Attorney-General (SA) v Austin - [2025] SASC 74

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v AUSTIN
[2025] SASC 74
Judgment of the Honourable Justice Gray (ex tempore)
15 May 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AND OTHER MATTERS RELATING TO TERRORISM - CONTROL, EXTENDED SUPERVISION, PREVENTATIVE DETENTION AND CONTINUING DETENTION ORDERS
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 - DANGEROUS CRIMINAL
The applicant, the Attorney-General, seeks an extended supervision order under section 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) for the respondent, Bradley Wayne Austin, who is due for release on 20 May 2025 after serving a sentence for offences including possessing explosive materials, possessing instructions for making explosive devices, making threats to kill, and possessing extremist material.
The applicant contends that despite the respondent’s advanced age and numerous health conditions requiring continuous care, he poses an appreciable risk to community safety if released without supervision, citing his long history of offenses involving explosives dating back to 1984. The applicant also points to the respondent’s pattern of violent, threatening behaviour while in custody, including multiple threats to use explosives.
The respondent argues that his significant physical health problems and limited mobility effectively prevent him from posing a genuine risk to the community. He contends that he requires aged care placement with 24-hour assistance for his daily needs and that supervision conditions would unnecessarily complicate his ability to secure appropriate accommodation while offering little practical benefit given his physical limitations.
Held: Application granted – interim supervision order made pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 3, 4, 5, 5A, 7, 9, 10; Criminal Law Consolidation Act 1935 (SA) s 19, 83N, 83O; Summary Offences Act 1953 (SA) s 37, referred to.
Attorney-General v Grosser [2016] SASC 49; Attorney-General (SA) v RM [2022] SASC 160, considered.

ATTORNEY-GENERAL (SA) v AUSTIN
[2025] SASC 74

GRAY J (ex tempore): In 2022 the respondent, Bradley Wayne Austin, was sentenced in respect of one count of possessing or taking a step in the process of manufacturing an explosive device contrary to s 83N(3) of the Criminal Law Consolidation Act 1935 (SA), one count of possessing instructions on how to make an explosive device contrary to s 83O(1)(c) of the Criminal Law Consolidation Act 1935 (SA), one count of threatening to kill or endanger life contrary to s 19(1) of the Criminal Law Consolidation Act 1935 (SA), and one count of possessing extremist material contrary to s 37(1)(a) of the Summary Offences Act 1953 (SA).
By an application made on 16 April 2025, the Attorney-General has applied for an extended supervision order under s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the Act’). The applicant seeks the following orders:
1.That the Court direct that one or more prescribed health professionals examine the respondent and report to the Court with an assessment whether there is a likelihood of the respondent committing a terrorist offence, or otherwise being involved in a terrorist act, or committing a serious offence of violence.
2.That the respondent be subject to an extended supervision order for a period of up to five (5) years.
3.That the respondent be subject to an interim supervision order until the application for the extended supervision order is determined.
4.That the applicant is granted leave to provide a copy of the medical report to the Parole Board, the Department for Correctional Services, and any other agency or service provider engaged with the respondent from time to time.
5.That the parties have liberty to apply at short notice.
The following material was before this Court on this application:
1.An affidavit of Rory Lewis Clark dated 28 March 2025, which was received with some redactions as read onto transcript.
2.An affidavit of Rory Lewis Clark dated 12 May 2025, which was received with some redactions read onto transcript.
When the matter was first before the Court on 13 May 2025, the matter was adjourned so that enquiries could be made as to the availability of suitable accommodation for the respondent upon his release from custody relative to the proposed orders. When this matter was called on, on 15 May 2025, the Court was informed that a South Australian Housing Trust accommodation would be provided, and the respondent would be supported by prison health services at least until an aged care package could be provided.
The application was opposed by the respondent. The respondent accepted that the material before the Court to which objection was not taken, if proved by the Court, was sufficient to support the making of an extended supervision order. The respondent, by his counsel, maintained that there was a discretion in the Court as to whether to make an interim supervision order.
