Attorney-General (SA) v Huculjak (NO. 2) - [2019] SASC 210

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Application)
ATTORNEY-GENERAL (SA) v HUCULJAK (NO. 2)
[2019] SASC 210
Judgment of The Honourable Justice Hughes
10 December 2019
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS
Mr Huculjak was released from prison on 26 February 2018, after serving a 20 month sentence for offences including aggravated recklessly cause harm, aggravated assault and indecent assault. Upon his release on 21 February 2018 he was made subject to an interim supervision order and then an extended supervision order on 9 August 2018, the court being satisfied that he was a high risk offender under the Criminal Law (High Risk Offenders) Act 2015 (‘The HRO Act’). That order required the respondent to comply with certain conditions for 2 years, including not consuming alcohol or illicit drugs, submitting to testing for the presence of those substances and, at the request of his community corrections officer, participating in counselling programs and attending a psychologist.
The respondent breached the extended supervision order 7 times between August and December 2018, which led the Parole Board to detain him and refer the question of whether he should be subject to a continuing detention order to Supreme Court. On 31 May 2019 the Court declined to impose a continuing detention order on the basis that the order was not necessary for the protection of the community, at which point the respondent was released back into the community under the supervision order.
Shortly after his release he committed 4 further breaches which led the Parole Board to detain him on 18 June 2019 before releasing him again on 8 August 2019, under a new condition of electronic-monitoring.
On 23 September 2019, the Parole Board arrested and detained the respondent, on suspicion that he had again breached the supervision order. The Board found him to have breached the order by testing positive for alcohol and methamphetamine/amphetamine and by reporting several hours late to his community corrections officer on 20 September 2019.
The Board referred the question of whether the respondent should be made subject to a continuing detention order to the Supreme Court. On 13 November 2019, he was made subject to an interim detention order, to be detained pending the outcome of these proceedings.
Held, declining to make an order for the continuing detention of the respondent:
1. A continuing detention order is not required to ensure the safety of the community because:
a. Whilst there have been breaches, they have not resulted in offending and they do not themselves evidence a risk great enough to justify detention for the proper protection of the community;
b. There has been no change to the risk posed by the respondent since the Court declined to make the same order in May 2019;
c. Whilst the Violence Prevention Program is available to the respondent in custody, the legislative scheme does not contemplate detention for the purpose of participation in programs;
d. Options for rehabilitation outside of prison have not been exhausted as the respondent has agreed to see a psychiatrist to address the causes of his offending, and his attendance can be required through directions issued by his community corrections officer.
Criminal Law (High Risk Offenders) Act 2015 s 11, s 12, s 18, referred to.
Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11; Attorney-General (SA) v V, ZR [2019] SASC 1; Attorney-General (SA) v Huculjak [2019] SASC 88, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"continuing detention order"

ATTORNEY-GENERAL (SA) v HUCULJAK (NO. 2)
[2019] SASC 210
HUGHES J.

Mr Huculjak comes before the Court on a referral from the Parole Board to enable the Court to determine whether he should be made subject to a continuing detention order under the Criminal Law (High Risk Offenders) Act 2015 (‘the HRO Act’).
A continuing detention order is made in respect of a person where the person has breached a supervision order and the Court considers that the proper protection of the community requires that the supervised person should be detained in custody for the whole, or some part, of the remainder of the period of the supervision order. Mr Huculjak’s extended supervision order expires on 8 August 2020. The question for the court, therefore, is whether the proper protection of the community requires that he be detained for some or all of the period between the making of this decision and the expiry of the supervision order.
The determination of this question requires the setting out of some procedural history and consideration of Mr Huculjak’s conduct as relevant to the referral.
The history of Mr Huculjak’s post-custodial orders and conduct
Mr Huculjak was sentenced in April 2017 to 20 months’ imprisonment with a non-parole period of 14 months, backdated to 27 June 2016. This followed his pleas of guilty for multiple offences which were documented in Attorney-General (SA) v Huculjak [2019] SASC 88 and do not require further recitation at this point. Prior to his release, the Attorney-General sought orders from this Court under the HRO Act that Mr Huculjak be supervised beyond the end of his sentence. On 21 February 2018, the Court issued an interim supervision order in respect of Mr Huculjak while it gathered information in order to assist in the consideration of the Attorney-General’s application for an extended supervision order. Mr Huculjak was released from custody on or about 26 February 2018.
