Attorney-General (SA) v Coaby

[2019] SASC 137

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

ATTORNEY-GENERAL (SA) v COABY

[2019] SASC 137

Judgment of The Honourable Justice Hughes

7 August 2019

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 - SERIOUS OR VIOLENT OFFENDER

On 31 August 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 31 August 2019.

Following the imposition of the extended supervision order, the respondent breached the order on numerous occasions. On 4 September 2018, the Parole Board made a referral to this Court pursuant to s 17(1)(b)(ii) as to whether the respondent should be subject to a continuing detention order. On 13 February 2019, this Court determined that a continuing detention was not required to secure the protection of the community. The respondent was released, however committed further breaches in March and May 2019.

Between 31 May 2019 and 2 June 2019, the respondent was arrested for various offences and was remanded in custody. On 16 July 2019, the Parole Board satisfied itself that the respondent had breached the conditions of his extended supervision order by failing to be home between the hours of 9 pm and 6 am and by removing an electronic monitoring device. Pursuant to s 17(1)(b)(ii), the Parole Board once again 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. However, a continuing detention order is not required to secure the protection of the community. The referral for a continuing detention order is dismissed.

Criminal Law (High Risk Offenders) Act 2015 (SA) s 18, referred to.
Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11; R v Schuster [2016] SASCFC 86; (2016) 125 SASR 388; Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74, considered.

ATTORNEY-GENERAL (SA) v COABY
[2019] SASC 137

HUGHES J:

1. I am required to decide whether Mr Coaby should be subject to a continuing detention order pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (“the Act”).

2. I have considered the affidavits of Mr S O’Flaherty sworn on 23 July 2019, Mr G Truscott affirmed on 30 July 2019, a chronology prepared by the Crown Solicitor on behalf of the Attorney-General, and without objection the materials filed in relation to the extended supervision order in SCCRM 135 of 2017, and an earlier referral of a continuing detention order in proceedings SCCRM 384 of 2018.

   A continuing detention order relates to a supervision order

3. A pre-condition for the making of a continuing detention order in respect of a person is that the person is currently subject to an extended supervision order or an interim supervision order. In the context of crimes of violence, a supervision order can only be imposed on a person who has been sentenced to a period of imprisonment in respect of a serious offence of violence (within the meaning of the Act) and thus attracted the classification of “high risk offender”. In relation to Mr Coaby, the offending that enlivened his classification as a high risk offender was an offence of aggravated robbery committed in February 2007. Mr Coaby and his cousin robbed three people at a hotel whilst armed. They stole $4000, a handbag, a wallet and a phone. There was violence towards one of the victims. Following, as it did, Mr Coaby’s history of offending, and in light of the fact that he was on parole when this offence was committed, he was sentenced to eight years imprisonment with a non-parole period of six years and six months.

4. When that sentence was approaching completion, the Attorney-General applied to this Court to have Mr Coaby made subject to a supervision order under the Act.

5. As required for the determination of whether an extended supervision order should be imposed, Mr Coaby was subject to an assessment of the likelihood that he would commit a further a serious offence of violence in the future. Dr Raeside provided an opinion on 15 June 2017. In that report, Dr Raeside expressed the following observations and opinions:

   […] Mr Coaby is a 36 year old man with a lifelong history of difficulty beginning in his childhood with an unstable early home life due to his parents’ alcohol abuse, sexual assault at the age of 10, early onset of offending with periods of juvenile detention, disruptive schooling, and early onset of drug abuse. He spent much of his life in custody, particularly in the last 17 years, usually relapsing quickly into illicit  drug abuse upon his return to the community. Although there is strong association between his illicit drug use and mental illness (such as psychotic symptoms) he has been diagnosed with a psychotic illness independent of substance abuse.

   […]

   Mr Coaby remains at moderate to high risk of reoffending in the future simply based on historical (static) factors […] Mr Coaby does have some significant factors that are amenable to change (dynamic factors) in relation to his risk. In particular, mental illness and substance abuse are two factors that can be addressed and markedly reduce his ongoing risk of offending (leaving historical factors aside) […] Abstinence from illicit drugs and alcohol with regular random urine drug screening would also be important. I would suggest that there be no tolerance for any breach of either of these conditions given that his acute risk of future offending is most closely related to these dynamic factors.

