Attorney-General (SA) v Hackett - [2020] SASC 45

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v HACKETT
[2020] SASC 45
Judgment of The Honourable Justice Nicholson
2 April 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
The Attorney-General made an application pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 for an extended supervision order in relation to the respondent. Pending the determination of the application for an extended supervision order, the Court made an interim supervision order against the respondent on 24 July 2019. The Attorney-General seeks an 18 month extended supervision order. The respondent concedes that he is a high risk offender within the meaning of the Criminal Law (High Risk Offenders) Act 2015, but challenged two proposed conditions: (1) electronic monitoring; and (2) a non-contact condition to the extent that it prevents all contact with his 11 year old daughter and her mother, the respondent's former partner. The parties reached a resolution on the non-contact condition, leaving just the electronic monitoring condition to be resolved. The respondent seeks that the extended supervision order made be for a period of less than 18 months.
Held, the respondent is to be subject to an extended supervision order with conditions, excluding an electronic monitoring condition, for a period of 18 months from the date of the order.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, s 9, referred to.

ATTORNEY-GENERAL (SA) v HACKETT
[2020] SASC 45
Criminal: Application

NICHOLSON J: The respondent is subject to an interim supervision order made on 24 July 2019 pursuant to section 9 of the Criminal Law (High Risk) Offenders Act 2015 (SA) (the Act). The Attorney-General now seeks the making of an extended supervision order pursuant to section 7 of the Act.
An order for 18 months and in terms provided to the Court by the Attorney-General is sought. The respondent concedes that the respondent’s index offending comes within the terms of the Act, and that an order in the terms sought is appropriate but for two of the conditions. The respondent objects to an electronic monitoring condition and a non-contact condition to the extent that it prevents all contact with his 11 year old daughter and her mother, the respondent’s former partner. The respondent also seeks that the extended supervision order made be for a period of less than 18 months.
I have reviewed the evidentiary materials provided to the Court by the Attorney-General in support of the order sought. I have come to the view, bearing in mind the matters in section 7 of the Act and, in particular, the essential requirements of subsection 7(4) of the Act, that it would be appropriate to make an order in the terms sought subject to ruling on the two disputed conditions. Part way through the proceedings, I was advised that a variation to the non-contact condition in dispute had been agreed, leaving just the question of electronic monitoring to be resolved.
The respondent’s criminal record comprises relatively minor offending together with three offences of violence including two quite serious offences. In 2011, the respondent committed an aggravated assault against a former partner. The circumstances placed it very much towards the low end of the scale for such offences and the matter, whilst found proved, was dismissed without conviction or penalty. This type of conduct has not been repeated.
In 2012, the respondent committed the offences of aggravated cause serious harm and aggravated attempted robbery (theft with force). He was sentenced to imprisonment for seven years with a non-parole period of four years and six months. It was this offending that caused the respondent to be characterised as a high risk offender under, and to be subjected to the provisions of, the Act.
Initially, the respondent was released from prison in July 2016 by way of an administrative order requiring him to serve the balance of his term on home detention with electronic monitoring. He was released on parole on 16 February 2017 without the requirement of home detention but still with electronic monitoring. Thereafter, he breached his parole on a number of occasions and was returned to prison for brief periods. One such breach (in 2018) related to his committing the offence of being in possession of a prohibited weapon. The other breaches all concerned failures to abide by parole conditions, in particular, the no drugs condition. The respondent’s sentence was due to expire on 1 August 2019, and on 24 July 2019 he was placed on the interim supervision order which also contains an electronic monitoring condition.
It has now been approximately three years and nine months since the respondent was first released from prison in July 2016. For approximately three years and three months of that time he has been in the community subject to electronic monitoring. Apart from the possession of prohibited weapons offence, he has not offended during that period. Furthermore, he has been compliant with his electronic monitoring obligations throughout that period.
Dr Lim, the reporting psychiatrist, expressed the following conclusions.
I have been asked to comment on any treatments or programs which may assist in reducing his risk of reoffending. Mr Hackett would benefit from psychological therapy to address his personality difficulties. He may also benefit from dialectical behaviour therapy (DBT) to develop better skills at managing negative emotions and stress, and find healthier ways of relating to others.
Mr Hackett will benefit from ongoing treatment with antidepressant medication.
It would appear that the respondent for some time now has been complying with these recommendations.
Given this history, I asked the Crown what further value there would be in maintaining the electronic monitoring condition. I received an affidavit sworn by RH, the Regional Director Community Corrections Southern, Statewide Operations in the Department for Correctional Services, which explained in some detail the procedures and practices involved with respect to the electronic monitoring of a person under the supervision of Correctional Services. According to RH, there are three potential ways of monitoring such a GPS system.
There are three potential ways of monitoring a GPS system: passive, hybrid or active monitoring. A passive system collects data to enable a retrospective review of an individual’s movements, if required. An active system relies on a dedicated officer actively watching all movements of an individual in real time and providing an immediate response to any deviations. In a hybrid model, real time alerts are acted upon in accordance with risk.
According to RH, the Department for Correctional Services uses a hybrid system. It can set up inclusion zones (such as the person’s residence if they are subject to a curfew) and exclusion zones (such as localities a person is prohibited from visiting). When these zones are breached an alert will be triggered and an Intensive Compliance Unit (ICU) officer can then ascertain the person’s real time location. Depending on the circumstances, the ICU officer will respond as necessary, including alerting police or a Correctional Services officer. The electronic monitoring system can also be used to examine retrospectively where a person has been.
The proposed extended supervision order in this case does not contain a curfew provision. However, it does contain a non-contact requirement and a small exclusion zone relating to a street in an Adelaide suburb. These conditions relate to the victims of the respondent’s 2011 and 2012 offending.
The non-contact provision would not appear to be supported (other than retrospectively) by hybrid monitoring although the system could be programmed to set off an alert should the respondent enter the exclusion zone. It also is to be accepted on the evidence that substance (including alcohol) abuse is likely to exacerbate, perhaps significantly, the risk of violent offending by the respondent. However, electronic monitoring will do little to prevent this or alert ICU officers that it might be taking place. I accept that the fact that retrospective examination may assist in identifying and proving that such activities have taken place, and the respondent’s awareness of this potential, may well deter him from, for example, attending a licensed venue in breach of the standard condition.
For these reasons, I am not able to find that electronic monitoring would not serve a purpose in this case. However, the arguments in favour carry less weight than typically might be the case. Weight is also to be placed on the facts that for more than three years the respondent: has been compliant with his electronic monitoring; has committed no offence of violence; has not interfered with the victims of his 2011 and 2012 offending with whom he no longer has contact; has been endeavouring to comply with treatment recommendations; and, but for his difficulties in remaining drug free, has been compliant with the terms of the interim supervision order.
In addition, electronic monitoring is very intrusive. It imposes significant restrictions on lifestyle and makes applying for and retaining employment significantly more difficult than ordinarily is the case for an ex-prisoner with a record of violence. The respondent is a qualified furniture removalist and truck driver. The requirements of electronic monitoring have in the past caused and are likely in the future to cause the respondent increased difficulty in obtaining employment. Employment together with abstinence from alcohol and drugs are the two most important factors likely to lead to this respondent’s rehabilitation.
Ultimately, it is a balancing exercise. On the facts of this case, I take the view that the respondent’s rehabilitation and ultimately the long term protection of the community would best be served by excluding the electronic monitoring condition for the period of the order. If the respondent breaches the order or commits any offence he runs the very real risk of a return to custody or that the electronic monitoring condition will be re-imposed.
I will make an order in the terms sought by the Attorney but excluding the electronic monitoring condition.