Attorney-General (SA) v Annette - [2022] SASC 99

Supreme Court of South Australia
(Criminal: Application)

ATTORNEY-GENERAL (SA) v ANNETTE
[2022] SASC 99
Judgment of the Honourable Justice McDonald
8 September 2022
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
On 14 August 2018, the respondent was sentenced in the District Court of South Australia to a head sentence of four years, two months and 12 days imprisonment with a non-parole period of three years, four months and nine days for the offence of aggravated causing harm with intent to cause harm pursuant to s 24(1)(a) of the Criminal Law Consolidation Act 1935 (SA). The victim of that offence was the respondent’s 83-year-old mother. The Attorney-General made an application that the respondent be the subject of an extended supervision order (‘ESO’) upon his release from custody on 25 February 2022. On 23 February 2022, Stein J ordered that a report be obtained to assess the likelihood of the respondent committing further serious offences of violence. Somewhat unusually, the Attorney-General did not seek that the respondent be the subject of an interim supervision order (‘ISO’) upon his release from custody whilst the report was being completed. Upon receipt of the psychological report dated 19 April 2022 and due to delays that were to occur in the matter, an ISO was sought by the Attorney-General and ordered by this Court on 18 May 2022.
The respondent opposed the imposition of the ESO. Whilst it was conceded that the respondent is a high risk offender, the respondent contended that there remained an issue as to whether or not the respondent posed an appreciable risk to the safety of the community.
Held:
1. I am satisfied that the respondent is a high risk offender who poses an appreciable risk to the safety of the community if not supervised under an ESO.
2. I order that the respondent be subject to an ESO for a period of 12 months pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA).
Criminal Law (High Risk Offenders) Act 2015 (SA) s 5(c), s 7(1), s 7(2), s 7(3), s 7(4), s 7(6); Criminal Law Consolidation Act 1935 (SA) s 24(1)(a), s 83D, referred to.
Attorney-General (SA) v V, ZR [2019] SASC 1; State of NSW v Thomas [2010] NSWSC 677, discussed.

ATTORNEY-GENERAL (SA) v ANNETTE
[2022] SASC 99
Criminal: Application for Extended Supervision Order
McDONALD J.

This is an application by the Attorney-General for an order that the respondent, Mr Christian Annette, be the subject of an extended supervision order (‘ESO’) for a period of 18 months under the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’). The respondent opposes the making of the ESO.
History of offending
Before considering the issues arising from the application currently before the Court, it is necessary to set out some of the respondent’s history.
On 14 August 2018, the respondent was sentenced to a head sentence of four years, two months and 12 days imprisonment with a non-parole period of three years, four months and nine days for the offence of aggravated causing harm with intent to cause harm pursuant to s 24(1)(a) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’). This offence occurred on 13 December 2017. The victim was the respondent’s 83-year-old mother. The details of that offending are set out in the sentencing remarks of Stretton DCJ. Suffice for current purposes to say, the respondent engaged in a violent, brutal and unprovoked attack on his elderly mother that involved punching her numerous times, headbutting her, throwing various items at her and dragging her along the floor. He also threatened and humiliated her. As a result of this assault, the respondent’s mother was admitted to hospital where she remained for 10 days. She was treated for a swollen lip, facial bruising, a swollen ear, a subdural haemorrhage, tearing to the skin of her left arm and hand and neck tenderness. There is no dispute that the respondent’s offending was fuelled by the consumption of Valium and port.
This offence was the index offence in relation to which the application for an ESO is made.[1]
[1] The “index offence” is the principal proven offence in the index sentencing episode.
It is informative to consider the index offence in the context of the respondent’s broader history of offending. Details of the more serious and violent aspects of that history are provided in a psychological report prepared by Mr Luke Williams on 19 April 2022. This offending can be summarised as follows:
·On 26 April 1995, the applicant was convicted of assault police. On that occasion, the respondent kicked and spat at police officers who were attempting to restrain him.
·On 4 May 1995, the respondent was convicted of assault occasioning actual bodily harm. That offending involved the respondent assaulting two people with an aluminium baseball bat.
