Attorney-General (SA) v Dutton - [2025] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v DUTTON
[2025] SASC 143
Reasons for Decision of the Honourable Justice Kimber
29 August 2025
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 - DANGEROUS SEXUAL OFFENDER
Between about 2014 and 2018, the respondent committed sexual offences involving two young males (the sexual offences).
On 22 May 2024, the respondent was made subject to an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). The supervision order expires on 21 November 2026.
There is no dispute that the respondent breached a condition of the extended supervision order by testing positive to methamphetamine and amphetamine on 20 December 2024 and 6 January 2025. The respondent also breached conditions of the earlier interim supervision order. Pursuant to s 17 of the Act, the respondent has been referred to this Court for consideration of whether a continuing detention order should be made.
The sexual offences were committed when the respondent had been drinking and the same was the case when the respondent exchanged the text messages. The Attorney-General submits that the failure of the respondent to comply with the conditions of both the interim supervision order and extended supervision order by consuming alcohol, and more recently methamphetamine and amphetamine, informs the risk of the respondent committing an offence involving a child. The Attorney-General also submits that the Sexual Behaviour Clinic (SBC) program is an unmet treatment need and that program is likely to be able to be made available to the respondent in custody. The respondent submits that a continuing detention order should not be made. The respondent does not dispute that he needs to engage in treatment but submits that there is no certainty that the SBC program will be made available to him if he is detained.
Held:
1.The respondent has breached his extended supervision order and poses an appreciable risk to the safety of the community if not detained in custody.
2.The discretion to make a continuing detention order should be exercised.
3.Pursuant to section 18(2)(c) of the Act, the respondent is to be subject to a continuing detention order until 21 November 2026.

Criminal Law Consolidation Act 1935 (SA) s 63B(3)(b); Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 9, 12, 17, 18, referred to.
Attorney-General (SA) v Coaby [2019] SASC 137; Attorney-General (SA) v Drion [2020] SASC 120; Attorney General (Qld) v Francis [2007] 1 Qd R 396; Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74; Garlett v Western Australia (2022) 277 CLR 1; R v Schuster (2016) SASR 388, applied.

ATTORNEY-GENERAL (SA) v DUTTON
[2025] SASC 143
Criminal: Application
KIMBER J:

Mr Andrew Dutton (the respondent) is subject to an extended supervision order pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). The supervision order expires on 21 November 2026. Pursuant to s 17 of the Act, the Parole Board has found that the respondent has breached the supervision order and directed that the respondent be detained in custody pending attendance before this Court for determination of whether a continuing detention order should be made.
The Attorney-General is a party to the proceeding and submits that a continuing detention order should be made until 21 November 2026. The respondent submits that a continuing detention order should not be made.
There being no dispute that the respondent breached his supervision order, the issues for me are whether the respondent poses an appreciable risk to the safety of the community if not detained in custody; if so, whether the discretion to make a continuing detention order should be exercised; and, if that order is made, the duration of that order.
For the reasons which follow, I find that the respondent should be detained in custody until 21 November 2026.
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)—
(c)     until the expiration of the breached supervision order; or
(d)     if a further supervision order is made in respect of the person—until the expiration of that further supervision order; or
(e)     for such lesser period as may be specified by the Court.
The matters in s 18(2)(a) and (b) are jurisdictional facts. A finding of both jurisdictional facts enlivens a discretionary power. If the discretion is exercised, s 18(2)(c)-(e) provides for the orders which may be made with respect to the duration of that order.
The breaches of the extended supervision order
The respondent entered the extended supervision order on 22 May 2024. The duration of that order is two years and six months.
A condition of that order is that the respondent not use alcohol or any other drug which is not prescribed by a medical doctor. There is no dispute that the respondent breached that condition by testing positive to methamphetamine and amphetamine on 20 December 2024 and 6 January 2025.