Criminal Law (High Risk Offenders) Act 2015 (SA)
The object of the Act is to provide the means to protect the community from being exposed to an appreciable risk of harm posed by various serious offenders.[1] The Act provides that the Attorney-General may make an application to this Court for an extended supervision order for a person who is a high-risk offender.[2] An application for an Extended Supervision Order may only be made within 12 months of the relevant expiry date, being in respect of the respondent in this matter, 20 May 2025.[3]
[1]    Criminal Law (High Risk Offenders) Act 2015 (SA), s 3.
[2]    Criminal Law (High Risk Offenders) Act 2015 (SA), s 7.
[3]    Criminal Law (High Risk Offenders) Act 2015 (SA), s 4, and s 7(2).
The paramount mandatory consideration in determining whether to make an extended supervision order is the safety of the community.[4]
[4] Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(5).
Pursuant to s 7(4), this Court may order that the respondent is to be subject to an extended supervision order if satisfied that the respondent is a high-risk offender and poses an appreciable risk to the safety of the community if not supervised under the order.[5]
[5] Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(4).
In Attorney-General v Grosser,[6] Stanley J (as his Honour then was) held an appreciable risk is:[7]
… one that is capable of being estimated, perceptible and sensible. Necessarily, a risk must be anticipatory. An appreciable risk is a risk that is not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in the future in a matter that poses a risk to the safety of the community. It is a question of degree…
[6] [2016] SASC 49.
[7] Ibid at [29].
A high-risk offender is defined pursuant to s 5 to mean, inter alia, a terror suspect who is serving a sentence of imprisonment.[8] Section 5A defines a terror suspect, inter alia, to include a persons who “has ever been convicted of a terrorist offence”. A “terrorist offence” is relevantly defined to include “an offence of the kind prescribed by regulations”.[9]
[8] Criminal Law (High Risk Offenders) Act 2015 (SA), s 5(ca).
[9] Criminal Law (High Risk Offenders) Act 2015 (SA), s 4.
The offence of possess extremist material, contrary to s 37(1) of the Summary Offences Act 1953 (SA), is a terrorist offence as prescribed by the Criminal Law (High Risk Offenders) Regulations 2015 (SA). The respondent is serving a sentence of imprisonment, and it is not in dispute between the parties that the respondent is a high-risk offender. In addition, the contravention of s 83N(3) of the Criminal Law Consolidation Act 1935 (SA), and the contravention of s 83O(1)(c) of the Criminal Law Consolidation Act 1935 (SA) are also terrorist offences as prescribed by the regulations, being offences in Part 3D of the Criminal Law Consolidation Act 1935 (SA).[10]
[10] Criminal Law (High Risk Offenders) Regulations 2015 (SA), r 3A(1)(b).
Before determining whether to make an extended supervision order, the Court must direct that one or more legally qualified medical practitioners examine the respondent and report to the Court on the results of the examination including, in the case of the respondent, an assessment of the likelihood of the respondent committing a terrorist offence, or otherwise being involved in a terrorist act, or committing a serious offence of violence.[11]
[11] Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(3).
Section 7(6) of the Act sets out the matters that this Court must take into consideration in determining whether to make an extended supervision order.
The conditions that apply in respect of a supervision order are contained in s 10(1) of the Act.
Section 9 of the Act concerns the making of an interim supervision order. An interim supervision order may be made, if an application for an extended supervision order has been made in respect of a high-risk offender and the Court is satisfied of two criteria.[12] The two criteria are:
1.The Court must be satisfied that the relevant expiry date for the respondent is likely to occur before the application for the extended supervision order is determined.
2.The Court must be satisfied that the matters alleged in the material supporting the application for the extended supervision order, if proved, would justify the making of an extended supervision order.
[12] Criminal Law (High Risk Offenders) Act 2015 (SA), s 9(1).