In the making of the extended supervision order, the Court was satisfied that Mr Huculjak was a high risk offender within the meaning of the HRO Act, and that the evidence put forward by the Attorney-General in the application was such that, if proven, demonstrated that he presented an appreciable risk to the community if not supervised under an order.
Mr Huculjak breached the interim supervision order on seven occasions between February and August 2018. None of the breaches entailed an offence or any harm to any person or property. They related to the prohibitions on the consumption of alcohol and the taking of illicit drugs.
Upon receipt of a medical report regarding Mr Huculjak’s risk of re-offending, the interim supervision order was followed by the imposition of an extended supervision order on 9 August 2018 for a period of two years.
The order required Mr Huculjak to be supervised by a community corrections officer and made him subject to approximately twenty conditions. These included requirements that he not consume alcohol or illicit drugs and that he submit for testing in relation to these. He was also required to participate in counselling for substance abuse and other programs as directed by his community corrections officer, and attend a psychologist in relation to the reduction of his risk of violent reoffending at the direction of his community corrections officer.
Following the making of the extended supervision order on 9 August 2018, Mr Huculjak breached that order four times in the ensuing ten weeks. These breaches related to the prohibition on the taking of illicit drugs, the prohibition on attending a licenced hotel or entertainment venue and the reporting obligation.
In reliance on the authority conferred by s 11 of the HRO Act, the Parole Board imposed a further condition of supervision in the form of a curfew upon Mr Huculjak in October 2018. In November and December of that year he committed three further breaches. The breaches related to his reporting obligations, the consumption of alcohol prohibition and a direction that he participate in the substance abuse program Life Without Violence.
The Parole Board arrested and detained him and referred the question of whether he should be subject to a continuing detention order to this Court. He was detained from December 2018 until May 2019, initially on the Parole Board’s warrant and then by order of the Court. On 31 May 2019, I declined to impose a continuing detention order in respect of Mr Huculjak and published my reasons: Attorney-General (SA) v Huculjak [2019] SASC 88. Mr Huculjak was released back into the community. I described the decision as “finely balanced”. Central to that decision was the fact that although Mr Huculjak’s breaches were frequent, none entailed offending or harm to person or property. Whilst the risk to the community was clearly present, the breaches did not amount to a materialisation of the risk. Detention was not shown to be necessary for the protection of the community.
Shortly after that decision, Mr Huculjak was arrested by the Parole Board relating to allegations that he had committed four further breaches of his extended supervision order conditions. Those breaches were of the curfew condition (on 17 June 2019), the requirement to undertake drug and alcohol testing when directed by his community corrections officer (on 18 June 2019) and the requirement to report to his community corrections officer (on 12 and 18 June 2019). The Parole Board found the allegations of breach proven and released him from the warrant of detention upon which he was held and revoked the curfew condition that it had imposed upon him on 30 October 2018 and imposed a new condition of electronic monitoring.
However, on 23 September 2019 the Parole Board arrested Mr Huculjak again on suspicion of a further breach of the extended supervision order. The Parole Board interviewed Mr Huculjak and found that he had breached the prohibition against the consumption of alcohol, on the basis of a positive breath test for the presence of alcohol that was administered on 20 September 2019. The Board also found that on 19 September 2019, Mr Huculjak failed to report to his community corrections officer and subsequently attended several hours late for his report on 20 September 2019. Further, a sample of urine taken on 20 September 2019 yielded a positive result for the presence of methamphetamine/amphetamine and the Board found that Mr Huculjak had breached the condition of his extended supervision order prohibiting him from consuming illicit drugs.
The Board further resolved to refer to this Court the question of whether Mr Huculjak should be made subject to a continuing detention order. Mr Huculjak has been detained since his arrest by the Board on 23 September 2019 because on 13 November 2019, I made an order detaining Mr Huculjak pending the outcome of these proceedings. He has only been at liberty for about eight weeks since the order in May 2019 that he not be detained on a continuing detention order. During that time, he moved away from the metropolitan area and moved in with his grandmother at Gumeracha before being arrested in September.