Past breaches of the interim supervision order
The above breaches are not the only times that the respondent has breached an order imposed pursuant to the Act. The respondent was subject to an interim supervision order immediately before the extended supervision order was imposed. That order was in place between 30 August 2023 and 22 May 2024. Among the conditions of the interim supervision order were that the respondent not consume alcohol and not have contact with a child under the age of 18 years unless that contact was approved by his supervising officer. In February 2024, the respondent breached those conditions when he consumed alcohol and exchanged text messages with a child.
The above breaches came to light when SC, a friend of the respondent and, according to the respondent, someone with whom he may have an even closer relationship, reported that the respondent had been exchanging text messages with her 13-year-old son, EC. There is no dispute that during the text messages, the defendant said that there was ‘…one more thing i want to ask but its about u lol’ and then asked, ‘Do u wank at ur age lol don’t have to tell me bff’. Plainly enough, given the respondent’s past offending to which I will later turn, those text messages give rise to the inference that the respondent had a sexual interest in EC.
As a result of the above, the respondent was arrested and appeared before the Parole Board on 7 May 2024. The respondent admitted having consumed alcohol and, unsurprisingly, admitted that the message about masturbation was a sexual one. The respondent was referred to this Court for consideration of whether a continuing detention order should be made given the breaches of the interim supervision order, but the respondent was made subject to the extended supervision order before that was determined.
Contact with EC in custody
As a result of the breaches of his extended supervision order, the respondent was arrested on 14 January 2025 and detained in custody. The respondent was not interviewed by the Parole Board until 10 June 2025. While detained in custody before 10 June 2025, the respondent had contact with SC and EC by telephone. The contact with EC included the respondent discussing EC’s use of cannabis and the respondent apparently told EC that if he was to use that drug, he should do so in the presence of his mother. To the Parole Board, the defendant admitted that he had encouraged EC to use cannabis.
The contact with EC while detained in custody is not a breach of the extended supervision order as, pursuant to s 12(2) of the Act, those conditions are suspended while a person is in custody. Nevertheless, that the respondent was communicating with EC is still relevant, particularly in the context of the respondent’s offending history and the text messages with EC to which I have earlier referred. Along with other conduct, the contact with EC while in custody contributes to the existence of a concern that the interest of the respondent in EC is one which continues despite his arrest in 2024 and appearance before the Parole Board.
Other aspects of the background of the respondent
The respondent is 41 years of age. The respondent had a difficult childhood. His parents separated when he was eight years of age and he moved houses frequently between the ages of 12 and 14. This disrupted the education of the respondent, and he did not complete year 11.
At about the age of eight years, the respondent was sexually abused by a family friend. The respondent has reported that this abuse ‘fucked up his life’, caused him to have problems with trust and that it was one of the main reasons that he started drinking. On leaving school, the respondent had several different jobs but appears to have been unemployed for about four years commencing in about 2016.
At the age of 17, the respondent commenced a long relationship with an older woman, but she has passed away. The respondent has two sons.
The respondent has several convictions over a period of about 20 years. The overwhelming majority of those convictions are for driving offences, breaches of bail and breaches of intervention orders. However, in 2014, 2016 and 2018 the respondent committed offences in which the victims were young males.
The offence in 2014 was gross indecency. The victim was 10 years of age and the friend of one of the sons of the respondent. The victim was at the home of the respondent playing video games with the son. The victim turned around and saw that the respondent was standing in the door and was masturbating with his penis exposed. The victim immediately reported the matter to his parents and to the police, but nothing further came of the matter at that time.
The offence in 2016 was also gross indecency and involved a different victim. The second victim was about 12 or 13 years of age and visiting the home of the respondent as a friend of the respondent’s son. The second victim went to go to the bathroom and saw the respondent looking at him and masturbating while standing in the hallway.
Two years later, when the second victim was about 15 years of age, the respondent contacted him by Facebook Messenger. There then followed video calls and written messages with the purpose of making the second victim amenable to sexual activity, an offence contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 (SA).
