Attorney-General (SA) v DELLIT - [2024] SASC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v DELLIT
[2024] SASC 60
Reasons for Decision of the Honourable Justice Stanley
3 May 2024
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS – HIGH RISK OFFENDER - SERIOUS VIOLENT OFFENDER
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS –ORDERS RELATING TO SERIOUS VIOLENT OFFENDERS – EXTENDED SUPERVISION ORDERS
On 20 July 2022, the respondent was made subject to an Extended Supervision Order (ESO) for a period of one year and six months pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
On 15 December 2023, the Attorney-General made an application for a further ESO for a period of one year and six months on the basis that the respondent is a high risk offender pursuant to s 5(d) of the Act and upon the contention that the respondent poses an appreciable risk to the safety of the community if not adequately supervised.
On 20 December 2023 the Court made an Interim Supervision Order (ISO) and ordered that a prescribed health professional examine the respondent and report to the Court with an assessment of the likelihood of the respondent committing a further serious offence of violence.
The respondent does not contest that he is a high risk offender or object to being subject to a further ESO. The contest in this matter is the duration of the ESO and the terms of the condition relating to drug and alcohol use.
Held:
1. The respondent is a high risk offender and poses an appreciable risk to the safety of the community if not supervised under an extended supervision order.
2. The respondent is subject to a condition that he must have any tests that are required to check for the use of any drug as directed by the Supervising Officer or Parole Board.
3. Pursuant to section 7 of the Criminal Law (High Risk Offenders) Act 2015, the respondent is subject to an Extended Supervision Order for a period of one year and six months in the terms outlined below.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 5(d), s 7, referred to.

ATTORNEY-GENERAL (SA) v DELLIT
[2024] SASC 60
Criminal
STANLEY J:
The application

This is an application by the Attorney-General, pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act), that for a period of one year and six months the respondent be subject to an extended supervision order (ESO) on certain conditions. Those conditions include, in particular, a prohibition on the use, possession or consumption of any illicit drug that is not prescribed by a medical doctor registered in South Australia or legally available in another way, and then only at the prescribed or recommended dosage.
On 20 July 2022, the respondent was made subject to an ESO for a period of one year and six months pursuant to s 7 of the Act. On 15 December 2023, the Attorney-General made an application for a further ESO to be imposed. This application is made on the grounds that the respondent is a high risk offender pursuant to s 5(d) of the Act and poses an appreciable risk to the safety of the community if not supervised because he has a significant criminal history; had breached his first ESO on several occasions in a variety of ways; lacks insight into, and motivation to address, his problematic behaviours; is resistant to intervention and has not yet recognised a need for behavioural change; and has a number of criminogenic risk factors that remain unaddressed.
On 20 December 2023, the Court made the respondent subject to an Interim Supervision Order (ISO) and directed that a prescribed health professional examine the respondent and report to the Court with an assessment of the likelihood of the respondent committing a further serious offence of violence.
The respondent opposes the making of a further ESO for a period of one year and six months. Instead, he proposes that the ESO be for a period of one year. He also opposes the terms of the proposed condition 7, and instead submits that the proposed condition 7 should be deleted in favour of a condition in the following terms:
The Respondent must have tests that are required to check the use of any drug as directed by the Supervising Officer or the Parole Board. The Respondent must sign all needed forms and obey all of the testing procedures.
Relevantly, during the first ESO the respondent was returned to incarceration on five occasions for breaches of his ESO conditions. The respondent was, as recently as 30 April 2024, returned to custody related to a Parole Board breach.
The psychological evidence
The Court received a report dated 28 March 2024 (FDN 11) from a psychologist, Luke Williams, who provided an opinion on the likelihood of the respondent committing a further serious violent offence.
In his report Mr Williams considers that the respondent has a significant history of general and violent offending from the age of 15 until the time of the imposition of the first ESO. He notes he has a poor history of compliance with community-based supervision orders, and has received convictions for breaches of bail, bonds and supervision orders. He frequently breached the conditions of the first ESO.
Mr Williams notes that the respondent has been assessed as being at very high risk of generalised offending and at a high risk of violent re-offending, and he has a high risk of committing offences of domestic violence. That assessment of his high risk of committing further violent offences has not been reduced by his participation in the violence prevention program despite some progress being made in addressing his violent risk factors. The respondent has not participated in any intervention to address his use of domestic violence.
