failure of supervision and the proposed options for therapy in the community were more likely to be successful in mitigating risk. Counsel emphasised, among other things, that the respondent admitted his breaches, those breaches were for taking medication to reduce methamphetamine cravings, he was willing to engage in treatment, had not reoffended since September 2022, and he had engaged better with the SBC-me program than the SBC program which the applicant proposed the respondent complete in custody.
Held:
1.The application is dismissed.
2.While the respondent poses an appreciable risk to the safety of the community, the risk is not such that a continuing detention order should be made. The ESO has not failed to safeguard the community.

Criminal Law (High Risk Offenders) Act 2015 (SA) s 18, referred to.
Attorney-General (SA) v Drion [2020] SASC 120; Police v Sullivan; Attorney-General (SA) v Sullivan (No 1) [2018] SASC 11; Attorney-General (SA) v Coaby [2019] SASC 137; Attorney-General (Qld) v Francis [2007] 1 Qd R 396, considered.

ATTORNEY-GENERAL (SA) v ANGUS
[2023] SASC 181
Criminal: Application

STEIN J: The Attorney-General has applied for a continuing detention order (“CDO”) pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“the HRO Act”) in relation to the respondent.
The respondent is the subject of an extended supervision order (“ESO”) made on 26 October 2022. The ESO is due to expire on 26 October 2024.
On 11 July 2023, the Parole Board issued a warrant for the respondent’s arrest following an allegation he had breached conditions of his ESO. The respondent was taken into custody on 12 July 2023 and has remained in custody on the Parole Board warrant since that date.
On 12 September 2023, the Parole Board satisfied itself that the respondent had breached conditions of his ESO by admitting to overusing prescription medication (Modafinil) on 23 June 2023, and on 10 July 2023; and failing to obey a reasonable direction by failing to attend Owenia House for a program as directed on 11 July 2023. The Parole Board resolved that the respondent be remanded in custody pending attendance before the Supreme Court for consideration of a CDO. The application for a CDO was filed on 6 November 2023.
Materials received
The applicant relied on the following material which was subject to some objections to which I refer below:
1.the first affidavit of Dimitra Papadopoulos made 3 November 2023 (FDN 3);
2.the second affidavit of Dimitra Papadopoulos made 20 November 2023 (FDN 6);
3.the third affidavit of Dimitra Papadopoulos made 30 November 2023 (FDN 10);
4.the fourth affidavit of Dimitra Papadopoulos made 11 December 2023 (FDN 11); and
5.the fifth affidavit of Dimitra Papadopoulos made 13 December 2023 (FDN 13).
I received some exhibits on the basis they constituted submissions; some exhibits only to the extent they were referred to and relied upon in support of the applicant’s written submissions and exhibit DP12 subject to the removal of one sentence on the basis of factual inconsistencies with other records.[1]
[1] I received Exhibit DP3 – Affidavit of Dimitra Papadopoulos made on 20 November 2023, as submissions; Exhibits DP26, DP27, DP28, DP32 and DP36 – Affidavit of Dimitra Papadopoulos made on 11 December 2023, (a series of HIT case manager update minutes) to the extent relied on in submissions; the last sentence of the second paragraph under the heading “Review of Risk/Protective and Dynamic Factors” in Exhibit DP12 – Affidavit of Dimitra Papadopoulos made on 30 November 2023, as submissions and removal of the last sentence of the second paragraph under the heading “Alleged Breach(es)”.
I was assisted by written and oral submissions.
Continuing detention order provisions
Section 18(1) of the HRO Act provides that if the Parole Board directs that a person subject to a supervision order be detained in custody pending attendance before the Supreme Court for determination as to whether a CDO should be made the matter is referred to the Court by force of the subsection.
Section 18(2) of the HRO Act provides:
(2)The Supreme Court may, if satisfied that the person—
(a) has breached a condition of the supervision order; and
(b) poses an appreciable risk to the safety of the community if not detained in custody,
order that the person be detained in custody (a continuing detention order) until the expiration of the supervision order, or for such lesser period as may be specified by the Court.
If the Court finds the existence of the matters referred to in s 18(2)(a) and (b), which are in the nature of jurisdictional facts, a discretionary power is enlivened.
Section 18(3) provides that the paramount consideration of the Court in determining whether to make a CDO is the safety of the community.
Breaches of the ESO
The breaches of the ESO upon which the applicant relied constituted the breaches found by the Parole Board on 12 September 2023 to which I have referred above.