·On 17 September 2004, the respondent broke into a domestic premises. Realising what had occurred, the occupant of the house chased after the respondent, whereupon the respondent set upon the occupant punching him several times.
·On 20 April 2009, the respondent was sentenced for one count of endangering life. That related to the respondent engaging in a high-speed police pursuit whilst he had a 16-year-old passenger in the car with him. On that same date the respondent was sentenced for offences of aggravated assault against a police officer, resist arrest and threatening harm. These charges arose out of police attendance at the respondent’s house as a consequence of a report being made that the respondent had verbally abused and threatened someone over the phone. The respondent became aggressive with the police as they tried to arrest him, in that he raised his fists as if to punch at a police officer and struggled as they attempted to restrain him.
It appears that there was then a period of several years between the respondent’s earlier offending and the most recent offending against his mother.
Expiry of sentence
The respondent’s head sentence expired on 25 February 2022. On 16 February 2022, the Attorney-General filed the application for the ESO. The matter first came before Stein J on 23 February 2022. On that occasion, Ms Kleinig appeared for the Attorney-General. She advised the Court that somewhat unusually, on this occasion the Crown were not seeking an interim supervision order (‘ISO’). No reasons were provided to the Court as to why that course was being adopted, in circumstances in which the Attorney-General was suggesting that the respondent was of such a risk to the community that an application was being made for an ESO. Ms Kleinig advised the Court that the decision to not seek an ISO was a considered position taken by the Attorney-General.
On that same date, Stein J ordered that a report be obtained from one or more prescribed health professionals in relation to an assessment of the likelihood of the respondent committing further serious offences of violence.
Application for an Extended Supervision Order
As mentioned, a report was prepared by Mr Luke Williams on 19 April 2022. In that report Mr Williams supported the imposition of an ESO.
The application first came before me approximately three weeks after that report was prepared. For reasons that are not clear, there seemed to suddenly be a sense of urgency on the part of the Attorney-General around the decision as to whether an ESO should be made. Counsel who appeared for the Attorney-General advised the Court that as a consequence of discussions with the respondent’s counsel, they had agreed that the matter be adjourned for a week in order for the respondent to have the opportunity to provide instructions. When I raised my intention to keep the matter before me and suggested an adjournment of two weeks, counsel for the Attorney-General pressed for the matter to be dealt with in a more expeditious manner. He put to the Court:
Mr Annette is in the community with[out] a supervision order in place. The report that has been received raises some extensive issues. My submission today is that if the matter could be adjourned for a short period of time for the application to be considered.
When I asked about the change in the Attorney-General’s position, I was advised that it was because of the contents of the report.
The matter next came before me on 17 May 2022. On that occasion, counsel for the Attorney-General submitted that the order for an ESO should be made. He put to the Court that the two necessary pre-conditions enlivening the Court’s jurisdiction to make an ESO under s 7 of the HRO Act had been satisfied, namely that the respondent is a high risk offender as defined under the HRO Act[2] and the application had been made within 12 months of the relevant expiry date.[3] It was also submitted that the Court should make an ESO, pursuant to s 7(4) of the HRO Act, because the respondent is a high risk offender[4] and is a “serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence”.[5] Further, counsel for the Attorney-General submitted that “the respondent poses an appreciable risk to the safety of the community if not supervised under the order”.[6]
[2]    Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(1).
[3]    Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(2).
[4]    Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(4)(a).
[5]    Criminal Law (High Risk Offenders) Act 2015 (SA) s 5(c).
[6]    Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(4)(b).
Counsel for the respondent indicated that his client opposed the imposition of the ESO. He told the Court that whilst it is conceded that the respondent is a high risk offender,[7] there remained an issue as to whether or not the respondent posed an appreciable risk to the safety of the community. Counsel for the respondent advised the Court that since the time that he had been provided with a copy of Mr Williams’ report, the respondent had provided him with some further material which Mr Williams did not have before him for consideration. On that basis, he made an application for Mr Williams to be called to give evidence so the additional material could be put to him. That application was granted.
