Attorney-General (SA) v Drion

Case [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

  1. 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.

  2. 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.

  3. 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…

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AGLC
Attorney-General (SA) v Drion [2020] SASC 120
Case
[2020] SASC 120
Decision Date

CaseChat Overview and Summary

The case of Attorney-General (SA) v Drion involved a review of a continuing detention order under the Criminal Law (High Risk Offenders) Act 2015 (SA). The Attorney-General sought an extended supervision order for Mr Drion, who had a history of serious drug-related offences and a risk of reoffending, particularly in relation to domestic violence. The primary issue before the court was whether Mr Drion posed an appreciable risk to the safety of the community, which would necessitate his continued detention. The court had to balance the need for community protection against the rehabilitative potential of Mr Drion, considering his history of substance misuse and violent tendencies.

The court deliberated on the purpose of a continuing detention order, which is to protect the community rather than to punish the offender. It referenced previous cases such as Attorney-General (SA) v Sullivan (No 2) and Attorney-General (SA) v Moyle (No 2) to establish that the primary consideration is the risk posed to the community. Dr Drion’s history of drug use, violent outbursts, and high risk of reoffending were key factors in assessing his potential threat. The court examined evidence from a forensic psychiatrist, Dr Haeney, who highlighted Mr Drion's substance misuse, antisocial traits, and the lack of evidence linking his recent drug use to violent behaviour.

Ultimately, the court found that Mr Drion did not pose an appreciable risk to the community if not detained in custody. It noted that the detention order was not punitive but protective, and since there was no evidence linking his recent drug use to violence, immediate detention was not necessary. The court also emphasised the importance of preventing further drug use and violent reoffending but concluded that these considerations did not override the need for adequate community protection. The court declined to order continued detention and suggested that the current terms of the extended supervision order might need to be amended to ensure Mr Drion undertakes available programs. The matter was stood over briefly to allow for such considerations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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”.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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; and5The 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.