Attorney-General (SA) v Brandon

[2019] SASC 85

Supreme Court of South Australia

(Applications Under Various Acts or Rules: Criminal)

ATTORNEY-GENERAL (SA) v BRANDON

[2019] SASC 85

Judgment of The Honourable Justice Hughes (ex tempore)

29 March 2019

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS

On 18 May 2017, this Court made an extended supervision order with respect to the Respondent pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). The extended supervision order is due to expire on 17 May 2019.

On or about 15 February 2019, the Respondent breached the conditions of his extended supervision order by removing an electronic monitoring device and was taken back into custody. Following an interview with the Respondent on 19 March 2019, the Parole Board satisfied itself that the Respondent had breached the extended supervision order. Pursuant to s 17(1)(b)(ii) of the Act, the Parole Board directed that the Respondent be detained in custody pending attendance before this Court for determination as to whether a continuing detention order should be made under s 18(2) of the Act.

Held, the Respondent breached the conditions of his extended supervision order. He poses an appreciable risk to the safety of the community if not detained in custody. The Respondent is to be detained in custody under s 18(2) of the Act from the date of this judgment until the expiry of the extended supervision order on 17 May 2019 or such earlier time that the extended supervision order is revoked.

Criminal Law (High Risk Offenders) Act 2015 (SA) s 17, s 18, referred to.
Attorney-General v Moyle (No 2) [2019] SASC 31; Attorney-General v Sullivan (No 2) [2018] SASC 74, applied.

ATTORNEY-GENERAL (SA) v BRANDON
[2019] SASC 85

1. HUGHES J (ex tempore): The Parole Board has referred to the Court the question of whether or not Luke Dean Brandon should be subject to a continuing detention order pursuant to s 17(1)(b)(ii) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the ‘HRO Act’).

2. A continuing detention order made under Part 3 of the HRO Act is an order that relates to a supervision order that has been made under Part 2 of the HRO Act. The purpose of a continuing detention order, as stated by Hinton J in Attorney‑General v Moyle (No.2),[1] is to facilitate the review of the protection afforded by an order made under Part 2 in view of the breach of a condition or conditions having occurred and to take ameliorative action as permitted by the HRO Act so as to ensure that the community is protected from the appreciable risk to the safety that the offender poses.[2] Under the HRO Act, the Court is authorised to make such an order if the person has breached a condition of the supervision order and poses an appreciable risk to the community if not detained in custody. The order may authorise the person's detention until the expiration of the supervision order, which in Mr Brandon's case is 17 May 2019, or such lesser period as the Court shall determine.

   [1] [2019] SASC 31.

   [2] Ibid [20].

3. The extended supervision order to which the continuing detention order application relates was made on 18 May 2017 and is due to expire in just under two months’ time on 17 May 2019. This referral was made following the Parole Board satisfying itself, after conducting an interview with Mr Brandon, that Mr Brandon had breached the terms of his extended supervision order in February 2019. The action constituting the breach was to remove an electronic monitoring device, the wearing of which was condition 1.17 of the extended supervision order to which he was subject. The Court is satisfied that a breach of the term of the order occurred in that Mr Brandon removed his electronic monitoring device on or about 15 February 2019. Mr Brandon does not dispute that finding. I make no findings regarding the offending that is alleged to have occurred following that act, except insofar as has been admitted. Those allegations in support of the charges have not been established, and I take no account of them in this decision except insofar as they have been admitted in the bail application and in the hearing of this application before this court.

4. There was an allegation of a breach of the no drugs condition, which is not the subject of a Parole Board finding, but that Mr Brandon did not dispute. Ms Carter for Mr Brandon submitted that Mr Brandon relapsed into drug use on or about 16 February of this year as a coping strategy to shut his mind off and stop thinking about the trauma that he had disclosed for the first time to a psychologist a few days prior. He has also acknowledged being the driver of a vehicle after he removed his electronic monitoring device, and that driving forms part of one of the allegations of an offence alleged by police to have occurred between 16 and 18 February of this year.

5. The Attorney-General submitted that Mr Brandon presents an appreciable risk to the community if not detained. The affidavit of Joseph Nguyen, sworn on 22 March 2019, catalogues a disturbing number of past breaches.

6. Mr Brandon breached the interim supervision order made by Kelly J on 23 January 2017 on three occasions by testing positive for amphetamine and methamphetamine on 14 February 2017, cutting off his electronic monitoring device and absconding on 15 February 2017 and testing positive for amphetamine and methamphetamine on 24 February 2017. Mr Brandon admitted to those breaches on 20 April 2017.