6. Dr Raeside concurred with an earlier diagnosis of schizoaffective disorder and expressed the view that Mr Coaby has an underlying anti-social personality disorder. He opined that Mr Coaby meets the definition of a high risk offender and supported the imposition of a supervision order to address the appreciable risk to the safety of the community if he were released unsupervised, in a manner that limited his opportunity for relapse.

7. On 31 August 2017, Parker J imposed a two year extended supervision order with a raft of conditions including a prohibition on consumption of alcohol, drug and alcohol testing, and participation in rehabilitation programs at the direction of his community corrections officer. Other conditions that are sometimes imposed such as electronic monitoring or a curfew, were not considered necessary at that time.

   Non-compliance with the supervision order

8. Following the imposition of the extended supervision order, Mr Coaby breached the order on numerous occasions. In January 2018, he admitted breaches of the ‘no drugs’ condition having occurred several times the previous month, arising from positive methamphetamine urine samples. This led to the addition of new conditions on his supervision order requiring him to wear an electronic transmitter and to remain at his residence between 9 pm and 6 am each day. Mr Coaby tested positive again in March 2018, early April 2018, late April 2018, and at the beginning of May 2018. On 4 May 2018 he also breached his reporting condition and on 8 May 2018 he was detained on a Parole Board warrant arising from the breaches that had occurred over the previous month. The Parole Board found these breaches proven on 12 June 2018 and released Mr Coaby effective 14 June 2018. There were further breaches almost immediately. On 14 June 2018, there was a breach of the reporting condition, and on 5 July 2018, he breached the “no drugs” condition. On each occasion he was arrested and the breach found proven and he was released.  He then breached the “no drugs” condition and the reporting condition on 28 August and 30 August respectively. He was arrested and detained by the Board on 4 September 2018 for these breaches and referred to the Court for consideration of a continuing detention order. Mr Coaby was released by Hinton J pending further consideration of whether a continuing detention order should be made.[1] Following further alleged breaches that occurred shortly thereafter, I made an interim order for detention in December 2018. At that time, Mr Coaby was due to appear in another Court on various offences in late January 2019. As it transpired, some of those allegations were not pursued and Hinton J determined on 13 February 2019 that a continuing detention order was not required to secure the protection of the community. Mr Coaby was released into the community on the supervision order that had by then been in place for approximately 18 months. The breaches continued. On 27 February 2019 and 13 March 2019 he breached the “no drugs” condition. He was arrested on a Parole Board warrant on 14 March 2019. Those breaches were found proven on 16 May 2019 and Mr Coaby was released.

   [1]    SCCRM-18-384 and SCCRM-19-2.

   The alleged breaches that led to the referral to this Court

9. Relevant to the decision currently before the Court, it was a condition of the extended supervision order that he remain at the approved place of residence between 9 pm and 6 am.  It was also a condition of the order that he maintain an electronic “bracelet” and keep it charged. These were the additional conditions imposed in February 2018.

10. The alleged breaches of the extended supervision order that brought about the recent referral to this Court were said to have occurred between 31 May 2019 and 2 June 2019. Mr Coaby was arrested by police on 1 June 2019 for various offences and was remanded in custody. He was interviewed by the Parole Board on 16 July 2019 and the Board found proven the following breaches:

    1Breach of curfew on 21 May 2019 and 26 May 2019.  On each occasion, the respondent returned home approximately half an hour after 9 pm.

    2Breach of the requirement to wear an electronic transmitter and keep it charged, on 1 June 2019.

11. The Attorney-General conceded that the breaches of curfew were not associated with any more sinister circumstances. However, the breach concerning the transmitter cannot be dismissed so lightly. Mr Coaby admits to cutting off the bracelet. He was subsequently charged with several offences that are currently before other courts. This Court has not been asked to make findings about the allegations in those charges in support of the Attorney-General’s submission that this Court should impose a continuing detention order.

12. I am satisfied that Mr Coaby has breached the extended supervision order in a deliberate way by cutting off the transmitter so that he could leave his home in breach of his conditions without immediate detection. The question for the Court is whether, having breached the order in this manner, Mr Coaby must be detained to secure the safety of the community from risk of harm. 

    Requirements for a continuing detention order

13. A continuing detention order can be understood as the legislature’s provision of a response to the failure of a supervision order to adequately ameliorate the appreciable risk to the community that the high risk offender poses, following breaches of the conditions of the order. Section 18 provides:

    18—Continuing detention orders

    (1)If the Parole Board directs that a person subject to a supervision order be detained in custody pending attendance before the Supreme Court for determination as to whether a continuing detention order should be made in respect of the person, the matter is referred to the Court by force of this subsection.