In Mr Williams’ opinion, underpinning this offending is the respondent’s significant and entrenched history of substance abuse, primarily by way of alcohol and methylamphetamine. His use of illicit substances is closely linked to his violent offending. He has resorted to violent offending while under the influence and in order to purchase illicit drugs.
In Mr Williams’ opinion the respondent has not engaged in sufficient intervention to address his use of substances and the respondent is ambivalent at best about the prospect of ceasing such usage.
Mr Williams notes that the respondent’s engagement with supervision during the period of the last ESO was undoubtedly poor. During his first ESO he provided 12 urinalysis samples positive for illicit substances; failed to attend supervision appointments; demonstrated a superficial pattern of reporting; and failed to acknowledge the connection between his drug use and anti-social behaviour. In Mr Williams’ opinion the respondent has limited insight into his risk factors, has been unable to articulate strategies to manage them and has limited plans for his future. On the other hand, as Mr Williams notes, the applicant did not commit any new offences during the period of the ESO apart from a breach of an Intervention Order which he attributed to an accidental entry into an exclusion zone, rather he has remained gainfully employed despite his frequent use of illicit substances, and has avoided associations with anti-social peers. Mr Williams considers this is a significant improvement and change in behaviour but overshadowing this is the respondent’s inability to refrain from the use of methylamphetamine.
As Mr Williams notes, the respondent’s continued use of methylamphetamine is of great concern, particularly given its close link to his violent offending. Incarceration is of little deterrent effect. He considers that without regular urinalysis and periods of incarceration, the respondent could easily escalate his methylamphetamine to the point he becomes a risk to others. Mr Williams considers it difficult to find that the respondent is not at significant risk of committing another serious violent offence. He considers that he needs intensive and structured rehabilitation to assist him in reducing his usage. Mr Williams considers that the applicant would benefit from participation in the Matrix program to address his substance abuse and a Domestic Family Violence Intervention Program (DFVIP) to address his outstanding treatment and needs related to domestic violence. It is his opinion that these programs provide individual intervention and a requirement for ongoing urinalysis to ensure abstinence. He considers this to be the most appropriate option for addressing the respondent’s substance use. Unfortunately, he is of the opinion that the respondent is unlikely to engage in such intervention unless that is required pursuant to the terms of any ESO that is ordered, which he recommends.
However, Mr Williams considers that if an ESO is ordered it would be beneficial to take a more pragmatic approach to managing the respondent’s use of illicit substances. For example, while he should be required to undergo regular urinalysis, a return to incarceration should be reserved for situations in which it is clear that his usage has resulted in an increased risk to himself or others. If the respondent is able to complete the Matrix program, demonstrate abstinence though the consistent provision of negative urinalysis samples and refrain from further offending, then the need for the ESO could be reconsidered.
Consideration
The contest in this matter is not concerned with whether the Court should make a further ESO. That the respondent is a high risk offender and a further ESO is necessary is the premise upon which the Court heard submissions. The issue is the duration of the ESO and the terms of the condition relating to drug and alcohol use.
Much of the parties’ submissions concerned the consequences of a breach of the proposed condition of the ESO relating to illicit drug use.
The Attorney-General seeks an order that prohibits the use, possession or consumption of alcohol or any illicit drug. The respondent seeks to exclude any prohibition on the possession, use and consumption of any illicit drug and to confine the terms of the order merely to require the respondent to submit to testing for illicit substances.
The respondent submits that this approach is consistent with Mr Williams’ opinion that it would be beneficial to take a more pragmatic approach to managing the respondent’s usage of illicit substances. He considers that the terms of any ESO should be restricted to a requirement to undergo regular testing but that a return to custody should be confined to circumstances in which it is clear that the respondent’s use of illicit substances results in an increased risk to himself or others.
In contrast, the Attorney-General seeks a condition that illicit drug use would constitute a breach of the ESO.
Having regard to Mr Williams’ opinion I am satisfied that, at least at this stage, the imposition of condition 7 as proposed by the Attorney-General is highly likely to result in further breaches of the ESO by the respondent. The prohibition on the use of illicit substances, in particular methylamphetamine, will set up the respondent to fail. The consequence of such a breach will be further incarceration. The community will not be well served by the respondent continuing through that revolving door. Rather, I am inclined to accept the validity of Mr Williams’ opinion that a more pragmatic approach should be taken. That will require the respondent to undergo regular urinalysis to monitor his progress in attempting to overcome his addiction to methylamphetamine through the successful completion of intervention programs, namely Matrix and DFVIP, and continuing supervision. Knowing that further incursions into violent offending will inevitably lead back to prison will provide a sufficient incentive for him to undertake the intervention programs with the necessary commitment to succeeding. Of course, any descent into further offending is likely to result in his return to custody. That prospect may provide a sufficient deterrent to further drug abuse.
