Attorney-General (SA) v Fenner - [2020] SASC 107

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v FENNER
[2020] SASC 107
Judgment of The Honourable Justice Livesey
18 June 2020
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
Pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“the Act”) the Attorney-General made an application for the respondent to be subject to an extended supervision order for a period of 12 months. In February 2010 the respondent was sentenced to a period of imprisonment after pleading guilty to unlawful sexual intercourse with a person of the age of 15 years contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). That term of imprisonment was wholly suspended upon the respondent entering into a bond to be of good behaviour for three years.
The respondent breached the bond by committing further criminal offences which included violent offending. As a consequence, the suspended sentence was revoked and the respondent was required to serve its entire term cumulative upon the sentences of imprisonment that were imposed for the further offending. The respondent's head sentence expired on 14 March 2020.
Section 5(a) of the Act defines a “high risk offender” to include “a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence”. The respondent opposed the Attorney’s application for an extended supervision order on the basis that he does not satisfy the definition of “high risk offender” within the meaning of s 5(a). He conceded that by virtue of his offence contrary to s 49(3) of the CLCA he committed a serious sexual offence and is a serious sexual offender but submitted that because he received a suspended sentence he was not “sentenced to a period of imprisonment”. He also contended that the evidence adduced by the Attorney-General does not establish that he poses an appreciable risk to the safety of the community if not supervised under an extended supervision order.
Held, granting the application:
1. The respondent is a “high risk offender” within the meaning of s 5(a) of the Criminal Law (High Risk Offenders) Act 2015 (SA). A “sentence to a period of imprisonment” for the purposes of s 5(a) includes a sentence of imprisonment that has been suspended, either wholly or partially.
2. The respondent poses an appreciable risk to the safety of the community if not supervised under an extended supervision order.
3. The respondent is to be subject to an extended supervision order for a period of 12 months commencing on 18 June 2020.
Crimes (High Risk Offenders) Act 2006 (NSW) s 4A; Criminal Law Consolidation Act 1935 (SA) s 49; Criminal Law (High Risk Offenders) Act 2015 (SA) s 3, s 4, s 5, s 7, s 10, s 11, s 12, s 18, s 21; Criminal Law (Sentencing) Act 1988 (SA) s 10, s 38; Sentencing Act 2017 (SA) s 3, s 96; Serious Offenders Act 2018 (Vic) s 3, referred to.
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Attorney-General (SA) v Grosser [2016] SASC 49; Attorney-General v Grosser (No 3) [2017] SASC 89; Attorney-General (SA) v Wells [2017] SASC 149; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; Elliot v Harris (No 2) (1976) 13 SASR 516; Palace Gallery Pty Ltd v Liquor and Gambling Commissioner (2014) 118 SASR 567; R v Gillan (1991) 100 ALR 66; R v Kimmins [2016] SASC 176; R v O’Keefe [1969] 2 QB 29; R v Pedler (No 2) [2019] SASCFC 117; Re Bolton; Ex parte Beane (1987) 162 CLR 514; Yager v The Queen (1977) 139 CLR 28, considered.

ATTORNEY-GENERAL (SA) v FENNER
[2020] SASC 107
Criminal: Application

LIVESEY J: Pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act or the Act) on 3 March 2020 the Attorney-General made an application for an extended supervision order in relation to Joshua Fenner (the application).
On 12 March 2020 this Court made an interim supervision order under s 9 of the Act which remains in force until the determination of the application. The interim supervision order contains the terms typically found in such an order, with the addition of a “no-contact” condition.
Mr Fenner opposes the Attorney’s application. He contends that he is not a “high risk offender” within the meaning of the Act. As will be seen, this contention raises a matter of statutory construction, namely whether Mr Fenner falls within the scope of the Act given that his sentence to a period of imprisonment was initially suspended.[1]
[1] See s 5(a) of the Criminal Law (High Risk Offenders) Act 2015 (SA) which provides that a serious sexual offender is a high risk offender “who was sentenced to a period of imprisonment in respect of the serious sexual offence”.
He also contends that the evidence adduced by the Attorney-General does not establish that he poses an “appreciable risk” to the safety of the community if not supervised under an extended supervision order.
I have decided to grant the application. I order that Mr Fenner be subject to an extended supervision order for a period of 12 months. My reasons follow.
Applicable legal principles
The object of the High Risk Offenders Act is found in s 3:
The object of this Act is to provide the means to protect the community from being exposed to an appreciable risk of harm posed by serious sexual offenders and serious violent offenders.
Section 7(1) of the High Risk Offenders Act vests power in the Attorney-General, and only the Attorney-General, to apply to the Supreme Court for an extended supervision order in respect to a person who is a “high risk offender”.
Section 7(2) provides that an application may only be made within 12 months of the “relevant expiry date” for that person.
A “high risk offender” is defined exhaustively in s 5:
(a)    a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence; or
(b)    a person referred to in paragraph (a) who is serving a sentence of imprisonment any part of which is in respect of any of the following offences:
(i)an offence under section 58 or 63A of the Criminal Law Consolidation Act 1935;
(ii)an offence under section 44, 45 or 66N(2) of the Child Sex Offenders Registration Act 2006;
(iii)an offence under section 99I of the Summary Procedure Act 1921;
(iv)an offence prescribed by the regulations for the purposes of this paragraph; or
(c)    a serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence; or
(ca) a terror suspect who is serving a sentence of imprisonment; or
(d)    a person who is subject to an extended supervision order.
(Emphasis added.)
“Relevant expiry date” is defined in s 4:
(a)in relation to a high risk offender who is serving a sentence of imprisonment (whether the offender is in prison or on release on home detention or parole)—
(i)if the offender is not serving a sentence of life imprisonment—the date on which the term, or terms, of imprisonment to which the offender was sentenced expire; and
(ii)if the offender is serving a sentence of life imprisonment—the date on which the sentence of imprisonment will be taken to have been wholly satisfied; and
(b)in relation to a high risk offender who is subject to an existing extended supervision order—the date on which the extended supervision order expires;
(Emphasis added.)
For the purposes of s 5(a) a “serious sexual offender” means a person convicted of a “serious sexual offence”.[2] That is an offence of a sexual nature against an adult or child which has or includes a maximum penalty of at least five years’ imprisonment.[3] Relevantly, a “serious sexual offence” includes an offence contrary to s 49 of the Criminal Law Consolidation Act 1935 (SA) which has a maximum penalty of 10 years’ imprisonment.
[2] Criminal Law (High Risk Offenders) Act 2015 (SA), s 4.
[3] Criminal Law (High Risk Offenders) Act 2015 (SA), s 4.
In R v Pedler (No 2) Kourakis CJ (with whom Nicholson J and David AJ agreed) explained ss 5(a) and (c) as follows in a case of a serious offence of violence:[4]
It is … convenient to consider the text of subparagraph (c) more closely. A high risk offender who is a serious violent offender is a person who ‘was’ sentenced to imprisonment in respect of a serious offence of violence. The subparagraph uses the simple past tense of the verb ‘sentence’ in its passive form. Textually, therefore, subparagraph (c) encompasses the class of offenders who were so sentenced without imposing a further necessary attribute for membership that, at the time when the application is brought, they are serving that sentence. A serious violent offender who was sentenced to a period of imprisonment in respect of a serious offence of violence, but who has been released from prison and is not on home detention or parole, cannot, on an exclusively textual construction, be the subject of an application under the High Risk Offenders Act, because any such application can only be brought within 12 months of a relevant expiry date. It is therefore a necessary implication to be drawn from s 7 of the High Risk Offenders Act that a serious violent offender must, at the time a s 7 application is brought, be serving a sentence of imprisonment.
I turn to subparagraph (a) of the definition. Again, as with subparagraph (c), the simple past tense is used and, textually, it is not a necessary condition of membership of this class of high risk offenders that the person is serving the sentence of imprisonment which brought him or her within subparagraph (a) at the time that the application is made.
(Emphasis added.)
[4] [2019] SASCFC 117, [24]-[25].
Respectfully, I would add that, as with serious violent offenders, the necessary implication to be drawn from s 5(a) is that a “serious sexual offender” is a person who has been convicted of a “serious sexual offence” and who was sentenced to a period of imprisonment for that offence. In addition, by the time the Attorney’s application under s 7(1) is made that person must be serving a sentence of imprisonment “any part of which is in respect of the serious sexual or violent offence”.[5] I will return to the question of whether that is satisfied where the sentence was initially suspended.
[5] R v Pedler (No 2) [2019] SASCFC 117, [23] (Kourakis CJ).
Section 7(4) of the High Risk Offenders Act provides:
(4)    The Supreme Court may, on application under this section, order that the respondent is to be subject to an extended supervision order if satisfied that—
(a)    the respondent is a high risk offender; and
(b)    the respondent poses an appreciable risk to the safety of the community if not supervised under the order.
Section 7(4) has been held to vest both a power and a discretion in this Court.[6] The power to make an extended supervision order is only enlivened where the Court is satisfied about two factual matters; first, that the respondent is a “high risk offender” as defined in s 5 (subparagraph (a)), and secondly, that the respondent poses an appreciable risk to the safety of the community if not supervised under an extended supervision order (subparagraph (b)).
[6] Attorney-General (SA) v Wells [2017] SASC 149, [8] (Hinton J).
Thus, subparagraphs (a) and (b) are in the nature of jurisdictional facts which must be proved before the Court’s power to make an extended supervision order is enlivened.[7] Once these have been proved the Court may, but need not, make an extended supervision order. The burden lies with the Attorney-General to adduce evidence that the qualifying criteria are proved and that the case is a proper one for the exercise of the Court’s discretion.[8]
[7] As has been said of s 18(2) of the Criminal Law (High Risk Offenders) Act 2015 (SA) which provides this Court with the power to make a continuing detention order, see Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74, [9] (Hinton J).
[8] Attorney-General (SA) v Wells [2017] SASC 149, [9] (Hinton J).