[7] The respondent is considered a ‘high risk offender’ pursuant to s 5 of the HRO Act as he committed a serious offence of violence within the meaning of s 83D of the CLCA. The respondent served a sentence of imprisonment for an indictable offence, namely ‘Intentionally Cause Harm – Aggravated Offence’ contrary to s 24 of the CLCA. This offence is punishable by imprisonment for five or more years; and the conduct constituting this offence involved a risk of serious harm to a person.
Interim Supervision Order
Given the delays that were to occur in the matter, an ISO was sought by the Attorney-General for the intervening period. Counsel for the respondent again resisted the making of such an order. Over the opposition of the respondent, I ordered that he be the subject of an ISO until such time that the application for an ESO could be determined.
Report and evidence of Mr Luke Williams
On 20 June 2022, Mr Williams was called by counsel for the Attorney-General to give evidence. Before I turn to deal with some of the details of that evidence, it is convenient to start with a consideration of the more salient points of Mr Williams’ report. In order to prepare the report, Mr Williams met with the respondent on 30 March 2022. He had also been provided with additional documentation including the application for the ESO, the sentencing remarks for the index offence, police apprehension reports for other offences of violence committed by the respondent, internal documents from the Department for Correctional Services including the Parole Board reasons for refusing parole and a Domestic and Family Violence Intervention Program post-treatment assessment summary.
During the interview, Mr Williams took a detailed background history from the respondent. That history included a childhood impacted by physical, emotional and sexual abuse. The respondent reported that he learned to cope with his circumstances by using illicit substances.
Mr Williams described the respondent’s offending history as “a history of general and violent offending commencing in adolescence and occurring sporadically throughout adulthood. As an adult, Mr Annette has been subjected to numerous periods of imprisonment, both short and longer-term”. [8] Mr Williams explained that during the interview “Mr Annette described a history of generalised reactive violence towards others, including peers and police officers. He described engaging in assaults on others, although reported that these had generally occurred in the context of defending himself in situations often characterised by the use of substances”.[9] The respondent also reported significant use of violence within a domestic context. It included an incident in 2009 in which the respondent made threats to shoot a woman and her children.
[8] Report of Mr Luke Williams dated 19 April 2022 at 5.
[9] Report of Mr Luke Williams dated 19 April 2022 at 5.
In taking the respondent through his antecedents, Mr Williams formed the view that the respondent continued to minimise the severity of his behaviour and exaggerated the role of his victims. This was not a promising sign.
Mr Williams also made the observation that the respondent has been the subject of six previous periods of parole, five of which have been cancelled due to breaches. He noted that the respondent has also breached bonds, bail agreements and intervention and restraining orders. During the interview, the respondent acknowledged that his poor history of compliance had been one of the main causes of his frequent return to incarceration.
In his report, under the heading of ‘past medical history’, Mr Williams described the respondent as suffering from significant episodes of anxiety. The respondent told Mr Williams that he was unsure as to whether he had ever been diagnosed with an anxiety related disorder. The respondent also reported a diagnosis of Post-Traumatic Stress Disorder which, in Mr William’s view, was related to his historic experience of childhood sexual abuse. This led to the respondent experiencing symptoms such as nightmares, intrusive memories and hypervigilance. The respondent also described a significant history of polysubstance abuse. He reported that he commenced using alcohol at aged eight, following an incident of sexual abuse. The respondent described himself engaging in frequent inhibitory alcohol use. The respondent also advised Mr Williams that he commenced using cannabis at the age of eight, and he continued to use it throughout his life. He reported that he has used heroin, diazepam, methylamphetamine and benzodiazepines on an intermittent basis.
In providing his views as to whether the specific legislative criteria of the Act had been satisfied, Mr Williams made the following observations:[10]
[10] Report of Mr Luke Williams dated 19 April 2022 at 12-13.