The respondent denies the breach of the condition requiring him to obey a community corrections officer’s direction on the basis that his failure to attend Owenia House on 11 July 2023 was a result of illness. It is not necessary for me to reach a conclusion on whether there was a breach because the respondent conceded the two breaches of no drugs conditions. I am therefore satisfied the respondent breached his ESO.
In order to address the question of whether the respondent poses an appreciable risk to the safety of the community if not detained in custody, and the discretionary considerations, it is necessary to set out some of the background to the imposition of the ESO and the context of prior breaches and the breaches giving rise to this application.
Index offending and criminal history
The respondent pleaded guilty to aggravated serious criminal trespass in a place of residence and indecent assault. The remarks of the sentencing Judge[2] state that the victim of the offending was an 18-year-old woman asleep in her room in a student accommodation annex. The respondent obtained entry to her room through an unlocked balcony door. The victim woke to find the respondent crouching at eye level staring at her. The respondent touched her right leg above her knee and slid his hand up her leg towards her upper thigh. The respondent slapped the victim’s hand while she was holding her phone trying to send messages to others to obtain help. The victim tried to leave the room and was tripped up. The respondent then left through the balcony door. The respondent was sentenced on the basis that when the respondent entered he had the intention to steal and he did not enter with sexual intent. However, he nevertheless committed the offence of indecent assault. The sentencing remarks refer to the respondent’s personal circumstances. The respondent is an Aboriginal man who has experienced a troubled upbringing. His adulthood was described as marked by periods of drug and alcohol abuse and homelessness. The respondent was sentenced to a period of imprisonment of three years and six months to commence from 30 October 2018.
[2] Exhibit DP22 – Affidavit of Dimitra Papadopoulos made on 11 December 2023.
The respondent has criminal convictions in South Australia including for indecent behaviour in December 2016 and in February 2017 involving public masturbation. The sentencing Magistrate observed in his remarks on penalty that the respondent was not trying to exhibit himself to the wider public and the respondent made some effort to place himself where perhaps he would be less likely to be seen.[3]
[3] Exhibit DP23 – Affidavit of Dimitra Papadopoulos made on 11 December 2023.
The respondent was charged after a further instance of public masturbation on 11 September 2022 and was sentenced in January 2023.[4] This offending occurred while the respondent was subject to an ISO. The respondent conceded the allegations. The sentencing Magistrate agreed with the respondent’s counsel’s submission that the community was protected by the ESO and discharged the respondent without further penalty with the respondent having spent just over six weeks in custody.[5]
[4]    Exhibit DP24 – Affidavit of Dimitra Papadopoulos made on 11 December 2023; Exhibit DP40 – Affidavit of Dimitra Papadopoulos made on 13 December 2023.
[5]    Exhibit DP40 – Affidavit of Dimitra Papadopoulos made on 13 December 2023.
The respondent’s criminal history[6] also records convictions in the Northern Territory in March 2015 for offences of gross indecency in a public place.
[6] Exhibit DP24 – Affidavit of Dimitra Papadopoulos made on 11 December 2023.
Prior breaches of supervision orders
On 17 May 2022, while subject to an ISO, the respondent’s case manager reported to the Parole Board that the respondent had allegedly breached the drug and alcohol testing condition including by the respondent refusing to provide a urine sample in May 2022 and failing to obey a direction to undertake a drug test. On 17 May 2022, the Parole Board resolved to issue a warrant for the respondent’s arrest.[7] The respondent was remanded in custody for two months and released 20 July 2022.[8]
[7] Exhibit DP4 – Affidavit of Dimitra Papadopoulos made on 30 November 2023.
[8] Exhibit DP27 – Affidavit of Dimitra Papadopoulos made on 11 December 2023 (admitted only to the extent relied upon in the applicant’s submissions).
On 11 September 2022, the respondent was returned to custody after he was arrested for indecent behaviour as referred to above.[9]
[9] Exhibit DP28 – Affidavit of Dimitra Papadopoulos made on 11 December 2023.