The respondent pleaded guilty to the three offences just outlined and was sentenced in the District Court in May 2023. In submissions on sentence, it was put by the respondent that the offending had occurred when under the influence of alcohol. The respondent submitted that he had been alcohol dependent and was drinking every day to the point of passing out. The sentencing Judge told the respondent that he needed to continue his abstinence from alcohol. For all three offences, the sentencing Judge imposed a head sentence of two years, 10 months and seven days with a non-parole period of one year and 10 months. That sentence was backdated to 3 November 2020.
The report of Mr Luke Williams
While subject to the interim supervision order, a psychologist, Mr Luke Williams, interviewed the respondent on 16 May 2024 and prepared a report for the Court. On the application before me, the respondent did not challenge any aspect of the report of Mr Williams.
When interviewed by Mr Williams, the respondent maintained the conduct the subject of the three offences summarised above had occurred when he was intoxicated. The respondent did not dispute the offences the subject of his guilty pleas but denied a sexual attraction to either victim and claimed a lack of memory of the relevant communications. The respondent told Mr Williams that he identified as bisexual but denied any attraction to pubescent children.
Mr Williams opined that the respondent had ‘a concerning lack of insight into his sexual offending, attributing it solely to his usage of alcohol’.[1] In the opinion of Mr Willams, the respondent ‘did not present with an understanding of other dynamic risk factors that had contributed to his offending or verbalise a desire to understand these better in order to prevent his risk of engaging in such behaviour in the future’.[2]
[1] Affidavit of Emily Harper (dated 21 August 2025), Exhibit EJH-8.
[2] Ibid.
The respondent also has a history of domestic violence offending, apparently involving his former partner, including in the context of alcohol abuse.
In his report, Mr Williams opined that the respondent ‘is at high risk of committing another serious sexual or violent offence and will continue to pose an appreciable risk to community safety if not appropriately supervised’.[3]
[3] Ibid.
Participation in programs
While on remand and when serving his sentence, the respondent was not given the opportunity to complete either the Domestic and Family Violence Intervention Program (DFVIP) or the Sexual Behaviour Clinic (SBC) program.
After the respondent was released into the community, and while on the interim supervision order, the respondent commenced the SBC program at Owenia House. The respondent participated for about six months before being arrested for alleged breaches of his interim supervision order. It appears the respondent may have completed approximately the first half of the SBC program and that there was approximately six to nine months to go.
Availability of the SBC program in the future
If the continuing detention order is made, it is likely, but not certain, that the respondent may be accepted into the SBC program in custody to commence in about October 2025. If accepted, completion of that program will take about 12 months. The information with respect to the availability of that program in the community is a little ambiguous. Taking the approach most favourable to the respondent, it appears the SBC program would be available to the respondent in the community but not until the first quarter of 2026.
A brief outline of the submissions
As mentioned, the Attorney-General submits that a continuing detention order should be made.
The Attorney-General submits that the failure of the respondent to comply with the conditions of both the interim supervision order and extended supervision order by consuming alcohol, and more recently methamphetamine, informs the risk of the respondent committing an offence involving a child. The Attorney-General emphasises that the offences dealt with in the District Court demonstrate that the respondent is more likely to offend if disinhibited. The Attorney-General submits that the text messages with EC are demonstrative of the interest of the respondent in young boys and his preparedness to act on that interest even when subject to conditions prohibiting such conduct. The Attorney-General submits that the contact with EC, and that the respondent has not completed a sexual behaviour program, establish that the risk of the respondent committing a sexual offence involving a male child is real and that the level of that risk cannot have diminished since the report of Mr Williams.
While the Attorney-General submits that the above matters are sufficient to warrant the making of a continuing detention order, he also submits that the SBC program is an unmet treatment need and that program is likely to be able to be made available to the respondent in custody. If a continuing detention order is made, the Attorney-General submits that the likely availability of that program while in detention informs the period of detention that should be ordered.
As mentioned, the respondent submits that a continuing detention order should not be made. While the respondent does not dispute that he needs to engage in treatment, he submits, accurately, that, at this time, there is no certainty that the SBC program will be made available to him if he is detained. The respondent submits that he has the support of a family member to access a private psychologist in the community. The respondent submits that his methamphetamine use occurred in the context of the illness and subsequent death of a person to whom he was close and that he has insight into the link between his use of alcohol and his risk of offending.