Mr Annette has a significant history of offending, including convictions for serious violent offences. He has been subjected to numerous periods of incarceration both [as] an adult and juvenile. He [sic] use of violence has generally been reactive in nature, targeted towards peers, police officers, partners and family members.
…
He has an entrenched history of polysubstance abuse, including alcohol, heroin, methamphetamine, Benzodiazepines and cannabis. He has frequently offended violently whilst under the influence of these substances and has experienced significant impairment of functioning including periods of memory loss. Outstanding treatment needs in relation to substance use have been identified across various assessments, and Mr Annette is yet to participate in intervention to address this.
Of particular concern is Mr Annette’s poor insight into the role of substance abuse on his offending. …
…
… Mr Annette has reported an intention to continue using substances. He reported that whilst he knew he could be a ‘dickhead when [he had] a few too many’ he was ‘usually fine on everything other than Port’. He reported that he still wanted to engage in social consumption of alcohol, as well as consumption of Diazepam and cannabis. Mr Annette’s desire to consume these substances in combination is concerning given that he was similarly intoxicated on the day of the index offence, resulting in reported memory loss and a serious assault of his mother.
… it is clear that he has serious and unmet treatment needs related to his use of illicit substances and is likely to be at increased risk of reoffending whilst intoxicated. It is unlikely that Mr Annette will remain abstinent from substance use without a strong external motivator such as regular urinalysis.
…
Of particular concern was Mr Annette’s poor insight into the index offence. He appears to have a limited understanding of the precipitants of his behaviour outside of substance use, which he has reported an intention to resume despite its negative effect on his behaviour. …
…
Mr Annette did not report positive feelings regarding the prospect of further community-based supervision. He expressed the belief that it would be a ‘waste of time’ and stated that he ‘could not see any benefits’. …
Ultimately, Mr Williams concluded:[11]
Mr Annette has limited insight into this offence, and the presence of ongoing substance use and familial conflict is suggestive of the likelihood of further risk in this area. He retains significant treatment needs related to his domestic violence, substance abuse and mental health, and is unlikely to address all of these in the absence of further supervision.
[11] Report of Mr Luke Williams dated 19 April 2022 at 14.
On 20 June 2022, prior to the commencement of Mr Williams’ evidence, counsel for the respondent provided the Court with the three documents that he submitted had not been available to Mr Williams at the time he interviewed the respondent.
The first document was a “Northern Wellbeing Mental Health Assessment”. This document indicated that the respondent sought a Mental Health Treatment Plan from his General Practitioner, Dr Anthony Kat. Whilst this was a positive step, the plan was only requested on 4 April 2022, at a time that the respondent knew that the Attorney-General was looking to have an ESO put in place.
The second document was a reference from Tim Brennan, who is an alcohol and drug counsellor with Life Without Barriers (‘LWB’). That document confirms that the respondent had attended a Relapse Prevention Program run by drug counsellors from LWB at the Mount Gambier Prison. That program comprised of 12 sessions run over 12 weeks. Although no dates were provided as to when the respondent participated in the program, it was obviously before he was released from custody and before he met with Mr Williams.
The final document was a letter from Siobhan Smyth, a case worker from Relationships Australia. In the letter, Ms Smyth advised that the respondent had been referred to Elm Place Trauma Service in March 2019 for trauma counselling and case management connected to his experience of institutional childhood sexual abuse. She advised that since his referral, the respondent has engaged in 73 sessions via telephone and face to face. She described that the respondent “has consistently been proactive in his engagement in both counselling and case management and now that he is living in the community, has reported that he is striving to commit to ‘doing the right thing’.” Unfortunately, there was no detail contained in this letter about the nature of the counselling that the respondent is undertaking with that organisation, nor his involvement or participation in the counselling sessions.

Counsel for the Attorney-General led some brief evidence-in-chief from Mr Williams. In that evidence, Mr Williams confirmed that he had received and read the three additional documents that the respondent had produced to the Court. He indicated that nothing in those documents had caused him to alter his opinion that the respondent is at risk of committing another serious violent offence and will continue to pose an appreciable risk to community safety if not appropriately supervised.
