Attorney-General (SA) v Grosser (No 3) - [2017] SASC 89

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL v GROSSER (No 3)
[2017] SASC 89
Judgment of The Honourable Justice Stanley
15 June 2017
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
Application by the Attorney-General for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
The respondent was convicted of one count of attempted murder and five counts of endangering life, and was sentenced to a term of imprisonment of 22 years with a non-parole period of 18 years commencing on 4 May 1994. On 14 April 2016, an interim supervision order was made pursuant to s 9 of the Act.
The respondent conceded he is a high-risk offender posing an appreciable risk to the safety of the community if not supervised under an extended supervision order. Thus the issues were narrowed to the length of the order and whether it should include a condition for electronic monitoring.
Held:
1. Regard must be had to the progress the respondent has made since the making of the interim order, which has been the product of successful treatment and a robust regime of supervision. However, it is appropriate that a lengthy extended supervision order be made as the respondent’s underlying psychiatric illness is incurable. The paramount consideration of public safety justifies a lengthy order. Having regard to the terms of s 12(1)(b) and the fact that the respondent has been subject to an interim supervision order for more than one year, an extended supervision order of four years is made (at [41] and [43]).
2. Whilst electronic monitoring infringes the respondent’s personal autonomy and is a source of embarrassment and inconvenience to him, it is a price that must be paid to maintain public safety, which is the paramount consideration. The extended supervision order should include a condition that the respondent be monitored by the use of an electronic device for a period of two years from the commencement of the order (at [42] and [44]).
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, s 9, s 10, s 11, s 12, s 13; Correctional Services Act 1982 (SA) s 64; Mental Health Act 2009 (SA), referred to.
Attorney-General v Kimmins [2016] SASC 176, considered.

ATTORNEY-GENERAL v GROSSER (No 3)
[2017] SASC 89
Criminal: Application
STANLEY J.
Introduction

This is an application made by the Attorney-General for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act).
On 30 November 2002, the respondent was convicted and sentenced to a term of imprisonment of 22 years, with a non-parole period of 18 years, commencing on 4 May 1994, for the offences of one count of attempted murder and five counts of endangering life.
On 14 April 2016, the Court ordered that the respondent be subject to an interim supervision order pursuant to s 9 of the Act. Pursuant to that order the respondent has been subject to electronic monitoring. That interim supervision order has continued in place since that date.
The power of the Court to make an extended supervision order is enlivened upon the Court’s satisfaction of two matters. First, that the respondent is a high‑risk offender. Second, that the respondent poses an appreciable risk to the safety of the community if not supervised under such an order.[1]
[1] Section 7(4).
The respondent concedes that he is a high-risk offender and poses an appreciable risk to the safety of the community if not supervised under an extended supervision order. He accepts it is appropriate that an extended supervision order should be made. On the hearing of the application there are only two issues. They are the length of the order and whether it should include a condition for electronic monitoring.
Scheme of the Act
In determining whether to make an extended supervision order, the paramount consideration must be the safety of the community.[2] Section 7(6) of the Act also prescribes certain matters the Court must take into consideration in determining whether to make an order. They are:
[2] Section 7(5).
(a)the likelihood of the respondent committing a further serious sexual offence or serious offence of violence (as the case may be) if not supervised under the order;
(b)the reports of any medical practitioner (as directed and nominated under subsection (3)) furnished to the Court;
(c)any report prepared by the Parole Board under section 64(5) of the Correctional Services Act 1982;
(d)any report required by the Court under section 20 (including the results of any statistical or other assessment furnished to the Court as to the likelihood of persons with histories and characteristics similar to those of the respondent committing a further relevant offence);
(e)any relevant evidence or representations that the respondent may desire to put to the Court;
(f)any treatment or rehabilitation program in which the respondent has had an opportunity to participate, including his or her willingness to so participate and the extent of such participation;
(g)in the case of a respondent released on parole—the extent to which he or she has complied with the conditions of his or her release on parole;
(h)in the case of a respondent subject to an existing extended supervision order—the extent to which he or she has complied with the terms of the order;
(i)in the case of a respondent who is a registrable offender (within the meaning of the Child Sex Offenders Registration Act 2006)—the extent to which he or she has complied with any obligations under that Act;
(j)the circumstances and seriousness of any offence in respect of which the respondent has been found guilty according to his or her criminal history, and any pattern of offending behaviour disclosed by that history;
(k)any remarks made by the sentencing court in passing sentence;
(l)any other matter that the Court thinks relevant.