On 29 November 2019, Mr Huculjak was transferred from Yatala Labor Prison to Mount Gambier Prison.
The parties’ submissions
The Attorney-General submits that the Court should make an order for Mr Huculjak’s continuing detention pursuant to s 18 of the HRO Act. Counsel for the Attorney-General, Mr Nguyen, submitted that the extensive history of breaches established that Mr Huculjak is unwilling or unable to comply with the extended supervision order. He submitted that the index offending which led to Mr Huculjak’s imprisonment and classification as a high risk offender, and much of his previous offending, arose from Mr Huculjak being intoxicated or affected by illicit drugs. He submitted that it was only because of the prompt intervention of the Parole Board in issuing warrants of arrest to detain Mr Huculjak when he breached his conditions that the community avoided the significant risk of re-offending that attached to the breaches.
I have taken into account the affidavits of Joseph Nguyen sworn on 8 November 2019 and of Timothy Jarrod affirmed on 4 December 2019. There is no new medical evidence before the Court in respect of the risk that Mr Huculjak presents. When Mr Huculjak’s breaches were the subject of the Court’s earlier consideration of the need for a continuing detention order, consideration was given to the report of Mr Fugler dated 7 March 2017 which described Mr Huculjak’s impulsivity and his narcissistic and antisocial tendencies. Mr Fugler warned that he did not anticipate significant improvements in Mr Huculjak 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.” Dr Nambiar, who prepared a report for the Court dated 4 June 2018 for the purposes of assisting it to decide whether to impose the extended supervision order, expressed the view that a violence prevention program and an anger management program would be of benefit to Mr Huculjak.
Mr Nguyen, for the Attorney-General, informed the Court that Mr Huculjak had, during 2019, been offered sessions with Mr Balfour, psychiatrist, which Mr Huculjak had refused. His community corrections officer, aware of Mr Huculjak’s failure to participate in, and expulsion from, the Life Without Violence program, considered it would be futile to direct him to participate with Mr Balfour.
The Attorney-General submits that Mr Huculjak would benefit from the Violence Prevention Program that is only offered in a custodial setting.
The affidavit of Timothy Jarrod, an employee of the Department for Correctional Services, affirmed on 4 December 2019, describes the Violence Prevention Program. The program “uses psychological techniques such as cognitive behavioural therapy, mindfulness, and distress tolerance to address the values, attitudes, emotions and behaviours that contribute to violent offending”. It takes nine to ten months to complete. Mr Huculjak would need to be enlisted into the program by 13 December 2019 to be able to complete it within the period remaining on the supervision order. The Department is proposing to offer additional one-to-one therapy sessions with clinicians to ensure he can complete it before the expiry of the supervision order, at which time any continuing detention order must also conclude. Mr Huculjak’s transfer to Mount Gambier Prison was directed at enabling him to participate in the program as it is delivered from that site.
Mr Huculjak finds the oversight to which he is subject under the supervision order frustrating. It is consistent with Mr Fugler’s description of his traits that Mr Huculjak responds very poorly to a regimented set of constraints. He wants to be free of them. He has demonstrated some insight by agreeing to submit to further therapy as a means to his ultimate goal of being allowed to live in the community without an order. He finds a three-hour a week course run by the Salvation Army on Monday evenings to be useful. However, he is aware that if things do not change, the Attorney-General is likely to request the Court to place him under a further extended supervision order, as is contemplated by s 12(3) of the HRO Act. That knowledge alone, however, has not prevented him from breaching his conditions on a virtually continuous basis.
Mr Huculjak opposes the order for continuing detention. He acknowledged, through his counsel Mr Marcus, that there have been many breaches of the conditions imposed upon him under the supervision order. He has recently instructed his counsel that he would submit to sessions with Mr Balfour to address the causes of his offending. His counsel submitted that residing with his grandmother in Gumeracha provides a more stable environment that is more conducive to compliance with the supervision orders. That remains to be seen, as he has only lived under that arrangement for a short period.