On 29 November 2022, the respondent’s High Intensity Treatment (“HIT”) case manager reported an alleged breach of the respondent’s no drug condition by the respondent admitting to injecting methamphetamines on two occasions in the previous two weeks.[10] A minute dated 29 November 2022 from the respondent’s HIT case manager to the Parole Board[11] states that the respondent was discharged from custody on 26 October 2022 and was successful in obtaining accommodation at an Offenders Aid and Rehabilitation Services (“OARS”) shared property. It states a number of matters as follows. The respondent admitted to his case worker and a clinician to injecting methamphetamine on two occasions in the previous two weeks. The respondent did not condone his methamphetamine use and overall was feeling optimistic that his use had decreased significantly from his usual daily habit. The respondent had been upfront with HIT staff around his use and he had not previously sought support in that area. The HIT program clinician had good engagement with the respondent who had been addressing his sexual offending via weekly therapeutic contact, addressing his drug use and the strong link between drug use and sexual deviance. The HIT case manager requested the Parole Board take no action to allow the HIT team to continue to work with the respondent around his risks relating to sexual offending and drug use.
[10] Exhibit DP5 – Affidavit of Dimitra Papadopoulos made on 30 November 2023.
[11] Exhibit DP29 – Affidavit of Dimitra Papadopoulos made on 11 December 2023.
A minute from the respondent’s HIT program manager dated 28 December 2022[12] to the Parole Board states a number of matters as follows. On 28 December 2022 during supervision the respondent admitted to methamphetamine use on 25 December 2022. Since the respondent commenced engaging with his HIT clinician on 6 July 2022 he had engaged openly and thoughtfully regarding his risks of offending including his use of illicit substances, deviant fantasies and antisocial attitudes. The respondent reported motivation to cease methamphetamines and had attempted to reduce or cease his use by pharmacological means as well as avoiding common triggers. The respondent reported an approximately 50 percent reduction in his methamphetamine use while being aware that any use was a breach of conditions. The respondent reported that he had ceased marijuana use and was pleased to have done so as he usually used that substance daily. The respondent had disclosed some of the dynamic risk factors associated with his sexual offending. The respondent reported that he had not spoken to anyone about his sexual offending in the past and while he felt shame and embarrassment when discussing aspects of the offending, he was motivated to address them in clinical sessions. The respondent honestly disclosed to his HIT Aboriginal clinician that he had used methamphetamine on Christmas Day after bumping into people. The respondent acknowledged he did not have prosocial friends or associates who do not consume illicit substances. The respondent spoke about his struggles around substance misuse and grief and loss he had experienced but acknowledged he was in a better place with support to address and work through his barriers.
[12] Exhibit DP30 – Affidavit of Dimitra Papadopoulos made on 11 December 2023.
The HIT case manager requested the Parole Board take no action and allow the HIT team to continue to work with the respondent.
On 22 January 2023, the Parole Board resolved to make no finding in relation to the alleged drug breaches.[13]
[13] Exhibit DP6 – Affidavit of Dimitra Papadopoulos made on 30 November 2023.
A drug test from 1 February 2023 returned positive results for THC and buprenorphine.[14] The buprenorphine detected was consistent with declared buprenorphine medication.
[14] Exhibit DP17 – Affidavit of Dimitra Papadopoulos made on 30 November 2023.
On 6 February 2023, the respondent’s case manager reported to the Parole Board an alleged breach of the no drugs condition by the respondent admitting to the HIT Aboriginal clinician that he had used methamphetamine.[15] The Department for Correctional Services recommended the Parole Board issue a warrant for the respondent’s arrest to detain the respondent in custody for a period of six to eight weeks to allow him to detoxify from his increased use of methamphetamine.[16] On 6 February 2023, the Parole Board resolved to issue a warrant for the respondent’s arrest which was executed on 7 February 2023.[17] On 18 April 2023, the Parole Board resolved to release the respondent on 19 April 2023. Prior to the Parole Board hearing, the respondent acknowledged he was aware of the breach of the ESO.[18] The respondent was released on 19 April 2023 to reside at Brompton.[19]
[15] Exhibit DP7 – Affidavit of Dimitra Papadopoulos made on 30 November 2023
[16] Exhibit DP32 – Affidavit of Dimitra Papadopoulos made on 11 December 2023 (admitted only to the extent relied upon in the applicant’s submissions).
[17] Exhibit DP7 – Affidavit of Dimitra Papadopoulos made on 30 November 2023.
[18] Exhibit DP35 – Affidavit of Dimitra Papadopoulos made on 11 December 2023.
[19] Exhibit DP36 – Affidavit of Dimitra Papadopoulos made on 11 December 2023 (admitted only to the extent relied upon in the applicant’s submissions).