On the other hand, I consider that irrespective of the timing of the intervention programs proposed, a longer period of supervision pursuant to an ESO, as Mr Williams noted, is important to demonstrate that there is not a further need for another ESO. In my view that is a sufficient justification for acceding to the Attorney-General’s preference for the duration of the ESO for one year and six months. The longer the respondent is subject to supervision the better.
While the focus of the argument before me concerned the respondent’s use of illicit substances, in particular methylamphetamine, I can see no reason why he should not be subject to the usual prohibition on the consumption of alcohol for the duration of the ESO.
Conclusion
Pursuant to section 7 of the Act the Court is satisfied that the respondent is a high risk offender and poses an appreciable risk to the safety of the community if not supervised under an extended supervision order. Accordingly, I order that the respondent be subject to an extended supervision order on the conditions set out below for a period of one year and six months.
Conditions of Order
General
1.   The Respondent must be of good behaviour and obey the conditions of this Order.
2.   The Respondent must not commit any offence.
Supervision
3.   The Respondent must be under the supervision of a Department for Correctional Services Community Corrections Officer (the Supervising Officer) and the Respondent must obey their reasonable directions.
Residence (Place of living)
4.   The Respondent must reside at an address nominated or approved by the Supervising Officer and must not change residence without prior approval from the Supervising Officer.
5.   Until the Parole Board orders otherwise, the Respondent must wear an electronic transmitter and obey the Department for Correctional Services rules of electronic monitoring, including charging the transmitter daily and any other lawful directions given to them by the Supervising Officer or Parole Board.
Programs
6.   The Respondent must attend for assessment and, if assessed as suitable, go to and complete any:
(a)psychiatric, psychological or medical assessment, treatment, counselling, or therapy programs, including for drug abuse;
(b)educational, vocational or recreational programs;
(c)intervention program;
(d)programs, including the Matrix Program, DFVIP and projects;
that the Supervising Officer or Parole Board reasonably directs.
Drugs and Alcohol
7.   The Respondent must not use, possess (have), or consume alcohol. The respondent must have any tests that are needed to check if they are obeying this order as directed by the Supervising Officer or Parole Board.
8.   The Respondent must have any tests that are required to check for the use of any drug as directed by the Supervising Officer or the Parole Board.
9.   The Respondent must sign all needed forms and obey all the testing procedures.
10.   The Respondent must advise the Supervising Officer of any drug that has been prescribed to them by a medical doctor.
11.   The Respondent must not enter or remain on the premises of any licensed hotel, clubroom or licensed entertainment venue without the prior approval of the Supervising Officer.
Firearms
12.   The Respondent is prohibited from possessing a firearm (gun of any sort), ammunition (both within the meaning of the Firearms Act 2015) or any part of a firearm.
13.   The Respondent must submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by the Supervising Officer or a member of the South Australian Police.
14.   The Respondent must hand in any firearm, ammunition or any part of a firearm owned or possessed by them as soon as possible at a Police Station.
Offensive Weapons
15.   The Respondent is prohibited from possessing an offensive weapon unless the Court permits them to possess such a weapon and they comply with the terms and conditions of the permission.
Association
16.   The Respondent must not contact, attempt to contact or associate in any way, whether directly or indirectly, with his co-offender Alex Curtis.
17.   The Respondent must obey the terms of any active Intervention Order.
Internet and Communication
18.   The Respondent must have, maintain and keep charged a mobile telephone.
The Respondent must give their mobile telephone number to the Supervising Officer so they can use it to get in touch with the Respondent at all times.
The Respondent must answer any calls or text messages from the Supervising Officer straight away on the mobile phone number the Respondent has given.
Travel
19.   The Respondent must not leave or attempt to leave South Australia for any reason without obtaining the written approval of the Supervising Officer at least seven (7) days prior to travel.
Other
20. The Respondent is subject to any other condition imposed by the Parole Board under section 11 of the Criminal Law (High Risk Offenders) Act 2015.