Unsurprisingly, the cross-examination of Mr Williams focused predominantly on the three additional documents that he did not have access to when meeting with the respondent or preparing his report.
In relation to the Mental Health Treatment Plan, Mr Williams told the Court that whilst he had not seen a copy of the document prior to preparing the report, the respondent had contacted him on 19 April 2022 to advise him that he had secured a GP Mental Health Treatment Plan. Mr Williams agreed with a suggestion put by counsel for the respondent that this was a positive step that had been undertaken on the respondent’s own initiative at a time when he was not under any supervision.
Mr Williams was also cross-examined about the respondent’s participation in the Relapse Prevention Program. He agreed that he had not previously been aware of the respondent’s participation in the program, and he accepted that it followed that an observation he made in his report that “Mr Annette is yet to participate in any intervention to address his entrenched history of polysubstance abuse” was consequently inaccurate. Mr Williams was, however, guarded in his responses about the positive impact of such a course on the likelihood of the respondent reoffending. He explained that was because of the limited length of the course in comparison to the duration and extent of the respondent’s history of substance abuse. He said:
I think it’s probably worth looking at the nature of the course that Mr Annette participated in. A 12-session course that’s run in a voluntary capacity, it’s a positive thing and it’s excellent that Mr Annette has engaged in this intervention and I’m sure it would go some way towards addressing what some of his issues are. My concern, and the concern of a number of the other professionals that had interviewed Mr Annette whose opinions I refer to from the collateral information, was that he was going to require a more structured and intense level of intervention than would have been provided in this course.
Mr Williams went on to say that there was need for greater intervention than a 12 week program of this nature, particularly when the respondent, subsequent to having completed the course, appeared to continue to lack insight into the impact of his substance abuse. In that context, he said:
I guess what was significant to me was the fact that Mr Annette reported an intention to continue using this particular combination of substances that he had been under the influence of [during the commission] of the index offence, particularly given his reported memory loss and his lack of understanding as to why he had committed the offence.
In cross-examination, Mr Williams also expressed some reservations about how much weight could be placed on the respondent’s participation in trauma counselling with Relationships Australia. His evidence was that whilst it indicated that the respondent had engaged in some form of intervention to address his Post Traumatic Stress Disorder, he would need to know more about what this had involved before he could make a more meaningful comment on the potential impact of such intervention. He said:
It is hard for me to offer an opinion about that without knowing more about the intervention that took place at Relationships Australia. It mentions trauma counselling and case management. It doesn’t mention anything to me about the content of those sessions and who conducted them, whether it was Ms Smyth, who is a case worker, or whether it was an appropriately qualified mental health professional.
The final topic dealt with in cross-examination was an opinion expressed by Mr Williams in his report that “[the respondent] retains significant treatment needs related to his domestic violence, substance abuse and mental health, and is unlikely to address all of these in the absence of further supervision”.[12] Counsel for the respondent focused on the use of the word “unlikely” and put to Mr Williams that implicit in the use of that terminology was the possibility that the respondent could of his own volition, without the imposition of an ESO, attend to those treatment needs. As might be expected, Mr Williams conceded that it was possible that the respondent may be sufficiently self-motivated to manage without supervision in the community, however, he could not speak with any certainty as to whether that would occur.
[12] Report of Mr Luke Williams dated 19 April 2022 at 14.
Submissions
Counsel for the Attorney-General maintained that the application that the Court exercise its discretion and subject the respondent to an ESO be granted. It was submitted that given the concession made by the respondent, the only issue that remained to be resolved was whether he poses an appreciable risk to the safety of the community if not supervised under an order.