The legal framework
The making of a continuing detention order requires a finding that Mr Huculjak breached his extended supervision order, and a further finding that that he poses an appreciable risk to the safety of the community if not detained in custody. In making an order, the Court is required by the HRO Act to give paramount consideration to the safety of the community.
In my decision of 31 May 2019, I found that Mr Huculjak had breached the orders and that he presented an appreciable risk to the community. However, I found that to address the risk, his continuing detention was not required. In Police v Sullivan; Attorney-General (SA) v Sullivan[1]Hinton J said[2]:
The power to make a continuing detention order is not a power to punish a person for breaching a supervision order. It is a power to be exercised for protective not punitive purposes. The question is whether the drastic step of incarcerating the high risk offender for the duration of the extended supervision order or some lesser period is necessary to protect the community from an appreciable risk to its safety as posed by the high risk offender. That question is to be answered in the knowledge that the alternative is the continuation of the supervision order, possibly varied. Obviously the risk posed by the offender subject of the breached supervision order must be reassessed in the light of the nature and circumstances of the breach.
[1] [2018] SASC 11.
[2] [2018] SASC 11 at [85].
In Attorney-General (SA) v V, ZR[3], I expressed the view that conditions of supervision can be protective by curbing the opportunity for offending or by requiring the person to undertake programs aimed at modifying their behaviour by equipping them with the means to deal with situations differently. I remain of that view. However, the scheme of the Act does not support the use of continuing detention for the purpose of giving access to programs. Detention is preserved for the protection of the community where supervision in the community cannot achieve that aim.
[3] [2019] SASC 1 at [51].
Should an order be made?
Nothing has occurred since May 2019, when the Court declined to impose a continuing detention order, which changes the risk to the community presented by Mr Huculjak. He continues to present an appreciable risk to the community just as he did at that time. The subsequent breaches do not, in my view, change the extent of that risk. He has continued to breach his conditions without offending. Whilst the breaches indicate a willingness on his part to disregard the conditions to which he has been made subject, and a willingness to behave in a manner that has been the precipitator for his offending conduct in the past, nothing has been put before the Court that suggests that the risk has heightened or that it cannot be adequately contained whilst Mr Huculjak is at liberty.
What is critical to this conclusion is that an order for continuing detention does not follow from a breach or even multiple breaches if the protection of the community does not require it.
Whilst conditions are imposed to reduce the risk of harm to the community, their breach does not necessarily create the harm itself. The question for the Court is always whether the proper protection of the community requires the person to be detained in custody.
I am not satisfied that the risk posed by Mr Huculjak’s behaviour requires him to be detained. Further, it would appear that there are further steps that could be taken to lower the risk that do not entail detention. The Attorney-General submitted that the Violence Prevention Program would be beneficial to Mr Huculjak. It is only available within a custodial setting. As I have indicated earlier, the scheme does not contemplate detention for the purpose of rehabilitation. It would not be a proper use of a continuing detention order for it to be made to avail Mr Huculjak of a program that would be of benefit to him. The Court was informed that Mr Huculjak was offered and declined one-on-one sessions with Dr Balfour. He was not directed to participate. Whilst understandable, given Mr Huculjak’s past non-compliance with the Living Without Violence program and the views that he has expressed about participation in similar programs, it shows that the mechanisms for supervising him outside of a custodial setting have not been exhausted. It is open to Mr Huculjak’s community corrections officers to direct him to such a program and counselling. The medical evidence suggests that this is how a curbing of Mr Huculjak’s behaviour may be accelerated. No change to the conditions of his extended supervision order is needed to achieve this as his community corrections officer has the power to direct his attendance under the existing order.

In the context of the community correction officer’s power to direct Mr Huculjak to programs, other aspects of the conditions of his extended supervision order were raised. I do not consider that any argument has been put to me to indicate that I should change the conditions. Both the Attorney-General and Mr Huculjak have an ability to bring an application to vary the conditions of the supervision order if either consider it to be appropriate. The Parole Board may impose additional conditions as it sees fit under the existing order and s 11 of the HRO Act.
I decline to make an order for continuing detention.