The power contained in s 7(4) is further conditioned by s 7(3) which requires that the Court, before determining whether to make an extended supervision order, direct one or more prescribed health professionals to examine the respondent and report to the Court on the results of that examination including the likelihood of the respondent committing a further serious sexual offence or a serious offence of violence. Section 21 then provides:
Where, for the purposes of an application for an extended supervision order, the Supreme Court directs 1 or more prescribed health professionals to examine the respondent to the application and report to the Court on the results of the examination, each prescribed health professional so nominated—
(a)must carry out an independent personal examination of the respondent; and
(b)may have access to any evidence before the court by which the respondent was convicted; and
(c)may obtain the assistance of a medical practitioner, psychologist, social worker, community corrections officer or any other person.
Returning to s 7(4), in Attorney-General (SA) v Grosser (Grosser) Stanley J explained “appreciable risk” for the purposes of s 7(4)(b):[9]
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. …
(Footnote omitted.)
[9] [2016] SASC 49, [29].
Section 7(5) mandates that the paramount consideration for the Court in determining whether to make an extended supervision order is “the safety of the community”. In Grosser Stanley J held that whether the respondent poses an “appreciable risk to the safety of the community” is informed by s 7(5):[10]
The extent of the appreciable risk is informed by the consideration that in determining whether to make an extended supervision order the safety of the community is paramount. I construe that requirement to mean that where a court considers that the question of whether to make an order is finely balanced, the protection of the community would favour making the order rather than declining to do so. I do not suggest that this consideration is exhaustive of the work to be performed by s 7(5) of the Act. The full extent of the operation of this provision falls to be considered on another occasion.
[10] [2016] SASC 49, [29].
Section 7(6) prescribes a non-exhaustive list of additional factors that the Court must consider when determining whether to make an extended supervision order. These include any treatment or rehabilitation programs in which the respondent has had an opportunity to participate, including his or her willingness to participate in the programs,[11] and the circumstances and seriousness of any offence for which the respondent has been found guilty and any pattern of offending behaviour disclosed by that offending history.[12]
[11] Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(6)(f).
[12] Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(6)(j).
Ultimately, if the Court is satisfied about the existence of the preconditions set out in subparagraphs (a) and (b), then the power contained in s 7(4):[13]
… is to be exercised having regard to both the interests of the community and the interests of the respondent, but by according the consideration of public safety paramountcy. Here there are two competing considerations. On the one hand, the respondent to an application by the Attorney-General has completed his or her sentence. There is a common law rule that his personal liberty and freedom of movement will not be infringed absent clear, unambiguous lawful authority. On the other hand, there is the need to protect the community from the risk of him reoffending. 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.
(Footnote omitted.)
[13] Attorney-General v Grosser (No 3) [2017] SASC 89, [12] (Stanley J).
Section 10(1) prescribes specific conditions that apply where an extended supervision order is made. Sections 10(1)(a)-(d) impose mandatory conditions in an extended supervision order. They permit the supervision of the respondent whilst out in the community and place restrictions on his or her movements and activities. Section 10(1)(e), in contrast, is discretionary. It affords this Court the power to impose “any other condition that the Court thinks fit”. However, the safety of the community continues to operate as the paramount consideration when considering what additional conditions ought to be imposed and how they are to be fashioned. That is, the power conferred by s 10(1)(e) is to be exercised by reference to the provisions regulating whether an extended supervision order should be made at all, namely ss 7(5) and (6), and the object of the Act set out in s 3 more generally.[14]
[14] Attorney-General v Grosser (No 3) [2017] SASC 89, [11] (Stanley J).
Section 11 provides the Parole Board with a discretion to impose additional conditions in a respondent’s extended supervision order, including that the respondent be subject to monitoring by an electronic device.[15]
[15] Criminal Law (High Risk Offenders) Act 2015 (SA), s 11(1)(a)(iii).
Section 12 states that an extended supervision order takes effect on the making of the order or on the relevant expiry date for the person subject to the order, whichever is later, and remains in force for a period of five years, or such lesser time as is determined by the Court.[16] However, the obligations of the person subject to an extended supervision order are suspended during any period the respondent is in government custody.[17]
[16] Criminal Law (High Risk Offenders) Act 2015 (SA), s 12(1).
[17] Criminal Law (High Risk Offenders) Act 2015 (SA), s 12(2).
In the light of this legislative context, I turn to consider the Attorney’s application concerning Mr Fenner.
Evidence received
In support of the Attorney’s application I received and have considered the following material:
1Report of Dr Craig W J Raeside, forensic psychiatrist, dated 6 April 2020 (exhibit A1);
2Affidavit of Holly Frances Nikoloff sworn 3 March 2020 (exhibit A2);
3Second affidavit of Holly Frances Nikoloff sworn 17 March 2020 (exhibit A3); and
4Letter dated 26 March 2020 to the Forensic Community Mental Health Service (exhibit A4).

Dr Raeside was also called to give oral evidence. He was cross-examined by counsel for Mr Fenner.
Following the hearing, counsel for Mr Fenner provided a report from the Parole Board dated 8 May 2020 regarding, among other things, his alleged breach of the “no-contact” condition in his interim supervision order on 14 March 2020. The Attorney did not object to my receiving of the report. I have had regard to it and will return to this alleged breach below.
Mr Fenner’s personal circumstances
Mr Fenner was born in Hobart and is currently 37 years old. He has one full brother and two half siblings. He is the father of four children aged, approximately, 17, 15, 11 and eight. Mr Fenner has not seen his children in the last couple of years.
Mr Fenner’s family travelled frequently during his childhood. As a result, he attended numerous primary schools. His childhood was marred with turmoil in the family and whilst he had a “pretty good” relationship with his father, he had a difficult relationship with his mother although it had improved over time.
When Mr Fenner’s parents separated he went to live with his father and his father’s girlfriend. He reports being sexually abused on a couple of occasions by his father’s girlfriend.
Mr Fenner’s father died in 1999 from alcohol-related problems. Following his death, Mr Fenner moved to South Australia to live with his mother.
Mr Fenner was schooled to near the end of year 10. He was suspended a few times for what he describes as “being a nuisance, an outcast”. He eventually left home at the age of 15 or 16. This coincided with when he left school.
After leaving school Mr Fenner worked in a local meatworks for three years and mainly worked in meatworks subsequently. However, a significant injury suffered at work when his hand became stuck in a conveyer belt, which also dislocated his shoulder, ended his career. He also had a major motor vehicle accident in the late 2000s when he fell asleep whilst driving and crashed into a tree. He suffered significant injuries.
Mr Fenner began using marijuana at the age of 15. He smoked around two grams a day. He began using amphetamines when he was 16. At his heaviest he was using (on average) one half to one gram a day spread over the week, initially orally, then smoking. His cannabis and methamphetamine use helped to increase his social confidence.
Mr Fenner also has a significant history of opioid dependence. He is currently prescribed methadone (30 ml a day). In custody, he has tested positive to drugs on several occasions. In some instances he refused to provide a sample.
Mr Fenner has had only two significant relationships. He did not consider the relationship he had with the mother of his eldest child to be serious. He had not known that she was pregnant with his child until after she left the relationship and he only saw the baby on a couple of occasions.
Mr Fenner’s first significant relationship occurred when he was 19 or 20 years old and was “on and off” for four or five years. She is the mother of his second son. The relationship ended after she discovered that he had been unfaithful, but they have remained good friends over the years and he has had some contact with his second son.
His second significant relationship was with the mother of his two daughters. They were together for six or seven years until 2012 when his drug use “came out”. She did not know the extent of his drug abuse. Whilst she had also been using drugs, he increased his consumption and began to use “all the time”, as he had nothing to fill his days. Their relationship ended approximately one month before Mr Fenner was remanded in custody for the offence of unlawful sexual intercourse with a minor.
Mr Fenner’s history of offending
Mr Fenner was convicted of his first criminal offence in 2001 when he appeared in the Magistrates Court at the age of 18 for the offences of driving without due care and failing to keep to the far left side of the road. Between 2001 and 2014, with the exception of 2009, he appeared in the State’s criminal courts every year, sometimes on multiple occasions. He has received over 40 convictions for driving-related offences. Convictions for property damage, assault and drug-related offences also form part of his criminal history. Over the years, he has failed to comply with bail agreements and bonds to be of good behaviour.
Of particular relevance to the present proceedings is the offending for which Mr Fenner was sentenced in 2010 and 2014.
On 5 February 2010 the District Court sentenced Mr Fenner to imprisonment for three years and three months, with a non-parole period of one year and eight months after pleading guilty to one count of unlawful sexual intercourse with a person of the age of 15 years contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (the index offence). That term of imprisonment was wholly suspended upon Mr Fenner entering into a bond to be of good behaviour for three years. The circumstances of the offending were summarised by the sentencing Judge as follows:
… you contacted the complainant, in late December 2005. You picked her up near her parents’ home on 2 January 2005. The complainant told you that she was 15. You told her that you were aged 18 and that your name was ‘Steve’. It was not until sometime later that the complainant found out your real name. You also told the complainant that you’d had a vasectomy. You and the complainant had sex on an almost daily basis from your first encounter on 2 January 2005 until April 2005. From April to September 2005 you had sexual intercourse on about a dozen occasions. As a result of that sexual intercourse the complainant conceived a child and it is that act of intercourse that is relied upon as the single count on the Information.
The sentencing Judge had the benefit of a report written in November 2009 by Dr Jack White, a registered psychologist. Dr White considered Mr Fenner to be impulsive and “risk taking”. He said that Mr Fenner did not think through the consequences of his actions and this contributed to his offending. He was of the opinion that Mr Fenner satisfied the diagnostic criteria for post-traumatic stress disorder, cannabis dependence and antisocial personality disorder, with the latter two mental illnesses likely contributing to his offending behaviour. He said that Mr Fenner does not suffer from paedophilia and although the nature of his offending suggested that a referral to a sex offender treatment program would be appropriate, Dr White thought that it would have a minimal impact upon Mr Fenner.