The terms and conditions of an extended supervision order are prescribed by s 10 of the Act. Section 10(1) provides:
10—Supervision orders—terms and conditions
(1)The following conditions apply in relation to an extended supervision order:
(a)a condition that the person subject to the order not commit any offence;
(b)a condition that the person subject to the order is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 1977) or any part of a firearm;
(c)a condition prohibiting the person subject to the order 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;
(d)a condition that the person subject to the order—
(i)be under the supervision of a community corrections officer; and
(ii)obey the reasonable directions of the community corrections officer; and
(iii)submit to such tests (including testing without notice) for gunshot residue as the community corrections officer may reasonably require;
(e)any other condition that the Court thinks fit and specifies in the order;
(f)any condition imposed by the Parole Board under section 11.
The Parole Board may impose certain conditions on an extended supervision order. Pursuant to s 11(1)(a)(iii), they include that the person subject to an extended supervision order be monitored by the use of an electronic device.
Pursuant to s 12(1)(b), an extended supervision order remains in force for a period of five years, or such lesser period as is determined by the Court and specified in the order.
Pursuant to s 13 of the Act, the Court may, on application made by the Attorney-General or a person subject to a supervision order, vary a condition of the order (including a condition imposed by the Parole Board) or revoke the order. The person subject to a supervision order may only apply with the permission of the Court. That permission will only be granted if the Court is satisfied that there has been a material change in circumstances relating to the person or the supervision order, and it is in the interests of justice to grant permission.
Exercise of the discretion as to the length and conditions of the order
Section 10(1) of the Act prescribes specific conditions that apply where an extended supervision order is made. Placitum (a), (b), (c), (d) and (f) are mandatory conditions. The power conferred by s 10(1)(e) of the Act is discretionary. It permits the Court to impose any other condition it thinks fit. Section 12(1)(b) is discretionary. It imposes a maximum period within which an extended supervision order can remain in force but permits the Court to make an extended supervision order for a lesser period than five years. The discretions conferred by s 10(1)(e) and s 12(1)(b) are to be exercised by reference to the provisions regulating whether an extended supervision order should be made at all, namely, s 7(5) and (6).
As I have noted, the Act authorises the Court to interfere with the liberty of the subject by making an extended supervision order only if it is satisfied that the respondent is a high risk offender and an order is necessary to ensure the respondent does not pose an appreciable risk to the safety of the community. The discretion to be exercised pursuant to s 7 demands a normative judgment which is quite different from traditional judicial discretion. The Court has been entrusted with a mandate to ensure public safety by interfering with the right to liberty of a person who is a high risk offender and poses an appreciable risk to the safety of the community if not supervised. The discretion 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.[3] 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.
[3] Attorney-General v Kimmins [2016] SASC 176 at [38].
Submissions of the parties
The Attorney-General submits that the respondent should be subject to a relatively long extended supervision order of up to the maximum of five years, with a condition that he be subject to a requirement to wear an electronic monitor. The Attorney-General submits that requirement should be imposed for the entirety of the order or for a shorter period in light of the power conferred on the Parole Board to impose a further condition of this kind upon expiry of the Court ordered condition, pursuant to s 11(1)(a)(iii) of the Act, should this prove necessary. The respondent submits that he should be subject to an extended supervision order for a relatively short period of time and there not be a condition requiring him to wear an electronic monitor.
