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…

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 Angus

Details

AGLC: Attorney-General (SA) v Angus [2023] SASC 181
Case: [2023] SASC 181
Decision Date: 20 December 2023

CaseChat Overview and Summary

The case of Attorney-General (SA) v Angus involved the Attorney-General of South Australia seeking to have the respondent, Angus, detained under a continuing detention order (CDO) due to breaches of his extended supervision order (ESO). The dispute was heard in the Supreme Court of South Australia. The central issue for the court was whether Angus posed an appreciable risk to the community that warranted his detention under a CDO, as opposed to being subject to a continued supervision order with potentially varied conditions.

The court examined several legal issues, primarily focusing on the purpose and conditions of detention under the High Risk Offender (HRO) Act. It considered whether the detention of a high-risk offender would improve prospects for rehabilitation and whether Angus's detention was necessary to protect the community. The court also looked into whether Angus's breaches of the ESO indicated a failure of the supervision order to safeguard the community or if the risk could be addressed by further or varied conditions. The decision hinged on whether the drastic step of incarceration was necessary for community protection.

In reaching its decision, the court emphasised that the purpose of detention was protective rather than punitive. It was necessary to reassess the risk posed by Angus, taking into account the nature and circumstances of any breach. The court had to determine whether Angus's detention was necessary to adequately protect the community, considering the alternatives such as a varied supervision order. If the breach did not indicate a failure of the supervision order or if the risk could be managed through further conditions, a CDO should not be made. Ultimately, the court found that the safety of the community was the paramount consideration, and if supervision was apt to ensure adequate protection, then an order for release subject to supervision was to be preferred.

The final orders were not explicitly detailed in the provided text, but it can be inferred that the court would have made a ruling on whether Angus should be subject to a CDO or a varied supervision order, based on the findings regarding the necessity of detention for community protection.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.