The respondent submits that his contact with SC and EC from custody was innocent and motivated by a desire to maintain a relationship with SC, a desire which he submits is mutual. The respondent submits that the contact with EC at the same time was not a breach of any order and was, in effect, as he believed that EC should not hide his cannabis use from his mother. The respondent submits that when subject to the interim supervision order, he was a willing participant in the SBC program. The respondent submits that accommodation is available with his mother who is supportive of him. The respondent submits that his risk of drug use can be mitigated by the conditions of his extended supervision order. For example, the ability to monitor him closely, compel testing and direct that he attends relevant programs. In short, the respondent submits that the risk that he poses can be appropriately mitigated by the conditions of his existing order.
Some authorities with respect to s 18
In Attorney-General (SA) v Sullivan (No 2),[4] Hinton J stated:[5]
The power to make a continuing detention order is not a power to punish a person for breaching a supervision order. It is a power to be exercised for protective not punitive purposes. The question is whether the drastic step of incarcerating the high risk offender for the duration of the extended supervision order or some lesser period is necessary to protect the community from an appreciable risk to its safety as posed by the high risk offender. That question is to be answered in the knowledge that the alternative is the continuation of the supervision order, possibly varied. Obviously the risk posed by the offender subject of the breached supervision order must be reassessed in the light of the nature and circumstances of the breach.
[4] Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74.
[5] Ibid, [9].
In Attorney-General (SA) v Drion,[6] Livesey J (as he then was) held:[7]
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;
2.When assessing the risk posed by a respondent, it is relevant to re-assess the risk given the nature and circumstances of any breach;
3.It 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;
4.In 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
5. The respondent should not be detained for any longer than is necessary to ensure adequate protection of the community.
[6] Attorney-General (SA) v Drion [2020] SASC 120.
[7] Ibid, [68].
Appreciable risk

Consistent with the above, it is necessary to identify with some particularity the risk the respondent poses to the safety of the community if not detained. The relevant risk is that the respondent will contact a male under the age of 18 and attempt to exploit him in a sexual way, either remotely or in person. I find that that risk is appreciable if the respondent is subject to a supervision order and not detained. For that reason, the respondent poses an appreciable risk to the safety of the community if not detained.
The starting point is the offences in 2014, 2016 and 2018. Those offences show that the respondent has a sexual interest in male children. It may be noted that although the offending in 2014 was reported and the respondent was spoken to by the police, the respondent repeated like behaviour in 2016. Further, having committed the offence in 2016, in 2018 the respondent sought out that same child and having contacted him, engaged in communications with the goal of making that victim amenable to sexual activity.
Despite being sentenced for the offences just mentioned, and despite being subject to orders prohibiting contact with a child, the respondent engaged in the text messages with EC. Those messages are demonstrative of a sexual interest in EC. The respondent preferred advancing his sexual interest in boys over compliance with orders designed to minimise the risk of him committing sexual offences. Given the offences the subject of the sentence in the District Court; the communications with EC; and the opinion of Mr Williams, it is likely that the sexual interest of the respondent in EC and other boys under the age of 18 is just as strong today as it has been in the past.
Taking the view most favourable for the respondent, as submitted by the respondent, SC is interested in maintaining a relationship with the respondent and the respondent feels the same way. However, given the text messages and the offence the subject of the sentence in the District Court, I am satisfied that it is just as likely that the real interest of the respondent is in EC.
Consistent with the above, I accept the opinions of Mr Williams that in 2024, the respondent was at high risk of committing a sexual offence. In my view, in the absence of the completion of a treatment program such as the SBC program and the respondent demonstrating that he can avoid the use of substances likely to contribute to disinhibition, it is likely that the risk of the respondent seeking to offend against a male youth is just as high today as it was at the time of the report of Mr Williams.
I am satisfied that if released in the community, even subject to the conditions of the extended supervision order, the respondent will breach again. The respondent has a history of not complying with bail agreements and, more relevantly, the conditions of orders pursuant to the Act.
