Attorney-General (SA) v Humes - [2020] SASC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v HUMES
[2020] SASC 123
Judgment of The Honourable Justice Livesey
3 July 2020
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
Pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“the Act”) the Attorney-General made an application for the respondent to be subject to an extended supervision order for a period of 12 months. On 24 December 2019 the respondent was released from prison after having served a sentence of imprisonment for aggravated assault and aggravated robbery. Since then he has been subject to an interim supervision order made pursuant to s 9 of the Act.
Section 7(4) of the Act provides:
(4) The Supreme Court may, on application under this section, order that the respondent is to be subject to an extended supervision order if satisfied that—
(a) the respondent is a high risk offender; and
(b) the respondent poses an appreciable risk to the safety of the community if not supervised under the order.
The respondent concedes that he is a “high risk offender” within the meaning of the Act but contends that he does not pose an appreciable risk to the safety of the community if not supervised under an extended supervision order.
Held, granting the application:
1. The respondent is to be subject to an extended supervision order for a period of 12 months commencing on 3 July 2020.
2. The parties will be heard on the conditions of the extended supervision order.
Criminal Law Consolidation Act 1935 (SA) s 20, s 21, s 83D, s 137; Criminal Law (High Risk Offenders) Act 2015 (SA) s 3, s 7, s 9, s 13, s 18, referred to.
Attorney-General (SA) v Fenner [2020] SASC 107; Attorney-General (SA) [2016] SASC 49; R v Kimmins [2016] SASC 176, considered.

ATTORNEY-GENERAL (SA) v HUMES
[2020] SASC 123
Criminal: Application

LIVESEY J: This is an application by the Attorney-General for an extended supervision order to be made with respect to Brandon Williams Humes (the respondent) pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act or the High Risk Offenders Act).
On 24 December 2019 Mr Humes was released from prison after having served a sentence of imprisonment for four years and six months for aggravated assault and aggravated robbery. Since then he has been subject to an interim supervision order made pursuant to s 9 of the Act.
Mr Humes opposes the Attorney’s application. He submits that though he is a high risk offender within the meaning of the Act, the evidence adduced by the Attorney does not establish that he poses an appreciable risk to the safety of the community if not supervised under an extended supervision order.
For the reasons that follow, I grant the application and order that Mr Humes be subject to an extended supervision order for a period of 12 months commencing from the date of this judgment.
Material received
On the hearing of the application I received the following material:
1Affidavit of Samantha Louise Graham affirmed on 4 December 2019 (exhibit A1);
2Second affidavit of Samantha Louise Graham affirmed 28 April 2020 (exhibit A2);
3Report of Dr Megan Ferris, forensic consultant psychiatrist dated 1 April 2020 and request for court ordered report dated 6 January 2020 (exhibit A3);
4Letter from Mila Inat of LJ Hooker Woodville dated 6 April 2020 (exhibit R4);
5Letter from Eman Rahim from Heart & Soul Group dated 4 March 2020 (exhibit R5);
6Carey Training Course description for R1120115 Certificate II in Resources and Infrastructure Work Preparation (exhibit R6)
7Carey Training Certificate, being a R1120115 Certificate II in Resources and Infrastructure Work Preparation dated 22 April 2020 (exhibit R7);
8Carey Training Statement of Attainment dated 27 May 2020 (exhibit R8); and
9WorkSkil Australia letter from Sarah W dated 12 May 2020 (exhibit R9).
In addition, Dr Ferris was called by the Attorney to give evidence. She was cross-examined by counsel for Mr Humes.
I have considered all of the evidence.
Personal circumstances
Mr Humes is a 31-year-old Aboriginal man. He is currently in receipt of the Newstart allowance. He lives with his friend and his friend’s wife and two sons.
Mr Humes’ family originated from the Point Pearce and Maitland areas. His family is either part of the Narrunga mob or the Butterfish mob. Mr Humes never met his father. When he was six years old he and his sister were removed from their mother’s care and placed with foster families. He subsequently lost touch with his sister. For most of his childhood and adolescent years he lived with his “foster nana” but from time to time he would return to his mother and biological grandmother.
When Mr Humes was around five years old his mother formed a relationship with a man who was an alcoholic and prone to violence. Mr Humes was exposed to domestic violence committed against his mother. On occasions he tried to intervene, only to be subjected to the violence himself. Around the age of 12 Mr Humes’ mother died from a drug overdose. To deal with his grief he began drinking alcohol and consuming illicit substances.
Whilst in primary school Mr Humes was bullied. He brawled with his peers. He moved frequently between high schools as he was often suspended or expelled for swearing at teachers and playing truant. He did not complete high school. He later attended TAFE and obtained Certificates I and II in engineering, welding and metal fabrication. More recently he has received Certificates II in resources and infrastructure work preparation.
Mr Humes has worked in various jobs including general labouring, steel fixing and setting up events for festivals. His last job was in 2012 when he worked for two years with Frontline Human Resources loading shipping containers.