Evidence
In determining whether to make an order for extended supervision, the Court must consider the safety of the community as the paramount consideration, as well as the matters identified in s 7(6) of the Act (which I have referred to above), relevantly:
·the likelihood of the respondent committing a further serious offence of violence if not supervised by an order (s 7(6)(a));
·reports of any medical practitioner made pursuant to s 7(3) of the Act (s 7(6)(b));
·any report of the Parole Board made pursuant to s 64(5) of the Correctional Services Act 1982 (s 7(6)(c));
·any relevant evidence or representations of the respondent (s 7(6)(e));
·any treatment or rehabilitation program in which the respondent has participated, including the extent of participation and willingness to partake (s 7(6)(f));
·the extent to which the respondent has complied with the existing extended supervision order (s 7(6)(h));
·the circumstances and seriousness of the respondent’s prior offending (s 7(6)(j));
·any remarks of the sentencing court in passing sentence (s 7(6)(k)); and
·any other matter the Court thinks relevant (s 7(6)(l)).
As to the likelihood of the respondent committing a further serious offence of violence if left unsupervised, Dr Nambiar, a medical practitioner nominated pursuant to s 7(3) of the Act, assessed the respondent as remaining pre-occupied with paranoid delusions in his report of 20 May 2016 and addendum report of 24 January 2017. These reports explain the background and nature of the respondent’s diagnosis of Paranoid Delusional Disorder with persecutory beliefs involving conspiracy theories. That diagnosis is reported to have motivated his behaviour during the siege.
In his first report Dr Nambiar notes the respondent continued to act on his beliefs whilst in custody, having made contact with others in relation to his concerns as to police corruption and organised crime. He continues to read literature on the NCA bombing, which in Dr Nambiar’s view suggests that he may devote significant time to internet research on similar topics if granted access to the internet. The respondent’s religiosity also grew during his incarceration. He claimed to personally have healing powers.
The respondent’s attitude to treatment is of “forced compliance”. He does not acknowledge that he has a mental illness and has stated that he would not take medication if not subject to a Community Treatment Order.
Dr Nambiar also considered the Community Treatment Order that was imposed on the respondent pursuant to the Mental Health Act 2009 in March 2016.
In granting this Order the following criteria were satisfied:
1the respondent has a mental illness;
2because of his mental illness the respondent requires treatment for his own protection from harm or for the protection of others from harm;
3there are facilities and services available for appropriate treatment of the respondent’s illness; and
4there is no less restrictive means than a Community Treatment Order for ensuring appropriate treatment of the illness.
In addition to the Community Treatment Order, Dr Nambiar considered (amongst other things) the respondent’s admission summaries from James Nash House and the relevant judgments relating to his offending. He also personally examined the respondent in May 2016.
Dr Nambiar concluded that if the respondent were to be approached “in the manner in which he felt it was unwelcomed or without warning, he may well perceive a threat and take action to defend himself once again.” Dr Nambiar qualified this by stating that the respondent does not have access to firearms at present. This is relevant given the magistrate’s finding that there are some firearms which remain unaccounted for, the location in which they are buried being unknown.
Dr Nambiar concluded that the current level of supervision of the respondent, which occurs by way of electronic monitoring and through supervision by a combination of agencies, is adequate. Dr Nambiar thought that the respondent has “very restricted access to the community without permission from his Community Corrections Officer”. However, I note that the respondent’s movement is not so restricted. The restrictions to his movement are only those imposed by the 2013 Intervention Order and the Firearms Prohibition Order made against him. Otherwise, his movement in the community is unrestricted.
In his addendum report, Dr Nambiar notes that the respondent’s description of his religious beliefs no longer extend to him personally exercising healing powers. The respondent’s religious activities now revolve around attending church and socialising with others who share the same convictions. This report further expresses that the respondent is no longer wholly consumed with thoughts of police and official corruption, though these ideas “remain just below the surface”. He is generally more accepting of the need for treatment.