    (2)     The Supreme Court may, if satisfied that the person—

    (a)     has breached a condition of the supervision order; and

    (b)poses an appreciable risk to the safety of the community if not detained in custody,

    order that the person be detained in custody (a continuing detention order) until the expiration of the supervision order, or for such lesser period as may be specified by the Court.

    (3)The paramount consideration of the Supreme Court in determining whether to make a continuing detention order must be the safety of the community.

    (4)The Supreme Court may, if the Court thinks fit, order that a person the subject of proceedings under this section be detained in custody pending the determination of the proceedings.

    (5)The Attorney‑General and the person the subject of proceedings under this section are parties to the proceedings, and the Parole Board has a right to appear and be heard in the proceedings.

    (5a)    If proceedings under this section relate to a terror suspect—

    (a)the Attorney‑General may be represented in the proceedings by a terrorism intelligence authority; or

    (b)a terrorism intelligence authority has a right to appear and be heard in the proceedings.

    (6)As soon as is reasonably practicable after making a continuing detention order or an order under subsection (4) in respect of a person subject to a supervision order, the Supreme Court must issue a warrant committing the person to a correctional institution for the period specified in the order.

    (7)     To avoid doubt—

    (a)if a person is detained in custody under this section until the expiration of his or her supervision order, the supervision order expires on the person's release from custody (but nothing in this paragraph prevents the Supreme Court, on application by the Attorney‑General, from making a second or subsequent supervision order against the person); and

    (b)if a person is detained in custody under this section for a lesser period, the person continues to be subject to the supervision order on release from custody for the balance of the duration of the order (and the date of expiry of the supervision order under section 12 is not affected by the fact that the obligations of the person under the order were suspended during the period that the person was in custody).

    The submissions of the Attorney-General and of Mr Coaby

14. A referral to this Court following a breach does not signify any position taken by the Parole Board or the Attorney-General as to whether a detention order is appropriate. In this case, the Parole Board referred the breaches and the Attorney-General submitted that a continuing detention order should be made. The Attorney-General relied upon the breaches of the curfew condition and most particularly on the cutting off of the bracelet, against the history of breaches, to support the appropriateness of detention. The charges laid following the events of 31 May 2019 are to be contested and I make no findings about those charges and I have not been asked to rely upon them in reaching this decision. Mr O’Flaherty on behalf of the Attorney-General proposed that it was relevant to my decision that Mr Coaby does not have appropriate accommodation if he is released. By “appropriate” it is meant that the accommodation should preferably have protective characteristics and certainly not characteristics that increase the risk of Mr Coaby offending. Such characteristics in this case relate to the other people living at or frequenting the premises. Mr O’Flaherty, on behalf of the Attorney-General, submitted Mr Coaby does not have a safe, protective accommodation in which to reside if the order is not made (and he is not otherwise detained). Strictly speaking, that is only relevant to the making on order insofar as it relates to the risk presented by Mr Coaby. Of course it is not difficult to see the connection. It has been suggested that drugs are a significant risk factor for Mr Coaby in his offending and that he will not be protected against coming into contact with drugs at the proposed accommodation. Some enquiries have been made on Mr Coaby’s behalf to determine whether he can be accommodated and admitted into a residential program at Lakalinjeri Tumbetin Waal at Monarto. The Court was advised that he is on the waiting list but that a vacancy may not come up for several months.

15. Mr Coaby opposes the making of a continuing detention order. Mr Coaby submitted, through his counsel Mr Truscott, that there is no benefit to the community in the making of an order as it can only endure until the end of this month. To continue to detain him would simply frustrate the attempts he had made towards addressing his risk factors. Mr Truscott’s affidavit of 30 July 2019 refers to the steps taken by Mr Coaby to be prescribed Suboxone, to obtain a mental health plan and to secure work at a chicken processing factory. 

    The fresh application for an extended supervision order

16. The Attorney-General has recently commenced a separate application for a new extended supervision order, proposed to succeed the existing order which is shortly due to expire. Mr Coaby has not yet put his position in relation to that application. That application has no direct bearing on whether an order for continuing detention should be made.