On 19 May 2014 Mr Fenner was sentenced by a Judge of the District Court to imprisonment for 11 months for one count of property damage and one count of aggravated assault against his former domestic partner committed on 25 December 2012 (the 2012 offending). He was also sentenced to two years and 10 months’ imprisonment for attempting to dissuade a witness (his former domestic partner) from giving evidence against him. This offence was committed on 3 January 2013 (the 2013 offending). The sentences were ordered to be served cumulatively upon one another. The circumstances of the 2012 and 2013 offending were summarised by the sentencing Judge:
The circumstances of the offences to which you have pleaded guilty and involving your former domestic partner occurred at about 1.30 a.m. on Christmas Day 2012 when you attended at her home. I note that at that time you were in breach of your bail agreement by attending there. You went there with a friend who waited in the car whilst you wanted to have a quick talk to your two daughters and give them some money.
An argument ensued between you and your former domestic partner which caused her to fear for her safety. With your left hand you grabbed her face. You used your left hand with your thumb on one side, palm and fingers on the opposite side and grabbed hold of her lower jaw and squeezed it near the joint of the upper and lower jaw bones. You held her really hard and she thought that if you used any more pressure you could have broken her jaw.
As a result she collapsed onto the floor of the dining area and you continued to keep hold of her there. She called out to you, asking you to stop as you were hurting her. You responded ‘Shut the fuck up, you haven’t seen anything yet, I’ve barely started’. She kept asking you to stop because she was concerned that you would wake up your youngest daughter. The more she asked you to stop the harder you squeezed her face.
You accept that you had earlier scratched or ‘keyed’ the word ‘slut’ on the boot of your former domestic partner’s car.
And further:
On 3 January 2013 you telephoned your former domestic partner from prison. During that telephone conversation you requested that she attend the police station to drop all charges against you and that if she did you would give her whatever money she wanted and any car she wanted. You told her a friend of yours would go to her house with some money.
You knew that what you were offering her and asking her to do was illegal. In your typical way you were telling her that you loved her, that you knew what you did to her was wrong and that you would change, all things you have said to her before, but you never changed a thing.
You then telephoned your friend and asked him to go and speak to your former domestic partner and tell her to drop the charges. You told him: ‘Promise her anything she fucking wants, basically to go down that cop shop and drop them all’. Later when your friend said he would telephone her you told him ‘Fucking drive up there and fucking make her’. You then told your friend the address he had to attend at. You went on to tell him ‘Fucking just get there, just do it on the ASAP bro, all right?’ You also said ‘And just make her fucking do it, man. I want to be out of here by tonight. If not shit’ll start happening tonight tell her, and that’s not a threat, that’s a promise’.
The 2012 and 2013 offending, to which Mr Fenner pleaded guilty, were committed in breach of the bond to be of good behaviour entered on 5 February 2010. The Judge revoked the suspended sentence. In consequence, Mr Fenner was required to serve the sentence of three years and three months’ imprisonment referable to the s 49(3) offence cumulatively upon the sentences he received for the 2012 and 2013 offending. The result was an overall period of imprisonment for seven years. A new non-parole period of four years was fixed. Both the head sentence and non-parole period were backdated to commence on 8 January 2013, being the date Mr Fenner completed serving a sentence of 14 days’ imprisonment for breach of bail.
Mr Fenner was released on parole in September 2017. However, on 10 April 2018 and 11 September 2018 he was found by the Parole Board to have breached a number of his parole conditions. These included his failure to provide a urine sample for drug testing, attempting to substitute urine held in a condom for his own urine sample and returning urine samples which, on three occasions, tested positive for illicit drugs. Mr Fenner also committed four driving offences in December 2017 whilst on parole, for which he was convicted and discharged without penalty.
As a result, the Parole Board cancelled Mr Fenner’s parole on 11 September 2018 and ordered that he serve the balance of his sentence, being a further one year, eight months and 24 weeks’ imprisonment, backdated to commence on 19 June 2018.
Mr Fenner’s head sentence expired on 14 March 2020.
As mentioned, this Court made an interim supervision order in relation to Mr Fenner which commenced operation on the day he was released. He returned to prison on 16 March 2020 on a Parole Board warrant after allegedly breaching the no-contact condition of his interim supervision order by communicating with his previous domestic partner via mobile phone text messages and telephone calls on 14 March 2020.
Mr Fenner has since remained in custody.
Treatment received
In a pre-treatment assessment report dated May 2015 prepared by the Sentence Management Unit of the Department for Correctional Services (the Department) it was recorded that Mr Fenner was at high risk of sexually reoffending should he not receive treatment. The same report said that Mr Fenner had “significant outstanding needs” related to domestic violence. His dynamic risk factors were itemised as including his tendency to engage in impulsive behaviour, some feelings of hostility towards women (evidenced by his use of violence in intimate relationships), his limited problem-solving skills and his history of poor engagement in the supervision process. He was assessed as suitable for participation in the Sexual Behaviour Clinic (SBC) program.
Mr Fenner was again referred to the Sentence Management Unit in May 2016 this time for intervention to address symptoms indicative of post-traumatic stress related to childhood trauma. He expressed concern that participation in the SBC program could resurface memories of this trauma, but was nevertheless willing to participate in the program.
Mr Fenner completed the SBC program at Port Lincoln Prison between 1 November 2016 and 9 August 2017. He participated in all components of the program, receiving approximately 212 group treatment hours and 12 individual treatment hours. What follows is taken from a report prepared by the Rehabilitation Programs Branch of the Department following Mr Fenner’s participation in the SBC program.
Mr Fenner’s participation and engagement in the SBC program were assessed as positive. He developed increased insight and skills into a number of areas including general self-regulation, sexual self-regulation, empathy and victim awareness, cognitive distortions and cooperation with supervision. However, some changes observed were relatively recent and not yet consistent over time, whilst other changes were consistent but had not been demonstrated across relevant high-risk situations.
Under the heading “Formulation” the report writer, a Senior Clinician from the Department, recorded:
It appeared that the lack of effective parental role-modelling with respect to how to appropriately behave in a domestic relationship had impacted upon Mr Fenner’s ability to maintain intimate relationships with his female partners. That may have also limited his repertoire of responses with regard to appropriate ways to deal with interpersonal problems. It was evident that he had internalised his father’s care free attitude to life and incorporated that behaviour into his own life. For example, he acknowledged that he had engaged in hedonistic behaviour including drug abuse, and “doing stupid things in cars” which led to … additional difficulties and a distorted and irresponsible view on life.
It appeared that impulsivity precipitated Mr Fenner’s substance abuse and also featured as concomitants to his offending. It appeared that his substance use had served the function of reducing his negative emotional arousal and suppressed intrusive negative thoughts, emotions and images related to his own history of abuse, grief about his father[’s], his life circumstances including feelings of low self-worth related to being unable to work and to relationship difficulties.
It was hypothesised that the sexual offending was motivated by an attraction to an emotionally vulnerable female rather than specifically to an underage female. In that way, he could have his sexual needs and his emotional needs met and remain in control of the relationship rather than have a relationship on equal terms. His description of at least one of his previous partners indicated that she was emotionally vulnerable. Mr Fenner’s acknowledged irresponsible and “care free” attitude up to and at the time of the offending meant that he did not care about the consequences of his behaviour nor did he care about the impact upon the victim.
And further:
Factors that were identified as being likely to be protective for Mr Fenner in the future, included his high motivation to change, desire to understand more about himself (personal growth) and to build upon relationships with his family, his positive work ethic and motivation to undertake employment, his insight into factors associated with his problematic behaviour and offending, and his willingness to address his substance abuse and psychological problems in intervention. Mr Fenner’s desire to present as a positive member of the community, served as a motivation for him to continue to adjust his behaviour. Significantly, Mr Fenner’s developing insight had allowed him to begin the process of gaining skills and strategies to assist him in revealing his thoughts and emotions more honestly and therefore manage his tendency to adopt maladaptive coping strategies.
Following completion of the SBC program Mr Fenner was assessed as remaining at high risk of sexual reoffending. However, it was emphasised that his risk level had been heavily weighted with static factors which are not amenable to change. Among other things, it was recommended that Mr Fenner receive case management assistance whilst in the community to support his abstinence from drug abuse and also be encouraged to develop strategies to replace drug use as a stress and emotion management response.
An assessment report from the Department dated 11 December 2018 stated that Mr Fenner’s Offender Risk Need Inventory-Revised (ORNI-R) score indicated that he was at medium risk of generalised recidivism at the time of assessment.
On 4 June 2019 another report was prepared by the Department. The report writer recorded that Mr Fenner was considered at high risk of domestic violence reoffending and that his suitability for participation in the Domestic and Family Violence Intervention (DFVI) program had been assessed on 29 May 2019. She said that the assessment had revealed the following:
… Mr Fenner appeared to accept minimal responsibility for his domestic violence behaviour. He tended to minimise and deny the incidence of domestic violence. Whilst acknowledging some violent and abusive behaviours Mr Fenner sought to excuse these by stating that it takes two to tango.
Mr Fenner presented as being reluctant to pursue becoming a safe/non-violent partner in the future. Whilst Mr Fenner stated that he was willing to be assessed for the Domestic Family Violence Intervention Program he offered little information about his use of violence and abuse and provided minimal responses to direct questions.
Mr Fenner expressed a consideration of the need to develop alternatives to his past use of violent behaviour.
Mr Fenner verbalised some understanding of the impact that his past violent and abusive behaviour has had on his partner and children. …
Mr Fenner displayed a lack of insight as to his cognitive distortions which have underpinned his past DV behaviours.
It was recommended that Mr Fenner complete the DFVI program which he did between 11 June and 26 August 2019 at Mount Gambier Prison. He attended 95 per cent of the group sessions held. The six themes that were covered in the program were responsibility, dangerous thinking, cycles of violence and abuse, effects for children and young people, gender and power, and safety and accountability planning.
