Attorney-General (SA) v Huculjak - [2019] SASC 88

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v HUCULJAK
[2019] SASC 88
Judgment of The Honourable Justice Hughes
12 June 2019
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
On 26 February 2018, the Respondent was released from prison after serving a 20 month sentence for various offences, including aggravated recklessly cause harm, aggravated assault and indecent assault. He was released subject to an interim supervision order made by this Court pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). On 9 August 2018, this Court confirmed that the risk the Respondent posed to the safety of the community made it appropriate that he be subject to an extended supervision order pursuant to s 7 of the Act.
On 21 February 2019, following the Respondent’s failure to attend the Living Without Violence program as directed by his Community Corrections Officer, the Parole Board determined that a referral should be made to this Court pursuant to s 17(1)(b)(ii) as to whether the Respondent should be subject to a continuing detention order. On referral, the Attorney-General supported the making of a continuing detention order. The Respondent opposed the order.
Held, the Respondent breached the conditions of his extended supervision and poses an appreciable risk to the safety of the community. However, a continuing detention order is not required to secure the protection of the community. The Respondent has been detained for 6 months. The community’s protection is now adequately addressed through the terms of the extended supervision order under which the Respondent can be directed to participate in programs to reduce his dynamic risk factors. The referral for a continuing detention order is dismissed. The Respondent is to be released from custody on the extended supervision order made by this Court on 9 August 2018.
Criminal Law (High Risk Offenders) Act 2015 s 18, referred to.
Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SADC 74; Attorney-General v Sullivan (No 2) [2018] SASC 74; R v Schuster (2016) SASR 388, applied.
Attorney-General (SA) v Moyle (No 2) [2019] SASC 31, considered.

ATTORNEY-GENERAL (SA) v HUCULJAK
[2019] SASC 88
Hughes J:

The Court is required to determine whether the Respondent, Mr Huculjak, should be subject to a continuing detention order made under the Criminal Law (High Risk Offenders) Act 2015 (SA) (the HRO Act). The question arises because of a breach by Mr Huculjak of an extended supervision order to which he was subject. On such a breach, the Parole Board may release the person or refer them to the Court for a continuing detention order. The Board referred Mr Huculjak to the Court. On a referral, the person and the Attorney-General are entitled to be heard.
The Attorney-General submits that the Court should make a continuing detention order in relation to Mr Huculjak. Mr Huculjak submits that an order is not necessary and that the Court should release him whereupon he will continue to be subject to the extended supervision order.
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 an order is protective rather than punitive.[2]
[1] Criminal Law (High Risk Offenders) Act 2015 (SA), s 18(3).
[2] Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11 at [85].
The first of the two prerequisites was not in dispute. The only question for the Court’s decision was whether an order for detention should be made to secure the safety of the community.
To make such an assessment, an understanding of the offending that preceded the making of the extended supervision order assists.
The Index Offending
On 10 April 2017, Mr Huculjak was sentenced following guilty pleas for the following offences, occurring over different occasions:
·Aggravated recklessly cause harm to another contrary to section 24(2) of the Criminal Law Consolidation Act 1935 (CLCA);
·Aggravated assault contrary to section 20(3) of the CLCA;
·Indecent assault contrary to section 56(1) of the CLCA;
·Assault contrary to section 20(3) of the CLCA;
·Unlawful possession contrary to section 41(1) of the Summary Offences Act 1953 (SOA);
·Damage building or motor vehicle contrary to section 85(2) of the CLCA;
·Disorderly behaviour contrary to section 7(1) of the SOA (two counts);
·Resist Police contrary to section 6(2) of the SOA;
·Fail to comply with bail agreement contrary to section 134(1) of the CLCA;
·Refuse name and address contrary to section 74A(3) of the SOA (two counts); and
·Contravene prohibition order – consume/possess liquor in public contrary to section 131(1b) of the Liquor Licencing Act 1997.
The offences relevant to the characterisation of the Respondent as a high risk offender were the offence of aggravated recklessly cause harm, being a serious offence of violence, and the offence of indecent assault, being a serious sexual offence for the purposes of the HRO Act. That characterisation was not in dispute.
The facts of the offence of indecent assault was that the Respondent touched the breast and grabbed the buttocks of a cashier in a supermarket while she was in an aisle purchasing an item on her lunch break. The victim was not known to the Respondent.
