Attorney-General (SA) v DEMOS
[2023] SASC 79
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v DEMOS
[2023] SASC 79
Reasons for Decision of the Honourable Justice Kimber
24 May 2023
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
Application pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act) by the Attorney-General for an extended supervision order.
On 30 April 2020, the respondent was sentenced to imprisonment for four years with a non-parole period of two years and six months for an offence of Causing Serious Harm with Intent to Cause Serious Harm. On 29 September 2022, while serving the sentence, the respondent was interviewed to assess his risk of violent offending. During this interview, and in response to questions regarding the offence, the respondent said that ‘he would probably do it again’.
On 2 November 2022, an interim supervision order was made. The respondent breached that order 12 days after being released into the community. His breaches involved failing to comply with his home detention condition, failing to reside at an approved address, and failing to obey the directions of his Community Corrections Officer.
The Attorney-General’s application is made on the grounds the respondent is a high risk offender as defined in the Act and poses an appreciable risk to the community if not supervised under the order sought.
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 discretion to order the respondent be subject to an extended supervision order should be exercised.
3. The period of the extended supervision order should be 18 months.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 5, 6, 7, and 10, referred to.
Attorney-General (SA) v Fenner [2020] SASC 107; R v Kimmins [2016] SASC 176, applied.
ATTORNEY-GENERAL (SA) v DEMOS
[2023] SASC 79Criminal: Application
KIMBER J:
On 25 October 2022, the Attorney‑General filed an application for the respondent to be subject to an extended supervision order pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). The head sentence of the respondent was due to expire on 4 November 2022.
On 2 November 2022, I made an interim supervision order pursuant to s 9 of the Act. Pursuant to s 7(3) of the Act, I directed that one prescribed health professional examine the respondent and report to the Court on the results of the examination, including an assessment of the likelihood of the respondent committing a further serious offence of violence. Dr Raeside conducted that examination on 15 December 2022 and his report is dated the following day.
On 22 March 2023, I heard submissions with respect to the application pursuant to s 7(4) of the Act. The respondent was unrepresented and made clear that he did not wish to make efforts to obtain representation. The respondent made no submissions. On 22 March 2023, I ordered the respondent be subject to an extended supervision order for 18 months on the conditions sought by the Attorney‑General. These are my reasons.
Material received
The material before me on the application was:
1.Affidavit of Elena Christaki‑Hedrick filed 25 October 2022;
2.Affidavit of Elena Christaki‑Hedrick filed 4 November 2022;
3.Affidavit of Elena Christaki‑Hedrick filed 7 March 2023;
4.Report of Dr Raeside dated 16 December 2022; and
5.Parole Board of South Australia document dated 14 March 2023.
Applicable legal principles
Under s 7(1) of the Act, the Attorney‑General may make an application to this Court for an extended supervision order to be made with respect to a high risk offender. Section 7(4) then provides:
(4)The Supreme Court may, on application under this section, order that the respondent is to be subject to an extended supervision order if satisfied that—
(a) the respondent is a high risk offender; and
(b) the respondent poses an appreciable risk to the safety of the community if not supervised under the order.
Satisfaction that a respondent is a high risk offender and poses an appreciable risk if not supervised under the order enlivens the discretion of the Court to make an extended supervision order.
In Attorney‑General (SA) v Fenner,[1] Livesey J (as he then was) made the following observations about s 7(4):
[1] [2020] SASC 107.
… subparagraphs (a) and (b) [of s 7(4)] are in the nature of jurisdictional facts which must be proved before the Court’s power to make an extended supervision order is enlivened. Once these have been proved the Court may, but need not, make an extended supervision order. The burden lies with the Attorney-General to adduce evidence that the qualifying criteria are proved and that the case is a proper one for the exercise of the Court’s discretion.