An assessment report from the Rehabilitation Programs Branch of the Department indicated that following participation in the DFVI program Mr Fenner had changed his attitudes and behaviour in relation to accepting responsibility. He had gained insight into the behaviours that constituted domestic violence and the extent to which he had previously engaged in such behaviours. Mr Fenner also displayed a positive shift in his position on the topic of commitment to non-violence as he recognised that he had, in the past, subjected his former partner to many acts of domestic violence which he had not previously thought of as domestic violence, and had shifted more towards an internal locus of control. Further, his understanding of the impact of his domestic violence behaviour had improved, and he had gained insight into the cognitive distortions that underpinned his past domestic violence behaviours.

Upon completion of the program, Mr Fenner’s future treatment needs when released in the community were identified to include drug and alcohol counselling, a referral to his general practitioner to obtain a mental healthcare plan and a referral to a psychologist or mental health social worker to address unresolved childhood trauma.
However, the report writer warned that the positive changes in Mr Fenner’s attitudes and behaviours, which had occurred only in a custodial setting, may not accurately predict Mr Fenner’s actual or intended behaviour within his current and future relationships, and may not “hold up” to the stresses of relationships and the temptation to resort to his old, maladaptive ways of thinking.
Finally, in a September 2019 minute prepared by Ms Davina Hodgson, a social worker at Mount Gambier Prison, Mr Fenner was regarded as not suitable for participation in the Making Changes program. Ms Hodgson said that Mr Fenner did not meet the criteria required for inclusion in the program because of his recent positive attitudinal and behavioural changes reported after participating in the DFVI program. The only area of concern related to Mr Fenner’s substance abuse but he had improved in several areas including impulsivity, empathy, antisocial and criminal attitudes, emotion management, and attitudes about separating himself from antisocial associates.
Thus, a finding that Mr Fenner was not suitable to participate in the Making Changes program was, in fact, a positive finding as it indicated that areas that had been of significant concern had improved.
The expert evidence
As mentioned earlier in these reasons, Dr Raeside, a consultant forensic psychiatrist, provided this Court with a report pursuant to s 7(3) of the High Risk Offenders Act and gave evidence on the hearing of the application. He interviewed Mr Fenner on 27 March 2020.
Dr Raeside considered that Mr Fenner’s prior offending behaviour evidenced a general disregard for the law and that he had a number of underlying antisocial personality traits. He also considered that Mr Fenner’s early exposure to domestic violence, sexual abuse and alcohol abuse had impaired his ability to learn how to behave appropriately in domestic relationships and maintain intimate relationships. He reported that Mr Fenner’s childhood trauma had resulted in him developing a maladaptive personality which had, in turn, led to some of his immature and impulsive attitudes.
Mr Fenner spoke to Dr Raeside about the index offence. He disclosed that he had met the 15-year-old girl when he was 21 and had discovered how old she was a couple of weeks into the relationship. He had been using drugs at the time and felt that he was being naïve. However, he knew that what he was doing was wrong which was why he ended the relationship within a couple of months. Dr Raeside noted that despite the illegality of Mr Fenner’s behaviour, the information suggested that it was “consensual” on the girl’s part.
Dr Raeside stated that the SBC post-treatment assessment report had assessed Mr Fenner to be at high risk of sexual reoffending. Nevertheless, he stated that various matters for which Mr Fenner had been charged but not convicted had been taken into account and that this impacted the assessment. Dr Raeside explained that Mr Fenner’s assessment was weighted heavily with static factors. He said that these were historical and personal factors — such as past traumatic experiences — that are not amenable to change. Whilst Mr Fenner did have a few dynamic, or potentially changeable, factors they carried less weight.
Regardless, because there had been no significant change in Mr Fenner’s dynamic risk factors in recent times, Dr Raeside thought that little could be done to reduce Mr Fenner’s risk assessment. This meant that he remained at high risk. Nevertheless, if treatment were offered, its focus should be on Mr Fenner’s dynamic factors. A prominent dynamic factor in Mr Fenner’s case, he said, was his substance abuse which was potentially responsive to treatment. That would assist in reducing his impulsivity and poor judgement.
Dr Raeside did not find evidence of any current psychiatric disorder. Unlike Dr White, Dr Raeside did not consider that Mr Fenner met the criteria for a post-traumatic stress disorder, although his childhood trauma may have produced some maladaptive personality development. Significantly, Dr Raeside also found no evidence that Mr Fenner has any sexual disorder such as paedophilia. However, Mr Fenner may have previously had an adjustment disorder with mixed anxiety and depressed mood (a reactive depressive and anxiety state, secondary to stress) but this was not the case at present. There was also a clear history of past substance abuse and dependence, constituting a substance use disorder, with Mr Fenner’s drug use being prominent in his inability to comply with his parole conditions. Dr Raeside considered that emotional instability was also apparent, which had been aggravated by his substance abuse, and that he probably had an antisocial personality disorder.
Dr Raeside found Mr Fenner had a significant past history of opioid dependence. Mr Fenner told him that he previously masked any emotional disturbance with his drug use. In the past, Mr Fenner said, he had been naïve about his opiate addiction, but he now realised that most of his emotional problems and memory impairment were related to his drug abuse. He had become more aware of the impact it was having on his body. He said that since being taken back into custody in 2018 he decided to “draw a line” as he was “sick of offending and sick of being in gaol”. He realised that “nothing would change if [he] kept using drugs”. He stated that he had been able to cut off some friends from the phone on the outside and had already “started feeling better, got clearer in the head, and started seeing more issues and had greater insight into [his] problems and what to do about them”.
When Dr Raeside asked Mr Fenner if he considered himself at risk of a further sexual offence he replied, “I can’t say I’m no risk at all, but I don’t want it to happen now because I’m older and mature and I’m not interested in younger people”. Dr Raeside considered this response significant. It indicated that Mr Fenner had gained some insight from his treatment programs in custody. Indeed, Mr Fenner himself acknowledged that the DFVI and SBC programs had given him increased insight. He now knew that he needed help with his impulsivity, his low degree of anxiety and depression, and his personal grief.
Mr Fenner told Dr Raeside that an extended supervision order would assist him to receive some support whilst in the community. It would also allow him to participate in programs to deal with the issues with which he had struggled with over the years.
Dr Raeside considered Mr Fenner’s own account to be consistent with what was set out in the recent reports of the Department, namely that after many years of ongoing substance use and poor compliance with various court and prison conditions, Mr Fenner had begun to change. In particular, Mr Fenner had shown some improvement in the latter half of 2019, predominately related to his participation in the DFVI program whilst in custody. There had also been some benefits from his participation in the SBC program.
However, although it appeared to be genuine, exactly why Mr Fenner’s attitudes and motivation had changed in recent times was unclear to Dr Raeside. Dr Raeside believed that it was probably too soon to determine whether these changes would persist, especially beyond the custodial environment and in the community.
In drawing his report to a close, Dr Raeside said:
In my view, Mr Fenner remains at appreciable risk of further offending more generally based on his static factors and particular risk of resuming substance abuse in the community without support. However, I think his risk of further sexual offending is lower than that. The fact that he has previously been convicted of a sexual offence in other matters does not leave him being at substantial risk, but this is primarily based on historical factors rather than his current factors.
Therefore, I would support the application for an Extended Supervision Order, but on the basis of his risk more generally, rather than specifically related to his risk of sexual offending.
… the prominent risk factor relates to his ability in the community to avoid resumption of illicit drugs (likely to be a problem given his past history as well as his ongoing pain), avoid antisocial peers and lifestyle, and potential relationship difficulties, particularly if he and his former partner make efforts to recommence their relationship. I therefore think he would be particularly benefited by supervision under an Extended Supervision Order, primarily for the safety of the community.
Treatment and Prognosis
As noted, Mr Fenner requires ongoing support in the community with close supervision, engagement in a drug rehabilitation program, referral to a pain management clinic, assistance to engage in pro-social activities such as employment, education, etc., and ongoing participation in community based programs as deemed necessary.
(Emphasis in original.)
In his oral evidence, Dr Raeside said that Mr Fenner’s past offences had occurred at a time when he was abusing drugs. In particular, he said that Mr Fenner’s previous behaviour indicated that when stressed he turned to drugs, either amphetamines or opiates (or both), which exacerbated his underlying personality disorder and resulted in Mr Fenner making maladaptive choices. Indeed, even at the time of Dr Raeside’s assessment Mr Fenner’s opiate dependence remained a problem. If he were to start abusing drugs again whilst in the community this would increase his likelihood of reoffending.
The doctor said that in his report he had stated that Mr Fenner “probably” qualified for a diagnosis of an antisocial personality disorder because he did not have sufficient information to be conclusive. Nevertheless, he was of the opinion that the antisocial personality traits that Mr Fenner exhibited would persist throughout his life.
In relation to Mr Fenner’s risk of sexually reoffending the following exchange occurred in cross-examination:
Q… [the] assessments based on the static factors and the actuarial assessment, if a person comes before you for an assessment like this who has only committed one offence, be that unlawful sexual intercourse, he would still have a claimed risk of further sexual offending, even 15, 20 years in the future, is that correct.
AYes. I mean the fact that it has occurred, at least one episode, places you at higher risk than someone who’s never committed such an offence.
QWould that risk or would the assessment of risk decrease over time. If someone showed they’ve done it once and they haven’t done it -
AI think the answer would be yes. It depends on what factors were relevant at the time of the offending, for example, substance use and those type of things, but it also - the risk might decrease but it would probably be an exponential decrease. So it would never reach zero but it would gradually decrease with time.
QIf Mr Fenner had committed the serious sexual offence in 2005 and then continued to commit serious sexual offences, obviously his risk of reoffending would be classified much higher.
AYes, because that then brings into things that failing to learn from prior experience and lack of remorse and lack of changing lifestyle etc.
