Attorney-General (SA) v Driver

Case [2021] SASC 66

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

ATTORNEY-GENERAL (SA) v DRIVER

[2021] SASC 66

Reasons of the Honourable Justice Livesey  

4 June 2021

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS

On 16 June 2011, the respondent was convicted of three counts of rape, two counts of indecent assault, one count of assault causing harm and two counts of aggravated criminal trespass in a place of residence. The respondent was resentenced to a term of 11 years imprisonment with a non-parole period of five years and six months, backdated to commence on 7 July 2009.

The Attorney-General applied for an order that the respondent be detained in custody until further order pursuant to s 57(7) of the Sentencing Act 2017 (SA) (the Sentencing Act). In the alternative, the Attorney-General applied for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act).

While the applications were opposed, the respondent submitted that an extended supervision order might be made with conditions permitting him to reside with members of his broader family in his traditional homeland in the Northern Territory.

The respondent’s head sentence expired on 6 July 2020. However, he remained in custody under an interim detention order made on 1 July 2020 pursuant to s 57(5) of the Sentencing Act.

Held (per Livesey J), ordering that the respondent be detained in custody until further order pursuant to s 57(7) of the Sentencing Act:

1.      The respondent is both at high risk of reoffending and, given the opportunity, unwilling to   control his sexual instincts.

2.      While there is unquestionably a degree of unfairness associated with the respondent’s array         of difficulties and disadvantage, his offending is not easily addressed or explained. Despite      extensive intervention, the respondent has been unable to express any real empathy for his         victims and he lacks insight into the causes of his offending. His is a complex case which is     unlikely to be improved by further treatment or therapy.

3.      If released, there is a very serious risk that the respondent will again become isolated, angry         and sexually frustrated, with the result that he will engage in the kind of brazen sexual     offending for which he was incarcerated.

4.      Electronic monitoring does not represent an effective means of curbing that risk. At best, it will indicate to authorities that the respondent is breaching the terms of an order. It will not    prevent or inhibit further offending.

5.      The respondent is a high risk offender who poses an appreciable risk to the safety of the     community if not supervised.

6.      The making of an extended supervision order with conditions permitting or requiring that the       respondent reside in the Northern Territory is beyond this Court’s jurisdiction. In any event,     it is clear that there could be no effective supervision and enforcement of such an order.

7.      It is not appropriate to make an extended supervision order pursuant…

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Attorney-General (SA) v Driver [2021] SASC 66
Case
[2021] SASC 66
Decision Date

CaseChat Overview and Summary

In the Supreme Court of South Australia, the Attorney-General sought an order for the detention of Mr Driver under section 57 of the Sentencing Act. Mr Driver had completed his head sentence but remained in custody pending the determination of this application. The court heard evidence from psychiatrists, psychologists, and other experts, as well as affidavits from Mr Driver’s family and the National Disability Insurance Agency.

The legal issues before the court were whether Mr Driver should be detained under section 57 of the Sentencing Act and, if so, whether an extended supervision order should be made under the High Risk Offenders Act. The court considered the risk Mr Driver posed to the community, his unwillingness to control his sexual instincts, and the effectiveness of electronic monitoring as a means of curbing that risk.

The court found that Mr Driver was both at high risk of reoffending and unwilling to control his sexual instincts. While acknowledging the unfairness of Mr Driver’s array of difficulties and disadvantages, the court was troubled that his offending was not easily addressed or explained. The court concluded that if released, Mr Driver would likely again become isolated, angry, and sexually frustrated, engaging in brazen sexual offending. Electronic monitoring was found to be ineffective in curbing this risk. The court also concluded that an extended supervision order with conditions permitting or requiring that Mr Driver reside in the Northern Territory was beyond the court's jurisdiction and would not be effective.

The court ordered that Mr Driver be detained in custody until further order pursuant to section 57(7) of the Sentencing Act. The court found it appropriate and necessary to make this order for the protection of the community, given the high risk Mr Driver posed if not supervised. The court declined to make an extended supervision order under the High Risk Offenders Act, finding it inappropriate in these circumstances.

Orders

Orders of the court

Held (per Livesey J), ordering that the respondent be detained in custody until further order pursuant to s 57(7) of the Sentencing Act:

1. The respondent is both at high risk of reoffending and, given the opportunity, unwilling to control his sexual instincts.