The power contained in s 7(4) is further conditioned by s 7(3) which requires that the Court, before determining whether to make an extended supervision order, direct one or more prescribed health professionals to examine the respondent and report to the Court on the results of that examination including the likelihood of the respondent committing a further serious sexual offence or a serious offence of violence. Section 21 then provides:
Where, for the purposes of an application for an extended supervision order, the Supreme Court directs 1 or more prescribed health professionals to examine the respondent to the application and report to the Court on the results of the examination, each prescribed health professional so nominated—
(a) must carry out an independent personal examination of the respondent; and
(b) may have access to any evidence before the court by which the respondent was convicted; and
(c) may obtain the assistance of a medical practitioner, psychologist, social worker, community corrections officer or any other person.
Returning to s 7(4), in Attorney-General (SA) v Grosser (Grosser) Stanley J explained “appreciable risk” for the purposes of s 7(4)(b):
I consider that an appreciable risk is 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 future in a manner that poses a risk to the safety of the community. It is a question of degree. …
Section 7(5) mandates that the paramount consideration for the Court in determining whether to make an extended supervision order is “the safety of the community”. In Grosser Stanley J held that whether the respondent poses an “appreciable risk to the safety of the community” is informed by s 7(5):
The extent of the appreciable risk is informed by the consideration that in determining whether to make an extended supervision order the safety of the community is paramount. I construe that requirement to mean that where a court considers that the question of whether to make an order is finely balanced, the protection of the community would favour making the order rather than declining to do so. I do not suggest that this consideration is exhaustive of the work to be performed by s 7(5) of the Act. The full extent of the operation of this provision falls to be considered on another occasion.[2]
(Footnotes omitted)
[2] Ibid [16]–[19].
Section 7(5) of the Act provides that in determining whether to make an extended supervision order, the paramount consideration for the Court is the safety of the community. In R v Kimmins,[3] Stanley J held:
The discretion is to be exercised having regard to both the interests of the community and the interests of the respondent, but by according the consideration of public safety paramountcy.[4]
[3] [2016] SASC 176.
[4] Ibid, [38].
Section 7(6) sets out matters which must be taken into account in determining whether to make an extended supervision order. Section 7(6) provides:
(6)The Supreme Court must also take the following matters into consideration in determining whether to make an extended supervision order in respect of the respondent:
(a) the likelihood of the respondent—
(i)committing a further serious sexual offence; or
(ii)committing a further serious offence of violence; or
(iii)committing a terrorist offence, or otherwise being involved in a terrorist act, or committing a serious offence of violence,
(as the case may be) if not supervised under the order;
(b) the reports of any prescribed health professional (as directed under subsection (3)) furnished to the Court;
(c) any report prepared by the Parole Board under section 64(5) of the Correctional Services Act 1982;
(d) any report required by the Court under section 20 (including the results of any statistical or other assessment furnished to the Court as to the likelihood of persons with histories and characteristics similar to those of the respondent committing a further relevant offence);
(e) any relevant evidence or representations that the respondent may desire to put to the Court;
(f) any treatment or rehabilitation program in which the respondent has had an opportunity to participate, including his or her willingness to so participate and the extent of such participation;
(g) in the case of a respondent released on parole—the extent to which he or she has complied with the conditions of his or her release on parole;
(h) in the case of a respondent subject to an existing extended supervision order—the extent to which he or she has complied with the terms of the order;
(i) in the case of a respondent who is a registrable offender (within the meaning of the Child Sex Offenders Registration Act 2006)—the extent to which he or she has complied with any obligations under that Act;
(j) the circumstances and seriousness of any offence in respect of which the respondent has been found guilty according to his or her criminal history, and any pattern of offending behaviour disclosed by that history;
(k) any remarks made by the sentencing court in passing sentence;
(l) any other matter that the Court thinks relevant.
Personal circumstances of the respondent
The respondent is 40 years of age. He left school in year 10 and subsequently undertook various unskilled jobs. The respondent has been described as having a significant history of substance abuse including alcohol and amphetamines. The respondent has had several hospital admissions for drug induced psychosis. The respondent first used methylamphetamine in his 20s. The respondent has used cannabis but stopped due to increasing paranoia and anxiety.