…
Q… during this period when he’s got this [substance abuse] disorder he is using drugs. If he hasn’t committed any further sexual offences during this period of stress, would that change your opinion and decrease his risk of further serious sexual offending.
AIf the original sexual offending was related to poor decision making from substance use I would agree with that comment. My understanding is that the substance abuse was unrelated to the sexual offending. It was related to other offending but not the original bit, so therefore the substance use itself is probably not a major factor in relation to the sexual offending with the one incident, the one episode.
QBut is it true to say that Mr Fenner has perhaps demonstrated during the 15 years or so since that serious sexual offence, even while having these drug problems and antisocial personality disorder, has he not demonstrated that he hasn’t committed any further sexual offences and would that say something about his risk of doing so in the future.
AYes, I agree with that. I think - if I understand what you are asking is even though his substance use disorder has continued and he has had problems with substances he has not reoffended sexually suggesting that the two aren’t associated.
QIt has been covered that there is little that any person can do to reduce these static factors of risk assessment. Is there anything in the assessment, and Mr Fenner’s history, given that he was charged and the nature of the sexual offence in 2005, is there anything to suggest he’s likely to commit a different serious sexual offence.
AI would say, from what I understand of that offending, again the ages are relevant, 21 and 15; his general immaturity, not just in terms of age difference but also with his personality disorder, his background trauma, he was making poor choices for a variety of reasons including this and disregard for the law. I think it’s an anti-personality disorder that does also contribute to future risk in that he is still going to be likely - it’s still there, there is still going to be likely disregard for the law or court conditions or whatever, and certainly his previous parole breaches have shown that. But in terms of an actual sexual offence the only association from that will be disregard for the law and if a particular circumstance arose, I think there are two possibilities; I think it’s unlikely that he would re-form a relationship with a 15-year-old or younger for example given his increased maturity over time but there may be a sexual offence of a different type associated with violence of interpersonal relationships, consent, all those types of conditions. Particularly if affected by drugs, with impulsivity, poor decision making and the anti-personality disorder.
And further:
HIS HONOUR
QHave I understood your evidence in relation to Mr Blake’s [the respondent counsel’s] questions to be that, whilst you do not regard Mr Fenner as posing a risk in respect of any of the deviant sexual offending that you described, including paedophilia, there is an appreciable risk essentially for two reasons I think. The first [is] the historical fact of the offending some years ago and, second, his probable antisocial personality disorder and maladaptive way of dealing with stress could lead to, with or without substance abuse, problems of a sexual nature.
AYes. I’m talking more in terms of consent type issues in relationships or contacts and disregard for the law, disregard for other people’s rights, those types of issues rather than deviance issues.
QFinally I think you accept, at least in general terms, the proposition that Mr Blake put that the longer ago that single … [incident] of serious sexual offending, the lesser the risk of that type of offending recurring.
AYes.
QBut it’s not excluded entirely.
ANo.
QAnd you are not focusing on that type of offending when looking at the extent to which there presently exists an appreciable risk of sexual offending.
AThat’s correct.
QAnd the risk of other kinds of reoffending you suggest is greater.
A Yes.
The doctor also reiterated that Mr Fenner’s static factors had been weighted heavily in the assessment that had placed him at high risk of sexually reoffending following participation in the SBC program. He said that this was primarily because of Mr Fenner’s history:
My concern, which I sort of explain later, is that they estimate him to be at high risk of sexual reoffending, whereas he’s only been convicted of one sexual offence which, in the larger scheme of people who go before the SBC clinic, wasn’t, I would have said, on the severe scale and so I think they weighted non-sexual offending factors into that assessment of him being at high risk of sexual offending. They sort of made comment about his non-sexual risk as well, which is why that led then to my opinions I expressed about the difference between general recidivism and sexual recidivism …
Dr Raeside considered there to be a low (although some) risk of Mr Fenner committing a further sexual offence and a high risk of Mr Fenner committing a non-sexual offence. The following exchange occurred in this regard:
HIS HONOUR
…
QYou draw the distinction with further sexual offending on the basis that there is a lower risk. Can you explain that. Is that simply a conclusion reached on some of the comments made to you which revealed some insight.
APartly some insight but partly the offending itself. As I indicated, other assessors are taken into account, matters for which he was not convicted. I was - specifically from reading the transcripts, specifically sort of directed to only consider the matters for which he has been convicted and the time the nature and the other factors, I think say that is a lower risk than his more general risk for violence in the future.
QDoes that suggest that he has a greater capacity to engage in positive or, as you put it, adaptive behaviours so far as the risk of sexual offending is concerned.
AHe has participated in the Sexual Behaviour Clinic, that gave him mixed results, and there was a significant difference the second time when he did the domestic violence program. So I think there has been some improvement in his overall ability to engage in programs that can help him. As far as in the community, in the real world, I think his maladaptive behaviours are more likely to relate to substance abuse, relationships, not specifically sexual offending itself.
…
QWas it apparent in the history or from what you read that there was a risk of sexual offending based on substance use or abuse, or were they quite separate.
AOn the basis of the offending that occurred when he was 21 involving his 16-year-old partner, I don’t think substance abuse was a - it was present but I don’t think it was a relevant factor in him forming a relationship with the girl and whatever length of time, but I think that was for different reasons altogether than related to substance abuse. Certainly in terms of the offending for which he was incarcerated in 2012 substance abuse was a major factor.
XN
Q… You’ve said that you consider his risk of further sexual offending as lower than that. Am I correct then in understanding you’re saying that it is lower than his risk of general reoffending.
AYes, and part of the wording there is I’m aware that the test being appreciable risk is somewhat difficult to understand for me as a layperson but I understand some of the court decisions about that. So, what I’m saying is, I think, based on historical factors, there has to be some risk of future sexual offending but it’s significantly lower than the risk of more general offending and violent offending in particular.
QImmediately after that sentence you say ‘The fact he has previously been convicted of a sexual offence in other matters does leave him being at substantial risk, but this is primarily based on historical factors rather than his current factors’. So am I correct in considering your description of his risk for sexual offending is that substantial risk.
APerhaps, on reflection, I would have changed the word from ‘substantial’ to ‘significant’ and then you could ask me what the difference is and I’d have to think about it, but I think ‘substantial’ isn’t implying great risk. I think -
QSorry, was that ‘isn’t’.
AIs not implying great risk. I think, from what I’m trying to explain is that there is risk but, in relative terms, it is less than the risk of general offending and violent offending, which is why I commented before that the problem I saw was of the Sexual Behaviour Clinic assessment placed him at high risk. I certainly wouldn’t, on the basis of what he has been convicted of, place him at a high risk of sexual reoffending.
HIS HONOUR
QYou prefer to articulate the risk of sexual offending as less than substantial risk.
AYes. … perhaps I would say he was an appreciable risk, that is, there is a risk that can be estimated because he has had a prior conviction for sexual offending.
QYou also used the word ‘significant’. How did you weight ‘significant’ versus ‘substantial’ in your mind.
AIn my mind ‘significant’ means there is a factor there that is relevant to that particular risk and it’s significant because it is a factor related. ‘Substantial’ I think implies a weight on it. ‘Substantial’ is probably more towards an overwhelming risk and it is a major factor. So I think the difference is there is a factor, it is a risk factor for future behaviour but it’s not a major factor.
QIt’s not substantial, it may be significant but it may also be appreciable.
AThat would be, I think, the way I would try to word it, although there’s difficulty between those three words.
QIn describing risk in that way, you’re referring explicitly to the risk of sexual reoffending or reoffending in general.
AJust in terms of the sexual reoffending and the way I’ve perceived it, in my opinion, is that the factors related to the prior sexual offending appear to be due to his underlying antisocial personality traits, disorder, that is, that he had disregard for the law and societal norms. 21 she was 15; that didn’t matter to him at the time. So I think the factor there that’s the risk is the antisocial personality causing him to be disregarding the law, whereas rather than substance abuse or other factors, talking about there’s no evidence of any predatory behaviour and that’s 16 years ago and there have been no other convictions for sexual offences.

Whilst in his report Dr Raeside stated that Mr Fenner had recently appeared to make a positive change, which appeared genuine, he had two reservations.
The first was that when Mr Fenner was released from custody he had breached his parole conditions by, among other things, testing positive to drugs. This indicated that his substance abuse had continued even when subject to strict parole conditions and under the supervision of authority figures.
The second reservation was that Mr Fenner needed to be in the community, interacting with others, to determine whether the gains he had made in the custodial programs would persist and be applied in practice even when he was stressed and had access to drugs. That Mr Fenner would become stressed upon returning to the community, the doctor said, was inevitable given that he had spent over eight years in custody. It was important then for Mr Fenner to engage in prosocial activities, such as employment and appropriate recreation, to assist his rehabilitation.
In relation to the proposed extended supervision order, the doctor considered that the most important conditions would be those related to Mr Fenner’s drug use, either his use of prescription or illicit drugs. He was supportive of those conditions.
Dr Raeside considered that an electronic monitoring condition was questionable, or, at least, he did not have a particular view about it given that Mr Fenner’s risk of reoffending did not specifically relate to associating with antisocial peers or areas, and thus such a condition would not substantially change Mr Fenner’s risk. He also said:
I can say that I’ve talked to a number of people that are on supervision orders who find … [an electronic monitoring condition] a very stressful and onerous requirement. … So I can agree that people can find that very stressful, it impacts on their day-to-day life and what they can do and again impacts on ability to engage in employment or other such things, balanced against its preventative or it’s measures to prevent someone engaging in unlawful behaviour. And I think in Mr Fenner’s case the monitoring is not something that’s going to be up there with preventing the high risk of offending, it’s more likely the other factors such as his substance use.
In general terms, Dr Raeside considered that a curfew condition would be helpful to someone initially released from custody by providing him or her with some structure and routine, but this would need to be weighed against how onerous the condition would be. In Mr Fenner’s case he was neutral as to whether it was necessary.
