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 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.
On 19 February 2020, I ordered that the respondent be detained in custody pending the determination of these proceedings pursuant to s 18(4) of the Act.
Materials before the Court
I received and considered the following material:
·the Affidavit of Alyona Andreevna Haines, dated 6 September 2018 (filed in SCCRM-18-324);
·the Affidavit of Alyona Andreevna Haines, dated 4 February 2019 (filed in SCCRM-18-324);
·the Affidavit of Alyona Andreevna Haines, dated 18 February 2020 (filed in these proceedings);
·the Affidavit of Alyona Andreevna Haines, dated 19 February 2020 (filed in these proceedings, annexing the Parole Board Report dated 18 February 2020);
·the Affidavit of Julia Placucci, dated 3 March 2020;
·the Affidavit of Timothy Jarrad, dated 30 March 2020;
·the psychiatric report of Dr Craig Raeside dated 15 April 2019 (prepared in respect of SCCRM-18-323 and SCCRM-18-324);
·the psychiatric report of Dr William Brereton, dated 10 May 2019 (prepared in respect of SCCRM-18-323 and SCCRM-18-324);
·the psychiatric report of Dr Craig Raeside, dated 26 February 2020 (prepared for these proceedings);
·the addendum psychiatric report of Dr Craig Raeside, dated 16 April 2020 (prepared for these proceedings); and
·the psychological progress summary report of Dr Robert Elmer, dated 17 March 2020.
The Legislation
Section 18 of the Act provides:
(1)If the Parole Board directs that a person subject to a supervision order be detained in custody pending attendance before the Supreme Court for determination as to whether a continuing detention order should be made in respect of the person, the matter is referred to the Court by force of this subsection.
(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) until the expiration of the supervision order, or for such lesser period as may be specified by the Court.
(3)The paramount consideration of the Supreme Court in determining whether to make a continuing detention order must be the safety of the community.
(4)The Supreme Court may, if the Court thinks fit, order that a person the subject of proceedings under this section be detained in custody pending the determination of the proceedings.
(5)The Attorney General and the person the subject of proceedings under this section are parties to the proceedings, and the Parole Board has a right to appear and be heard in the proceedings.
(5a) If proceedings under this section relate to a terror suspect—
(a)the Attorney General may be represented in the proceedings by a terrorism intelligence authority; or
(b)a terrorism intelligence authority has a right to appear and be heard in the proceedings.
(6)As soon as is reasonably practicable after making a continuing detention order or an order under subsection (4) in respect of a person subject to a supervision order, the Supreme Court must issue a warrant committing the person to a correctional institution for the period specified in the order.
(7)To avoid doubt—
(a)if a person is detained in custody under this section until the expiration of his or her supervision order, the supervision order expires on the person's release from custody (but nothing in this paragraph prevents the Supreme Court, on application by the Attorney General, from making a second or subsequent supervision order against the person); and
(b)if a person is detained in custody under this section for a lesser period, the person continues to be subject to the supervision order on release from custody for the balance of the duration of the order (and the date of expiry of the supervision order under section 12 is not affected by the fact that the obligations of the person under the order were suspended during the period that the person was in custody).
The Court’s power to make a CDO is enlivened upon its satisfaction of the two jurisdictional facts contained in sub-ss 18(2)(a)[1] and (b). The power to order a CDO is discretionary (as made plain by use of the word “may” as opposed to “must” in s 18(2)). It is to be exercised with the “safety of the community” as the “paramount consideration”.[2]
[1] The Court must be satisfied of the breach and is not bound by the findings of the Parole Board.
[2] Criminal Law (High Risk Offenders) Act 2015 s 18(3).
The Breaches
The respondent concedes that he has breached conditions 2(w) and (x) of the ESO. Nevertheless, it is important to consider the nature of the breaches as they inform the respondent’s risk to the community. The breaches occurred in the following circumstances.
On 1 December 2019, approximately five months after his release from custody, the respondent’s housemate, Mr Chamings, observed the respondent masturbating to an image on a computer screen. Mr Chamings initially stated, but then withdrew, that the image, to which the respondent was masturbating, was of a child. This is denied by the respondent. The respondent admitted, to the Parole Board and Dr Raeside, to viewing legal pornography. The respondent concedes, and I accept, that the use of the internet to access pornography (regardless of its type) constitutes a breach of condition 2(w) of the ESO.
