Attorney-General (SA) v Ellis - [2025] SASC 119

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v ELLIS
[2025] SASC 119
Judgment of the Honourable Justice Stein
22 July 2025
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - PREVENTIVE DETENTION
An application for a continuing detention order (“CDO”) under s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
The Attorney-General filed an originating application and notice of referral seeking determination as to whether a CDO should be made in respect of the respondent on the basis of alleged breaches of an extended supervision order (“ESO”) imposed on him in 2023.
Held (granting the application):
1.The respondent has breached the conditions of his ESO;
2.The breaches are serious enough to establish that the respondent is an appreciable risk to the safety of the community if not detained and the Court exercises the discretion to grant the application and make a CDO to detain the respondent until the end of December 2026.

Criminal Law (High Risk Offenders) Act 2015 (SA) s 18, referred to.
Attorney-General (SA) v Grosser [2016] SASC 49; R v Schuster 2016) 125 SASR 388; Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11; Attorney-General (SA) v Drion [2020] SASC 120; Attorney-General (Qld) v Francis [2007] 1 Qd R 396; Garlett v Western Australia (2022) 277 CLR 1; Attorney-General (SA) v Coaby [2019] SASC 137, considered.

ATTORNEY-GENERAL (SA) v ELLIS
[2025] SASC 119
Criminal: Application

STEIN J: The Attorney-General has applied for a continuing detention order (“CDO”) in respect of the respondent, Mr Trystan Ellis, pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“HRO Act”). The application for a CDO is based on alleged breaches of an extended supervision order (“ESO”) imposed on Mr Ellis on 5 June 2024 for a period of three years.
On 23 November 2024, the Parole Board issued a warrant which authorised Mr Ellis to remain in custody following allegations of breach of conditions of the ESO. The warrant was executed in December 2024 and Mr Ellis has remained in custody since then. On 22 April 2025, the Parole Board satisfied itself Mr Ellis had breached conditions of the ESO.
Section 18(2) of the HRO Act provides that this Court may make a CDO for the remainder of the term of the ESO, or for such lesser period as the Court thinks fit, provided the Court is satisfied that Mr Ellis has breached a condition of his ESO and poses an appreciable risk to the safety of the community if not detained in custody.
The paramount consideration in exercising the power conferred by s 18 of the HRO Act is the safety of the community.[1]
[1] Criminal Law (High Risk Offenders) Act 2015 (SA), s 18(3).
General principles
The matters contained in s 18(1)(a) and (b) of the HRO Act, that is, satisfaction of breach of a condition of a supervision order and that the respondent poses an appreciable risk to the safety of the community if not detained, are in the nature of jurisdictional facts. Upon finding the existence of both jurisdictional facts, the Court’s discretionary power to impose a CDO is enlivened.
In Attorney-General (SA) vGrosser,[2] Stanley J described what constitutes an appreciable risk as:
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 the future in a manner that poses a risk to the safety of the community. It is a question of degree.
[2] [2016] SASC 49 at [29].
In R v Schuster,[3] the Full Court referred to the effect of the paramount safety of the community as follows:[4]
… 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.
[3] (2016) 125 SASR 388.
[4] R v Schuster (2016) 125 SASR 388 at 406, [80].
The approach to be taken to the discretion conferred by s 18 of the HRO Act was articulated by Hinton J in Police v Sullivan[5] as follows:
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. The 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.
[5] [2018] SASC 11.
In Attorney-General (SA) v Drion,[6] Livesey J set out the relevant considerations in the exercise of the discretion as follows:
·the purpose of detention is protective, not punitive;
·the risk to the community is to be reassessed against the nature and circumstances of the breach;
·it is necessary to identify with some particularity the risk the respondent poses to the community before consideration whether detention is necessary to protect the community from the risk;
·if the risk to the community is immediate or high, detention may be necessary;
·there may be cases in which the risk may be less immediate, but detention may be required to facilitate different measures associated with prevention and intervention;
·the respondent should not be detained for any longer than is necessary to ensure adequate protection of the community.
[6] [2020] SASC 120 at [68].
If supervision is apt to ensure adequate protection, having regard to the risk to the community posed by the respondent, an order for supervised release should, in principle, be preferred to a continuing detention order.[7]
[7] Attorney-General (Qld) v Francis [2007] 1 Qd R 396 at [39]; endorsed by a plurality of the High Court in Garlett v Western Australia (2022) 277 CLR 1.