In relation to conditions that would prohibit Mr Fenner’s contact, or potential contact, with children Dr Raeside considered that Mr Fenner’s previous sexual offending could be distinguished from sexual offending that was more predatory or opportunistic in nature. As such, he could not see any reason why Mr Fenner could not be around persons under the age of 18 years in normal social circumstances or in the vicinity of schools or public toilets. The downside to those conditions was that it might impact on Mr Fenner’s ability to engage with his own children.
As for conditions related to Mr Fenner’s use of computer equipment and the like, Dr Raeside considered that they would not make much difference to Mr Fenner’s risk of sexual offending, although he acknowledged that in terms of Mr Fenner’s risk of abusing drugs, having access to mobile phones, social media and other communications could enhance his ability to obtain drugs.
Submissions
It is convenient to first outline the submissions made by the respondent.
Counsel for the respondent conceded that Mr Fenner had been sentenced for a “serious sexual offence” on 5 February 2010 which made him a “serious sexual offender” under s 4 of the Act. However, because Mr Fenner was not required to immediately serve that sentence of imprisonment (because it had been suspended), he was not “sentenced to a period of imprisonment in respect of the serious sexual offence” for the purposes of s 5(a) and thus did not satisfy the definition of “high risk offender”. Put simply, counsel submitted that one must read s 5(a) as inapplicable where the sentence of imprisonment has been suspended or, alternatively, where the sentence of imprisonment has not been ordered to be served immediately. Whilst he accepted that s 5(a) does not explicitly exclude suspended sentences of imprisonment, he submitted that it arose by necessary implication from use of the word “period” in s 5(a) which denotes a length or portion of time.
Counsel for the respondent put before the Court the second reading speech of the bill that ultimately became the High Risk Offenders Act. In particular, he sought to rely on the following passages from the then Attorney-General in support of the submission that Parliament had intended the classification of high risk offenders to be limited to those offenders convicted of a serious sexual offence and imprisoned as a result:[18]
… a high risk offender is defined to include a person who has been convicted and imprisoned for a ‘serious sexual offence’.
[18] South Australia, Parliamentary Debates, House of Assembly, 11 February 2015, 40.
And:[19]
In addition, once a person fulfils this criteria of having, at any time, served a term of imprisonment for a ‘serious sexual offence’ they may be the subject of an ESO if they are later sentenced to imprisonment for a lesser sexual offence that may not otherwise attract an ESO.
[19] South Australia, Parliamentary Debates, House of Assembly, 11 February 2015, 40.
Counsel then pointed to equivalent legislation in other jurisdictions of Australia, namely the Crimes (High Risk Offenders) Act 2006 (NSW), which excludes from its operation offenders who have received a suspended sentence after conviction for a serious offence,[20] and the Serious Offenders Act 2018 (Vic), which provides that an eligible offender is one who has received a custodial sentence for a serious sexual offence and the person is serving that sentence.[21] It was submitted that s 5(a) of the Act should receive a similar construction.
[20] Crimes (High Risk Offenders) Act 2006 (NSW), s 4A.
[21] Serious Offenders Act 2018 (Vic), s 3.
When considering the Sentencing Act 2017 (SA) and the repealed Criminal Law (Sentencing) Act 1988 (SA), both of which make the safety of the community an important consideration when sentencing a defendant,[22] counsel submitted that it was apparent that the sentencing court, when sentencing Mr Fenner for the serious sexual offence, must have determined that he was not a risk to the community because the sentence was suspended. Put differently, it was submitted that a respondent who had received a suspended sentence and released into the community was not one who required an extended supervision order.
[22] Criminal Law (Sentencing) Act 1988 (SA), s 10(2); Sentencing Act 2017 (SA), s 3.
Turning to s 7(4)(b) of the Act, for the purposes of determining whether a respondent imposes an “appreciable risk” to the safety of the community, counsel submitted that the Court should confine its analysis to determining whether there is a likelihood that he or she will commit a further serious sexual offence or serious offence of violence if released into the community. He contended that the High Risk Offenders Act should not be used as a “backdoor” to control Mr Fenner’s behaviour with the imposition of an extended supervision order, which would significantly curtail his liberty. He stated that the totality of the evidence suggested that the risk of Mr Fenner committing a further sexual offence was not appreciable but merely fanciful. And, while he accepted that there was some risk of general recidivism, he said that if any less serious offending occurred (that is, offending that did not constitute the commission of a serious sexual offence or a serious offence of violence under s 4 of the Act), that should simply be dealt with by the criminal law.
Counsel for the applicant submitted that Mr Fenner is a high risk offender, as defined in s 5(a), because he is “a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence”. Whether the sentence of imprisonment was suspended (either partially or fully) is irrelevant for the purposes of s 5(a). The applicant submitted that the use of the term “period” when referring to a “period of imprisonment” in s 5(a) was completely neutral and Mr Fenner’s submission that he was not sentenced to a “period” of imprisonment ignored the fact that the sentencing Judge had in fact imposed a period of time for Mr Fenner’s imprisonment, albeit that it had been suspended. There was no need to have recourse to the second reading speech of the bill or to comparable legislation in other jurisdictions.
Counsel for the applicant submitted that it was not necessary or appropriate to read down the ordinary meaning of the definition of “high risk offender” in s 5 of the Act to exclude offenders who had all or part of their sentence suspended. Rather, this result is achieved when the term “relevant expiry date”, as defined in s 4, is given its ordinary meaning. More particularly, she said:[23]
The Applicant acknowledges that in order to determine a “relevant expiry date” for an offender and bring an application under s 7 of the HRO Act, the offender must have, at some point, actually served the sentence of imprisonment imposed upon him/her. In other words, the Applicant accepts that an offender cannot be taken to be serving a sentence of imprisonment if at no stage he or she is ordered to serve any part of the term of imprisonment in prison … if at any stage the offender breaches the bond and has the suspension revoked, the offender will be taken to be serving a sentence of imprisonment from the date of the revocation and it will be possible to identify the offender’s “relevant expiry date” for the purposes of an application under s 7 of the HRO Act.
(Emphasis in original.)
[23] Applicant’s Summary of Argument for Extended Supervision Order, [23].
In this case Mr Fenner’s sentence of imprisonment imposed on 5 February 2010 was revoked, and he was serving his suspended sentence of imprisonment (along with other sentences of imprisonment) either in prison or on parole from 8 January 2013 to 13 March 2020. It was, therefore, possible to determine his “relevant expiry date” and for an application for an extended supervision order to be brought pursuant to s 7 of the Act.
Turning to s 7(4)(b) of the High Risk Offenders Act counsel for the applicant submitted that the evidence before this Court strongly supported the finding that Mr Fenner posed an appreciable risk to the safety of the community if not supervised under an extended supervision order. Indeed, the risk was more than appreciable; it was significant.
On whole, she submitted, it would be appropriate for this Court to impose an extended supervision order of not less than one year in duration.
A further issue agitated by the parties concerned material a prescribed health professional should be given access to under s 21 of the Act for the purposes of examining the respondent and preparing a report. The respondent’s position was that a prescribed health professional should not be given access to materials regarding criminal offences allegedly committed by the respondent but which ultimately did not proceed or were not otherwise proved in court. The Attorney’s response was that there is nothing in ss 7 or 21 which expressly, or by necessary implication, limits the materials that can be considered by a prescribed health professional. In any event, in this matter, Dr Raeside confined his assessment to the matters for which Mr Fenner had been convicted. This may be contrasted with the broader basis on which the SBC post-treatment assessment report had been prepared.
Consideration
I shall now consider s 7(4) of the High Risk Offenders Act.
Is the respondent a high risk offender?
As mentioned earlier in these reasons, the first of the two jurisdictional facts in s 7(4) which the Attorney-General must prove is that the respondent is a “high risk offender”. In this case that requires the Court to be satisfied that Mr Fenner is, for the purposes of s 5(a), “a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence”.
I am satisfied that Mr Fenner committed a “serious sexual offence” and is a “serious sexual offender”. The question of construction is whether Mr Fenner was “sentenced to a period of imprisonment” with respect to the serious sexual offence within the meaning of s 5(a) where that sentence was suspended pursuant to s 96 of the Sentencing Act 2017 (SA) or its predecessor, s 38 of the Criminal Law (Sentencing) Act 1988 (SA).
The general principles of statutory construction are well settled. In Certain Lloyd’s Underwriters v Cross the joint reasons of French CJ and Hayne J again articulated those principles, emphasising text, context and evident statutory purpose.[24] In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue Hayne, Heydon, Crennan and Kiefel JJ said:[25]
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
(Footnotes omitted.)
[24] (2012) 248 CLR 378, [23]-[25].
[25] (2009) 239 CLR 27, [47].
Part of the relevant statutory context is the means by which sentences come to be suspended. By s 96 of the Sentencing Act 2017 (SA) the power of a sentencing court to suspend a period of imprisonment is conditioned on a finding “that good reason exists for doing so”.[26] The same approach can be seen in the former s 38 of the Criminal Law (Sentencing) Act 1988 (SA). From s 96 and its progenitor it can be discerned that a suspension of imprisonment in South Australia is only available where, first, the sentencing court imposes a term of imprisonment and, secondly, the court is satisfied that good reason exists to suspend it. Unless that first step is taken, the second cannot arise. When the bond that is entered into as part of the suspension is not complied with, and the suspension is revoked, it is the original sentence of imprisonment that confronts the offender. It follows then that a sentence that has been suspended, whether wholly or partially, stands as and remains a sentence to a period of imprisonment.[27]
[26] Sentencing Act 2017 (SA), s 96(1).
[27] Elliot v Harris (No 2) (1976) 13 SASR 516, 527 (Bray CJ); R v O’Keefe [1969] 2 QB 29, 32 (Lord Parker CJ); R v Gillan (1991) 100 ALR 66, 71 (the Court).