The facts of the offence of aggravated recklessly cause harm were that the Respondent stabbed his mother’s partner in the bicep with a kitchen knife when he tried to intervene in an argument between the Respondent and his mother.
Mr Huculjak was intoxicated at the time of those offences and indeed has been intoxicated on the occasions of much of his prior offending.
He was sentenced to 20 months imprisonment, with a non-parole period of 14 months. This was backdated to 27 June 2016.
His index offending followed a long history of criminal offending, the most serious of which was the index offending. Whilst that was not his only prior instance of violent offending, the majority of his antecedents relate to shop lifting and other property offences including graffiti, and non-compliance offences.
The Extended Supervision Order
Towards the end of the Respondent’s sentence, the Attorney-General applied to this Court under the HRO Act for the imposition of an extended supervision order. Such an order was made on 9 August 2018 by Vanstone J. The order was made for a period of two years. The order contained conditions including but not limited to a prohibition on the use of illicit drugs and an obligation to engage in programs at the direction of his community corrections officer. It required the Respondent to wear an electronic monitoring device but did not subject him to a curfew.
A History of Breaches
The Respondent was made subject to an Interim Supervision Order on 21 February 2018. He was found by the Parole Board to have committed to have breached that order seven times as follows:
·Breach of curfew condition on 29 March 2018
·Breach of no drugs condition on 29 March 2018
·Breach of no alcohol condition on 30 March 2018
·Breach of no alcohol condition 1 May 2018
·Breach of curfew condition on 1 May 2018
·Breach of no drugs condition on 4 June 2018
·Breach of no alcohol condition on 13 June 2018
The Court made an extended supervision order on 9 August 2018, and the Attorney-General submits that the Respondent breached that order as follows:
·Breach of no drugs condition on 28 August 2018
·Breach of no drugs condition on 4 October 2018
·Breach of ‘no attendance at a licenced hotel/entertainment venue’ condition on 14 October 2018
·Breach of the reporting obligation condition on 15 October 2018
The Parole Board determined that although these breaches were proven, the Respondent should not be referred to this Court for consideration of the imposition of a continuing detention order. Rather, it decided to release the Respondent with additional conditions of supervision. It varied the conditions on 30 October 2018. The new conditions were that he be subject to a 9.00pm – 6.00am curfew and that he not enter Hindley Street in the city or adjacent premises. He was also to directed to attend a Living Without Violence (LWV) program in the community.
The further breaches that ultimately led to the Parole Board’s referral of Mr Huculjak to this Court were:
·Breach of the no drugs condition on 23 November 2018;
·Breach of the reporting obligation condition on various dates around December 2018; and
·Breach of the ‘undertake and complete counselling for substance abuse’ condition on various dates in November and December 2018.
The last of these three breaches related to the Respondent’s poor attendance at the LWV program that the Respondent had been directed to attend. The affidavit of Melissa Taylor, Manager of the Rehabilitation Programs Branch at the Department for Correctional Services, sworn 26 March 2019, outlines Mr Huculjak’s failure to attend the LWV program. He was ultimately excluded from the program due to his non-attendance. He was arrested on a Parole Board warrant on 10 December and detained.
On 22 February 2019, the Parole Board satisfied itself that the Respondent had further breached the terms of his Extended Supervision Order. It directed that the Respondent’s detention be continued pending attendance before this Court for consideration of a continuing detention order pursuant to s 17(1)(b)(ii) of the HRO Act. The primary basis of the Parole Board’s referral to the Supreme Court is the Respondent’s failure to undertake and complete counselling for substance abuse by not attending the LWV program as directed.
On 27 February 2018, Kelly J made an Interim Detention Order and the Respondent continues to be in custody on that Order.
I have had regard to the parties’ written submissions, the four affidavits of Alyona Andreevna Haines affirmed on 25 February 2019 in these proceedings and those dated 22 January 2018, 7 February 2018 and 23 July 2018 in proceedings SCCRM-18-31 (the extended supervision order proceedings), and those of Renae Lauren Porcelli of 21 February 2018 and 8 August 2018 in SCCRM-18-31.
The Submissions
The Attorney-General submits, through the Crown Solicitor, that Mr Huculjak presents an appreciable risk to the community if not detained.
The psychiatric report of Dr Nambiar dated 4 June 2018 states that:
·Mr Huculjak does not live with a mental illness but has an antisocial personality disorder;
·The sexual offence was an isolated incident that occurred in the context of intoxication with alcohol;
·He would benefit from an anger management course and it would reduce the risk of re-offending;
·A violence prevention program would be of benefit; and
·He would benefit from skill development for employment.
