Attorney-General (SA) v Drion - [2020] SASC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
ATTORNEY-GENERAL (SA) v DRION
[2020] SASC 120
Judgment of The Honourable Justice Livesey
1 July 2020
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 14 March 2019 the Supreme Court made an extended supervision order with respect to Mr Marc Claude Drion pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“the Act”). The extended supervision order will operate until 13 September 2020.
Between 24 January 2020 and 4 March 2020 Mr Drion committed six breaches of his extended supervision order and was remanded in custody. The Parole Board satisfied itself that Mr Drion had breached the extended supervision order. Pursuant to s 17(1)(b)(ii) the Parole Board directed that Mr Drion 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;
1. Mr Drion does not presently pose an appreciable risk to the safety of the community if not detained in custody. In any event the Court declines to exercise its discretion in favour of detention for a period of around 10 weeks.
2. The Court declines to make a continuing detention order with respect to Mr Drion pursuant to s 18(2) of the Act.
3. The parties will be heard on whether an application will be made to vary the terms of Mr Drion’s extended supervision order so as to require that he attend the drug treatment program that he is genuinely interested in pursuing.
Criminal Law Consolidation Act 1935 (SA) s 19, s 20; Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, s 17, s 18, referred to.
Attorney-General (SA) v Brandon [2019] SASC 85; Attorney-General (Qld) v Francis (2007) 1 Qd R 396; Attorney-General (SA) v Moyle (No 2) (2019) 134 SASR 257; Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74; Attorney-General (SA) v Tipping [2020] SASC 64, considered.

ATTORNEY-GENERAL (SA) v DRION
[2020] SASC 120
Criminal
LIVESEY J:
Introduction

On 14 March 2019 this Court made an extended supervision order with respect to Mr Marc Claude Drion pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). The extended supervision order will operate until 13 September 2020.
Between 24 January 2020 and 4 March 2020 Mr Drion committed six breaches of his extended supervision order by testing positive to illicit drugs and changing his place of residence without the prior written permission of his community corrections officer. On 4 March 2020 the Parole Board issued a warrant for his arrest which was executed the next day.
On 28 May 2020 the Parole Board determined pursuant to s 17(1)(b)(ii) of the Act that Mr Drion be detained in custody pending determination by this Court whether a continuing detention order should be made.
The Parole Board’s direction under s 17(1) enlivens the jurisdiction of this Court under s 18(2) to determine whether to make a continuing detention order.[1]
[1] Criminal Law (High Risk Offenders) Act 2015 (SA), s 18(1).
As a party to these proceedings pursuant to s 18(5) of the Act, the Attorney-General seeks a continuing detention order to be made with respect to Mr Drion on the basis that he poses an appreciable risk to the safety of the community if not detained in custody until the expiration of his extended supervision order.
For the reasons that follow, I decline to make a continuing detention order pursuant to s 18(2) of the Act.
Material received
At the hearing I received into evidence, and have considered, the following material:
1Affidavit of Sally Caroline Pfitzner affirmed 1 June 2020 (exhibit AG1);
2Affidavit of Kathryn Alexandra D’Angelo affirmed 24 November 2017 (exhibit AG2);
3Affidavit of Jemma May Holt affirmed 14 May 2018 (exhibit AG3);
4Affidavit of Angela Catherine Marsh (née Moffa) sworn 30 January 2019 (exhibit AG4);
5Report by Renae Porcelli dated 12 May 2020 (exhibit AG5);
6Transcript of proceedings before the Parole Board dated 12 May 2020 (exhibit AG6);
7Report of Renae Porcelli dated 9 June 2020 (exhibit AG7);
8Report of Renae Porcelli dated 12 June 2020 (exhibit AG8);
9Affidavit of Phillip Alvaro affirmed 13 March 2019 (exhibit AG9); and
10Email from LL dated 11 June 2020 (exhibit R10).
Continuing detention orders
Section 18(2) of the Act provides:
(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.
Thus, the Court’s power to make a continuing detention order is enlivened upon its satisfaction of the two jurisdictional facts contained in ss 18(a) and (b).
Section 18(3) provides that the paramount consider of this Court in determining whether to make a continuing detention order must be the safety of the community.