An interim supervision order takes effect on the making of the order until the application for the extended supervision order is determined.[13]
[13] Criminal Law (High Risk Offenders) Act 2015 (SA), s 9(2).
It is not in dispute between the parties that the relevant expiry date for the respondent is likely to occur before the application for the extended supervision order is determined.
Submissions
This matter came before me on 13 May 2025. Ms Bulling, counsel for the Attorney-General, sought an interim order pursuant to s 9 of the Act. This order was sought on the basis of the respondent’s impending release (the “relevant expiry date” referred to in the Act) and the likelihood that the medical reports required by s 7(3) would not be obtained before the respondent’s release.
Counsel for the Attorney-General made submissions concerning three central matters relevant to the question of whether or not an interim supervision order should be made. These matters were:
1.The index offending, criminal history of the respondent and assessments;
2.The custodial behaviour of the respondent; and
3.The respondent’s physical health.
Index offending, criminal history and assessments
The applicant submits that the respondent’s criminal history reveals entrenched behaviour concerning the possession of explosives. The applicant submits that among the episodes of offending which are contained in the extensive criminal history of the respondent, there are convictions for two counts of false imprisonment in 1984. The circumstances of that offending are said to have involved the respondent attending a high school with equipment capable of being used as a homemade bomb and “capable of making a substantial explosion”.[14] The respondent is said to have issued verbal threats before taking two children hostage, the two children were later exchanged for teachers and the situation was subsequently resolved. The applicant also points to similar offending which resulted in a conviction in 1986 under similar circumstances. In August 1984, the respondent sent an item in the post to a prison officer with the intention of inducing a belief that this item contained an explosive or dangerous subject, and the respondent is said to have gone to some lengths to make the apparently inert article convincingly appear as an explosive device.[15]
[14] Affidavit of Rory Lewis Clark dated 28 March 2025 (FDN 3), Exhibit RLC-1 at 4.
[15] Affidavit of Rory Lewis Clark dated 28 March 2025 (FDN 3), Exhibit RLC-1 at 5 and Exhibit RLC-3 at 28.
There is then a further conviction in 1987, in circumstances where the respondent is said to have authored a letter threatening an attack on the Pope during his November 1986 visit which included a threat of the use of a firebomb.[16] Police when arresting the respondent for that offending, are said to have located a volume of material which appeared to be leading up to “some sort of explosive device”.[17] The respondent was also sentenced on the same occasion in 1987, for the manufacture of what was described as a “faulty Molotov cocktail” which the respondent had thrown into a premises in Taperoo causing a fire to ignite.[18]
[16] Affidavit of Rory Lewis Clark dated 28 March 2025 (FDN 3) Exhibit RLC-1 at 5 and Exhibit RLC-3 at 28.
[17] Ibid at 5.
[18] Affidavit of Rory Lewis Clark dated 28 March 2025 (FDN 3), Exhibit RLC-1 at 5-6 and Exhibit RLC‑3 at 28.
The circumstances giving rise to the respondent’s imprisonment for the index offence involve circumstances which followed from a perceived series of confrontations with local youths. The respondent was found to have issued a bomb threat towards a local high school in February 2019.[19] Upon attendance at his residence, police located a number of items, chemicals and materials capable of being used in the manufacture of an explosive device, as well as evidence consistent with the manufacture of such device.[20] The respondent also had a number of issues of a quarterly magazine said to have been published by Al-Qaeda. The publication included bomb making techniques and matters relevant to the manufacturer and planting of bombs.[21]
[19] Affidavit of Rory Lewis Clark dated 28 March 2025 (FDN 3), Exhibit RLC-1 at 2.
[20] Ibid.
[21] Ibid at 3.
The applicant submits that the similarity in the circumstances of the offending is concerning. The particular concern is that the significant offending involves the possession of explosives or precursors to explosives coupled with the utterance of threats indicating a preparedness to deploy the explosive devices. In addition, the respondent had possession of resources from a terrorist organisation detailing techniques concerning the manufacturer and planting of bombs.[22]
[22] Applicant’s Written Submissions (FDN 9) at [25].