Mr Chamings reported the matter to the respondent’s Community Corrections Officer. The police attended and discovered that the respondent had in his possession a desktop computer and a Huawei mobile phone. The respondent failed to disclose these items to his Community Corrections Officer, contrary to condition 2(x) of the ESO.
“Whatsapp”, a messaging and video chat application, was downloaded onto the phone. The respondent did not obtain the approval of his Community Corrections Officer before downloading the application, contrary to condition 2(w) of the ESO.
An Appreciable Risk
I must also be satisfied that the respondent poses an appreciable risk to the community if not detained in custody. In Attorney-General (SA) v Grosser,[3] Stanley J considered “appreciable risk” (in the context of an application under s 7 of the Act) to mean:[4]
I consider that an appreciable risk is 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 future in a manner that poses a risk to the safety of the community. It is a question of degree.
[3] [2016] SASC 49.
[4] Attorney-General (SA) v Grosser [2016] SASC 49 at [29].
The respondent concedes that the Court’s jurisdiction to grant a CDO is enlivened (and thus that he poses an appreciable risk to the community if not detained in custody). However, the “risk” must be identified with some particularity, as informed by the nature of the breaches and the respondent’s personal circumstances.
Parole Board Report
I have considered the Parole Board report, dated 18 February 2020. The report was prepared following an interview with the respondent but without the benefit of Dr Raeside’s most recent opinion. Further, the report was prepared on the basis that the respondent was witnessed masturbating to an image of a child by Mr Chamings. However, as noted earlier, Mr Chamings has since withdrawn this allegation.
In any event, the report paints a bleak picture for the respondent. It concludes:
The Parole Board is of the view after interviewing Mr Faulkner that he has no commitment to changing his lifestyle or adhering to his Extended Supervision Order conditions. He has a previous history of non-compliance. He has been assessed as being at very high risk of sexual reoffending despite completing the Sexual Behaviour Clinic program in custody. He had the ongoing support of his psychologist in the community who specialises in working with child sex offenders. He needs on-on-one intervention regarding his sexual behaviours.
Dr Elmer’s Report
Dr Elmer is the respondent’s treating psychologist. The respondent attended for treatment of anxiety, low self-esteem and depression. Dr Elmer is aware of the respondent’s history from communications with his Community Corrections Officer. In his report, Dr Elmer noted that the respondent engaged well in therapy and was able to build on the insight he had into his offending, gained during his participation in the Sexual Behaviour Clinic while in custody. With Dr Elmer, the respondent began to explore the use of “thought stopping techniques” to terminate deviant sexual thoughts.
Dr Elmer is willing to continue to work with the respondent upon his release.
Dr Raeside’s Reports
Pursuant to s 20 of the Act, Dr Raeside prepared a report, dated 26 February 2020, on the respondent’s risk to the community. Dr Raeside previously prepared a report in relation to the 2018 applications.
Dr Raeside agreed with the opinion provided in the Parole Board report. The respondent, in Dr Raeside’s opinion, has developed a deviant primary sexual attraction to young boys.
Dr Raeside noted that while the respondent expressed some desire to avoid deviant fantasies, it appears to be at a superficial intellectual level because, at a deeper emotional level, the respondent acknowledges the “good feelings he gets from these fantasies”. The respondent’s non-compliance with the ESO, in Dr Raeside’s opinion, confirms his unwillingness to control his sexual impulses. This unwillingness persists despite the respondent twice participating in the Sexual Behaviour Clinic while in custody. When interviewed about the circumstances of the breaches and this application, the respondent displayed limited insight and lacked the ability to give introspective accounts of his behaviour or how it might be perceived. Dr Raeside assessed the respondent to be at a “very high risk” of sexual reoffending.
The risk posed by the respondent derives primarily from his static risk factors (which are, by definition, stubborn to change). Dr Raeside stated that while a further program is unlikely to produce much benefit, individual psychological therapy would likely be helpful for the respondent.
Upon considering this report, I ordered a further report from Dr Raeside as to the apparent tension between his suggestion that the respondent would benefit from one-on-one therapy and the unavailability of such therapy in custody. I also requested that Dr Raeside comment upon Dr Elmer’s report.
In his addendum report, Dr Raeside acknowledged that some of the respondent’s dynamic factors (anxiety, depression and stress) may be amenable to individual psychological intervention. However, “resource limitations generally preclude any individual psychological therapy in custody”.