On 8 May 2023, the respondent’s HIT case manager reported to the Parole Board on alleged breaches by the respondent of curfew conditions, telephone service condition and no drugs condition by admitting to taking a large amount of his prescribed Modafinil medication. On 8 May 2023, the Parole Board resolved to issue a warrant for the respondent’s arrest.[20] On 29 May 2023, the Parole Board found breaches of the curfew, telephone service and no drugs condition proved and resolved that the respondent was to be released.[21]
[20] Exhibit DP9 – Affidavit of Dimitra Papadopoulos made on 30 November 2023.
[21] Exhibit DP37 – Affidavit of Dimitra Papadopoulos made on 11 December 2023.
A drug test on 6 June 2023 returned a positive result to methamphetamine.[22] On 14 June 2023, the HIT case manager provided a report to the Parole Board on an alleged breach of the no drugs condition by the respondent providing a sample on 6 June 2023 that tested positive to illicit substances.[23] On 22 June 2023, the Parole Board resolved to defer a decision pending the next urinalysis test.[24]
[22] Exhibit DP17 – Affidavit of Dimitra Papadopoulos made on 30 November 2023.
[23] Exhibit DP10 – Affidavit of Dimitra Papadopoulos made on 30 November 2023.
[24] Exhibit DP38 – Affidavit of Dimitra Papadopoulos made on 11 December 2023.
On 26 June 2023, the HIT case manager reported to the Parole Board on an alleged breach of the no drugs condition by the respondent admitting to taking one and a half sheets of Modafinil rather than his prescribed dose on 23 June 2023.[25] On 11 July 2023, the HIT case manager reported an alleged breach of the no drugs condition by the respondent disclosing to his case manager on 10 July 2023 that he was overusing Modafinil and failing to obey a direction by failing to attend Owenia House on 11 July 2023.[26] As set out above, on 11 July 2023 the Parole Board resolved to issue a warrant for the respondent’s arrest.
[25] Exhibit DP39 – Affidavit of Dimitra Papadopoulos made on 11 December 2023.
[26] Exhibit DP39 – Affidavit of Dimitra Papadopoulos made on 11 December 2023.
It is apparent from the chronology above that the respondent breached conditions of his supervision order on one occasion in September 2022 by committing an offence of indecent behaviour and by breaching the no drugs condition on a number of occasions. The breaches from late 2022 until 6 June 2023 primarily related to consuming methamphetamine. However, the breaches in July 2023 which resulted in the application for the CDO consisted of the respondent overusing his prescription medication in an attempt to address his craving for methamphetamine. It is also apparent that the respondent disclosed breaches of his ESO by drug use to his HIT team. On a number of occasions, the Parole Board resolved not to make a finding in relation to alleged drug breaches and rather allowed the respondent to work with his HIT team.
Report of Dr Jayawant
The report of Dr Amisha Jayawant, consultant forensic psychiatrist, was provided on 20 August 2022 for the purpose of considering the imposition of the ESO.[27]
[27] Exhibit DP25 – Affidavit of Dimitra Papadopoulos made on 11 December 2023.
Dr Jayawant’s report states the respondent fulfilled the criteria for antisocial personality disorder. Dr Jayawant considered that the respondent has several risk factors which increase his risk of future serious sexual offending. It was of concern that previous sexual offences related to public masturbation but the offence for which he was the subject of the application for an ESO involved indecent assault. Dr Jayawant considered the respondent to have consistently minimised his offending. The respondent did not have sexual deviance or paraphilia but had a significant problem with substance use causing problems in several aspects of his life. Dr Jayawant noted the respondent had refused treatment for sexual offending while serving his sentence and had not engaged meaningfully in drug and alcohol programs previously despite stating he wanted to complete drug and alcohol programs on release. Dr Jayawant referred to frequent re-offending and poor response to supervision in the community. Dr Jayawant concluded that based on the respondent’s history and his assessment of risk, the respondent had many risk factors for sexual recidivism and he believed the risk of the respondent committing a further serious sexual offence was high.
Report of Mr Williams

On 23 November 2023, Mr Luke Williams provided a report to address the respondent’s cognitive and adaptive functioning to inform an application for the respondent’s inclusion in the National Disability Insurance Scheme (“NDIS”) as well as suitability for rehabilitation options relating to his offending.[28] The respondent’s assessment scores included scores of low average for verbal comprehension, working memory, processing speed and IQ and an average score for perceptual reasoning and general ability index. The differences between the IQ and general ability index scores were attributed to the influence of the impact of the respondent’s working memory and processing speed. Mr Williams did not consider the respondent’s score satisfied criteria for an intellectual development disorder. However, he observed that the respondent demonstrated significant defects in his adaptive functioning with his overall score indicating moderate levels of disability. Mr Williams considered the respondent’s primary diagnosis to be mixed personality disorder with antisocial and borderline traits and polysubstance use disorder.