7. Mr Brandon also breached the extended supervision order made by Peek J on 18 May 2017 on approximately nine occasions when he tested positive for amphetamine and methamphetamine. On 18 May 2017, he disconnected a monitoring device and was unable to be located by his Community Corrections Officer on 30 May 2017. He was subsequently located on 5 June 2017 and was at that time armed with an offensive weapon. He also tested positive for prescription and illicit drugs on 8 June 2017 and for amphetamine and methamphetamine on 5 October 2017. Mr Brandon cut off his electronic monitoring device and absconded on 12 October 2017 and was located with Ms Wilson, in breach of his conditions at that time, on 20 October 2017. He tested positive for methamphetamine and amphetamine on 24 October 2017 and then again cut off his electronic monitoring device and absconded, most recently on 15 February 2019. He also tested positive for amphetamine and methamphetamine and cannabis on 18 February 2019. Of those offences, four instances involved absconding and seven involved the use of illicit drugs.

8. Many of those breaches, whilst demonstrating a disregard for the Court's orders, do not provide compelling evidence of a risk to the community in that they are not accompanied by offending of a nature that creates a direct risk. However, Mr Brandon does have a significant history of offences against the person, particularly when he is affected by drugs. These include common assault on a person other than a family member for which he was convicted in June 2000, assault police for which he was convicted in February 2003, aggravated robbery in company, for which he was convicted in 2006, common assault, for which he was convicted in October 2009, and aggravated assault causing harm with a weapon against a child or spouse, for which he was convicted in November 2013. Most significantly, the offences for which Mr Brandon was incarcerated that relate to this extended supervision order, referred to as the index offending, were commit assault causing harm, aggravated offence with weapon use and dishonestly take property without consent. That offending on 11 August 2015 entailed recklessly driving with a victim confined to the passenger seat of the car and making threats with a kitchen knife to kill the victim in the company of others. For that offending Mr Brandon was sentenced to a term of imprisonment for one year and five months with a non-parole period of 10 months commencing 25 August 2015. Further, Mr Brandon has been the subject of four intervention orders for the protection of various individuals, including his ex-partner.

9. Ms Carter's submissions in relation to the continuing detention order focused on the significance she submitted should attach to Mr Brandon's current positive steps towards remaining abstinent and to uncovering the causes of his past offending and addressing them. Ms Carter asked the Court to consider the benefit to Mr Brandon in his being able to progress the positive steps he had taken by engaging with a psychologist, Mr Pedler, and that the therapy that has commenced was evidence of a corner turned. She referred to the multidisciplinary team that was currently supporting Mr Brandon, and I have had regard to the materials before the Court, including Mr Pedler's letter of 22 February 2019, which describes two appointments that Mr Brandon has had with him, a letter of support from Mr Peter Hill of the Aboriginal Sobriety Group, prepared for a recent bail application in the Magistrates Court, and a letter from Ms Smith, a senior therapeutic counsellor at Relationships Australia, dated 21 March 2019.

10. Ms Carter set out in clear terms the fact that the supports available to Mr Brandon were part and parcel of a housing arrangement offered under the Integrated Housing Exit Program (IHEP), of which one component was the provision of accommodation to recently released prisoners. Mr Brandon has been participating in the program since November 2018 and will lose that accommodation and his spot in the program if he is not released from prison by virtue of this court finding that a continuing detention order should not be made.

11. Mr Nguyen for the Attorney-General submitted that he had secured the agreement of the Adelaide Remand Centre to allow Mr Pedler to continue to provide services to Mr Brandon if the continuing detention order is made. I acknowledge that this may occur but I also accept defence counsel's submission that the provision of such services in prison can be difficult to implement and may not be possible for a range of factors that may change at any time. On the other hand, such services that are delivered occur in an environment in which the availability of illicit drugs are not a constant challenge for the respondent.

12. It is an extremely difficult challenge to determine whether Mr Brandon stands a greater chance of advancing his recovery if he is incarcerated or not. However, that is not the test that the legislation requires this court to address. The question for the Court is whether Mr Brandon poses an appreciable risk to the community and if so, whether an order should be made.

13. Section 18(2) requires the court to give paramount consideration to the safety of the community. In Attorney-General v Sullivan (No 2), Hinton J considered the operation of ss 18(2) and (3) and said:[3]

    The power to make a continuing detention order is conditioned on the Court first being satisfied of the existence of the two factual circumstances referred to in s 18(2)(a) and (b). That is, s 18(2)(a) and (b) are in the nature of jurisdictional facts. A finding of the existence of both jurisdictional facts enlivens a discretionary power. In the exercise of the discretion all factors relevant to achieving the purpose of the order are to be taken into account. That begs the question, what is the purpose of a continuing detention order?

    In Police v Sullivan; Attorney-General (SA) v Sullivan (Sullivan No 1) I said:

    The power to make a continuing detention order is not a power to punish a person for breaching a supervision order. It is a power to be exercised for protective not punitive purposes. The question is 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 as posed by the high risk offender. That question is to be answered in the knowledge that the alternative is the continuation of the supervision order, possibly varied. Obviously the risk posed by the offender subject of the breached supervision order must be reassessed in the light of the nature and circumstances of the breach.