In R v Pedler (No 2) Kourakis CJ observed in relation to ss 5(a) and (c) of the act that that “[i]t is significant that a conviction of a prescribed offence upon which a lesser penalty is imposed is not sufficient. … only persons committing those serious sexual and violent offences which have attracted sentences of imprisonment can be subjected to an extended supervision order”.[28] Where a suspended sentence of imprisonment is imposed for a serious sexual offence it cannot be said to be a form of “lesser penalty” not caught by s 5(a). A suspended sentence of imprisonment is a serious matter. It is a very real and significant form of punishment[29] and is not a “soft” sentencing option.[30] It entails “all the consequences … a sentence [of imprisonment] involves on the defendant’s record and his future”.[31] I therefore reject Mr Fenner’s submission that a respondent who has received a suspended sentence is not one who Parliament envisaged should be subjected to an extended supervision order.
[28] [2019] SASCFC 117, [19].
[29] R v M, H (2007) 168 A Crim R 557, [32] (White J); R v Famiglietti [2005] SASC 489, [30] (Gray J).
[30] Dinsdale v The Queen (2000) 202 CLR 321, [79] (Kirby J).
[31] Elliot v Harris (No 2) (1976) 13 SASR 516, 527 (Bray CJ).
The respondent’s recourse to the second reading speech is also misplaced. In Palace Gallery Pty Ltd v Liquor and Gambling Commissioner the Full Court of this Court said:[32]
While courts can have recourse to Second Reading Speeches for the purpose of ascertaining the mischief to which a provision is directed or the purpose of that provision, it is for the court to determine the operation and effect of a statutory provision once enacted. As Gleeson CJ, Gummow, Hayne and Heydon JJ said in Nominal Defendant v GLG Australia Pty Ltd, it is the words of a statute, not non-statutory words seeking to explain them, that have paramount signiﬁcance.
(Footnote omitted.)
[32] (2014) 118 SASR 567, [49].
Here, the second reading speech was not used to identify the mischief to which the legislation was directed. The speech was being used to supplement or modify the words that actually appear in s 5(a). In Re Bolton; Ex parte Beane Mason CJ and Wilson and Dawson JJ warned:[33]
The words of a Minister must not be substituted for the text of the law. … It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law.
[33] (1987) 162 CLR 514, 518.
The Attorney’s speech is no substitute for the ordinary meaning of the text of s 5.
I do not accept the respondent’s submission that s 5(a) should be construed consistently with comparable legislation in other Australian jurisdictions. Little, if any, assistance is to be gained from comparing provisions in the High Risk Offenders Act with provisions, particularly statutory definitions, in cognate interstate legislation.[34] As Mason J said in Yager v The Queen:[35]
A statutory definition exists for the purposes of the particular statute in which it is contained, unless it appears in a statute expressed to have a more general application, such as the Acts Interpretation Act. … There is, therefore, no legitimate foundation for resorting to the definitions contained in … [an Act] for the purpose of modifying or qualifying another statutory definition contained in a different Act of Parliament.
[34] R v Kimmins [2016] SASC 176, [30]-[31] (Stanley J).
[35] (1977) 139 CLR 28, 43.
I would respectfully add that this principle applies with greater force to provisions and phrases that are not identical.[36]
[36] See Western Australia v G (a child) (2009) 201 A Crim R 1, [53] (Beech J).
I am satisfied that the ordinary and natural meaning of the phrase “sentenced to a period of imprisonment” in s 5(a) includes a sentence of imprisonment that has been suspended, either wholly or partially. I am satisfied that there is no reason to depart from the ordinary and natural meaning and read into s 5(a) a requirement that the sentence of imprisonment not be one that has been suspended or, alternatively, that it involved immediate incarceration.
In reaching this conclusion I have not overlooked the principle of statutory construction that statutes that curtail liberty should be strictly construed.[37] However, the principle of legality yields to a clear statement of legislative intent. That will be particularly so where there is no ambiguity[38] Where the natural and ordinary meaning of a provision, determined by an orthodox process of statutory construction, demonstrates an intention to abrogate or restrict common law rights in a manner that is neither irrational nor absurd, then effect must be given to that meaning.
[37] Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, [19]-[21] (Gleeson CJ); Momcilovic v The Queen (2011) 245 CLR 1, [43] (French CJ), [191] (Gummow J); X7 v Australian Crime Commission (2013) 248 CLR 92, [24] (French CJ and Crennan J), [86]-[87] (Hayne and Bell JJ, Kiefel J agreeing at [157]), [158] (Kiefel J).
[38] R v A2 (2019) 93 ALJR 1106, [52] (Kiefel CJ and Keane J).

I find that Mr Fenner was “sentenced to a period of imprisonment” and that he satisfies the definition of “high risk offender” under s 5(a) regardless whether that sentence was initially suspended.
In practice, however, a serious sexual offender who has received a suspended sentence with respect to a serious sexual offence cannot be subject to an application under the High Risk Offenders Act unless he or she actually serves the sentence of imprisonment imposed upon him or her. It is the “serving” of that sentence (or any part of it) referable to the serious sexual offence to which the “relevant expiry date” is directed.[39] That is because under s 7(2) any application must be brought within 12 months of the “relevant expiry date”.
[39] R v Pedler (No 2) [2019] SASCFC 117, [34] (Kourakis CJ).
Whilst this point was not put as part of the respondent’s case, I have considered whether this requires that I give a narrow meaning or effect to the words used in s 5(a). In other words, because the application cannot be made unless the respondent is “serving” a sentence of imprisonment referable to his serious sexual offence, does this show that Parliament intended to exclude suspended sentences from the ambit of the Act?
In my opinion, this contention must be rejected for two reasons. The first reason is that the ordinary meaning of the words used in ss 5 and 7 is clear and, to the extent there may be any uncertainty, it was resolved by R v Pedler (No 2).[40] The second reason is that it is not apparent that Parliament intended that there should be any different operation. It would have been a straightforward matter to use the same language across both sections, or at least to explicitly exclude suspended sentences of imprisonment in s 5(a) if that was Parliament’s intention. Neither course was adopted. It may be that Parliament did not consider the issue. Alternatively, the difference was intended. That is, the class of offenders is deliberately set by reference to words in s 5(a) which embrace cases where the sentence of imprisonment has been suspended. However, by the time the Attorney applies for an extended supervision order to be made that broader class is narrowed by reference to those who are actually “serving” their sentence of imprisonment. As with the selection of the 12-month period, this may well be because it is at that time and in those circumstances that the risk evaluation is required to be undertaken for the purposes of protecting the safety of the community. That is, the risk assessment is not required in cases where the respondent is not actually serving a sentence of imprisonment, and, in addition, the assessment will be of little utility outside the 12-month period prescribed.
[40] [2019] SASCFC 117.
Accordingly, though the relevant sentence of imprisonment was initially suspended, it was sufficient that Mr Fenner was “serving” it by the time of the application. That is, a portion of the head sentence that expired on 14 March 2020 was referable to his s 49(3) offence. For the purposes of the Act that is the “relevant expiry date.”[41] As the Attorney’s application was made within 12 months of that date it is, therefore, competent.
[41] In R v Pedler (No 2) [2019] SASCFC 117, [34] Kourakis CJ, with whom Nicholson J and David AJ agreed, held that an application can be made under the Criminal Law (High Risk Offenders) Act 2015 (SA) within 12 months of the relevant expiry date of a single sentence of imprisonment or a series of consecutive sentences of imprisonment any part of which is imposed in respect of a serious sexual offence.
Does the respondent pose an appreciable risk to the safety of the community?
I next address s 7(4)(b) of the Act to determine whether Mr Fenner poses an appreciable risk to the safety of the community if not supervised under an extended supervision order.
In deciding this question I accept the evidence of Dr Raeside. I found the doctor’s written and oral evidence helpful. He is an experienced forensic psychiatrist. He was careful, professional and objective. He was fair. Accepting his evidence, however, does not relieve me of the need to independently determine the matters required by the Act.
As I have mentioned, there was some dispute between the parties as to the material that a prescribed health professional can or should have access to for the purposes of examining a respondent and producing their report. This takes me to the proper construction of s 21(b) of the Act.
The obvious and clear purpose behind the enactment of s 21(b) is to ensure that a prescribed health professional has access to materials sufficient to enable the examination of a respondent at the request of the Court for the purposes of the Act. The Act envisages that the examination will aid the production of a report which will assist the Court’s assessment of risk. The materials on a criminal court file are, as is well known, governed by various rules concerning access, use and publication, including under s 131 of the Supreme Court Act 1935 (SA). As well, materials provided to a party in the course of criminal proceedings are subject to the implied undertaking that those materials will only be used for the purpose of those proceedings.[42]
[42] Hearne v Street (2008) 235 CLR 125 and Harman v Secretary of State for the Home Department [1983] 1 AC 280.
Were an examiner given access to all available material there is some risk that it may refer to criminal conduct alleged against the respondent which has not been admitted or proved to have occurred. There is also the risk that an examiner may (unintentionally or otherwise) transgress an accused’s right to silence. To avoid the risk of these types of problems it is open to this Court to provide an appropriate direction that the prescribed health professional exercise caution when considering the available materials, particularly where they include material concerning unproven allegations.
In the ordinary case, it is appropriate that an examination proceed, at least initially, by reference only to that which is specified in s 21 or which is otherwise admitted or proved. That will include the materials before the earlier sentencing court, including the psychiatric or psychological reports.[43] If it is to be suggested that the requisite risk evaluation requires that other unadmitted or unproven matters be taken into account, and the parties cannot agree on the proper course to be taken, then the need for a supplementary report can be addressed before the Court.
[43] See Sentencing Act 2017 (SA), s 12 which permits a court for the purpose of determining sentence to inform itself of relevant matters as it thinks fit and without being bound by the rules of evidence.