[28] Exhibit DP20 – Affidavit of Dimitra Papadopoulos made on 30 November 2023.
The report did not directly address the respondent’s ability to engage with the SBC or SBC-me program.
Programs of rehabilitation
A minute from the Sentence Management Unit of the Department for Correctional Services[29] states that between November and December 2022, the respondent engaged in four phone counselling sessions regarding his substance use through OARS. The respondent was recommended for further face-to-face substance use counselling through OARS but that did not occur because the respondent returned to custody. While in custody, the respondent was referred to substance use phone counselling through Life Without Barriers. The respondent was reported to be engaging well in the three phone counselling sessions he had completed with his next appointment booked for 15 December 2023.
[29] Exhibit DP21 – Affidavit of Dimitra Papadopoulos made on 11 December 2023.
The minute notes that if a CDO is not made, the respondent would be referred to a community based psychologist to receive treatment to address his risks. It is not clear what waiting times may be associated with referral. The minute stated that it had been identified that the respondent may be able to complete some SBC workbooks with his HIT case manager or HIT clinician in the interim and the respondent would also be referred for treatment to address his substance use issues which was identified as a responsivity factor for the respondent in the community.
The respondent commenced an SBC program at Owenia House on 8 August 2022. A minute from the HIT program case manager dated 14 June 2023 to the Parole Board[30] states that the respondent’s attendance was sporadic which the respondent attributed to his difficulty in comprehending the program content. The respondent was withdrawn from the program after being arrested on 11 September 2022 for indecent behaviour.
[30] Exhibit DP10 – Affidavit of Dimitra Papadopoulos made on 30 November 2023.
The respondent commenced the SBC-me program at Owenia House in June 2023.[31] The respondent attended four sessions of the SBC-me program at Owenia House. The respondent completed the first module of the SBC-me program successfully and attended one session of module 2 before he was returned to custody on 12 July 2023.[32]
Submissions
[31] Exhibit DP10 – Affidavit of Dimitra Papadopoulos made on 30 November 2023.
[32] Exhibit DP19 – Affidavit of Dimitra Papadopoulos made on 30 November 2023.
Applicant’s submissions
The applicant submits that since being made subject to the ESO, the respondent has only spent a brief time in the community and the nature of the most recent breaches that form the basis of the CDO application are particularly concerning considering the respondent’s criminogenic risks associated with his substance use and his previous sexual offending. The applicant refers to the context of a significant pattern of non-compliance with supervision orders. The applicant submits the respondent has failed to fully and meaningfully engage and complete any treatment to address his risk of sexual recidivism, has not effectively engaged in drug counselling in the community, requires a controlled environment to engage in treatment and continues to pose a risk to the community as he has not been effectively managed by a supervision order. If he remains in custody, the respondent is able to attend the SBC program at Mount Gambier Prison due to commence in late January 2024 which would run for approximately nine to 10 months. The next set of SBC programs in the community will not commence until late 2024. The applicant submits the respondent’s admissions to taking illicit substances and overusing prescription medication demonstrate lack of compliance with ESO conditions and lack of motivation to change his behaviour. The repeated return to custody has meant the respondent was not in the community long enough to make meaningful progress to address his substance abuse issues. The applicant submits a strong factor in favour of making a CDO is that the respondent’s engagement with rehabilitative and supportive services in the community has been very limited, he has failed to complete two programs in the community and undertaking the program in custody would assist the respondent to complete the program in its entirety.
The applicant contends a CDO is required to facilitate the necessary intervention and treatment programs to reduce the respondent’s risk to the community and this risk cannot be addressed in any other way.
Respondent’s submissions
The respondent relies upon various HIT case manager minutes which the respondent contends evidence the respondent’s motivation to continue and complete the SBC-me program and submits that he was prevented from completing the program by reason of the Parole Board warrant and his subsequent detention in custody.[33]
[33] Exhibit DP10 – Affidavit of Dimitra Papadopoulos made on 30 November 2023; Exhibit DP11 – Affidavit of Dimitra Papadopoulos made on 30 November 2023.