The criminal history of the respondent is not particularly extensive. His first offending were offences of assault police and resist police committed in April 2017. The respondent was convicted but no penalty was imposed. In March 2018, the respondent committed more than one offence, including carrying an offensive weapon and using an offensive weapon at a school or public place. The respondent was again convicted without penalty. In May 2018, the respondent assaulted a woman. He entered the car of a stranger and threatened the victim. The sentencing Magistrate accepted the respondent was suffering a drug induced psychosis. Having spent about 18 weeks in custody, the respondent was again convicted without penalty.
Only four days after being released from custody for the offence in May 2018, the respondent committed the offence of causing serious harm with intent to cause serious harm. The sentencing Judge described the attack the subject of that offence as being ‘brutal’. While using methylamphetamine, the respondent struck the victim with his fists and without provocation. The victim was someone with whom the respondent had been friends and with whom the respondent had previously used methylamphetamine. The victim was taken to the Flinders Medical Centre by ambulance. The sentencing Judge described his injuries in the following way:
[The victim had] a moderate brain injury and required intubation and intensive care admission. [The victim] had suffered significant facial trauma and there was an estimate of one litre of blood loss. A CT scan of [the victim’s] brain indicated epidural and subdural haemorrhaging, subgaleal haematoma, subarachnoid haemorrhage and soft tissue swelling. There was also a left medial orbital blow-out fracture with distortion of the left medial rectus, left mandibula fracture, left nasal fracture and mild generalised cerebral mass effect, indicating swelling of the brain and increased pressure within the skull. [The victim’s] condition was considered life threatening due to bleeding around the brain and a risk of further bleeding.
The victim was in intensive care for three days and remained under the care of the neurological team for about 25 days. Because of the severity of his physical injuries and his behavioural responses, the victim was transferred to the brain injury rehabilitation unit at Hamstead. The victim emerged from post‑traumatic amnesia some 39 days after the assault. When discharged, the victim still had deficits with his residual vision, higher balance level, and speech and cognitive ability. The sentencing Judge observed those deficits were likely to be long lasting.
After his arrest, the respondent made spontaneous comments which included that he should have sliced the throat of the victim with a knife; that it was alright to take the life of the victim; that he wanted to kill the victim and that is why the respondent had struck him as much as he had.
After a reduction of 20 per cent for the plea of guilty, a sentence of four years, with a non-parole period of two years, six months was imposed.
More recent behaviour
On 29 September 2022, the respondent was interviewed to assess his risk of violent offending before the expiry of his sentence. That interview and assessment were terminated due to the agitation of the respondent and his display of ‘a number of inappropriate and concerning behaviours’. Comments made by the respondent in the interview included: statements to the effect that he should not be trusted in the community; a statement to the effect that he did not feel it necessary to participate in rehabilitation as he would likely offend again; that the victim of the causing serious harm with intent offence should have ‘shut his fucking mouth’ and that he should have ‘beat the fuck out’ of him earlier. When asked if he thought he would offend violently in the future, the respondent said ‘depends if some cunt opens his mouth or not’ and that he would ‘probably do it again’.
Between the imposition of the interim supervision order on 2 November 2022 and 22 March 2023, the respondent spent only 12 days in the community as he breached the interim supervision order. Those breaches were for being in breach of his home detention condition, failing to reside at an approved address and failing to obey the directions of his Community Corrections Officer.
Rehabilitation programs
The respondent has not completed any rehabilitation program which might address his risk of violent offending. The respondent was considered for the Living Without Violence Program to commence in November 2021. However, in August 2021 the decision was made to remove him from the program due to the respondent’s concerning presentation (described as tangential conversation), as he appeared to be ‘unable to express his thoughts and feelings clearly’ and due to his subsequent transfer to another institution.
The report of Dr Raeside
Dr Raeside has described the respondent as appearing to have ‘a number of underlying disturbed personality traits’ but has not diagnosed the respondent as having a personality disorder. In the opinion of Dr Raeside, the respondent:
…would remain at least a moderate risk of further violence, particularly if he was to resume illicit drug use.