The report of Mr Fugler, dated 7 March 2017, details Mr Huculjak’s substance abuse since his early teens. The report states:
Hayden Huculjak is highly impulsive, a symptom of the previously diagnosed Attention Deficit Hyperactivity Disorder. That, when combined with his antisocial attitude and narcissistic tendencies, he having a view of himself as somewhat unique and a belief he should be permitted to behave in a manner in which he sees fit in the absence of criticism or the intervention of authorities, together with use of illicit drugs and alcohol, leads to him having low frustration tolerance and the display of volatile and aggressive behaviour without concern for the welfare of others.
On a more positive note, Hayden Huculjak did exhibit some initial indications [that] he [is] beginning to develop some, albeit rudimentary, insight into the meaning of his behaviour, he having some understanding he is out of step with society and that his coping skills when under stress are inadequate.
Having said that, I would not expect there to be any significant improvements in his antisocial behaviour for around a decade, although that process might be accelerated were he to be involved in a drug/alcohol treatment program of at least 12 months together with long term psychological counselling.
This report was obtained for the purposes of a sentencing exercise in relation to Mr Huculjak’s most serious offence in his antecedent history, which occurred when he stabbed his mother’s partner with a kitchen knife after an argument between Mr Huculjak and his mother. That offending, as with the index offending, occurred whilst the Respondent was intoxicated on methylamphetamine, alcohol, cannabis or a combination of those drugs.
The most recent assessment of the risk that Mr Huculjak poses is contained in the Parole Board report of 6 December 2018. In it, the author states:
An ORNI-R Assessment completed in 2017 identified Mr Huculjak as being at High Risk of generalised recidivism, with his criminogenic needs identified as his substance misuse, pro criminal attitudes and associates, mental health concerns, impulsive behaviour and lack of structured activity within the community.
…
At this stage, however, the Case Manager cannot effectively manage Mr Huculjak’s risk in the community due to his failure to engage, unwillingness to help himself, his current attitude of entitlement and inability to take any responsibility for his own behaviours and choice which have led to this current situation.
The term “appreciable risk” was considered by Hinton J in Attorney-General v Sullivan (No 2),[3] who adopted the consideration of that term from R v Schuster.[4] The Court said:
The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with any mathematical precision. The use of qualifiers like low, medium or high would have limited utility.
[3] [2018] SASC 74.
[4] (2016) 125 SASR 388.
I am satisfied that Mr Huculjak presents an appreciable risk to the community. The circumstances of his childhood development, his personality and his coping strategies create a risk that, particularly if intoxicated, his disinhibitions will lead to offending. It is less likely, though the risk is still appreciable, that those circumstances will lead to Mr Huculjak committing an offence against a person. However, those findings are not sufficient for an order to be made. It must also be the case that detention is required to address that risk for the safety of the community.
Clearly, if detained, the community is protected for the duration of that detention from the risk presented by Mr Huculjak. The community has been so protected since December 2018. Further, if detained, the Respondent will have available to him a violence prevention program that is available to prisoners and an intake of which is due to commence in early June. The Attorney-General’s position is that the Court should make a detention order for a period of 11 months or more, to allow the Respondent to participate in that program. Ms Haines did acknowledge that Mr Huculjak must agree to participate in the program and that, as far as she is aware, he has indicated that he does not agree to it. The Attorney‑General’s position is that the order should be made irrespective of whether Mr Huculjak ultimately agrees to participate, as removal of Mr Huculjak from the community will address the risk he presents.
In this particular case, the balancing act requires consideration of three significant factors. The first is that the community is entitled to be kept safe from Mr Huculjak’s offending. The second is that the Respondent has a long and recent history of non-compliance with orders and conditions, including those which entail behaviour that, it is not disputed, is the cause of his offending, namely the consumption of alcohol and illicit drugs. Thirdly, neither of the two most recent set of breaches led to offending.
Counsel for Mr Huculjak submitted that an order for detention was not appropriate. He submitted that Mr Huculjak acknowledged that although he found the learning program to which he had been directed to be difficult to engage with because of his dislike for group learning activities, he would submit to the LWV program if re-offered it in the community. Mr Marcus emphasised that the breaches had not led to offending and that therefore the Court could have some confidence that Mr Huculjak had managed to maintain some level of control over the behaviour that the extended supervision order sought to prevent. He further observed that there is another intake of the custodial program later in the year. If Mr Huculjak were to fail to adhere to the conditions of his extended supervision order, he could reasonably expect that the Court would not provide him with a further chance, and he would be detained. At that point, he could participate in the next intake of the custodial program.