Counsel for the Attorney-General made submissions about the various matters that the Court must have regard to pursuant to s 7(6) of the HRO Act. These include the opinion of Mr Williams, the seriousness, circumstances and pattern of the respondent’s offending and the respondent’s response to treatment and rehabilitative processes in which he has had an opportunity to participate. In relation to the last consideration, counsel for the Attorney-General placed some reliance on a Domestic and Family Violence Intervention Program (‘DFVIP’) post-treatment assessment summary dated 20 November 2019. This report related to the respondent’s participation in a DFVIP whilst in custody. Between 10 May 2019 and 12 July 2019 the respondent attended 20 sessions. The report was authored by one of the facilitators of that program. In that report, the respondent’s program participation is described as “passive”, it is reported that he failed to contribute to group discussions and when prompted “appeared to provide socially desirable responses”. In terms of taking responsibility for his behaviour and offending, the author of the report noted:
Post treatment, Mr Annette, was deemed to have made a limited shift in his position in relation to accepting responsibility. He continued to shift blame to his alcohol abuse and identified his emotions, specifically anger, as being the problem that had contributed to his behaviour in the past. When discussing responsibility taking, Mr Annette stated that, during the incident he had drunk a significant amount of alcohol and had consumed Valium which had cause him to act violently. Mr Annette also shifted responsibility onto the victim and stated she should have not disclosed to him a family matter involving his brother that had taken place years prior, knowing he was under the influence of substances. He stated that she had knowledge that this would have upset him and therefore she had contributed to the outcome of his behaviour. On occasions Mr Annette did appear to take some responsibility for his behaviour. This was evident when he made comments that his poly-substance use had been a problem for him and that he should not hold his victim responsible for his behaviour. He more often, however, appeared to hold onto ideas that justified his actions and externalised blame onto the victims throughout the program.
The report concluded with a word of caution:
Mr Annette will require further work with his case manager around responsibility, accountability, dangerous thinking and sexist attitudes/beliefs. It is recommended that Mr Annette is referred for individual community based counselling for his substance abuse behaviour.
It is important to acknowledge the limitations of the program due to its short duration, in being able to provide sufficient time for the participants to work through the content in depth. Changing long standing behaviour can be challenging and so in order to achieve this Mr Annette will need to be dedicated to actively managing himself and prioritising future partners if he is to establish any, and the victim’s as well as his son’s safety.
Reliance on unproven allegations
A discrete topic that arose during the cross-examination of Mr Williams was the inclusion in his report of an allegation of an aggravated assault causing harm charge that had not been proceeded with. Details of that allegation appeared in a list in which Mr Williams set out the respondent’s antecedents, although he did note that this was an allegation that had not been proved. Counsel for the respondent was critical of Mr Williams for having included this allegation in his report.
During submissions, counsel for the Attorney-General, no doubt attempting to pre-empt counsel for the respondent, put to the Court that in arriving at his opinion Mr Williams was entitled to take into account “criminal allegations and charges that are not proceeded with when conducting a risk assessment”. In support of that, reliance was placed on Attorney-General (SA) v V, ZR.[13] In that matter, the Attorney-General sought to rely on several allegations made about the person for whom there had been an application for an ESO. Some had been proven or admitted and some had not. After submissions were made in relation to the imposition of an ESO and Hughes J had reserved her decision, the subject of the application was charged with further serious sexual offences. In that context, Hughes J made the following observation:[14]
I do not accept that each of the categories of conduct listed above is available for the task of determining whether the respondent should be subject to an extended supervision order. Those which are not amenable to be considered are those which behaviour is not proven or admitted, and which is proposed to be evaluated by the Court directly. The index offending and the breaches of bail are relevant. They describe conduct that has been established through a court process. Section 7(6)(j) refers to offences in respect of which the respondent has been found guilty according to his or her criminal history and any pattern of offending behaviour disclosed by that history. “That history” in this provision refers to “criminal history” and should be understood as referring to matters in respect of which the respondent has been found guilty.
The non-compliance on 1 August 2018 with the interim supervision order may be taken into account. That conduct was found by the Parole Board to have occurred following a process of interview.
However, in respect of assertions of conduct that have not been admitted or proven, such as the charges contained in the information laid on 1 November 2018, it is difficult to see how the Court can find such conduct to be established to any degree sufficient to then incorporate the proposition into an assessment of the risk posed by the respondent.
(Emphasis added)
[13] [2019] SASC 1.