…
Although there are no mental health grounds to support this, a past history of violence and his vulnerability factors would suggest that his risk would be decreased through appropriate supervision in the community, including conditions that he not consume any illicit drugs and have frequent and periodic drug screens, as well as reporting to a Community Corrections Officer.
Discussion
The respondent is a high-risk offender because of the offence of Causing Serious Harm with Intent to Cause Serious Harm.[5]
[5] Section 5 of the Act.
I was satisfied the respondent poses an appreciable risk to the safety of the community if not supervised. His offending in causing serious harm with intent to cause serious harm was a serious example of an offence of that type. The offence was unprovoked. The respondent caused very serious injuries with his fists. While the offending of the respondent prior to that offence was not nearly as serious, the gravity of the behaviour of the respondent appears to have escalated. There was no reason to doubt the opinions of Dr Raeside as to the respondent being at least a moderate risk of further violence, particularly if he was to resort to drug use. There was real reason to believe the respondent’s use of drugs is not behind him. He has used amphetamines since his mid-20’s and had been admitted to hospital for drug induced psychosis more than once. The respondent had not completed any rehabilitation program which might mitigate his risk of violence. The comments made by the respondent on 29 September 2022 were, in my view, consistent with there being an appreciable risk the respondent will repeat his violent offending.
The two jurisdictional facts in s 7(4) being satisfied, I was satisfied it was appropriate to exercise the discretion to order that the respondent be subject to an extended supervision order. For the reasons already given, the respondent was at least a moderate risk of engaging in further violence. The most serious of his offences was committed without provocation. The respondent had made comments consistent with him admitting that he is at risk of behaving in a violent way in the future. I was of the view that the imposition of an extended supervision order would provide an important level of protection to the community. The extended supervision order provides an opportunity for: supervision; referral to an appropriate program; and for any return to drug use to be detected.
The conditions of the order
Section 10(1)(a)-(e) provides:
(1)The following conditions apply in relation to an extended supervision order:
(a) a condition that the person subject to the order not commit any offence;
(b) a condition that the person subject to the order is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 2015) or any part of a firearm;
(c) a condition prohibiting the person subject to the order from possessing an offensive weapon unless the Supreme Court permits the person to possess such a weapon and the person complies with the terms and conditions of the permission;
(d) a condition that the person subject to the order—
(i)be under the supervision of a community corrections officer; and
(ii)obey the reasonable directions of the community corrections officer; and
(iii)submit to such tests (including testing without notice) for gunshot residue as the community corrections officer may reasonably require;
(e) any other condition that the Court thinks fit and specifies in the order;
It is not necessary to mention each of the conditions that I imposed which were not mandatory. I will only mention upon the home detention condition which I imposed. That condition was in the following terms:
For 6 months from the date of this order, unless the Parole Board determines it to be for some other period, the Respondent must stay at the address approved as his residence for the purposes of condition 5 of this order, and must not leave that address at any time except:
a. for emergency medical or dental treatment;
b. to avoid or reduce a serious risk of death or injury to the Respondent or another person;
c. to go to a place for the purposes of complying with condition 8 of this order; or
d. for any other reason approved by a Community Corrections Officer.
Before imposing the above condition, I was cognisant it is a very stringent, restrictive condition. Other than as provided for within the condition, the respondent is confined to his address for six months from the date of the order (unless the Parole Board determines it to be for some other period). I was satisfied the condition was appropriate as I was satisfied that the history of drug use by the respondent, his history of violent offending, absence of relevant participation in a rehabilitation program and the comments the respondent made on 29 September 2022 established that he posed a significant risk to the safety of the community if released. The condition was appropriate in order to promote the protection of the community and the ability to closely monitor the behaviour of the respondent.
Duration of the order
In all the circumstances, I was satisfied the extended supervision order should be for a period of 18 months. As the Attorney‑General submitted, that period was what was likely to be necessary to allow the respondent to be referred to, and participate in, any programs which he may be directed to attend. That period would also allow for the preparation of any report with respect to that participation.
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