The Crown Solicitor on behalf of the Attorney-General submitted that the circumstances of this case are similar to those in the case of Moyle (No 2).[5]In that case the respondent’s breaches did not entail the commission of offences but instead entailed the breaching of conditions that were in place to minimise the risk of offending.
[5] [2019] SASC 31.
Hinton J said:[6]
I accept the submission of counsel for the Attorney-General. I agree that a continuing detention order of a length sufficient to allow for Mr Moyle to undertake the Violence Prevention Program should be made. In arriving at that conclusion I have in mind the Program that commenced in February of this year which as I understand Mr Moyle can join. That Program should be completed in December of this year.
I make plain that I also place significant weight in arriving at my conclusions on the fact that Mr Moyle is institutionalised and has not had the benefit of any resocialisation program. This fact, after the best part of three decades of incarceration, coupled with his antisocial personality disorder and his non-participation in ideal programs, no doubt informed Dr Raeside’s prediction that it was likely Mr Moyle would breach the interim supervision order. However, in my view a continuing detention order should also allow for resocialisation to commence if, ultimately, the risk posed by Mr Moyle is truly to be addressed by executive intervention. In the course of this matter there was much discussion of the possibility and benefits of a “step-down” approach broadly analogous to that implemented in relation to persons found not guilty by reason of mental impairment. A continuing detention order cannot prescribe that this sort of approach be taken, but it can allow time for it to commence. Ultimately, it is a matter for the executive, but I would hope that with Mr Moyle ’s cooperation some form of resocialisation involving time spent in the community, accompanied and unaccompanied, may occur. Further, I was told of a number of programs run in Port Augusta Prison designed to assist Aboriginal prisoners in maintaining connection with their culture. These programs are available to Mr Moyle and, if he were to undertake them, would provide him with an additional layer of protective factors upon his release.
Lastly, I have not overlooked the incentive to comply with the terms of the interim supervision order that a period in custody of itself might provide to Mr Moyle. I have, however, given this factor little weight in view of Dr Raeside’s opinion as to the likelihood of Mr Moyle being compliant without intervention, his antisocial personality disorder and the speed of his breach of the interim supervision order.
[6] Ibid [75]-[76].

Although there are strong similarities between the Respondent’s circumstances and those of Mr Moyle, there are some important differences. Mr Moyle’s history of violent offending is significantly more entrenched than that of the Respondent. This much was properly conceded by Ms Haines for the Attorney-General. Mr Moyle’s violence was characteristic of much of his antecedent history. Mr Huculjak’s past offending is predominantly, as Mr Marcus put it, “street-level”. But it is also evident that the decision in Moyle was influenced by Mr Moyle’s institutionalisation. Mr Huculjak is not institutionalised. He faces the distinct possibility of this occurring but it could not be said yet to be the case. Finally, although the Court put little weight on it, the period in custody was suggested as being likely to have some curative effect on Mr Moyle. In Mr Huculjak’s case, any such benefit has likely already accumulated by virtue of his imprisonment for the last six months.
Conclusion
The evidence in this matter is finely balanced. I am not satisfied that the risk to the community that Mr Huculjak presents at this point in time has been shown to be such as requires detention to address it. Having spent such a considerable period in custody for his failure to comply with the conditions of his extended supervision order, I consider that the risk is likely to be somewhat ameliorated insofar as the Respondent is under no illusion as to the consequences of non-compliance. I do not consider that a further 11 months’ detention, or any period less than that, is necessary to secure the safety of the community. Further, I do not consider that detention in order to secure his participation in the violence prevention program is required. Firstly, his participation cannot be guaranteed. Secondly, if released on conditions, there is an opportunity to direct him to attend, for a second time, the LWV program in the community or such other program as the Department for Correctional Services considers appropriate. If he is so directed and does not participate, he will most likely find himself the subject of further consideration by the Parole Board.
I decline to make an order for continuing detention. I will hear the parties as to the date on which my order should take effect to address the immediate needs of Mr Huculjak following his release under the conditions of the extended supervision order to which he continues to be subject.