Attorney-General (SA) v Guidotto - [2023] SASC 156

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v GUIDOTTO
[2023] SASC 156
Judgment of the Honourable Justice McIntyre
1 November 2023
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – SERIOUS OR VIOLENT OFFENDER
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS CRIMINAL
On 7 July 2022, the respondent was made subject to an extended supervision order (ESO) under s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (The Act). On 7 July 2023 a Parole Board warrant was executed in respect breaches of the ESO. The Parole Board of South Australia interviewed the respondent on 5 September 2023 and resolved to detain the respondent in custody pending consideration of a Continuing Detention Order.
The respondent has breached his current ESO and prior ESO on a number of occasions. Counsel for the applicant submitted that this placed the respondent at a high risk of reoffending. Furthermore, that the respondent should be detained in custody for the purpose of completing individualised treatment programs.
The respondent submitted a continuing detention order should not be made. The respondent emphasised, among other things, that the respondent has been attending treatment programs whilst held on the Parole Board warrant, and these programs are available for him to continue on release.
Held:
1. The application is dismissed.
2. While the respondent poses an appreciable risk to the safety of the community, the discretion should not be exercised to impose a continuing detention order.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 18, referred to.
Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11, considered.

ATTORNEY-GENERAL (SA) v GUIDOTTO
[2023] SASC 156
McINTYRE J:

The respondent, Neil David Guidotto, comes before the Court on a referral from the Parole Board under s 18(1) of the Criminal Law (High Risk Offenders) Act2015 (SA) (the HRO Act). The question for determination by the Court is whether the respondent should be subject to a Continuing Detention Order (CDO).
Background
The respondent has a lengthy criminal history as demonstrated by his antecedent report.
On 20 November 2014 the respondent was sentenced in the District Court for two counts of serious criminal trespass in a place of residence, three counts of dishonestly taking property without consent, one count of submitting false information to a second hand dealer and creating a risk of harm. He was sentenced to a total head sentence of five years and three months with a non-parole period of three years and three months.
On 16 March 2020 the respondent was determined to be a high risk offender and made subject to an extended supervision order (ESO) for a period of two years. Specifically, he was found to present an appreciable risk to the safety of the community if not supervised under an ESO. The respondent breached the first ESO, and the interim supervision order (ISO) that preceded it, on multiple occasions.
On 24 February 2022 the applicant, the Attorney-General, applied for an second ESO owing to the limited progress made by the respondent under the first ESO.
On 9 March 2022 the respondent was made subject to an ISO and, on 7 July 2022, to a second ESO for a further period of two years. The second ESO is due to expire on 6 July 2024.
The respondent breached those orders on numerous occasions. The details of the breaches are set out in the affidavit material and, in particular, the letter from the Chair of the Parole Board to the Applicant dated 26 September 2023. The breaches are largely associated with the respondent’s addiction to drugs.
A warrant was issued by the Parole Board on 6 July 2023 due to three breaches of the “no drugs” condition of the ESO. It was executed the following day; 7 July 2023. The respondent has remained in custody since that date.
The Parole Board interviewed the respondent on 5 September 2023 and found the three breaches for which the warrant was issued proven. The Board resolved to detain the respondent in custody pending consideration of a CDO by this Court.
The legislation
The test that the Court must apply is whether the respondent has breached the supervision order and whether he poses an appreciable risk to the safety of the community if not detained in custody. If those jurisdictional facts are established, the Court must decide whether an order should be made. The Court is required to give paramount consideration to the safety of the community in exercising its discretion.[1] The purpose of the order is protective rather than punitive.[2]
[1] HRO Act s 18(3).
[2] Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11 at [85].
The three breaches of the no drugs condition of the supervision order relied upon by the applicant are conceded by the respondent. The issues for determination is whether the respondent poses an appreciable risk to the community if he is not detained in custody.
Submissions
The applicant relies upon the report prepared by Dr Brereton on 10 June 2022 under s 7 of the HRO Act. In that report Dr Brereton concluded that the respondent was at high risk of committing a serious offence of violence unless his criminogenic risk factors, in particular his substance abuse, were addressed. Dr Brereton noted that, at that point, the respondent had responded poorly to supervision and had a very poor understanding of his own risk. The applicant submits that the situation remains unchanged and that, whilst the respondent has not engaged in any further violent offending, his numerous breaches of the no drugs conditions and failure to engage with supervision demonstrate that the respondent remains at high risk of reoffending.
The respondent on the other hand submits that a CDO is unnecessary and not required to protect the community. The respondent has been in custody for some months and has undergone rehabilitation in the form of the Smart Recovery program. He has been placed on the suboxone program to treat his drug addiction. He is prepared to undergo further treatment and rehabilitation in the community including the PsychMed program. There is more availability of rehabilitation and counselling in the community than in custody. Moreover, the respondent has more suitable accommodation available to him on release than was previously the case. The accommodation is provided by the NDIS as part of a support package. He also has support from OARS. The respondent has work available to him in his former occupation as a glazier.
Discussion
I am satisfied that the respondent presents an appreciable risk to the community based upon his history, the report of Dr Brereton, and the material from the Parole Board and DCS. However, I must also be satisfied that detention is required to address that risk for the safety of the community. The community is protected whilst the respondent remains in detention. He cannot, however, be detained indefinitely. It is clear that, without appropriate rehabilitation, the risk to the community remains unchanged.
Following the making of the second ESO it does not appear that the respondent made any progress towards rehabilitation in the community. He again failed to engage with the support offered to him. He did not engage in appropriate counselling as directed nor did he demonstrate any insight into his drug use. He has been resistant to supervision. On the other hand, he has not committed any further acts of violent offending; his breaches have in the main been related to his ongoing drug addiction. At the time the respondent returned to custody I conclude that his risk as assessed at the time the second ESO was made remained unchanged. The issue is whether the time in custody together with what is proposed on his release has altered the risk.
The respondent completed most of the Smart Recovery program in custody. He was suspended with two others for disruptive behaviour in one class. He can resume on either 11 November or 17 November 2023. He has two or three sessions remaining. The applicant was unable to advise when it is anticipated the respondent would complete the course. The respondent has been referred to Life Without Barriers for telephone counselling. He is currently on a waiting list for that. The applicant could not advise when this counselling would take place. In addition, the applicant has been placed on the suboxone program whilst in custody to assist with his drug addiction. There is no other rehabilitation or treatment proposed in custody.
The respondent has gained suitable accommodation from the NDIS. If released he will be taken straight to that address by an NDIS worker. Arrangements have been made with OARS for the respondent to complete the Smart Recovery Program in the community. He will have to do extra sessions but could start as early as 3 November 2023. He can continue with the suboxone program in the community. He will have access to drug treatment, counselling, and other programs. He claims to be willing to undertake these.
The rehabilitation available to the respondent in prison is continuation of the suboxone program, completion of the Smart Recovery Program within an unspecified time frame and the possibility of telephone counselling with Life Without Barriers. I am satisfied that these things are appropriate forms of rehabilitation that would likely reduce the respondent’s risk of reoffending. Had I been provided with more information concerning the likely completion of the Smart Recovery program I would have been inclined to grant the CDO for a sufficient period to enable the respondent to complete that course bearing in mind his dreadful history of compliance with the ESO and previous resistance to attending and completing rehabilitation courses. However, it is not appropriate for the Court to make a CDO where there is no certainty as to what is proposed, particularly as to the duration of any intervention, whilst the respondent is subject to such an order. The various rehabilitation options are also available in the community. There are concrete plans for the respondent to attend and complete the Smart Recovery program conducted by OARS. He has access to NDIS funded accommodation and support. There will be a greater degree of flexibility as to the provision of drug treatment, counselling, and other programs in the community.
In those circumstances, whilst I am concerned that there has only been limited progress made towards reducing the respondent’s risk since his arrest on 7 July 2023, I am not satisfied that the risk posed by the respondent requires him to be detained. The terms of the ESO require the respondent to reside at the NDIS funded accommodation, to be subject to electronic monitoring and a curfew. Further, they enable the respondent’s Corrections Officer to direct him to attend, amongst other things, drug treatment, counselling, and therapy programs. It further requires the respondent to be drug and alcohol tested. If the respondent breaches his conditions again as he has in the past, it is likely that he will find himself the subject of a further referral by the Parole Board. Having been in custody since 7 July 2023 for his failure to comply with the conditions of his ESO, the respondent can be under no illusion as to the consequences of non-compliance.
Accordingly, I decline to make an order for continuing detention.