A continuing detention order is not the only available response 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, a detention order should not be made.[8]
[8] Attorney-General (SA) v Coaby [2019] SASC 137.
Breaches of the ESO
The first jurisdictional requirement under s 18 of the HRO Act is a breach of the ESO.
The Attorney-General submits that Mr Ellis breached conditions of his ESO in November 2024 by consuming illicit drugs (methamphetamine and amphetamine) to which he tested positive; failing to be at his house in breach of his curfew condition; breaching a condition of his ESO by being at the address of a protected person under an intervention order after 5.00 pm on more than one occasion; failing to answer his phone and removing his electronic monitoring device and absconding. On one occasion, police located Mr Ellis at the protected person’s house and Mr Ellis told a corrections officer that the protected person had on occasion spent the night at his address. The protected person was one of the victims of Mr Ellis’ index offending (aggravated assault against a spouse).
The alleged breaches are conceded by Mr Ellis. I am satisfied that Mr Ellis breached conditions of the ESO thus fulfilling the first jurisdictional requirement of s 18.
Appreciable risk to the safety of the community
The second jurisdictional requirement under s 18 of the HRO Act is satisfaction that the person poses an appreciable risk to the safety of the community if not detained in custody.
Mr Ellis has an extensive history of criminal offending in multiple States and the Northen Territory starting as a juvenile. His criminal history includes many offences of entering occupied dwellings with intent to commit crime, breaches of bail and bond, robbery causing bodily harm, contravention of intervention orders, assault and indecent assault.
On an appeal against a sentence imposed on Mr Ellis in the Northern Territory for 46 offences, in 2005, Martin CJ observed that Mr Ellis had been given repeated opportunities for rehabilitation and had abused those opportunities. On appeal, Mr Ellis was sentenced to a period of imprisonment of 10 years for those offences which included breaking into premises to steal and assaulting a victim during the theft.
The index offending which gave rise to the ESO was aggravated assault against his partner and indecent assault committed against a 15 year old. Mr Ellis was imprisoned for three years, nine months and 11 days with a non-parole period of three years and nine days.
In 2024, a report by Mr Williams, forensic psychologist, was provided for the purposes of the Attorney-General’s application for an ESO in respect of Mr Ellis. Mr Williams stated that Mr Ellis maintains a distorted view of his sexual offending and the use of domestic violence, among other things, attributing blame to the victims, viewing himself as the victim and minimising his use of domestic violence and breaches of intervention orders. Mr Williams referred to Mr Ellis’ significant history of substance abuse, identifying use of alcohol and illicit substances as a significant contributor to Mr Ellis’s offending. Mr Williams observed that Mr Ellis had not engaged in intervention to address his substance use. Mr Ellis has been assessed as being at moderate to high risk of further serious sexual offending and at high risk of domestic violence offending. Mr Williams stated that Mr Ellis presented with significant cognitive distortions including denial, minimisation and justification and has not engaged with criminogenic intervention despite being given the opportunity to do so. Mr Williams considered that it was unlikely that Mr Ellis would engage in intervention if not compelled to do so by the conditions of an ESO. Mr Williams opined that Mr Ellis posed an appreciable risk to the safety of the community. Mr Williams indicated that while a lack of family and cultural support in South Australia was of concern, that had been of limited effectiveness in relation to historical offending. He opined that the negative effects of a supervision order should be balanced against the fact an order would allow Mr Ellis to complete rehabilitation to address risk factors which would be of long term benefit in mitigating the risk he poses to others. After completing the required intervention consideration could be given to returning to Western Australia. Mr Williams made a range of recommendations including that Mr Ellis compete participation in a Sexual Behaviour Clinic program (“SBC”), a domestic family violence intervention program (“DFVIP”) and intervention to address his use of alcohol and illicit substances.
A report from the Parole Board report stated that Mr Ellis has not engaged with external services since on the ESO and, while in custody, Mr Ellis withdrew his application for parole when it appeared he would be required to engage in the DFVIP.
The Attorney-General submitted that to mitigate the risk Mr Ellis poses, he must engage in programs to address his criminogenic risk; since he was assessed by Mr Williams, Mr Ellis has not engaged in any rehabilitation programs and thus continues to pose an appreciable risk to the community. The Attorney-General pointed to Mr Ellis’ breaches of the ESO as demonstrating the risk of harm Mr Ellis poses if not detained and submitted that Mr Ellis must be detained in custody to complete the SBC. The Attorney-General submitted that the risk posed by Mr Ellis cannot be properly addressed in any other way given his lack of engagement in services in the community and on the ESO.