Breaches of the extended supervision order
As mentioned, Mr Drion has been subject to an extended supervision order since 14 March 2019. Relevantly, condition 3 of this order provides:
3.The respondent will reside at the premises approved by his Community Corrections Officer and the respondent will not change his place of residence without the prior written permission of his Community Corrections Officer;
And condition 6 states:
6. The respondent will not use, possess or administer any illegal drug at any time and will only use, possess or administer prescription drugs in accordance with the directions of a legally qualified medical practitioner;
At the hearing of this matter on 15 June 2020 Mr Drion’s counsel formally admitted that, as the Parole Board had found, his client had breached condition 6 of the extended supervision order by returning urine samples on 24 January 2020, 30 January 2020, 12 February 2020, 18 February 2020 and 27 February 2020 which tested positive to amphetamine, methamphetamine or THC.
In addition, his counsel admitted on behalf of Mr Drion that he had breached condition 3 by changing his place of residence without the prior written approval of his corrections officer. I was told that Mr Drion had moved locations within the caravan park at which he resides with the oral permission, but not the written permission, of his corrections officer. The parties were agreed that this was a “technical” breach and it did not feature in the submissions made by either party.
Accordingly, I am satisfied that Mr Drion breached conditions 3 and 6 of the extended supervision order.
The real contest between the parties is whether Mr Drion poses an appreciable risk to the safety of the community if not detained in custody and, if so, whether I should exercise my discretion and make a continuing detention order until the expiration of his extended supervision order. That risk must be identified with some particularity and is to be informed by Mr Drion’s personal circumstances, his previous criminal history and the evidence tendered at the hearing of this matter.
Mr Drion’s personal circumstances and criminal antecedents
Mr Drion has previously pleaded guilty to one count of aggravated assault and one count of aggravated threatening harm contrary to ss 19(2) and 20(3) of the Criminal Law Consolidation Act 1935 (SA). These offences were committed against his former domestic partner on 22 August 2014.
When sentencing on 31 July 2015 the sentencing Judge referred to the background of a violent domestic relationship which ultimately resulted in separation.
On the day of the offending arrangements had been made for Mr Drion’s former partner to attend at Mr Drion’s home with their young daughter at around 7.30 pm for a visit. Whilst Mr Drion was cuddling his daughter his former domestic partner said that she had brought food. Mr Drion insulted her. Mr Drion’s daughter then left him and went to sit on his former domestic partner’s lap. This prompted Mr Drion to stand, rush towards his former partner, grab her by the hair, headbutt her twice and then punch her to the head three or four times. Because she was afraid to leave her daughter alone with Mr Drion, she remained in the house. Mr Drion put his daughter to bed at around midnight, after which he again approached his former domestic partner, placed his hand around her throat and squeezed her throat. She thought that she was going to pass out. Mr Drion then went into the bedroom where their daughter was sleeping and told his former domestic partner not to go in there or he would “kill” her.
The maximum penalty for the aggravated assault charge was imprisonment for three years and the maximum penalty for the aggravated threatening harm charge was imprisonment for seven years.
As a result of the assault, Mr Drion’s former domestic partner suffered a laceration to her left eyebrow, bruising and swelling to her head and bruising and swelling to the right side of her jaw. According to her victim impact statement she lived in constant fear of being confronted by Mr Drion or anyone associated with him. She had problems sleeping, flashbacks, anxiety and pain. Their daughter also remained distressed and became possessive of her mother. Mr Drion’s former domestic partner said that her anxiety and depression had affected her other children and she required medication for depression.
At the time of sentencing Mr Drion was 37 years old and had a long history of offences of violence.
In 1998 he committed two counts of common assault on a member of his family. In 2000 he committed the offence of common assault. On each occasion he was apparently treated leniently. In 2004 Mr Drion committed an offence of assault occasioning actual bodily harm for which he was sentenced. After taking into account two months in custody he was sentenced to 13 months’ imprisonment which was suspended on condition that he enter into a bond to be of good behaviour for one year. He breached that bond by committing five counts of deception. The suspension was revoked and Mr Drion served four months’ imprisonment.