The respondent relies on a minute dated 5 January 2023 from the HIT program case manager[34] which refers, among other things to the respondent’s OARS case manager being pleased with his engagement in their services and his presentation at the hostel, the respondent having developed a strong working relationship with the HIT team, regularly contacting them and engaging in support. The minute refers to the respondent’s honesty around needing and wanting to address his barriers, particularly his drug use. The minute refers to the respondent participating in the Owenia House SBC-me program that would better suit his learning needs and that the respondent reported a moderate level of anxiety regarding his participation in the program but indicated that he had to complete it. The respondent also referred to a report from the respondent’s OARS case manager that the respondent was a great tenant at the Christies Beach OARS hostel.[35]
[34] Exhibit DP31 – Affidavit of Dimitra Papadopoulos made on 11 December 2023
[35] Exhibit DP33 – Affidavit of Dimitra Papadopoulos made on 11 December 2023.
The respondent submits that he had not used methamphetamine since his last disclosed use, but rather disclosed on 26 June that he had taken extra Modafinil to help with his cravings for methamphetamine. The respondent was willing to attend hospital for a medical review, by the time he was discharged he had returned to his usual presentation, he was able to show insight and apologised to his housing manager.[36]
[36] Exhibit DP11 – Affidavit of Dimitra Papadopoulos made on 30 November 2023.
The respondent submits the HIT case manager minutes evidence positive rapport between the HIT team and the respondent. The respondent contends there are explanations for the respondent missing sessions of the program due to the respondent’s hospital admission after taking Modafinil and due to ill health, he would have been able to continue with the SBC-me program had he not been detained in custody, and there is no evidence that the respondent did not wish to complete the course and no evidence that the respondent’s complaint of illness was not truthful. The respondent submits he has been upfront about his drug use and is motivated to address it. The respondent refers to a minute from the respondent’s HIT case manager dated 11 August 2023[37] which states that the respondent has been accepted by the Exceptional Needs Unit for funding for NDIS access support and that due to his chronic drug use, the HIT program would be seeking residential rehabilitation options for him in the hope he could go directly from custody to a program where he could address his drug use in a monitored environment. The minute notes that the respondent remained engaged with the representative of the ALRM prisoner care program.
[37] Exhibit DP13 – Affidavit of Dimitra Papadopoulos made on 30 November 2023.
The respondent submits that there is no evidence that there has been any escalation in the respondent’s sexualised behaviour, no evidence of any inappropriate sexual behaviour or sexual offending since September 2022 and the supervision order has been effective in reducing the respondent’s risk. The respondent submits that if there were escalation that would have been evident after the respondent’s release into the community in October 2022. The respondent submits that to complete the SBC-me program in custody the respondent would need to remain in custody for the length of the program, which is 15 months,[38] exceeding the time remaining on the respondent’s ESO and accordingly the respondent would not be eligible. The respondent contends that the respondent was successfully engaged in the SBC-me course which is the preferable course for the respondent and the SBC program proposed for the respondent may potentially be difficult for him to complete.
[38] Exhibit DP14 – Affidavit of Dimitra Papadopoulos made on 30 November 2023.
The respondent places weight on the letter from the Sentencing Management Unit[39] indicating the available rehabilitation options in the event a CDO is not made and contends that the proposed treatment will provide more protection to the community than a lengthy CDO.
[39] Exhibit DP21 – Affidavit of Dimitra Papadopoulos made on 11 December 2023.
The respondent submits that the documents show the respondent was motivated, doing better and his overuse of medication was to prevent his cravings but resulted in the consequence that he was removed from the program. The respondent suggests that it is more effective and less draconian for the respondent to continue to work with the HIT treatment clinician with the proposed options for ongoing therapy which he submits are more likely to be successful in mitigating continuing risk. The respondent submits that it was not his intention to be removed from the program and each time he has been removed was as a result of his arrest and return to custody. The respondent contends there is no acute risk that is not being mitigated by the ESO and that even in the context of the prior breaches, there has not been a failure of supervision.
Further information/submissions
After the hearing, the applicant provided to the Court additional information about the SBC and SBC-me programs in response to questions I asked concerning why the respondent was recommended to participate in the SBC-me program in the community.
A minute from the Sentence Management Unit dated 15 December 2023 states that Owenia House staff advised that the respondent initially commenced the SBC program but was observed to have difficulties and the decision was made to move the respondent to an SBC-me program.
The minute refers to Mr William’s assessment of the respondent and states that following consultation with the Rehabilitation Programs Branch managers, on the basis of the respondent’s assessed intellectual functioning, he was considered most suitable for the SBC program. The minute provides information about the start date of the custodial programs, which commence in early 2024, and the community-based programs which start in the second half of 2024.
