Attorney-General (SA) v Faulkner - [2020] SASC 95

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v FAULKNER
[2020] SASC 95
Judgment of The Honourable Justice Lovell
4 June 2020
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS
The respondent is a high risk offender. On 19 June 2019, this Court made an extended supervision order for a period of five years in respect of the respondent, pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA). On 1 December 2019, the respondent breached the conditions of the extended supervision order and was returned to custody. The Parole Board, being satisfied that the respondent breached the conditions, detained the respondent in custody pending a determination by this Court as to whether a continuing detention order should be made, pursuant to s 18(2) of the Act.
Held:
1. Parties may apply to vary the terms of the extended supervision order.
2. Subject to the question of varying the terms of the extended supervision order, the application for a continuing detention order will be dismissed.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, s 18, referred to.
Attorney-General (SA) v Grosser [2016] SASC 49; Police v Sullivan; Attorney-General (SA) v Sullivan (No 1) [2018] SASC 11; Attorney-General (SA) v Tipping [2020] SASC 64; Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74; Attorney-General (SA) v Moyle [No 2] [2019] SASC 31, considered.

ATTORNEY-GENERAL (SA) v FAULKNER
[2020] SASC 95
LOVELL J.
Overview

The respondent is a high risk offender. Upon his release from prison for serious child sex offences, the respondent was placed on an extended supervision order (‘ESO’), which prohibited him from accessing the internet (except in limited circumstances) and required him to disclose any electronic devices in his possession to his Community Corrections Officer. The respondent breached those conditions and the Parole Board, pursuant to s 18(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the Act’), referred the matter to the Supreme Court for determination as to whether a continuing detention order (‘CDO’) should be made.
Background
It is necessary to set out the history of the proceedings which gave rise to the referral. On 18 December 2002, the respondent was sentenced in the District Court to 16 years imprisonment, with a non-parole period of 10 years, for the following offending:
·three counts of unlawful sexual intercourse;
·10 counts of indecent assault;
·one count of serious criminal trespass in a place of residence with intent to abduct a child under 16 years; and
·one count of attempted abduction of a child under 16 years.
The offences were committed over a five-year period against children aged between 10 to 15 years old. It is this offending which makes the respondent a “serious sexual offender” for the purposes of the Act. The respondent was released on parole three times but breached the conditions of his release each time. The respondent breached his parole by consuming alcohol, possessing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] SASC 95
Decision Date: 4 June 2020

CaseChat Overview and Summary

In the case of Attorney-General (SA) v Faulkner, the Supreme Court of South Australia considered whether a continuing detention order (CDO) should be made against the respondent, who was a high-risk offender released on an extended supervision order (ESO) following imprisonment for serious child sex offences. The Parole Board referred the matter to the Supreme Court for determination after finding that the respondent breached the conditions of his ESO. The Attorney-General sought a CDO, while the respondent opposed it. The legal issues centred on the appropriate balance between the protective purpose of the CDO and the individual circumstances of the respondent.

The court considered the purpose of the CDO, which is to protect the community from the risk posed by high-risk offenders, as opposed to punishing the offender for breaching the ESO. The court acknowledged the respondent's high-risk status and the nature of his breaches, which indicated a lack of transparency and an unwillingness to comply with the terms of his release. However, the court was not satisfied that the breaches indicated that the respondent's risk to the community was significantly higher than at the time of the making of the ESO. The court also noted that the respondent was subject to strict supervision conditions and that the conditions could be further tightened if necessary.

The court concluded that, while the respondent was a person who required strict and frequent supervision, the breaches did not indicate that he posed a risk which required continuous incarceration. The court decided not to make a CDO against the respondent, instead opting to continue with the ESO with the possibility of tightening the supervision conditions if needed. The court recognised the need to balance the protective purpose of the CDO with the individual circumstances of the respondent, ultimately determining that the risk posed by the respondent could be managed with proper support in the community and strict ESO conditions.

