Attorney-General (SA) v DUTHIE

[2023] SASC 82

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

ATTORNEY-GENERAL (SA) v DUTHIE

[2023] SASC 82

Judgment of the Honourable Justice McIntyre  

24 May 2023

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER

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

On 25 November 2022, this Court made an interim supervision order with respect to the respondent pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act).

The respondent conceded that he is a high risk offender and largely consents to the making of an extended supervision order under s 7 of the Act in the terms proposed by the applicant. However, he opposes home detention conditions being imposed.

Held:

1.      An extended supervision order will be made in the terms proposed by the applicant.

Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, referred to.
Attorney-General (SA) v Grosser (No 3) [2017] SASC 89, considered.

ATTORNEY-GENERAL (SA) v DUTHIE
[2023] SASC 82

Criminal: Application

McINTYRE J:

1. The applicant, the Attorney-General for the State of South Australia, applies for an extended supervision order (ESO) under s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). The respondent was subject to an ESO from 29 November 2018 until 28 November 2022. He is currently subject to an interim supervision order (ISO) made on 25 November 2022 pending the determination of these proceedings.

2. The respondent concedes, and I am satisfied, that he is a high-risk offender.  He further concedes that he poses an appreciable risk to the safety of the community if not supervised under an ESO.  I am satisfied that this is the case and that it is appropriate that an ESO should be made.  The issue is whether the respondent ought to be subject to home detention conditions.  Specifically, the respondent contests paragraph 28 of the draft orders proposed by the applicant which reads as follows:

   Unless otherwise provided by the Parole Board, the Respondent will not leave his residence at any time without the prior approval of his Community Corrections Officer, except for the purpose of remunerated employment, urgent medical or dental treatment, to minimise the risk of serious injury or death to himself or to any other person, or any purpose approved or directed by his Community Corrections Officer.

3. The respondent contends that the imposition of a home detention order is unduly onerous and, in many respects, counterproductive.  It is said that the risk to the community is exacerbated by the imposition of home detention conditions and that the home detention conditions in the previous order did not prevent the respondent engaging in further offending. 

4. The appellant says that the respondent’s risk has not decreased since the previous order was made.  The respondent has had little opportunity to undertake rehabilitation in the community owing to his concerning pattern of non-compliance with the supervision order including fresh offending on 15 November 2020.  The appellant further contends that, based on comments to corrections and Dr Raeside, the respondent poses a flight risk.  In view of these matters and the paramount need to protect the community, the appellant says there is no basis to lessen the conditions. 

5. I was referred to the judgment of Stanley J in Attorney-General (SA) v Grosser(No 3)[1] where his Honour considered the exercise of the discretion as to, amongst other things, the conditions of an extended supervision order.  Stanley J noted the competing considerations.  On the one hand, the requirement for unambiguous lawful authority to infringe upon a person’s liberty and freedom of movement and, on the other hand, the need to protect the community from the risk of that person reoffending.  His Honour went on to say:[2]

   In construing the statute which infringes those rights and freedoms the Court will do so in a manner which limits the infringement to what is strictly required to effect the purpose of the statute.  Given the terms of the Act, specifically the paramount consideration of public safety, in the exercise of this Court’s discretion relatively smaller degrees of risk will outweigh considerations which, even strongly, would militate against the making of an extended supervision order.  The same principles inform consideration of what are appropriate conditions to impose in making an extended supervision order and in determining the length of that order.  The efficacy of the order is determined by the conditions it imposes.  That warrants the same consideration applying to the conditions imposed as to the making of the order per se.

   (citations omitted)

   [1] [2017] SASC 89.

   [2] At [12].

6. Throughout the currency of the ESO and ISO the respondent has breached the conditions of those orders on a number of occasions as evidenced by the affidavit of Maria Positano affirmed on 17 November 2022.[3]  The respondent’s engagement in supervision has been superficial.[4]  He did not complete the Owenia House program due to being imprisoned on charges of accessing and possessing child exploitation material.  He was convicted of those offences and is currently serving a sentence of imprisonment due to expire in June 2023. 