The discretion
I agree with Hinton J that the making of a detention order is a drastic step. It is not a discretion to be exercised lightly. I must consider whether the terms of the existing supervision order, possibility varied, are a sufficient safeguard. As submitted by the respondent, the purpose of such an order is not punitive.
In Garlett v Western Australia,[8] the majority of the High Court endorsed the Court of Appeal of the Supreme Court of Queensland's decision in Attorney‑General v Francis (Francis).[9] In Francis, Keane and Holmes JJA and Dutney J explained, in relation to the choice to be made between a continuing detention order and a supervision order:[10]
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.
[8] Garlett v Western Australia (2022) 277 CLR 1, 41 [105] (Kiefel CJ, Keane and Steward JJ).
[9] Attorney-General v Francis [2007] 1 Qd R 396 (Francis).
[10] Ibid, 405 [39].
Further, as Hughes J remarked in the Attorney-General (SA) v Coaby:[11]
A continuing detention order is not the only response that can be made to a breach of a supervision order. If the circumstances or nature of the breach does not indicate a failure of the supervision order to safeguard the community, or if the risk has been addressed since the breach, or if the risk can be addressed in another way such as further or different conditions on the supervision order, then a detention order should not be made.
[11] Attorney-General (SA) v Coaby [2019] SASC 137, [19].
The paramount consideration of the safety of the community must be born in mind. As the Full Court stated R v Schuster:[12]
… The effect of making public safety the paramount consideration is that, speaking generally, relatively smaller degrees of risk will outweigh considerations which, even strongly, support release. The exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety.
[12] R v Schuster (2016) SASR 388, 406 [80]. See also Attorney-General (SA) v Coaby [2019] SASC 137 at [18] whereby Hughes J considered that the Full Court's remarks were instructive in relation to the operation of s 18 of the Act.
In this case, the conditions of the extended supervision order are already stringent. The text messages with EC show that the condition of a supervision order did not protect the community. The only additional condition suggested by the respondent was that there be a prohibition upon access to a mobile phone. However, the respondent did not dispute the submission of the Attorney-General that access to a mobile phone without internet access is an essential feature of how the respondent is monitored in the community. Putting that aside, even if such a condition was coherent with the balance of the conditions, it would not be difficult for the respondent to obtain a mobile phone.
I recognise that the respondent is prepared to engage in treatment in the community, including privately with the financial support of his mother. Nevertheless, I find that there is a real risk that the respondent will not complete the SBC program in the community. Given that the respondent has breached orders made under the Act more than once in the past, it is likely he will do so again. Eventually a breach will be detected. In that event, it is likely that, as in the past, the respondent will be detained pending an appearance before the Parole Board. When that occurs, as in the past, the completion of a treatment program in the community will be frustrated. Respectfully, not much weight can be placed on the possibility of private treatment in the community. No detail was provided as to the nature of that treatment. In addition, even assuming that something substantial could be arranged, as with the SBC program in the community, any such treatment is also likely to be frustrated by a breach and subsequent arrest.
Given the risk posed by the respondent; his demonstrated inability to comply with the conditions of orders pursuant to the Act; his engagement in sexual communications with EC; and the paramount consideration of the safety of the community, I find that the discretion should be exercised.
The duration of the order
Given the respondent’s conduct in 2014, 2016 and 2018; the text messages with EC; the respondent’s inability to avoid the use of substances likely to lead to disinhibition; and the unmet need of, at least, treatment for his sexual interest in children, I am unable to conclude that the risk posed by the respondent may diminish in any substantial way before the SBC program is completed. For that reason, I order that the respondent be detained until 21 November 2026.
I recognise that it is not certain that while in detention the respondent will be accepted into the SBC program commencing in October 2025. However, if, through no fault of his own, the respondent is not accepted, then he may have cause to advance an application pursuant to s 19 of the Act and submit that his detention be reviewed. That is not to express any view as to the merits of any such application.
Orders
Pursuant to s 18(2)(c) of the Act, I order that the respondent be subject to a continuing detention order until 21 November 2026.