In 2006 Mr Drion committed the offence of assault and in 2008 he committed the offence of aggravated assault against his partner. He was sentenced to three months’ imprisonment, suspended on condition that he enter into a bond to be of good behaviour for one year. He breached that bond on three occasions.
Mr Drion committed another offence of aggravated assault in 2013.
Breach of bail and community service orders also form part of Mr Drion’s criminal antecedents.
Mr Drion grew up in Port Pirie and Whyalla and completed year 11 at St Mark’s College in Port Pirie. He then undertook an automotive metal fabrication course. His employment history featured causal labour and farm work as well as work for BHP. He had also worked on the railways and at a timber mill.
The sentencing Judge recorded that at the age of 20 Mr Drion had commenced associating with people in the drug culture and became addicted to amphetamines which he used intravenously. Mr Drion’s relationship with his son’s mother was described as amicable. She suffered mental health problems and abused drugs. Mr Drion had the full-time care of his son until he was arrested for the offending in August 2014. Mr Drion’s relationship with the mother of his young daughter was characterised by amphetamine use and by domestic violence, chaos, tumult and difficulty.
At the time of sentencing in 2015 Mr Drion had never received formal treatment for drug addiction. He had received some treatment for bipolar disorder and depression, but that treatment was undermined by his use of amphetamines.
After his arrest on 27 August 2014 Mr Drion was released on home detention bail on 12 November 2014. He had spent two months and 16 days in custody and nearly seven and a half months on home detention bail. Home detention bail was not a success. Monitoring had shown that he had been to other addresses without permission and had received warnings from his supervising officer. Drug testing in December 2014 and between January and March 2015 returned negative results but on 10 June 2015 Mr Drion initially refused a drug test which ultimately proved positive to cannabis, as did a test on 24 June 2015. Tests on 1 and 8 July 2015 returned results which were positive for cannabis as well as for methamphetamine and amphetamine.
Although Mr Drion was directed to attend domestic violence counselling, and initially failed to attend, he subsequently attended five sessions and showed some insight.
The sentencing Judge said that, but for the late pleas of guilty, he would have imposed a single sentence of three years’ imprisonment. After taking into account the guilty pleas, he imposed a sentence of two years and eight months but:
[h]aving regard to the submissions as to your mental health, the steps you have taken towards rehabilitation and your personal circumstances, including your obligation to care for your son, and my assessment that both the community and you will benefit from you spending a lengthy period of supervision under strict parole conditions, I fix a lower than usual non-parole period of imprisonment for one year.
After taking into account time spent in custody and on home detention bail, Mr Drion was sentenced to imprisonment for two years and five months, with a non-parole period of nine months, commencing on 31 July 2015.
Mr Drion became eligible to apply for parole on 30 April 2016 and his head sentence was due to expire on 30 December 2017.
On 9 August 2016 Mr Drion was released on parole but returned to prison on 22 May 2017 for three months and seven days for breaching his parole. He had returned positive urinalysis tests for cannabis or amphetamine on four occasions, and on another occasion he had failed to comply with a drug screening test.
On 22 September 2017 Mr Drion was again returned to prison on a Parole Board warrant for failing to report within two working days, and failing to reside at a nominated address with his whereabouts being unknown.
The evidence
For the purposes of the Attorney’s application for an extended supervision order Dr Owen Haeney, a consultant forensic psychiatrist at James Nash House, examined Mr Drion on 15 February 2018 and produced a report dated 23 April 2018.
At the time of the examination Mr Drion was just about to turn 40 years of age and was living with a friend in Port Pirie. He visited his parents each week in Wirrabarra. He “sometimes” spoke to his younger children on the telephone. They lived in Whyalla. Mr Drion told Dr Haeney that he had two older daughters aged in their 20s who lived in Adelaide and whom he saw “occasionally”. Mr Drion said that he remained close to his son who was living with a carer arranged through Families SA. He had not seen his youngest daughter, by then aged five years, for four years. His former domestic partner had obtained an intervention order preventing contact.