A report of Dr Balfour of 18 October 2012, which was prepared at the request of the Parole Board and was considered by Dr Nambiar in preparing his report, provides observations and conclusions largely consistent with those in Dr Nambiar’s report. Dr Balfour also observed the respondent’s continuing “fear, mistrust and resentment” towards police and officials. He also noted the respondent’s increased religiosity is a concern as it is driven by his need for “divine intervention” in pursuing justice. Dr Balfour concluded that the respondent was at a high risk of reoffending because he “continues to be hypervigilant of alleged police corruption and organised crime… if Mr Grosser feels unsafe in the community, he is likely to revert to his old coping behaviours. He will abscond and attempt to disguise his identity and whereabouts; or take whatever action he feels is necessary to defend himself against any perceived threat.”
The Parole Board provided a report of 7 June 2016, which recommends, among other things, that electronic monitoring continue in addition to a requirement that the respondent be subject to an intensive supervision regime with the Intensive Compliance Unit. However, the Attorney-General does not seek the latter condition given the length of time since the respondent was released from prison, and the reporting relationship that has been established with his Community Corrections Officer.
The respondent sought an independent psychiatric opinion from Dr Begg, whose report is dated 26 September 2016. Following examination of the respondent, Dr Begg reported that the respondent’s mental state is consistent with paranoia given his insistence as to his ideation and his inability to explore other perspectives. Dr Begg expressed a concern that if the respondent goes unmedicated or is placed under extra stress, there is a chance his paranoia may escalate to the point that he might attack others.
An addendum report of Dr Begg dated 24 October 2016 noted, following a second examination of the respondent in October 2016, that he had made progress in response to treatment. In particular, that his delusional beliefs do not preoccupy his mind or dominate his thinking. Dr Begg then concluded that he did not believe the respondent’s behaviour would be improved by electronic monitoring from a “psychiatric perspective”.
The respondent in his affidavit sworn 15 March 2017 states that he has complied with the requirement of the Interim Extended Supervision Order of April 2016 that he wear an electronic monitoring device on his ankle, which causes discomfort and embarrassment when in public. He therefore wears long clothing to hide the device, even in warm weather. He must charge the device on a daily basis, which requires access to a power point. He is forced to sit alongside the power point as it charges given that he is not permitted to remove the anklet. He also deposes that the process of charging the device restricts him from partaking in activities such as camping and fishing, as he would not have access to power points in such places.

Finally, I note that in sentencing the respondent in 1996, Millhouse J remarked that the offending was a “most serious” example of violence towards police officers and other law enforcement officials, with respondent’s conduct seeming “quite deliberate”, with no sense of regret or remorse perceivable from the respondent during his evidence. Following an appeal against conviction the respondent was sentenced for a second time by Justice Duggan, who remarked that he “cannot accept that at this stage [his] expression of remorse… is genuine”.
Consideration
The paramount consideration in this matter is the safety of the community. In addition, the Court must also take into consideration those matters prescribed by s 7(6) that are relevant. The most significant factors in determining the length of the order and whether it should contain a condition of electronic monitoring are the circumstances and seriousness of the offending by the respondent, the evidence of his psychiatric condition and the likelihood he would commit a further serious offence of violence if not supervised under the order.
The circumstances and seriousness of the offences in respect of which the respondent was found guilty are extremely serious. The offending occurred during a siege at the respondent’s home in Nuriootpa in May 1994. At the time the respondent was 40 years of age and lived with his de facto partner and their two young children. The siege commenced when Star Force officers attended at the respondent’s residence in order to arrest him on a court warrant. Officers took up positions around his home and the officer in charge called the respondent’s name and informed him that police officers were present. The respondent was armed with several firearms. Officer McManus took up a position near a glass sliding door at the side of the house. The respondent fired several shots from a high powered rifle through the glass door. Officer McManus was shot a number of times. He suffered severe injuries and lay where he had been wounded for some hours before being rescued. He was extremely fortunate to have survived. The respondent’s de facto partner and their two young children were inside the house when the siege commenced. They later escaped. Over a period of about 40 hours the respondent fired hundreds of rounds of ammunition at police officers using three high powered firearms. The respondent took up a position in the roof cavity of the house in order to fire upon police. On five occasions he specifically shot in the direction of police officers thus endangering their lives. The respondent only surrendered when police demolished a section of the roof area of the house.