   [3]    FDN 3.

   [4]    FDN3 Exhibit MP-13.

7. The progress report writer indicates that the respondent is considered a very high-risk offender who has shown a pattern of deceptive and manipulative behaviour within the community and within prison.[5]  The Parole Board of South Australia expresses similar views in its letter dated 1 November 2022,[6] noting that the respondent has breached his order on at least four occasions including ongoing contact with his victim, removing his electronic monitoring device and absconding, and breaching the no drugs condition.  The Parole Board concludes that the respondent has unmet treatment needs requiring a further ESO for a period of at least three years with the same conditions. 

   [5]    FDN3 Exhibit MP-13.

   [6]    FDN3 Exhibit MP-14.

8. A report was ordered from Dr Raeside, a forensic psychiatrist, and was provided on 22 December 2022.  The respondent had a very traumatic and difficult childhood.  This has had adverse consequences for his development, psychiatric state and risk of reoffending.  Dr Raeside noted that he had difficulty complying with the ESO due to using illicit drugs and contravening other conditions, including the removal of his electronic monitoring device.  Dr Raeside considers the respondent to have an underlying antisocial personality disorder with likely some borderline personality traits.  He also has a marked substance use disorder that has continued to be problematic even when on the ESO.  Dr Raeside considers that the respondent is at high risk of committing a further sexual offence as well as offending more generally.  He supports the application for a further ESO to enable the respondent to participate in a community based sexual offender program and other rehabilitation.  The respondent told Dr Raeside that should he be released with electronic monitoring and conditions of home detention he would simply remove the monitoring device.  He told Dr Raeside that he was happy to have the anklet for tracking and monitoring, but he would not do it if he had to stay at home. 

9. On the face of it, nothing has changed since the first ESO was imposed.  Indeed, the respondent has committed further offences related to accessing and possessing child exploitation material.  I accept the submissions made on behalf of the respondent that he has had a very difficult life, that he has been in custody for much of his adult life and that he has had very little opportunity to develop a normal life in the community.  I also accept that home detention is very restrictive and that this leads to the respondent becoming bored and frustrated.  It is submitted that, in turn, this has led to his breaching and offending behaviour. It is said that the home detention condition is counterproductive for these reasons and that the safety of the community is better served by the respondent receiving rehabilitation and by other conditions of the proposed order.  There is a superficial attraction to the submission that the home detention condition is counterproductive, particularly in view of the fact that it failed to prevent the CEM offending.  However, the respondent’s comments to Dr Raeside show a concerning lack of willingness to undertake the necessary rehabilitation and lack of insight into the necessity for him to comply with the conditions of his ESO.  Dr Raeside noted that the respondent’s severe personality disorder and substance abuse disorder place him at a high risk of further offending generally as well as sexual offending more specifically.  Dr Raeside supported the application for an ESO to enable the respondent to participate in a sexual offender program such as that at Owenia House whilst noting that the personality and substance abuse disorders will make compliance with conditions of an ESO difficult for him. 

10. Whilst the comments made by the respondent to Dr Raeside are concerning, these do not in themselves provide good reason to remove the home detention condition.  Indeed, this ultimatum demonstrates the validity of the comment about the respondent’s pattern of manipulative behaviour.  The respondent’s compliance with his previous ESO has been poor and his engagement with rehabilitation superficial.  Without rehabilitation, his risk remains unchanged.  The paramount consideration in determining the conditions of an ESO is the safety of the community.  To paraphrase Stanley J’s comments in Grosser, relatively smaller degrees of risk outweigh considerations which might militate against the imposition of this home detention condition.  In all the circumstances, it is my view that the home detention condition ought to remain at least immediately on the respondent’s release to facilitate the respondent’s transition into the community and his participation in rehabilitation whilst providing an added level of protection for the community.  If he demonstrates an improved attitude towards compliance and rehabilitation, then he can apply for removal of this condition.