Mr Drion told Dr Haeney that he had started with cannabis at around the age of 13 years and progressed to “hard drugs” by 20 years. He self-described his use of cannabis and amphetamines as “ridiculously heavy”. He admitted to using cannabis and a small amount of methamphetamines during his last prison sentence. The effect of illicit drug-taking was “uncontrolled rage and anger” and, whilst under the influence of drugs, Mr Drion said that he could not make “the right decisions”.
The records of Mr Drion’s GP disclosed that he had been diagnosed with a bipolar affective disorder in 2012 and that he had been prescribed an anti-depressant.
Mr Drion estimated that, as an adult, he had spent 13 out of the last 20 years in gaol. His offending was attributed to drug use and, by contrast, when off drugs he generally stayed out of trouble.
Mr Drion told Dr Haeney that he had undertaken a domestic violence course in Port Augusta Prison “a few years ago” and attended over 12 or 13 weeks. Mr Drion said that the course had shocked rather than educated him.
Dr Haeney recorded that an assessment by the Department for Correctional Services in January 2016 had concluded that Mr Drion was at medium risk of general recidivism, and in 2017 at high risk of domestic violence reoffending.
In expressing his views about Mr Drion, Dr Haeney noted the long history of significant substance “misuse” which Mr Drion admitted was funded through the sale of drugs. He doubted the diagnosis of bipolar affective disorder but did not rule it out. Nonetheless, he thought it reasonable to stop using mood stabilising treatment. Although he did not carry out a formal assessment of Mr Drion’s personality, Dr Haeney thought that the history suggested a number of antisocial traits including a frequent “discharge of aggression, a disregard for social norms, conventions or rules; lack of remorse or empathy; failure to profit from adverse experience or punishment”.
Though there was some evidence of a shift in Mr Drion’s attitude, Dr Haeney thought it possible that Mr Drion was seeking to present himself in a socially desirable manner so as to influence the outcome of the then current application for an extended supervision order.
In undertaking his risk assessment, Dr Haeney used the framework of the HCR-20 Version 3 Assessment for Risk of Violence, which is a structured professional judgement tool. He had regard to historical factors and clinical matters before explaining, as part of “risk management”:
Mr Drion could be anticipated to have significant problems with personal support; given his own account that he now has a limited circle of support following his move away from drug-using peers, his lack of positive friendships and his limited contact with children and other family … I would expect there could be problems with stress and coping; historically he has been reliant upon substance misuse. Even if he tries to avoid sources of conflict such as relationships, antisocial peers or intimate relationships, stress cannot be avoided altogether. If he reverts to drug use then his risk will rise sharply. Without substance misuse and with his reduced support, he may find it difficult to cope with conflict or stress.
Dr Haeney thought that Mr Drion had longstanding and entrenched antisocial attitudes fostered by peer associations with his substance misuse acting “as a critical mediating factor for violence”.
Whilst the most likely scenario for violent recidivism was a recurrence of domestic violence, the potential risk was not confined to romantic relationships as was, Dr Haeney said, demonstrated by Mr Drion’s previous history. There was evidence of previous violence to people other than intimate partners. Dr Haeney referred to Attorney-General (SA) v Grosser in which Stanley J explained “appreciable risk” for the purposes of s 7(4)(b):[2]
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. …
(Footnote omitted.)
[2] [2016] SASC 49, [29].

According to Dr Haeney:
Clinically, a difficulty arises; if someone has already committed a specified offence, in this case of violence, then it would be near impossible to say that the risk of a further offence is ‘purely speculative’ given that one of the strongest predictors of future behaviour is past behaviour. In Mr Drion’s case there is chronicity to his offending despite previous attempts to engage him in relevant treatment. He has several outstanding areas of risk as described above. Although it is encouraging that he is now showing some willingness to seek to understand and change his behaviour, I cannot conclude that there is no appreciable of further violence given the pattern to date.
The views of Dr Haeney have not been sought in support of the present proceedings.
In correspondence to the Parole Board dated 23 March 2020 and 30 March 2020 Mr Drion explained his breaches by reference to difficulties accessing a suboxone program. It is not necessary to go into detail about the logistic difficulties encountered by Mr Drion. It is sufficient to observe that because of difficulty accessing the requisite prescription:
this caused me to go without [it] and caused me to suffer from withdrawals and I had no choice but to detox. This changed my whole train of thort [sic] and I rebelled and started to take drugs again.