In response, the respondent’s counsel reiterates the respondent’s difficulty in comprehending the SBC program content, his positive engagement with SBC-me, and submits that the decision to include the respondent on the SBC-me program was sound notwithstanding the lack of a diagnosed intellectual development order and there is a real chance the respondent will again face comprehension difficulties if he participates in SBC. The respondent points to the plan for the respondent, if released, to be referred to a psychologist to address his treatment needs and for the HIT team to work with the respondent on completing SBC workbooks.
Delay
The Attorney-General was first notified of the Parole Board’s resolution made on 12 September 2023 to refer the respondent for a CDO when the respondent’s legal representatives contacted the Crown Solicitor’s Office on 19 October 2023 to enquire if an application for a CDO had been filed. The Crown Solicitor’s Office then filed the application on 6 November 2023. A letter of referral from the Parole Board was received on 13 November 2023. The Court was provided with an explanation for the delay being the time required for preparation of the letter of referral together with the illness of the Presiding Member of the Parole Board.[40]
[40] Exhibit DP15 – Affidavit of Dimitra Papadopoulos made on 30 November 2023.
Counsel for the respondent referred to the delay by the Parole Board in referring the respondent to the Attorney-General. Counsel submits that if the Parole Board directs that a person subject to a supervision order be detained in custody pending attendance before the Supreme Court, s 18(1) of the HRO Act provides that there is a referral to the Court by force of the subsection. Counsel invited the Court to observe that the effect of s 18(1) of the HRO Act is such that there should be no need for a formal referral from the Parole Board to the Attorney-General. Counsel for the respondent submits the Parole Board should notify the Court and the Attorney-General immediately upon making any such direction.
I agree with the respondent’s submissions that s 18(1) of the HRO Act has the effect of a referral to the Court by force of the subsection upon the Parole Board directing a person subject to a supervision order be detained in custody pending attendance before the Supreme Court for determination as to whether a CDO should be made. I have not heard from the Parole Board on this issue, including about its usual processes. The Parole Board may wish to consider the effect of the section in the context of its referral processes if it has not already done so.
Consideration
The purpose of detention is not punitive but protective.[41] In assessing the risk which a respondent poses for the purposes of considering a CDO, it is relevant to reassess the assessment made which gave rise to the ESO taking into account the nature and circumstances of any breach.[42] The risk should be identified with some particularity before the question whether detention is necessary to adequately protect the community is considered.[43] Whether or not the detention of a high risk offender will result in better prospects of rehabilitation is a relevant consideration. The respondent should not be detained for any longer than necessary to ensure adequate protection of the community.[44] The Court should consider whether the “drastic step of incarcerating the high risk offender for the duration of the extended supervision order or some lesser period is necessary to protect the community from an appreciable risk to its safety”.[45] In considering if it is necessary to incarcerate a high risk offender, the Court will take into consideration the alternative option which is the continuation of the supervision order, possibly varied.[46] If the circumstances or nature of the breach do not indicate a failure of the supervision order to safeguard the community or that the risk can be addressed by further or varied conditions, a CDO should not be made.[47] When there is a choice to be made between a CDO and a supervision order, the Court will consider whether community protection is adequately ensured. If supervision is “apt to ensure adequate protection, having regard to the risk to the community posed”,[48] then an order for release subject to supervision is to be preferred to a CDO on the basis that the intrusions on the liberty of the respondent are exceptional and should not be constrained to a greater extent than warranted by the legislation which authorises such constraint.[49] The safety of the community is the paramount consideration.[50]
[41] Attorney-General (SA) v Drion [2020] SASC 120 at [68] per Livesey J.
[42] Attorney-General (SA) v Drion [2020] SASC 120 at [68] per Livesey J.
[43] Attorney-General (SA) v Drion [2020] SASC 120 at [68] per Livesey J.
[44] Attorney-General (SA) v Drion [2020] SASC 120 at [68] per Livesey J.
[45] Police v Sullivan; Attorney-General (SA) v Sullivan (No 1) [2018] SASC 11 at [85] per Hinton J.
[46] Police v Sullivan; Attorney-General (SA) v Sullivan (No 1) [2018] SASC 11 at [85] per Hinton J.
[47] Attorney-General (SA) v Coaby [2019] SASC 137 at [19] per Hughes J.