The respondent previously held a firearms licence which had been cancelled prior to the siege. At the time of the cancellation the police seized all firearms and ammunition that were able to be located. At the time of the siege the respondent held an arsenal of weapons together with ammunition concealed within his house. In 2013 Detective Shillabeer gave evidence before the Magistrates Court that four weapons registered to the respondent and two weapons registered to his de facto partner could not be found. Detective Shillabeer gave evidence that he had been told by the respondent that prior to the siege the respondent had buried firearms to hide them from police but they were readily recoverable. The respondent admitted he had hidden weapons at his Nuriootpa property and at a horse stud. He had subsequently recovered the weapons. The magistrate found that there were five or possibly six firearms to which the respondent had access that remain unaccounted for, although she was unable to find that the respondent now knows the whereabouts of those guns. That remains the position currently.
The respondent suffers from a paranoid delusional disorder with persecutory beliefs involving conspiracy theories concerning police and official corruption. Those beliefs have existed prior to, during the siege and over the 22 years he has been in custody. Dr Nambiar, in his most recent report, assessed the respondent some nine months after his release into the community following the completion of his term of imprisonment. During the interview conducted on 23 January 2017 he noticed signs of improvement. The respondent did not appear to be particularly preoccupied with the conspiracies as he had been in the past, however, on specific probing, Dr Nambiar found those ideas remain just below the surface. Dr Nambiar noted that the respondent continues to receive injections of Paliperidone every month and is reviewed by his treating psychiatrist, Dr Nguyen, on a monthly basis. He also has regular contact with the forensic community team for the purposes of addressing his general welfare and to review his mental state. In addition the respondent continues to consult a forensic psychologist, Mr Richard Balfour, with whom he has developed a strong therapeutic relationship. Dr Nambiar in his evidence considered that there were two aspects of the respondent’s management which are critical. They are continued treatment and regular supervision. Dr Nambiar considers that the respondent’s delusional disorder is incurable. He will require treatment and supervision for the rest of his life. In his view, that nonetheless leaves scope for a stepped approach to supervision which Dr Nambiar accepts at some point would have to rely on non-electronic means of monitoring. The respondent’s progress will need to be periodically reviewed. While Dr Nambiar has no particular view as to the length of the supervision order the court should make, he suggests that at least 12 months would be an adequate period of time for a review of his conditions. He thinks that the Court must consider whether the respondent can be adequately supervised in a reliable fashion by the agencies currently involved if he is not wearing an electronic monitor.
Dr Nambiar observed that in his interviews with the respondent his answers to questions are frequently guarded. His answers can be carefully calculated and are often less than frank.
Dr Nambiar is concerned that the respondent submits to essential treatment only because he is subject to a Community Treatment Order. He considers there is a concern that if supervision were to be removed, he could abandon the treatment regime. While the respondent has made progress, Dr Nambiar considers there is no improvement in his insight and he still holds delusional beliefs which he is capable of suppressing where it is expedient to do so. The progress he has made is attributable to his treatment and a pattern of care that has produced stability in his life. While Dr Nambiar accepts that there is no reason why electronic monitoring could not cease, the risk is that if the respondent is not adequately monitored his behaviour will become riskier. As Dr Nambiar said, there is a risk that if the conditions conducive to his paranoid delusions present themselves the respondent may well act upon them.
I accept the evidence of Dr Nambiar.