    Whether a CDO should be made

17. The legislature has provided that in considering whether a high risk offender should be detained, the paramount consideration must be the community’s safety.  In Police v Sullivan; Attorney-General (SA) v Sullivan (“Sullivan (No 1)”)[2] Hinton J said:[3]

    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.

    [2] [2018] SASC 11.

    [3] [2018] SASC 11 at [85].

18. In R v Schuster[4]the Full Court said of this concept when applied to the Court’s obligation to make public safety the paramount consideration when deciding whether to impose an indeterminate sentence on a sexual offender:[5]

    What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility.

    More fundamentally, it is in the very nature of a discretion that the level of risk, whatever it is, may nonetheless be sufficiently outweighed by other factors to justify release on licence. For example, an offender with some degree of short term risk of reoffending who has excellent prospects of medium to long-term rehabilitation might be released on licence, when an offender with the same risk profile but poor prospects of rehabilitation would not. The effect of making public safety the paramount consideration is that, speaking generally, relatively smaller degrees of risk will outweigh considerations which, even strongly, support release. The exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety.

    Those remarks are also instructive in relation to the operation of 18 of the Act.

    [4] [2016] SASCFC 86; (2016) SASCFC 86.

    [5] (2016) 125 SASR 388 at 405 - 406 [79] – [80].

1. A continuing detention order is not the only response that can be made to a breach of a supervision order.  If the circumstances or nature of the breach does not indicate a failure of the supervision order to safeguard the community, or if the risk has been addressed since the breach, or if the risk can be addressed in another way such as further or different conditions on the supervision order, then a detention order should not be made.  The remarks of Hinton J in Attorney-General (SA) v Sullivan (No 2)[6] are apposite:[7]

   Although consideration of a continuing detention order is triggered by the breach of an extended supervision order, the measure of the period of detention is not the units of punishment. The respondent is detained to prevent what he or she might never do. This being so, the respondent should not be detained for any longer than is necessary to ensure adequate protection of the community. Accepting this it is self-evidently important to identify with some particularity the risk that a respondent poses before turning to consider whether detention is necessary to adequately protect the community from that risk. In some cases the risk may be immediate and the appropriate response may simply be incapacitation. In other cases it may be less immediate but no less profound and may require detention in order to facilitate different measures of intervention and prevention. Where a continuing detention order of a shorter duration than the period of the extended supervision order is contemplated, that period will be determined by the anticipated effect of detaining the respondent, including all interventions and treatments that may be undertaken whilst in detention, upon the risk posed by the respondent.
   

   [6] [2018] SASC 74.

   [7] [2018] SASC 74 at [14]

   [footnotes omitted]

2. The risk presented by Mr Coaby relates to the likelihood of him causing harm within the community. If the test were directed at the risk of breach, there could be little doubt that the scales would be tipped against Mr Coaby. Mr Coaby’s history of non-compliance is very concerning. He has admitted some recent breaches. There can be little doubt that the discretion of the Court is enlivened by the circumstances such that an order for Mr Coaby’s detention for the remainder of the life of the supervision order could be made. It must be acknowledged that the psychiatric evidence is that when Mr Coaby consumes illicit drugs, the risk that he will re-offend in a way that causes harm is increased, perhaps significantly so.    These breaches have not, however, led to offending or harm to the public. It needs to be reiterated at this point that the current charges are not proven, are denied, and are not relied upon by the Attorney-General. Against the poor compliance history, the Court is advised that he is in the process of obtaining some help. A detention order could only endure until 31 August 2019, when the extended supervision order expires. In those circumstances, incapacitation is the only utility an order could have.

3. Mr Coaby is currently remanded on the charges arising out of the events of 31 May 2019 which he proposes to defend.  He may apply for and be granted bail. That is not determinative of the issue I must consider. The legal tests are different and the processes are independent of one another. 

4. Just as a continuing detention order is not for punishment, it is not for accommodation. Stable accommodation may be a necessary ingredient to the adequate reduction of an offender’s risk but unless it is properly assessed as necessary for that purpose, the Court cannot maintain an offender’s detention solely because accommodation is lacking.

5. I am not satisfied that a continuing detention order until 31 August 2019 is necessary to safeguard the community from the risk that Mr Coaby presents. Accordingly, consideration will need to be given as to the Attorney-General’s application for a fresh extended supervision order, and I will hear the parties on that issue.