The Attorney-General also points to as a risk factor, the respondent’s experiences of harassment by youths, either real or perceived. The Attorney‑General refers to an assessment by Dr Raeside for the purpose of assessing his fitness to stand trial in respect of the matters in relation to which the respondent is currently imprisoned. Dr Raeside observed in a report that the respondent was “failing to tolerate some degree of perceived/actual mistreatment in the community” coupled with his anti-social personality disorder.[23]
[23] Affidavit of Rory Lewis Clark dated 28 March 2025 (FDN 3), Exhibit RLC-9 at 66.
The Attorney-General submitted that should the respondent be released into the community unsupervised, his ability to constructively respond to actual or perceived slights in the community will be tested. It was submitted that on the current evidence before the Court, the respondent’s history of offending coupled with his beliefs regarding the need to “take matters into his own hands”[24] poses an appreciable risk he will re-offend in a violent manner if left unsupervised.
[24] Affidavit of Rory Lewis Clark dated 28 March 2025 (FDN 3), Exhibit RLC-9 at 66.
Custodial behaviour
The Attorney-General also relied upon the respondent having records of a number of instances of violent or threatened behaviour whilst in custody. There were nine such instances which were summarised in the submission of the Attorney-General.[25] The Attorney-General also pointed in oral submissions to the respondent’s failure to engage in intervention programs.
[25] Applicant’s Written Submissions (FDN 9) at [32].
Respondent’s physical health
The Attorney-General rightly accepted that the respondent’s health is a matter which has potential bearing on his risk of recidivism, in that it may be relied upon as a factor which mitigates his appreciable risk of re-offending and is to be weighed in the exercise of the Court’s discretion to make an interim supervision order. However, the Attorney-General went on to submit that the health problems faced by the respondent, whilst they may be significant and may inform how a propensity to violence would manifest, they do not decrease the respondent’s capacity to re-offend when having regard to the type of offences the respondent has committed in the past and the way the respondent has continued to behave in custody.[26]
[26] Applicant’s Written Submissions (FDN 9) at [34].
The Attorney-General submits that prior to his entry into custody, the respondent had extensive health difficulties and required significant support whilst in custody. In particular, it was said that prior into his entry into custody, the respondent used oxygen therapy for 16 hours out of 24 hours daily, had hearing aids in both ears, deteriorating eyesight, morbid obesity and required the use of a walker to ambulate, amongst a range of other health conditions.[27]
[27] Affidavit of Rory Lewis Clark dated 28 March 2025 (FDN 3), Exhibit RLC-10 at 71-72.
The Attorney-General submits that the respondent’s physical condition did little to deter him from the index offending which precipitated his entry into custody and has done little to deter the respondent from engaging in further anti‑social behaviour whilst in custody. The Attorney-General submits that the respondent’s limited mobility does not bear on the respondent’s capacity to commit further offences that may be committed from home with an unmonitored internet access such as offending involving the accumulation of explosives, explosive precursors or extremist material.[28]
[28] Applicant’s Written Submissions (FDN 9) at [36].
Counsel for the respondent submitted that the respondent is 74 years of age and intends to reside or needs to reside in an aged care facility to assist with his daily living.
The respondent’s counsel submitted that the respondent requires numerous medications daily, a continuous positive pressure oxygen bottle to assist with breathing and has difficulty moving about for any extended distance.[29] It is said that the respondent receives daily assistance from a carer to remove and reapply an ankle brace and to assist with the application of creams and moisturisers. The respondent requires carer assistance with the activities of daily living.
[29] Respondent’s Written Submissions (FDN 14) at [53].
Counsel for the respondent also emphasised that the sentencing remarks for the index offending indicated that:[30]
-No completed explosive device was created by the respondent.