I admit to my breaches and I am willing to continue with my counciling [sic] I started on my own account if am [sic] released.
Of course by the time the present proceedings were heard it seems likely that the immediate physiological consequences of drug addiction will have abated.
In the course of an interview with representatives of the Parole Board on 12 May 2020, Mr Drion said, in response to the allegation that he had clearly been using methamphetamines and cannabis and amphetamines, which was “quite concerning”: [3]
Yes, it’s not good at all. I own what I’ve done, that I’ve done wrong. I know it’s not the right way of going about things. All … I can do is apologise for the chance that you’ve given me previous, for mucking that up, and all I can do is try and better myself, I guess.
…
Well, I’ve been seeing a counsellor. Twice I was ill, but I have been seeing a counsellor because I do want to curb this addiction. I did have, I think it was four months on the outside there where I was doing quite well without using any amphetamine. I was on the – I was using Suboxone instead, but at the time I was living in Wirrabara and I couldn’t see or I couldn’t get to a counsellor until I moved to Port Pirie. But I do acknowledge that I’ve relapsed and I do want to stop using amphetamine. It’s just going to take some time, I guess, but I’m strongly – I’m very strong-willed in not repeating my history and not going back to my history at all. But like you said, it is a possibility that it may happen, but I’m very adamant that it won’t because I don’t want to be in my old life anymore. It’s just, to get rid of my old life and start a new one I’ve got to curb this addiction.
…
I am trying. Even though it may not appear that way, I am trying. It is hard, and I have been given a lot of chances, but I am trying.
…
… I can’t give you a sufficient and a proper answer because I don’t know why. I guess it’s just an addiction. I can’t explain why. I just - it’s something that I need to fix.
[3] Presiding Member Ms E F Nelson QC, Deputy Presiding Member Mr W Boucaut QC and Acting Secretary, Ms K Cross, with Community Corrections Officer Mr M Varghese in attendance.
In the course of the interview it emerged that Mr Drion was planning to reside with a woman (LL) who was, apparently, well aware of Mr Drion’s history, although she was not aware of the suboxone treatment.
At the time of the interview Mr Drion was 42 and LL 55 years of age.
According to a report dated 9 June 2020 from Ms Renae Porcelli, a specialist clinician from the Sentence Management Unit of the Department for Correctional Services, a recent Ontario Domestic Assault Risk Assessment placed Mr Drion in the “74% of domestic violence offenders who recidivate”. She explained that because of the current COVID-19 pandemic the Department for Correctional Services was offering the Domestic and Family Violence Intervention Program by means of a workbook program but that, due to the seriousness of Mr Drion’s domestic violence history, he needed to attend a face-to-face group program. The next face-to-face program would commence at the beginning of September 2020 at Mount Gambier Prison and run for between 11 and 16 weeks (depending upon the requirements of social distancing). Nonetheless, the same program was available in the community, including at the Adelaide TAFE campus, facilitated by psychologists from the Department for Correctional Services.
In a subsequent report dated 12 June 2020 Ms Porcelli referred to the proposal that Mr Drion reside with LL in Port Pirie. She was regarded as a “pro-social influence” and as a “protective factor” even though the relationship was “recent”. Further:
At this time, DCS is not supportive of Mr Drion residing with a partner because the safety of any prospective partner is a significant concern, based on his criminal history. [LL’s] address is not approved as a release address for Mr Drion. At this time, Mr Drion’s return to his parents’ residence in Wirrabara is not approved.
DCS recommends that Mr Drion seeks to obtain independent community housing, either in Adelaide or in the Spencer Gulf region.
Ms Porcelli then went on to outline the various substance abuse treatment options which were available both inside and outside of prison.