2. While there is unquestionably a degree of unfairness associated with the respondent’s array of difficulties and disadvantage, his offending is not easily addressed or explained. Despite extensive intervention, the respondent has been unable to express any real empathy for his victims and he lacks insight into the causes of his offending. His is a complex case which is unlikely to be improved by further treatment or therapy.

3. If released, there is a very serious risk that the respondent will again become isolated, angry and sexually frustrated, with the result that he will engage in the kind of brazen sexual offending for which he was incarcerated.

4. Electronic monitoring does not represent an effective means of curbing that risk. At best, it will indicate to authorities that the respondent is breaching the terms of an order. It will not prevent or inhibit further offending.

5. The respondent is a high risk offender who poses an appreciable risk to the safety of the community if not supervised.

6. The making of an extended supervision order with conditions permitting or requiring that the respondent reside in the Northern Territory is beyond this Court’s jurisdiction. In any event, it is clear that there could be no effective supervision and enforcement of such an order.

7. It is not appropriate to make an extended supervision order pursuant to the High Risk Offenders Act.

8. It is appropriate and necessary to order that the respondent be detained until further order pursuant to s 57(7) of the Sentencing Act.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Driver’s head sentence expired on 6 July 2020. However, Mr Driver remained in custody pursuant to an interim detention order made by me on 1 July 2020 pursuant to s 57(5) of the Sentencing Act. Evidence received On the hearing of the applications I received the following evidence and materials:1.An affidavit of Ms Holly Frances Nikoloff sworn 29 October 2019, together with exhibits.2.An affidavit of Ms Alyona Andreevna Haines affirmed 25 February 2020, and exhibits.[4]3.A further affidavit of Ms Alyona Andreevna Haines affirmed 20 April 2020.4.A psychiatric report from Dr Craig Raeside dated 7 December 2019.5.A further psychiatric report from Dr Craig Raeside dated 31 March 2020.6.A psychiatric report from Dr William Brereton dated 29 April 2020.7.Correspondence from the Attorney-General’s counsel regarding ongoing treatment dated 12 March 2021.[4] The exhibits to this affidavit include a psychiatric report prepared by Dr Craig Raeside, dated 31 January 2011, the DCS Pre-Sentence Report of G Ramsay, dated 13 December 2010 and the DCS Sentence Management Unit Summary of N Billing and C Sim, dated 5 January 2017. This material was tendered by counsel for the Attorney. Counsel for Mr Driver tendered the following:8.A psychology report from Richard Balfour dated 16 June 2020.9.An affidavit of Trevor Scroop (Mr Driver’s “traditional father”) affirmed 24 September 2020.10.An affidavit of Lynette Driver (Mr Driver’s mother) sworn 3 September 2020.11.An affidavit of Lewis Charles affirmed 23 November 2020.12.Correspondence from the National Disability Insurance Agency (NDIS) dated 18 February 2021.13.Correspondence regarding residence at the Lakalinjeri Tumbetin Waal (LTW) live-in rehabilitation centre dated 3 June 2021. In addition, and at my request, material was produced regarding the capacity of Parole Board to ensure the supervision of Mr Driver were he allowed to reside in the Northern Territory (letter dated 17 December 2020 from Ms E F Nelson QC, Presiding Member of the Parole Board of South Australia) and concerning Mr Driver’s ongoing treatment or counselling whilst imprisoned. I heard oral evidence from the psychiatrists and psychologist on 21 August 2020. I found the expert evidence helpful. There was really no challenge made to any of it. I was particularly impressed by the evidence from Dr Raeside, although the evidence of all of the experts was of assistance to me. In so far as it becomes necessary to make a finding in the event of differences, I prefer the evidence of Dr Raeside and Dr Brereton to that of Mr Balfour. Nonetheless, I accept Mr Balfour’s evidence regarding the statements made to him by Mr Driver. The applicable legal principles On 30 April 2018, the Sentencing Act came into force. It abolished and replaced the Criminal Law (Sentencing) Act 1988 (the CL(S)A). Generally, Part 2, Division 3 of the former Act was re-enacted without amendment as ss 57 to 59 of Part 3, Division 3 of the Sentencing Act. Section 57(3) provides:(3)If a person has been convicted of a relevant offence, the Attorney-General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section.