-The respondent was not intending to use the items and the threat was made out of frustration.
-Although the respondent had an extensive criminal history, offending in recent decades has been very limited.
[30] Respondent’s Written Submissions (FDN 14) at [47].
The respondent also relied upon the decision of Attorney‑General (SA) v RM[31] in which the Attorney-General applied to impose an extended supervision order on a 73-year-old serious sex offender with diagnosed dementia. The respondent in that matter was housed in a care facility and received a level of supervision at the facility. The facility indicated in that matter that the imposition of a supervision order may put the respondent’s placement at the facility at risk. In that matter, the Department of Correctional Services stated that supervision visits to the facility were not an option, and that the respondent would be required to attend the Department of Correctional Services office for appointments. The Court in that matter ultimately determined that the risk the respondent posed fell into the realms of being speculative to the point of being hypothetical and declined to grant the order.[32]
[31] [2022] SASC 160.
[32] Ibid at [45] (McDonald J).

The respondent submitted by his counsel that his situation was very similar to the circumstances considered in Attorney-General v RM, with the exception that he did not suffer from cognitive decline affecting his judgment and impulse control. It was submitted that Mr Austin still required daily care for his physical aliment and was practically immobile and required intensive assistance with his daily living. It was submitted on the respondent’s behalf that any conditions of a supervision order would have little practical effect as the respondent is already physically restrained by his immobility and his serious medical needs.[33] It was submitted on behalf of the respondent that any risk that the respondent posed to the safety of the community was so theoretically remote and the imposition of any order would impede the respondent’s ability to reside in a facility that would provide him with the 24 hour care that he requires.[34]
[33] Respondent’s Written Submissions (FDN 14) at [61].
[34] Respondent’s Written Submissions (FDN 14) at [62].
Consideration
There is no opposition to the application by the Attorney-General for an order that the Court direct a legally qualified medical practitioner (to be nominated by the prescribed authority) examine the respondent and report to the Court on the results of the examination.[35]
[35] Pursuant to regulation 4 of the Criminal Law (High Risk Offenders) Regulations 2015 (SA) the prescribed authority is the person for the time being performing the duties, or acting in the position, of Clinical Director, Forensic and Mental Health Service South Australia
The matters I have to decide are firstly, whether an interim supervision order should be made, and if so, the terms of such an order.
Whether an interim order should be made is determined by the provisions of s 9 of the Act. As indicated above there are two conditions. The first of these is not in dispute. The parties agree that the relevant expiry date for the respondent is likely to occur before the application for the extended supervision order is determined, and I am satisfied that this criteria is established.
The second criteria is whether the Court is satisfied that the matters alleged in the material supporting the application for the extended supervision order, if proved, would justify the making of an Extended Supervision Order. I have set out above the material before this Court.
The making of an extended supervision order depends upon satisfaction that the respondent is a high-risk offender and that he poses an appreciable risk to the safety of the community if not supervised under such an order.[36] There is no issue that Mr Austin is a high-risk offender, and I make that finding.
[36] See further, Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(6).
I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible.[37] A risk that is speculative to the point of being hypothetical will not generally be considered to be an appreciable risk.[38] In making this assessment a realistic and pragmatic approach to assessing the circumstances of the individual under consideration should be made.[39]
[37] Attorney-General v Grosser [2016] SASC 49 at [29] (Stanley J).
[38] Attorney-General (SA) v RM [2022] SASC 160 at [45] (McDonald J).
[39] Attorney-General (SA) v RM [2022] SASC 160 at [46] (McDonald J).
Assessing the evidence, at this stage of the proceedings I am satisfied that if the allegations contained in the materials in support of the application were proved, they would justify the making of an extended supervision order. In making this finding I have considered all of the materials before this Court and both the oral and written submissions of the parties. I considered that the allegations in the materials before this Court, if proved, indicate that the respondent poses an appreciable risk to the safety of the community if not supervised under a supervision order. I have also weighed and considered the matters raised concerning the respondent health, mobility and age, and the extent to which those matters may reduce any risk to the safety of the community. I have however been particularly persuaded to the view I have formed by reason of the following three matters.