In the course of submissions I was also advised that:
1The Attorney-General considers that completion of a substance abuse program is necessary to reduce the risk posed by Mr Drion which is related to relapse into drug addiction;
2Were Mr Drion to be detained, it is likely that a substance abuse program (the Smart Recovery Program, a 12-week program) may just be completed before the extended supervision order expires on 13 September 2020; and
3Were Mr Drion to be released into the community, a substance abuse prevention program may be commenced but it is unlikely to be completed by the time the extended supervision order expires on 13 September 2020. There is likely to be a waiting and assessment period of between two and four weeks (possibly less if it is undertaken in Port Pirie) before participation could commence. Participation is not dependent upon completion before 13 September 2020, albeit that successful rehabilitation will require completion of the treatment program.
At my request evidence was obtained from LL given that it is proposed that Mr Drion will live with LL. In email correspondence I was advised that she met Mr Drion at the same caravan park where Mr Drion was residing and where she is a permanent resident. Mr Drion was apparently “very well liked” and helped many residents, particularly elderly residents, with repairs and other tasks. His birthday (21 February 2020) was celebrated by the residents at a barbeque which, I was told, attests to Mr Drion’s popularity. I was told that LL is prepared to take Mr Drion to his drug counselling sessions “with [the] permission of his parole officer”, as well as to the shops and his parole officer meetings. There has, apparently, been a discussion about moving into a house together and sharing expenses which, I was told, “will be absolutely free of drugs”.
LL is regarded as having a responsible job and has met with Mr Drion’s parents.
Submissions
For the Attorney-General it was submitted that the request for detention is related “primarily to the need for immediate incapacitation … as the appreciable risk to the community of violent reoffending remains heightened whilst he remains untreated for substance abuse”:[4]
Prevention of relapse is greater if a treatment program is successfully completed. The Court may also consider that with respect to longer term intervention, completion of an illicit drug program in custody would reduce the risk of relapsing into illicit drug use in the community.
[4] Attorney-General Outline of Argument [37].
Considerable reliance was placed upon the views of Dr Haeney given in 2018. Whilst where Mr Drion might live was not regarded as particularly relevant:[5]
[h]aving regard to his identified risk factors the Court may consider that the risk of illicit drug use and violent reoffending may be increased in circumstances where the respondent is residing with another person and in a domestic relationship.
[5] Attorney-General Outline of Argument [39].
The Attorney submitted that the identified increased risk of re-offending remains “untreated” and that Mr Drion had breached conditions which were intended to minimise the risk of offending. In the circumstances, it was submitted that the breaches indicated a failure of the extended supervision order to safeguard the community and, having regard to the paramount consideration of safety of the community, the Court was invited to exercise its discretion to order immediate incarceration which was, it was said, “appropriate”.
For Mr Drion it was contended that the risk profile had not materially altered since the time of Dr Haeney’s assessment. Whereas the matter was initially presented as one where no programs could be undertaken before early September, whether in prison or in the community, it had become clear that programs could be undertaken before then, whether in prison or in the community. The positive influence of the recent relationship, not romantic in nature, was said to give some reason for confidence that Mr Drion had some insight into his behaviour and that there were, therefore, reasons to consider that he did not represent any increased risk.
In short, because a detention order was not intended to be punitive, but protective, and because there was no evidence that the recent illicit drug taking was associated with any violence there was, it was submitted, no need for incarceration.
Consideration
When determining whether to make a continuing detention order reliance has often been placed on the observations of this Court in Attorney-General (SA) v Sullivan (No 2)[6] cited subsequently in, amongst other decisions, Attorney-General (SA) v Moyle (No 2)[7] and Attorney-General (SA) v Tipping.[8]
[6] [2018] SASC 74, [9]-[14] (Hinton J).
[7] (2019) 134 SASR 257.
[8] [2020] SASC 64.
The authorities to which I have referred suggest that the following considerations (amongst others) are relevant to the determination that this Court must make under s 18(2) of the Act where continuing detention is sought:
1 The purpose of detention is not punitive but protective;
2When assessing the risk posed by a respondent, it is relevant to re-assess the risk given the nature and circumstances of any breach;
3It is necessary to identify with some particularity the risk that the respondent poses to the community, before turning to consider whether detention is necessary to adequately protect the community from that risk;
4In some cases the risk to the community may be immediate and the appropriate response may need to be detention. However, in other cases the risk may be less immediate, but no less profound, and may require detention so as to facilitate different measures associated with intervention and prevention; and
5The respondent should not be detained for any longer than is necessary to ensure adequate protection of the community.