[14] Attorney-General (SA) v V, ZR [2019] SASC 1 at [27]-[29].
That is clearly the correct approach. The Attorney-General however relied on the next passage in the judgment which reads:[15]
I accept that Dr Haeney may incorporate allegations that have not been proven in his process of assessing risk.[16] That is a different process using expert psychological tools.
[15] Attorney-General (SA) v V, ZR [2019] SASC 1 at [30].
[16] See for example, State of NSW v Thomas [2010] NSWSC 677 at [39] per Buddin J.
It is suggested that this is authority for the proposition that a psychologist or a psychiatrist can rely upon unproven allegations in order to arrive at an opinion about whether someone satisfies the test set out under the HRO Act, to assist the Court in arriving at a decision about severely curtailing the liberty of an individual. As a matter of law and common sense, that cannot be so.
In the passage relied upon by the Attorney-General, Hughes J cites the New South Wales Supreme Court decision of State of NSW v Thomas.[17] In that judgment, Buddin J was also considering an application for an ESO under the comparable legislation in that jurisdiction. Like the respondent in this case, the defendant had numerous convictions for serious offences and had also been charged with offences which were not proceeded with or for which he had been found not guilty. In that context Buddin J observed:[18]
… It is common ground that the matters which have not resulted in a conviction are relevant only to the risk assessment issues raised by the Static 99 instrument to which reference will be made in due course.
[17] [2010] NSWSC 677 at [39] per Buddin J.
[18] State of NSW v Thomas [2010] NSWSC 677 at [39].
The topic of a Static 99 instrument is picked up later in the judgment, in the consideration of a statistical analysis “as to the likelihood of persons with histories and characteristics similar to those of the defendant committing a further serious sex offence”. Buddin J set out the manner in which such an analysis is undertaken:[19]
In preparing his Risk Assessment Report, Mr Sheehan used the Static-99R instrument to assess the defendant’s static risk of reoffending. The instrument, which has moderate predictive accuracy, was updated in 2009 using studies from Canada, the United States, New Zealand and Europe with a total sample size of 6,774 sexual offenders. It now consists of 10 items and produces estimates of future risk based on a number of factors present in any one individual, which can be interpreted in two ways:
(i) Absolute risk: this provides an estimate of risk based on recidivism rates for those from the research sample who obtained the same score.
(ii) Relative risk: this provides information about how an offender’s risk compares to the risk posed by other sex offenders.
[19] State of NSW v Thomas [2010] NSWSC 677 at [88].
More importantly, Buddin J went on to observe the limitations of such an analysis:[20]
…
[t]he recidivism estimates provided by the Static-99R are group estimates based on reconvictions and were derived from individuals with the same score. As such, these estimates do not directly correspond to the recidivism risk of an individual offender. The offender’s risk may be higher or lower than the probabilities estimated in the Static-99R depending on the other risk factors not measured by this instrument.
[20] State of NSW v Thomas [2010] NSWSC 677 at [91].
Clearly what was under consideration in Thomas was a process that was very different from that undertaken by the author of this report, Mr Williams.
I do not take the passage in the judgment of Hughes J in Attorney-General (SA) v V, ZR[21] that counsel for the Attorney-General relied upon as any support for the proposition that a psychologist or psychiatrist can rely on unproven allegations in forming an opinion as to whether the individual under consideration poses a risk to the community.
[21] [2019] SASC 1 at [30].
In my view, the fact that Mr Williams included a reference to this unproven allegation in his report does not call into question the opinion that he expressed. Although Mr Williams refers to the allegation when canvassing the respondent’s history, he makes clear from the outset that the charges did not proceed to court and then sets out both the narrative obtained from the complainant as contained in the apprehension report, as well as the respondent’s version of events. The section of the report concludes with “The Police Apprehension report notes apparent discrepancies in the victim’s report which called into question the veracity of her version of events”. At no point does Mr Williams purport to rely on this event as part of the basis for the opinions that he arrived at. In my view, the reference to the unproven allegations by Mr Williams in no way vitiates or undermines the ultimate opinion that he arrived at.