[48] Attorney‑General v Francis [2006] QCA 324 at [39]; [2007] 1 Qd R 396 at [39] per Keane and Holmes JJA and Dutney J.
[49] Attorney‑General v Francis [2006] QCA 324 at [39]; [2007] 1 Qd R 396 at [39] per Keane and Holmes JJA and Dutney J.
[50] Attorney-General (SA) v Drion [2020] SASC 120 at [69] per Livesey J.
Having concluded that the respondent breached his ESO, I turn to consider the issue of whether the respondent poses an appreciable risk to the community if not detained in custody.
The report of Dr Jayawant for the purposes of the ESO opines that the respondent is at high risk of sexual offending. One of the respondent’s risk factors is substance abuse and consequently his breaches of his ESO by drug taking are a matter of concern. While the respondent has breached his ESO by taking illicit substances as referred to above, the minutes of the HIT case managers provide support for the respondent’s submissions to the effect that there has not been an escalation in drug use. The minutes suggest the respondent had reduced his cannabis use and, in a general sense, can be seen to have been reducing his methamphetamine use. The respondent’s July 2023 offending was not through use of methamphetamine or cannabis but rather overuse of his prescription medication in an attempt to reduce methamphetamine cravings. It cannot be expected that the respondent will not experience ongoing difficulties with drug use given his history and consequently drug and alcohol counselling will be an important aspect of the respondent’s rehabilitation. Given the likelihood the respondent will continue to struggle with drug taking I cannot discount the risk the respondent will breach the ESO in future with potential impact on his risk of re-offending. However, despite drug breaches of the ESO, since September 2022 the respondent has not committed any further sexual offending and there is no evidence indicating inappropriate sexual behaviour in the intervening period. While the respondent was in custody some of that time, he was in the community for the balance, without further sexual offending. There were a number of occasions on which the respondent breached the ESO by drug taking which he freely admitted, which was not associated with any other offending, in respect of which the Parole Board resolved not to determine breach and the respondent remained in the community. The respondent was unable to continue the SBC-me course at Owenia House after being taken into custody.

The respondent could complete the SBC program in custody but is not able to complete the SBC-me program in custody given the date of expiration of his ESO. Mr Williams did not assess the respondent as having an intellectual development disorder. However, his report does not directly address the respondent’s suitability for each program. It does refer to general difficulties the respondent may experience including in verbal comprehension. The staff at Owenia House have advised that the respondent was observed to have difficulty in the SBC program. It appears that the respondent’s engagement in the SBC-me program has been more successful. Despite the absence of a diagnosis of an intellectual development disorder, given the respondent’s better engagement in the SBC-me program, it is not clear that keeping the respondent in custody to complete the SBC program will necessarily have the desired outcome of the respondent successfully completing that program in custody. While I have some concern about the later start for the SBC programs in the community, it is not necessarily clear that the respondent will have a better prospect of rehabilitation if incarcerated relative to the rehabilitation which will be available to him in the community including working with his HIT team. While the respondent has been engaged successfully in the Life Without Barriers program in custody, the evidence does not demonstrate that alcohol and drug rehabilitation in the community will be less efficacious. The respondent had engaged in sessions with OARS while in the community but these sessions did not continue following his incarceration.
While I am satisfied that the respondent poses an appreciable risk to the community, I am not satisfied the risk is such that I should make an order to detain the respondent pursuant to a CDO. I would in any event have declined to exercise the discretion to make a CDO. I reach that view on the basis of all the materials before me including that the respondent disclosed his drug use to his HIT team members, his drug use was not significantly escalating, the respondent’s last occasions of drug use prior to incarceration were taking medication to reduce methamphetamine cravings and the respondent had completed some drug counselling and part of the SBC-me program prior to his incarceration. The materials support the respondent’s submissions concerning his intention to engage in rehabilitation. The respondent had a good relationship with, and worked with, his HIT team. If the respondent is released into the community, he will receive the rehabilitation and support of the HIT team referred to in the materials provided to me. Although the respondent has spent significant time in custody in the last 12 months which would have reduced the possibility, nevertheless, since the incident in September 2022, there has been no further sexual offending.
On balance, and considering the circumstances and nature of the breaches, I do not conclude the breaches of the ESO indicate a failure of supervision to safeguard the community. In all of the circumstances, I have determined that the radical step of imposing a CDO for a period of about 10 months is not warranted at this time to protect the community from the risk posed by the respondent. I therefore decline to make a CDO.