As mentioned earlier in these reasons, the critical question is whether Mr Drion poses an appreciable risk to the community and whether, in light of that risk, a continuing detention order should be made.[9] Whilst it was submitted to me that whether or not Mr Drion stands a better prospect of recovering if he is incarcerated (or otherwise) is not the test posed by the legislation, that seems to me to be a relevant consideration.
[9] Attorney-General (SA) v Brandon [2019] SASC 85, [12] (Hughes J).
Because prevention from drug use and associated violent reoffending is relevant to any ongoing risk assessment, and because the primary consideration is the protection of the community pursuant to s 18(3) of the High Risk Offenders Act, any immediate appreciable risk will usually outweigh any considerations of medium to long-term rehabilitation.[10] In Attorney-General (Qld) v Francis Keane and Holmes JJA and Dutney J explained:[11]
The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.
[10] Police v Schmidt; Attorney-General (SA) v Schmidt [2018] SASC 80 (Hinton J) relying on R v Schuster (2016) 125 SASR 388.
[11] (2007) 1 Qd R 396, 405.
Here the case propounded by the Attorney-General is straightforward: Mr Drion has a history of abusing drugs and, whilst affected by drugs, committing violent crimes, particularly domestic violence.
By contrast, Mr Drion submits that, though he has ongoing problems with his drug addiction, he has not engaged in any violence since August 2014. It is acknowledged that this consideration is counterbalanced by the fact that, for much of that period, Mr Drion has been in custody. Nonetheless, though there have been numerous breaches associated with drug taking in that period there has been no instance of violence. There is, in addition, some evidence of insight.
There can be no doubt that, pursuant to the current terms of Mr Drion’s extended supervision order, he can be required to undergo treatment and engage in whatever drug and violence counselling is thought appropriate. Whilst that will not be completed before the expiry of the extended supervision order, the fact that Mr Drion is genuinely interested in undertaking a program before 13 September 2020 is relevant to any evaluation of the risk posed.
In my opinion it is significant that there is only a matter of 10 or so weeks until the extended supervision order expires. Mr Drion can undertake, or at least commence, appropriate programs whether or not he is incarcerated. If necessary this can be directed. Whilst his ongoing substance abuse issues were (with good reason) thought important when determining whether to subject Mr Drion to an extended supervision order, in my opinion something more is required to justify detention.
Had there been any sign of violence since August 2014, or a persistent failure to acknowledge the consequences of drug taking and the seriousness of his prior criminal offending, one would be reluctant to regard this case as anything other than a case of immediate risk requiring detention.
However, in the absence of any sign of violence since August 2014, and given that some degree of insight is apparent, together with the positive nature of the arrangements being planned with LL in Port Pirie, the “balancing exercise” between “competing considerations” which I am required to undertake, even allowing for the importance of the paramount consideration of the safety of the community, suggests that detention is not required. However, even if I am wrong about whether Mr Drion presents an appreciable risk if not detained, I would decline to exercise my discretion in favour of detention given the short timeframe, the availability of a program to treat his addiction, the positive arrangements being made with LL and his insight.
Of course, Mr Drion must understand that his drug use and any propensity for violence will continue to be closely monitored by the Parole Board. Further drug taking will not be excused. Any suggestion of violence, however transient or insubstantial, can be expected to provoke a further referral to this Court for continuing detention. The Court might well then think that any risk, however slight, will require detention.
Conclusion
I am satisfied that Mr Drion does not pose an appreciable risk to the safety of the community if not detained in custody.[12] In any event I am not prepared to exercise my discretion in favour of detention. Accordingly, I decline to order that Mr Drion be detained in custody pursuant to s 18(2) of the Act.
[12] Criminal Law (High Risk Offenders) Act 2015 (SA), s 18(2)(b).
It will be a matter for the parties as to whether the current terms of the extended supervision order should be varied so as to ensure that any available program is soon undertaken by Mr Drion.
I will stand the matter over for a short period to allow the parties to consider the need for amendment to the existing conditions.