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…

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.

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Details

Case: [2022] SASC 99
Decision Date: 8 September 2022

CaseChat Overview and Summary

In the case of Attorney-General (SA) v Annette, the respondent, Annette, was subject to an application by the Attorney-General for an extended supervision order (ESO) under the High Risk Offender (HRO) Act. The court was tasked with determining whether Annette, who has a history of general and violent offending, poses an appreciable risk to the community if not supervised under an ESO.

The legal issues the court had to decide included whether the Attorney-General was required to detail specific courses, counselling, or treatments for Annette before an ESO could be granted, and whether the respondent's prospects of self-managing his risk factors should be weighed against the paramount importance of community safety as stipulated by the legislation.

The court reasoned that requiring the Attorney-General to detail the specific courses and treatments in advance was neither necessary nor desirable. It was emphasised that the expertise of professionals in polysubstance abuse and mental health should be leveraged to make pragmatic and case-appropriate decisions throughout the life of an ESO. The court concluded that Annette was a high-risk offender who poses an appreciable risk to community safety if not supervised under an ESO. Despite some prospects of self-managing his risk factors, the paramount importance of community safety dictated that an ESO was necessary. The court ordered that Annette be subject to an extended supervision order for a period of 12 months.

In conclusion, the court found that the respondent was a high-risk offender and imposed an extended supervision order for a period of 12 months, starting from the date of the decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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