    [footnotes omitted]

    And I adopt Hinton J's statements in that regard.

    [3] [2018] SASC 74, [10].

14. In considering whether Mr Brandon poses a risk to the community if not detained and the extent of that risk, I have had regard to the report of Dr Haeney dated 22 April 2017. I note that at paragraphs 10.7, 10.9, 10.10 and 11.5, Dr Haeney draws conclusions regarding the risk posed by Mr Brandon and finds that he presents at least a moderate risk of further violence and that this will increase if he relapses into substance misuse. That was in April 2017 and indeed Mr Brandon has committed several breaches of the order to which he was made subject following that report, though none has entailed conviction for an offence of violence.

15. It is significant though that in July 2018 he was convicted for dangerous driving offences committed in October 2017 and that offending put the community at risk of harm from his behaviour.

16. I find that Dr Haeney’s report, coupled with the circumstances of the February breach, provide the most significant evidence as to the risk posed by Mr Brandon and the nature of the order required to secure the community's protection. I acknowledge that the report was prepared on the basis of the history given by Mr Brandon to Dr Haeney which did not disclose any particular trauma in childhood and that this is a relevant circumstance since the report was prepared. So too is the further breach by Mr Brandon in removing his electronic monitoring device and relapsing into drug use and non-compliance with his conditions.

17. I find that Mr Brandon does pose an appreciable risk to the community. I accept that when not affected by drugs he has a genuine wish to remain abstinent and not to offend and I accept that his offending is almost entirely drug-related. I do not accept that the Court can be satisfied that he will not succumb to the temptation to use illicit drugs in certain circumstances. Once that occurs, the behaviour that ensues places members of the community at risk of harm.

18. I have considered the fact that as recently as 7 November 2018 the Chief Justice relaxed Mr Brandon's extended supervision condition so that Mr Brandon could participate in the IHEP program. When he fell at the first hurdle and breached his conditions on 15 February 2019 it was argued that he has not had sufficient opportunity to respond to the interventions.

19. I have also taken into account that this court recently granted Mr Brandon home detention bail for the offending to which this breach is related. The test for bail is different. It was clearly an important factor in the granting of bail that it is a distinct possibility that the sentence imposed for any conviction might be found to have been met through the period that Mr Brandon has already served in custody.

20. I have considered whether or not intensive monitoring conditions could address the risk posed. Ms Carter submitted that Mr Brandon acknowledged that if the continuing detention order were not imposed the extended supervision order could be varied so as to effectively reimpose intensive monitoring at the premises. In effect, this would be to revert to the conditions that were in place when the Chief Justice determined not to impose a continuing detention order and before Kelly J relaxed those conditions to permit Mr Brandon to leave his home with electronic monitoring but subject to a curfew.

21. Whilst there appears to have been a period between about early November 2018 and mid-February 2019 during which Mr Brandon abstained from illicit drug use, I am not satisfied that the conditions of an extended supervision order could adequately protect against a breach of the no-drug condition. It is the breach of that condition that appears to be a significant contributor to subsequent behaviour that puts the community at risk.

22. A further factor that the Court has taken into account is the length of any order that could be made today. The respondent's extended supervision order to which this application relates expires on 17 May 2019. The orders sought by the Attorney-General could only be made until that date. After that, Mr Brandon will be released subject to any sentence he receives for convictions that may be recorded in respect of the February offending.

23. It might be said that an order of that length is not justifiable in light of the loss of his opportunity to participate in the IHEP program. I do not consider that this is a matter that the court can properly assess. It is a function of the scheme of the high risk offender legislation that the Court may make an order that does not secure the protection of the community beyond a certain point, irrespective of whether that risk has been ameliorated or not.

24. The court can only consider whether at the time the application is determined that an order should be made to secure the protection of the community at that point in time. In Mr Brandon's case I consider that it does. The inescapable fact is that Mr Brandon has been unable, with significant support provided to him under the program, to achieve a change to his decision-making such that he avoids the combination of absconding and relapsing into drug-taking which has the inevitable consequences of behaviour that puts the community at risk.

25. In those circumstances, it is appropriate that an order be made for the protection of the community that Mr Brandon be subject to a continuing detention order until the expiry of the extended supervision order on 17 May or such earlier time that the extended supervision order is revoked.

26. The court reserves the right to edit and amend these reasons prior to publication. Mr Nguyen, a warrant will need to be issued. Have you prepared such a document?

    MR NGUYEN:     No but I will do so immediately upon my return to the office.

    HER HONOUR:   Thank you, that would need to occur very swiftly to ensure the continuity of detention.

    MR NGUYEN:     Yes.

    HER HONOUR:   Is there anything further?

    MR NGUYEN:     No.

    HER HONOUR:   Ms Carter?

    MS CARTER:     No.

    ADJOURNED 2.35 P.M.