Firstly, I have had regard to the circumstances of the index offending, and the similarity of the form of offending to offences that the respondent has been convicted of in the past. The circumstances giving rise to the respondent’s imprisonment for the index offence included the respondent’s view of a series of confrontations with local youths, with the respondent responding to these concerns with making threats to use explosives, and the respondent issued a bomb threat towards a local high school in February 2019.[40] The respondent at his residence had chemicals and materials capable of being used in the manufacture of an explosive device,[41] as well as publications concerning bomb making techniques.[42]
[40] Affidavit of Rory Lewis Clark dated 28 March 2025 (FDN 3), Exhibit RLC-1 at 2.
[41] Ibid.
[42] Ibid at 3.
The similarity in the circumstances of the index offending to past offending is concerning. The particular concern is that the there is a pattern of offending that involves the threat of the use of explosives. There is also offending involving the possession of explosives or precursors to explosives coupled with the utterance of threats indicating a preparedness to deploy the explosive devices.[43]
[43] Applicant’s Written Submissions at (FDN 9) [25].
Secondly, I have had regard to the nine incidents of alleged violent or anti‑social behaviour whilst in custody summarised by the Attorney-General in the written submissions. These allegations demonstrate a pattern of behaviour that involves the making of threats of violence against other persons and contains repeated incidents of allegations of threats to use explosives. The nine allegations relied upon which are said to have occurred between 2019 and 2024 are:[44]
[44] Affidavit of Rory Lewis Clark dated 28 March 2025 (FDN 3), Exhibit RLC-6 at 46.
1.Threatening to employ explosives against an aged care worker;
2.Threatening to hold South Australian Prison Health Services staff hostage;
3.Pulling a phone from a wall and threatening to spit at staff and throw faeces;
4.Engaging in predatory sexual behaviour towards another prisoner;
5.Threatening to make a bomb and use it against a high dependency unit supervisor;
6.Spitting on other prisoners and abusing prison staff;
7.Punching the trap door of his cell down onto the fingers of the staff member causing them to bend in an unnatural direction;
8.Threatening to make a bomb out of his oxygen tank and employ this against other prisoners; and
9.Making threats of having a bomb in his cell and spitting at prison staff when told his medication would be late.
I have considered that the allegations concerning behaviour of the respondent in custody if proven shows a continuation of a pattern of behaviour involving threats against persons involving the use of explosives. The similarity of these allegations to the type of offending for which the respondent has been convicted is concerning. It is always possible for patterns of behaviour to change. However, when making an assessment of risk a strong indicator of future behaviour is past conduct. This is particularly so, when there are patterns of behaviour that are evident over an extended period of time.
Thirdly, I have weighed the extent to which there is a pattern of past offending which, like the index offending involves the making of threats concerning the use of explosives, and the allegations concerning the respondent’s conduct in custody together with the extent to which the respondent is already physically restrained by his immobility and his serious medical needs.[45]
[45] Respondent’s Written Submissions (FDN 14) at [61].
It follows that I would make the orders sought in the draft minutes of order. I will read and explain the conditions of the interim supervision order to the respondent.
I will also direct that a copy of the transcript of today’s proceedings be provided to the parties and be provided to Mr Austin prior to his release from custody.
I note that the applicant undertakes that the terms of the interim order and the explanation provided concerning the terms and conditions of the order, and Mr Austin’s obligations under the order and the consequences that may follow from a failure to comply with the order which will be contained on the transcript will be read to Mr Austin in person at the prison facility prior to his release. This is important having regard to the 10(4) of the Act, and noting that Mr Austin has raised some concerns in relation to his ability to hear what is said in Court when he has appeared via audio visual link from custody.