Orders

Orders of the court

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Background

Background to the litigation

The respondent is a high risk offender. Upon his release from prison for serious child sex offences, the respondent was placed on an extended supervision order (‘ESO’), which prohibited him from accessing the internet (except in limited circumstances) and required him to disclose any electronic devices in his possession to his Community Corrections Officer. The respondent breached those conditions and the Parole Board, pursuant to s 18(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the Act’), referred the matter to the Supreme Court for determination as to whether a continuing detention order (‘CDO’) should be made.Background It is necessary to set out the history of the proceedings which gave rise to the referral. On 18 December 2002, the respondent was sentenced in the District Court to 16 years imprisonment, with a non-parole period of 10 years, for the following offending:·three counts of unlawful sexual intercourse;·10 counts of indecent assault;·one count of serious criminal trespass in a place of residence with intent to abduct a child under 16 years; and·one count of attempted abduction of a child under 16 years. The offences were committed over a five-year period against children aged between 10 to 15 years old. It is this offending which makes the respondent a “serious sexual offender” for the purposes of the Act. The respondent was released on parole three times but breached the conditions of his release each time. The respondent breached his parole by consuming alcohol, possessing child pornography and failing to comply with his reporting obligations. For the possession of child pornography, the respondent was sentenced to 12 months and 24 days imprisonment, to be served cumulatively upon the sentence he was then serving. On 6 September 2018, the Attorney-General filed two applications; an application for an ESO pursuant to s 7(4) of the Act and an application for the respondent to be dealt with in accordance with s 57 of the Sentencing Act 2017 (SA) (‘the 2018 applications’). The respondent did not oppose the imposition of the ESO. On 19 June 2019, a judge of this Court ordered that the respondent be subject to an ESO for a period of five years. The Attorney-General subsequently withdrew the application under s 57 of the Sentencing Act 2017 (SA). By the terms of the ESO, the respondent is, among other things:·prohibited from accessing the internet (except in limited circumstances) (‘condition 2(w)’); and·required to declare to his Community Corrections Officer any tablet, computer, mobile phone, photographic or other electronic equipment that comes into his possession within 48 hours of it coming into his possession (‘condition 2(x)’). On 1 December 2019, the Parole Board issued a warrant of arrest for alleged breaches of these conditions and the respondent was returned to custody. The Parole Board, having found the respondent to have breached the conditions, referred the matter to the Supreme Court for determination as to whether a CDO should be made. The Attorney-General submits that a CDO for the balance of the ESO term, approximately four years and one month, is warranted. The respondent opposes the CDO.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

LOVELL J

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Ratio Decidendi

Legal Principle Established

Established by: LOVELL J

Counsel for the respondent submitted that the CDO’s protective purpose must be balanced against the interests and circumstances of the individual. While the respondent has been assessed to be at a “very high risk” of sexual reoffending, he is unlikely to benefit from additional time in custody. Counsel for the respondent submitted that, with proper support in the community and strict ESO conditions, the risk posed by the respondent can be managed.Consideration The purpose of making a CDO was considered by Hinton J in Attorney-General v Sullivan (No 1):[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 light of the nature and circumstances of the breach.(Emphasis added)[5] Police v Sullivan; Attorney-General v Sullivan (No 1) [2018] SASC 11 at [85]. I am not to use the CDO as a means of punishing the respondent for his breaches. The power to make a CDO is to be exercised for a protective purpose. However, the nature and circumstances of the breaches are relevant to the risk posed to the safety of the community (which is accorded paramountcy under s 18(3) of the Act). While the breaches do not amount to criminal offending, they betray a lack of transparency and an unwillingness on behalf of the respondent to comply with the terms of his release into the community. The breaches are particularly worrisome when viewed against Dr Raeside’s finding that the respondent lacked insight into his behaviour. However, as explained by Nicholson J in Attorney-General (SA) v Tipping:[6]It is no answer to the risk posed to the public by persons such as the respondent to say that the ESO system is solely dependent on a person’s willingness to comply with the terms of the order and that, if they were not to comply, they can be ordered to return to prison for up to five years. Of course, a person’s willingness to comply is critical to their rehabilitation for the long term. However, any person subjected to an ESO, ex hypothesi is a person in great need of support and supervision if they are to be rehabilitated while living in the community. The respondent is one such person.[6] Attorney-General (SA) v Tipping [2020] SASC 64 at [53]. The above remark is apposite to this matter. Plainly the respondent is a person who requires strict and frequent supervision. I am not satisfied that the breaches indicate that the respondent’s risk to the community is significantly higher than at the time of the making of the ESO. The breaches do not indicate that he poses a risk which requires continuous incarceration. I note that by the terms of the ESO, the respondent is subject to strict supervision conditions; he is required to wear an electronic monitoring device and is not permitted to leave his residence except in limited circumstances. The conditions can be further tightened.