In relation to Dr Elmer’s report, Dr Raeside acknowledged that targeting the respondent’s anxiety, depression and stress would assist the respondent to cope better in the community, even if his risk of reoffending is not substantially reduced.
Dr Raeside’s view is consistent with the view he expressed in relation to the 2018 applications.
I am satisfied that the respondent poses an appreciable risk for the purpose of s 18(2)(b).
Should the CDO be made?
Submissions
The Attorney-General submitted that the risk posed by the respondent (particularly to young boys) justifies the imposition of a CDO. In the Attorney-General’s submission, the respondent’s history demonstrates that rehabilitative treatment programs, parole conditions and supervision orders have failed to protect the community from the risks posed by the respondent. The Attorney-General seeks a CDO for the balance of the respondent’s ESO.
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.

The respondent has spent six months in custody since the discovery of the breaches. Indeed, since the time he was released on the ESO, he has spent more time in custody than in the community. Whether the potential deterrent effect of this time will have any effect on the respondent is unknown. However, the serious consequences of breaching the ESO have been made clear to him.
Section 18(3) of the Act states that the “paramount consideration” is the safety of the community. The use of the word “paramount” indicates that there are subordinate considerations which are relevant to the exercise of the power. In Attorney-General (SA) v Sullivan (No 2),[7] Hinton J considered the significance of s 18(3) and how it informs a determination under s 18(2):[8]
[7] [2018] SASC 74.
[8] Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74 at [11] – [13].
… In R v Schuster the Full Court was required to determine the significance of Parliament making public safety the paramount consideration in determining whether to release a person subject to indeterminate detention on licence. The Court said:
What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility.
More fundamentally, it is in the very nature of a discretion that the level of risk, whatever it is, may nonetheless be sufficiently outweighed by other factors to justify release on licence. For example, an offender with some degree of short term risk of reoffending who has excellent prospects of medium to long-term rehabilitation might be released on licence, when an offender with the same risk profile but poor prospects of rehabilitation would not. 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.
The same may be said about s 18(2) considered in the light of s 18(3) of the Act.
The Full Court also said:
… it demands a normative judgment which is quite different from traditional judicial discretions. This Court has been entrusted with a mandate to ensure public security by sacrificing, for the remainder of their natural lives if necessary, the right to liberty of persons who are found to be unable or unwilling to control their sexual instincts. There are good reasons to commit this function to the independent judiciary of this State even though it is foreign to the traditional judicial function. However, the discretion having been conferred, it is important for the community to understand that it will be exercised having regard to both the interests of the community and the interests of the person in question, but by according the consideration of public safety paramountcy.
(Footnotes omitted and emphasis added)
I agree with the conclusion reached by Hinton J. The utility of the CDO must be assessed by reference to the safety of the community as well as the interests and circumstances of the individual.
The respondent is a 49-year old man. He has spent 16 of the last 19 years in custody. The respondent is plainly at risk of becoming institutionalised.[9] Such would hinder his prospects of long-term rehabilitation and resocialisation.
[9] See Attorney-General (SA) v Moyle [No 2] [2019] SASC 31.
There is little utility in the respondent completing a further sexual behaviour program in custody. He is more likely to benefit from individual psychological therapy, with a focus on his dynamic risk factors (such as stress, anxiety and depression). The respondent can receive such therapy in the community from his treating psychologist. This option is not available to the respondent in custody. The therapeutic relationship the respondent shares with Dr Elmer will inevitably be disrupted by his continued detention. I note that as a veteran, the respondent is entitled to a discounted fee for Dr Elmer’s services. Further, the respondent has stable accommodation and the support of Mr Chamings. These factors are likely to assist the respondent’s transition into the community and ameliorate the risk he poses.
The success of the ESO depends upon the respondent being intensively supervised. To that end the ability to supervise him could be improved by adding the following condition:
(2)(za) The respondent will permit and enable his Community Corrections Officer or a police officer to enter any premises in which he is residing at any time in order to search these premises and his person to locate and inspect any device of the type referred to in condition 2(x) that is in the premises or on his person and to remove the same for the purpose of inspecting in order to determine whether there is any evidence to suggest that the respondent may have breached this extended supervision order or committed any criminal offence.
This condition would enable “random” checks to be made. This may encourage the respondent to comply with the terms of the ESO.
In the circumstances, and subject to the question of varying the terms of the ESO, I am not inclined to make a CDO.
Before reaching my final conclusion, I will permit counsel to make an application to vary the ESO as suggested or in any other respect.