Counsel for the respondent accepted that the only issue to be determined was whether the respondent posed an appreciable risk to the safety of the community if unsupervised under an order. The main thrust of the submissions for the respondent was that he has in the three months after his release from custody, demonstrated that absent an ESO or an ISO he is capable of engaging in appropriate counselling and treatment to ensure that he does not reoffend. Heavy reliance was placed on the fact that the respondent has not reoffended since his release, as well as the three documents that Mr Williams did not have at the time of preparing his report. The difficulty with reliance on the latter is two of the three documents related to events that preceded the respondent’s interview with Mr Williams. It follows that whatever impact the course and counselling had on the respondent, it was insufficient to allay Mr Williams’ concerns about the respondent’s lack of insight into his offending. The third matter, the obtaining of a Mental Health Treatment Plan, has occurred since the respondent has been released from custody. Whilst, as Mr Williams acknowledged, this is a positive development, these are early days and this is only one small step along the lengthy path to rehabilitation.
The difficulty with the submissions by counsel for the respondent is that other than obtaining the Mental Health Treatment Plan and his ability to not reoffend for a relatively short period of time, there is nothing else that the respondent can point toward to demonstrate that he is not a risk to the community without an ESO.
Counsel for the respondent attempted to find further leverage for his argument by submitting that the Court can have little confidence that an ESO can and will achieve its purpose absent specific details of the courses and counselling that it is proposed that he will be required to undertake. Counsel for the respondent submitted:
This is of course the Attorney-General’s application and I stress that to your Honour, insofar as it is apparent to me, that in the draft supervision orders that have been provided, there are obviously conditions in relation to Mr Annette undertaking programs as directed or deemed suitable, but there hasn’t been any further elaboration from the Attorney-General in respect of what those programs may be. I say that because in determining the risk, your Honour must also be satisfied that that risk would not still be present should Mr Annette satisfactorily complete all of those programs.
That argument suffers from two fundamental flaws. The first is the suggestion that, commensurate with making the finding that there is an appreciable risk to the safety of the community if the respondent is not supervised under an ESO, it is also necessary for this Court to make a second finding “that that risk would not still be present should Mr Annette satisfactorily complete all of those programs”. That is not the test set out in the legislation. More than that, it is not a test that could ever be satisfied absent an ability to predict the future. A court imposes an ESO in the informed hope that it will have the desired outcome. It can never be more than that given life’s exigencies and the frailty of human nature.
That segues with the second problematic aspect of this submission and that is that the Attorney-General should be required to nominate at this point in time the precise details of any course, counselling or treatments that the respondent will be required to undertake in order for this Court to assess the merits of such a program. Judges of this Court are not experts in polysubstance abuse, mental health and other hurdles that the subjects of an ESO may encounter. The package of conditions set out in an ESO is based on the premise that those who have such expertise will make the decision as to what is in the best interests of an individual. Options need to be left open with the ability for the experts to make pragmatic and case appropriate decisions throughout the life of the order. What may have been thought to be appropriate for an individual at the outset of an ESO may well have changed by the halfway mark. The experts need to be able to retain the flexibility to make these decisions in order to attempt to create the best outcome for the individual. I reject the suggestion that it is necessary, or even desirable, that the proposed courses and treatment be set out in detail before an application for an ESO is granted.
Conclusion

On the evidence before me I am satisfied that the respondent is a high risk offender who poses an appreciable risk to the safety of the community if not supervised under an ESO. Whilst the respondent has shown some prospects of self-managing his risk factors in the community, those prospects need to be considered in the context of the legislation which gives paramount importance to the safety of the community. The risk that the respondent poses if unsupervised is too great.
The Attorney-General sought an order that the respondent be subject to an ESO for a period of 18 months. Given that the respondent has been subject to an ISO since 18 May 2022, I consider it appropriate to impose an ESO for a period of 12 months.
I order that the respondent be subject to an extended supervision order for a period of 12 months pursuant to s 7(4) of the HRO Act commencing from today.