The next SBC program to be conducted in custody commences in October 2025 and runs to October 2026 with post completion reports prepared in November 2026. Mr Ellis would have to consent to participate in the program. If he consents, he will be assessed for inclusion and, if assessed as suitable, prioritised for inclusion. The next program in the community commences at Owenia House at the end of January 2026. If assessed as suitable, it is expected a place should be available for him.
A report from the Parole Board states that Mr Ellis has not engaged in the supervision process nor in services to which he has been directed. The Parole Board considers Mr Ellis presents a serious risk to the community and cannot be managed on an ESO. The Parole Board report states that Mr Ellis has not engaged in any rehabilitative programs nor has he appeared to demonstrate any willingness to do so.
Mr Ellis does not concede he poses an appreciable risk to the safety of the community if not detained. Mr Ellis maintains that the breaches of the ESO do not elevate Mr Ellis’ risk and the current level of risk does not require further measures to be imposed against him. Counsel for Mr Ellis submitted upon Mr Ellis’ instructions that he has ended the relationship with the protected person, which reduces risk and that he has only been convicted of one sexual offence. Further, Mr Ellis relied on the fact the breaches found did not include consumption of alcohol.
Mr Ellis submitted that the ESO had kept him in South Australia when he wished to return to Western Australia, leaving him with no supports or connections. At the hearing of the ESO application, submissions were put to Kourakis CJ that Mr Ellis should be allowed to return to Western Australia. Mr Ellis contended that would have given safety to the victims of his index offending. Mr Ellis submitted that being in the community on the ESO has been difficult. He is worried about his elderly mother. He is disconnected from his family. He started alcohol and drug counselling but was not in the community for long enough to complete the program. Counsel for Mr Ellis submitted upon instructions that Mr Ellis has approached Tiraapendi Wodli, Nunkuwarrin Yunti and Uniting Care regarding drug and alcohol courses and was waiting for a response.
Mr Ellis states he has ended the relationship with one of the victims of his offending which reduces the risk to the community. It was submitted that Mr Ellis’ risk factors were well known and his maladaptive behaviours are a function of being on an ESO which prevents him returning to Western Australia. This submission fails to acknowledge any connection between Mr Ellis’s maladaptive behaviours and his risk factors identified for the purposes of the ESO application.
Mr Ellis submitted the CDO should be refused because the ESO was made against him requiring him to remain in South Australia without personal connections or cultural ties. I am not persuaded that constitutes good reason to decline the CDO. The ESO was made on the basis that Mr Ellis posed an appreciable risk to the safety of the community and that he ought to be the subject of supervision to address his criminogenic risk. In placing Mr Ellis on an ESO, Kourakis CJ rejected the arguments put to him in relation to Mr Ellis returning to Western Australia, concluding it would leave the South Australia community at risk if Mr Ellis was allowed to return to Western Australia without having addressed his criminogenic risk. Chief Justice Kourakis further considered it was necessary for Mr Ellis to engage in programs in South Australia to be well on the way to changing himself before returning to Western Australia. Apart from making enquiries with service providers, it appears Mr Ellis has not made any progress in this regard.
Consideration of appreciable risk and exercise of discretion
The critical question is whether Mr Ellis poses an appreciable risk to the community and whether, in light of that risk, a continuing detention order should be made.
The history of Mr Ellis’ breaches are relevant both to the question whether Mr Ellis poses an appreciable risk to the safety of the community if not detained and to the exercise of my discretion.
Mr Ellis’ history of offending includes both violent and sexual offending while intoxicated. His history of breaches of bail, bond and intervention orders indicates that Mr Ellis is not deterred from breaching Court orders. While I accept that Mr Ellis did not commit further offences, the breaches of the ESO giving rise to the CDO application are neither insignificant nor technical. Breaches of the no drugs condition, breaching the conditions of the ESO relating to a protected person and removing the electronic monitoring device and absconding are significant and serious breaches. Further, while there was no breach of the no alcohol condition, Mr Ellis breached the no drugs condition by consuming methamphetamine and amphetamine. Mr Williams’ opinions in relation to Mr Ellis’ risk were not limited to alcohol consumption but included increased risk associated with consumption of illicit drugs. The breaches by their very nature directly engaged Mr Ellis’ criminogenic risk factors and are associated with risk to community safety.