Decision

Reasons for decision

However, even if I was wrong about that, and the NDIS funding did allow for 24-hour supervision, I remain very concerned about the risk posed by Mr Driver’s isolation, limited capacity for social interaction and likely difficulty establishing meaningful relationships with women so as ensure that he can to meet his sexual needs. As I see it, there is the very serious risk that Mr Driver will again become isolated, angry and sexually frustrated, with the result that he will engage in the kind of brazen sexual offending for which he has been incarcerated. In these circumstances, I do not see electronic monitoring as representing any effective means of curbing the dangerous risk that Mr Driver poses to women in the community. At best, electronic monitoring will only indicate to authorities that Mr Driver is breaching the terms of an order. It will not inhibit or prevent further offending. Conclusion In all of these circumstances, it is in my view appropriate and necessary that an order for detention be made pursuant to s 57 of the Sentencing Act for the protection of the community. It is not appropriate to make an extended supervision order under s 7 of the High Risk Offenders Act.

Ratio Decidendi

Legal Principle Established

I shall return to make further findings about the option of an extended supervision order when addressing the exercise of my discretions.Consideration regarding the exercise of discretions In my opinion, it has been demonstrated that Mr Driver is unwilling to control his sexual instincts. Whilst the power exercised under s 57 is not explicitly conditioned on the making of a finding such as this, no order should be made in the absence of such a finding.[48] The real question is whether I should exercise the discretion to make an order indefinitely detaining Mr Driver.[49][48] Wichen v The Queen [2020] SASC 157, [107] (Kourakis CJ).[49] Attorney-General (SA) v Duroux (2019) 278 A Crim R 375, [187]-[189]: Does “protection of the community … demand that the order be made at this stage?”. Whilst I accept that an order made under s 57 is properly viewed as preventative or protective,[50] I am very conscious that the practical effect of an order is that a person will “rarely, if ever, be released”,[51] and there is a “grave risk” that an order may “weaken the basic principle of individual liberty”.[52] [50] Thomas v Attorney-General (SA) (2019) 133 SASR 302, [47]-[50] (Kourakis CJ, with whom Nicholson and Parker JJ agreed). See also Fardon v Attorney-General (Qld) (2004) 223 CLR 575, [2] (Gleeson CJ), [34] (McHugh J), [214]-[217] (Callinan and Heydon JJ), [219] (Callinan and Heydon JJ).[51] R v Humphrys (2018) 131 SASR 344, [10] (Kourakis CJ, with whom Vanstone and Nicholson JJ agreed).[52] Sir Leon Radzinowicz, The Persistent Offender, Radzinowicz and JWC Turner (eds), Proper Case The Modern Approach to Criminal Law (MacMillan and Co, 1945) p 167, cited in Attorney-General (SA) v Duroux (2019) 278 A Crim R 375, [188] (Hinton J). I am also conscious that, in other cases, indeterminate detention has been rejected pending further time to address criminogenic factors and begin de‑institutionalisation,[53] or an extended supervision order has been made because it is regarded as adequate to meet the need for protection of the community.[54] [53] Attorney-General (SA) v Duroux (2019) A Crim R 375, [189] (Hinton J).[54] Attorney-General (SA) v Moyle [2018] SASC 106, [169]-[172] (Hinton J), Attorney-General (SA) v Tipping [2019] SASC 133, [58]-[60] (Kelly J). Indeed, and there is no dispute about it, Mr Driver is a high risk offender who poses an appreciable risk to the safety of the community if not supervised, with the result that, prima facie, the discretion under s 7 of the High Risk Offenders Act is also enlivened. These are however separate discretions. There is unquestionably a degree of unfairness associated with Mr Driver’s array of difficulties and disadvantage, however I remain troubled that his offending is not easily addressed or explained. His offending was not directly the result of alcohol or illicit drugs. He was sober when he committed his offences. Whilst it is tempting to think that Mr Driver might improve with further time and therapy, the evidence and the opinions of the psychiatrists suggest otherwise. His is a complex case which is unlikely to be improved by further treatment or therapy.