I note the report of the Parole Board dated 7 June 2016 which suggests 11 conditions to be imposed under an extended supervision order. Those conditions are largely reflected in the draft minutes of order agreed between the parties, save and except that the Board seeks an order for electronic monitoring. The Board also seeks an order that the respondent be subject to an intensive supervision regime with the Intensive Compliance Unit. I accept this is unnecessary, given the period of time that has elapsed since the respondent was released from prison and the reporting relationship he has with his community corrections officer. As I have noted, the Attorney-General does not press that condition being included as a condition of any order to be made by this Court.
I have had regard to the remarks made by Millhouse and Duggan JJ when each sentenced the respondent. Given the time that has elapsed and the understandable absence in those sentencing remarks to any of the matters relevant to the decision this Court must make, I do not give any significant weight to those sentencing remarks.
I am satisfied that, since his release, the respondent has complied with the terms of the interim extended supervision order made on 14 April 2016. He has been compliant with all aspects of his supervision and treatment. I note Dr Nambiar’s opinion that as long as the respondent is being adequately supervised through a combination of agencies that include mental health services, community corrections and SAPOL, the risk to the community is low. I accept Dr Nambiar’s opinion but note the conditional basis of his assessment of the risk the respondent poses to the community. In the exercise of the Court’s discretion in deciding the length of an order to be made and whether it should include a condition for electronic monitoring, relatively smaller degrees of risk will outweigh considerations which, even strongly, would militate against the making of the order.
The respondent suffers from an incurable psychiatric illness. That illness was a substantial contributing factor to his serious violent offending against police in the past. While I note that the magistrate was unable to find on the balance of probabilities that the respondent knows the whereabouts of the five or six firearms which cannot be accounted for, the existence of those missing firearms remains a relevant risk factor.
The Court must have regard to the progress made by the respondent since he has been subject to the interim order. That is encouraging and provides a degree of reassurance. But the fact remains that progress has been the product of successful treatment and a robust regime of supervision. Dr Nambiar considers these are essential matters if the progress the respondent has made so far is to continue. Dr Nambiar considers there is a risk that the progress made could stall or reverse. I do not accept the submission that in these circumstances a condition of electronic monitoring is unnecessary. While I accept that electronic monitoring is not therapeutic, it serves both a deterrent and protective purpose. I consider it to be an important aspect of the supervisory regime that has been critical to the respondent’s progress so far. It is appropriate that a lengthy extended supervision order be made. This is because the respondent’s underlying psychiatric illness is incurable. The paramount consideration of public safety justifies a lengthy order. Having regard to the terms of s 12(1)(b) and the fact that the respondent has been subject to an interim supervision order for more than one year, I consider that the order should be made for a period of four years.
I accept that electronic monitoring infringes the respondent’s personal autonomy, and is a source of embarrassment and inconvenience to him. At present that is a price he must pay to maintain public safety which is the paramount consideration in determining both whether to make an extended supervision order and the conditions of such an order. I do not accept the submission that it is appropriate that electronic monitoring should now be stopped as part of a gradual reduction in the level of supervision to which the respondent should be subject. I consider that a substantial period of electronic monitoring is still required before the Court can be satisfied that the respondent poses no realistic risk to the community given his psychiatric condition is permanent. If the respondent’s progress continues, there will be scope for a gradual reduction in the level and degree of supervision required for the safety of the community. However, I am not satisfied that position has been reached. I consider that the respondent should remain subject to electronic monitoring for a period of two years, noting that the Parole Board may impose a condition for further monitoring pursuant to s 11(1)(a)(iii), or that pursuant to s 13(1) the Attorney-General could seek a variation of the extended supervision order at the conclusion of that two‑year period.
Length of the order
In my view, the Court should make an order pursuant to s 12(1)(b) that the extended supervision order remain in force for a period of four years from the date the extended supervision order is operative.
Electronic monitoring
In my view, the extended supervision order should include a condition that the respondent be monitored by use of an electronic device for a period of two years from the commencement of the order.