The risk that Mr Ellis poses is an appreciable one based on the evidence of his prior offending, the nature of his breaches and the fact that he has not, as yet, completed rehabilitation programs. Regardless of whether Mr Ellis remains in a relationship with the protected person, Mr Ellis’ risk has not reduced from that which he posed when initially released into the community as he has not engaged in the appropriate rehabilitative programs. Since being released, Mr Ellis has breached the ESO conditions in a serious way indicating that supervision has not achieved its intended purpose. Accordingly, in the light of the material before me, in particular Mr Ellis’s history of offending, the opinions of Mr Williams, and the nature of Mr Ellis’ breaches of the ESO, I am satisfied that Mr Ellis poses an appreciable risk to the community if not detained in custody.
It follows that the jurisdiction under s 18 of the HRO Act is enlivened and I need to consider whether to exercise the discretion to make an order.
Mr Ellis accepted he needed to engage in rehabilitation. However, counsel for Mr Ellis contended that it would be difficult for Mr Ellis to engage fully in the SBC program when he had no memory of the offending and thus could be criticised for failing to properly participate. Further, Mr Ellis questioned the utility of the SBC given he had only one conviction for a sexual offence. Counsel pointed out that Mr Ellis has refused to complete programs in custody and submitted that leverage for Mr Ellis to engage in rehabilitation programs would be greater in the community because a failure to do so would risk Mr Ellis’ return to custody. It does not appear that while under the ESO Mr Ellis has been formally directed to engage in the SBC or the DFVIP.
The Attorney-General, by reference to a tendered program outline for the SBC program, submitted that the program addresses not only sexual behaviour but also issues relevant to domestic violence offending, such as empathy and victim awareness, intimacy and relationships, emotional management and substance abuse. This demonstrated broader relevance of the program. Counsel submitted that Mr Ellis’ potential refusal to engage in programs in custody was not a sufficient basis to refuse the exercise of discretion, pointing to the requirement to give paramountcy to the safety of the community.

Protection of the community from the risk that Mr Ellis poses is linked to rehabilitation. As set out above, while acknowledging Mr Ellis’ enquiries concerning drug and alcohol counselling, Mr Ellis has a history of non-engagement with rehabilitation programs to address the risk of his reoffending. He has a history of breaching Court orders. The ESO conditions have not deterred Mr Ellis from breaching in ways which directly engage his criminogenic risk. I am mindful that supervised release is to be preferred over a CDO, given the high value the law places on personal liberty and this Court’s reluctance to constrain that liberty any more than is absolutely necessary. Directing Mr Ellis to attend a program in the community may be perceived to provide a greater incentive for Mr Ellis to engage fully and satisfactorily to avoid returning to custody. Accordingly, I have considered whether amending the ESO conditions to require Mr Ellis to engage in the SBC in the community rather than detain him in custody is preferable. In this case, the breaches indicate the failure of the ESO to protect the community and I am not persuaded the risk can satisfactorily be addressed by amending the ESO in such terms. Mr Ellis’s history, including the breaches, Mr Ellis’ past attitude to rehabilitation programs and Mr Williams’ report provide no comfort that Mr Ellis will comply with such conditions. Further, the program in the community does not commence until towards the end of January 2026, with the consequence that Mr Ellis would remain in the community for approximately six months prior to program commencement. If Mr Ellis were then to fail to comply with the condition to engage in the SBC in the community, the program in custody would have already commenced, delaying further any rehabilitative benefit which may otherwise have occurred in custody. The aim of supervision to achieve sufficient rehabilitation to allow Mr Ellis to return to Western Australia was integral to Kourakis CJ’s imposition of the ESO but there has been no positive progress in that respect. I am persuaded that the safety of the community justifies making a CDO even if there is a prospect Mr Ellis chooses to refuse to consent to participate in the program. Ultimately, if Mr Ellis desires to return to Western Australia it is necessary for him to engage in rehabilitation programs and accordingly it is in his interest to consent. The program in custody can be completed sooner, which is to Mr Ellis’ advantage.
Taking into account all of the matters to which I have referred, I have determined to grant the application and make an order for a CDO until the end of December 2026.