I return to s 7(4)(b). At the outset, I observe that s 7(4)(b) is framed in terms of the risk posed to the safety of the community generally. It is not confined to the risk that a high risk offender will commit only another serious sexual offence or a serious offence of violence.[44] Whilst these matters must (where relevant) be demonstrated before the discretion is enlivened, and the risk of their recurrence explicitly considered by the Court and any person conducting an examination, the threat to the safety of the community is not to be assessed in any narrow or blinkered fashion. Both the text and context of s 7 suggest that the requisite risk arises in connection with any offending, not merely a serious sexual offence or a serious offence of violence within the meaning of the Act.
[44] Similar observations were made in Attorney-General (SA) v Wells [2017] SASC 149, [58] (Hinton J).
Before me, the Attorney did not articulate Mr Fenner’s risk to the community in precise terms, but I consider it to be as follows: when confronted with stressors upon release into the community, which may be expected given Mr Fenner’s antisocial personality traits and significant time in custody over the past decade, on release he may again abuse drugs as a means of coping. If he does so, that will increase his propensity to engage in offending, particularly offending involving violence including domestic violence. This, in my view, is a risk that is appreciable in the sense described by Stanley J in Grosser.[45]
[45] [2016] SASC 49, [29].
Although Mr Fenner’s post-treatment assessment suggested that he is at high risk of sexually reoffending, he is not suffering from paedophilia or any other sexual disorder. In addition, that assessment took into account matters that were not admitted or proved. The circumstances surrounding the index offence are serious, but they are not demonstrative of a pattern of offending against female children that involves predation, grooming or any propensity to commit serious sexual offences of that kind. I accept that Mr Fenner’s risk of sexually reoffending is lower than his risk of general recidivism. But though it may be low, there nonetheless remains some risk that Mr Fenner may engage in sexual offending of a type different to that of the index offence, one that is intertwined with the violent offending that he has previously exhibited in his relationships with female domestic partners.
I accept that, in recent times, particularly in the second half of 2019, Mr Fenner has shown positive attitudinal changes. This is something for which he is to be commended and something that I hope will continue. However, insufficient time has passed to determine whether the gains he has realised from the SBC and DFVI programs will be lasting. These positive changes have also occurred in a strictly controlled custodial setting. He is yet to spend sufficient time in the “real world”, where he will be surrounded by the temptation to engage in substance abuse and other antisocial behaviours, to enable any confident assessment as to whether he will be able to put the skills he has learned and the knowledge and insight he has gained into practice. At present Mr Fenner does not have a demonstrable track record of positive, rehabilitative conduct in the community, and there has been no significant change in his dynamic risk factors.
Although in final address counsel for Mr Fenner submitted that any risk was negligible or fanciful I reject that submission. It was never put to Dr Raeside in those terms, or at least in a way that might support the submission. More importantly, the submission is belied by the evidence of Dr Raeside and the findings I have made.
These considerations establish a solid foundation for concluding that Mr Fenner presents an appreciable risk to the safety of the community if not supervised under an extended supervision order.
The discretion
The prerequisites for the making of an order having been established, in the exercise of my discretion I would impose an extended supervision order. In the exercise of my discretion I have had regard to the material to which I have referred, Dr Raeside’s evidence, the statements made by the respondent to Dr Raeside and the need for community protection. I am satisfied that Mr Fenner does not at present demonstrate an ability to manage his static and dynamic risk factors without supervision and that, if he were not subject to an order, his drug abuse may recommence and likely escalate to the point where he may engage in offending.
Accordingly, his extended supervision order should focus on monitoring his behaviour whilst in the community and it must provide him with ongoing support. This should include participation in community-based programs, particularly those related to domestic violence, the management of relationship difficulties, drug abuse and his other dynamic risk factors (as deemed necessary by his community corrections officer), as well as assistance in engaging in pro-social activities, such as employment, and avoiding antisocial peers and maladaptive behaviours.
I consider that an extended supervision order of 12 months is appropriate, at least initially. A duration of anything less would not allow sufficient time to determine whether Mr Fenner’s risk to the community has abated to the point where an order is no longer necessary to protect the safety of the community. It takes time for an offender to participate in programs, engage meaningfully with others and make positive behavioural changes. These are all the more difficult for someone in Mr Fenner’s position given his history and static risk factors.
The conditions attaching to Mr Fenner’s extended supervision order should be limited to addressing the appreciable risk that he poses to the safety of the community. They should not be punitive nor unjustifiably onerous.
Before me, I did not understand Mr Fenner to be opposing any particular condition of the Attorney’s proposed extended supervision order. Rather, he contested the order in its entirety. That does not relieve me of the need to consider the conditions, both individually and as a whole. I consider the following proposed conditions in the Attorney’s application to be the most contentious and I provide reasons for their inclusion or exclusion in the final order.
Electronic monitoring
The Attorney seeks a condition that Mr Fenner be fitted for an electronic monitoring device for such period of time as determined by the Parole Board.
Whilst this will be an intrusive condition, I consider it necessary for the protection of the community and achieving Mr Fenner’s rehabilitation. In reaching his conclusion, I have been particularly influenced by the fact that Mr Fenner has taken drugs whilst in custody and by the repeated breaches of his parole conditions, which included the commission of further offences. His conduct suggests that supervision will not be sufficient and that his movements require monitoring.
Nevertheless, I will limit the duration of this condition to a period of six months on condition that the Parole Board may, in the event of a breach of his extended supervision, extend the period of electronic monitoring beyond that period. What I envisage is that this will operate as an incentive for Mr Fenner to comply with the conditions of his extended supervision order.
Curfew
The Attorney seeks a condition that Mr Fenner be subject to a 9:00 pm to 6:00 am curfew for such period of time as determined by the Parole Board. In my view, this condition will assist in providing Mr Fenner with some structure and routine in his life and I do not consider that it will impede on his ability to engage in pro-social activities, such as employment. I will include this condition in the extended supervision order.
Prohibited contact, or potential contact, with persons under the age of 18 years
The Attorney seeks conditions in the extended supervision order that would prohibit Mr Fenner from contacting children, from loitering without reasonable excuse in or within the vicinity of public areas where children are regularly present and from engaging in employment, voluntary work or recreational, social and educational activities involving children. Given that Mr Fenner does not suffer from paedophilia and his risk of engaging in conduct of the type that was subject to the index offence is low, I will not include these conditions in the extended supervision order. In any event, the fact that he will be electronically monitored provides this Court with reassurance that the safety of the community will be protected.
Monitored use of the internet, telecommunication devices and other electronic equipment
These conditions would require Mr Fenner to declare to his community corrections officer his use of telecommunication devices and other electronic equipment, to declare any existing email addresses, internet user names, online identities in use and the like, and produce to his community corrections officer or the police such equipment and passwords for the purposes of inspection.
I do not consider these conditions to be necessary for the protection of the community in light of my findings at [132]. Whilst during the hearing of the application it was suggested that Mr Fenner could use electronic devices as a means of accessing drugs, there is no evidence before me to suggest that that is the case.
Conclusion and orders
I order that Mr Fenner be subject to an extended supervision order for a period of 12 months pursuant to ss 7(4) and 12(1) of the High Risk Offenders Act.
The extended supervision order is subject to the following conditions:
1The respondent is to be subject to an extended supervision order for a period of 12 months from the date of this order.
2The conditions to which the respondent is subject are:
2.1    the respondent will not commit any offence;
2.2    that the respondent is prohibited from possessing a firearm or   ammunition (both within the meaning of the Firearms Act 2015 (SA)) or any part of a firearm;
2.3    that the respondent is prohibited from possessing an offensive weapon unless the Supreme Court permits the person to possess such a weapon and the person complies with the terms and conditions of the permission;
2.4    that the respondent will:
2.4.1be under the supervision of a community corrections officer;
2.4.2obey the reasonable directions of that community corrections officer;
2.4.3submit to such tests (including testing without notice) for gunshot residue as the community corrections officer may reasonably require;
2.5    the respondent will not depart from or attempt to depart from the State of South Australia without obtaining the written approval of the Parole Board at least seven (7) days prior to travel;
2.6    the respondent will reside at an address that is approved in writing by his community corrections officer and will not change his residence without the prior written approval of his community corrections officer;
2.7    for six months commencing on the making of this order the respondent will be fitted for an electronic monitoring device and wear this device as determined by the Parole Board. The respondent will obey all directions of his community corrections officer with respect to the wearing and maintenance of the electronic monitoring device. In the event of non-compliance with this order the Parole Board may extend the six-month period;
2.8    upon his release from prison the respondent will be subject to a curfew for such period of time as determined by the Parole Board. Whilst subject to a curfew the respondent is to remain in his residence between 9 pm and 6 am, and he will present to police, a community corrections officer or such person as is authorised to conduct a curfew check at his front door on request;
2.9    the respondent will maintain a telephone service for the duration of this order and provide his community corrections officer with the phone number(s);
2.10    the respondent will not exceed a blood alcohol concentration of 0.05 grams of alcohol per 210 litres of breath;
2.11    the respondent will not use, possess or administer any illegal or prescription drug except in accordance with the directions of a legally qualified medical practitioner;
2.12    the respondent will advise his community corrections officer of any drug that has been prescribed to him by a legally qualified medical practitioner;
2.13    the respondent will submit to drug and alcohol testing (including testing without notice) as directed by his community corrections officer and will do all things and sign all forms as may be necessary to enable samples to be taken and analysed, and to enable the results of such analysis to be provided to his community corrections officer and/or the Parole Board;
2.14    the respondent will attend and participate in any assessments and/or counselling and/or treatment and/or programs for mental health issues and/or substance abuse issues as directed by his community corrections officer;
2.15    the respondent will attend and engage with an employment support provider as directed by his community corrections officer;
2.16    the respondent will obtain the approval of his community corrections officer prior to undertaking any remunerated or voluntary work;
2.17    the respondent will not approach or contact, directly or indirectly, [JC] or [EW];
2.18 the respondent will comply with any condition imposed by the Parole Board under s 11 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
3The extended supervision order takes effect on 18 June 2020.