Mr Humes reports having had only one significant relationship in the past. They had been together for four and a half years but their relationship was marred with trust issues and their illicit substance abuse proved problematic.
As mentioned, Mr Humes began drinking alcohol around the age of 12. Whilst in high school he binge drank up to 12 premixed cans on weekends. Prior to being incarcerated he was drinking approximately five litres of wine a day, and any other alcoholic beverage he could obtain.
In the past Mr Humes has taken heroin and benzodiazepines. Around the age of 11 he began using marijuana and continued to do so until he was 25 years old. He smoked daily, using approximately a bag of marijuana each day. At the age of 17 he began taking amphetamines, using it orally or smoking it. He considered that his amphetamine use became a problem at the age of 24 when he was using it on a daily basis, consuming up to two “points” each day. He eventually began injecting. When his biological grandmother died in 2013 his amphetamine use increased to the point where he began experiencing some paranoia.
Mr Humes has admitted to having a history of suicide attempts. After his mother died he attempted to commit suicide by walking in front of a moving vehicle. In 2015 he attempted to hang himself. This was motivated by family loss and his ex-partner ending their relationship.
In 2012 his biological grandmother arranged for Mr Humes to travel to Perth to meet with family members there. About six years ago he was reunited with his sister. He now wishes to reconnect with his Aboriginal heritage. He wishes to understand more about his family’s totem and learn the Pitjantjatjara language.
Criminal antecedents and treatment received
Mr Humes’ offending began at the age of 14. As a juvenile he received convictions for trespassing on prescribed premises, theft, common assault and assault with intent to resist apprehension.
As an adult he has received convictions for attempted serious criminal trespass in a non-residence, possessing an article to commit an offence, theft, dropping an object onto a vehicle (which involved throwing a rock at the windscreen of a travelling car), two counts of carrying an offensive weapon, bail breaches and a breach of bond. He received suspended sentences on two previous occasions.
Relevantly, on 2 May 2016, following a plea of guilty, Mr Humes was convicted of aggravated robbery[1] and aggravated assault[2] (the index offending). The circumstances surrounding the offending were described by the sentencing Judge as follows:
At about 8.30am on 9 June 2015 you went into a delicatessen at Reynella. You were wearing a black hoodie with your head covered. You removed the hood and asked Ms H, who was working alone in the deli, for a packet of cigarettes. You tried to pay using a payWave credit card but she told you the system was not working. You left.
Ten minutes later you came back in wearing the same black top but with a black mask over your face. She recognised you as the same person. You pulled out a large knife and pointed it at her. You demanded cigarettes and she gave you packets of cigarettes. You then demanded money from the cash register and she handed over a sum of about $300. You then left. That constitutes Count 1. The maximum penalty is imprisonment for life.
Police were called. You were arrested nearby. You were found to be in possession of a black beanie, black bum bag and $300 in cash. You were handcuffed and placed in the rear of a police car. Other police officers arrived and you were led to their vehicle to be taken to the watch-house. You were shouting and swearing. The police officer, Mr R, described you as irrational, abusive, aggressive and threatening. He put you into the back seat of the car and sat next to you operating a video camera. You were making threats of self-harm and becoming more aggressive and threatening.
Police decided to divert to the Flinders Medical Centre because of your behaviour. You turned and spat at Mr R and saliva landed all over his face. He told you that you would be charged with assaulting police and you said ‘I don’t give a fuck … I have HIV AIDS and now you’ve got it too …’. That offending constitutes Count 2. The maximum penalty is imprisonment for four years.
[1] Contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA).
For the index offending Mr Humes was sentenced to imprisonment for four years and six months with a non-parole period of two years, both of which were backdated to commence from 11 June 2015.
In September 2016, whilst incarcerated for the index offending, a report from the Sentence Management Unit of the Department for Correctional Services assessed Mr Humes as being at high risk of re-offending. The same report considered Mr Humes as suitable for participation in the Violence Prevention Program (VPP).
Mr Humes participated in the VPP between 7 November 2016 and 29 August 2018, attending 94 per cent of the sessions.
Mr Humes’ engagement and participation in the VPP fluctuated. Initially, there was some level of hostility and low mood but as the program progressed he appeared more comfortable, developed a good grasp of the concepts and some positive attitudinal and behavioural changes were observed. It was noted that he had moved to the “preparation stage” of some of his dynamic factors, including his criminal attitudes, interpersonal aggression, emotional control and substance use, which meant that he had developed some awareness that these behaviours were problematic. Mr Humes was able to describe values consistent with a prosocial lifestyle, understand the importance of asking for assistance rather than trying to deal with problems on his own, and discuss problematic attitudes and emotions that had led to unhelpful behaviours. Nevertheless, the changes observed were thought to be relatively recent and had not been demonstrated in high risk situations outside of the custodial environment.
Whilst participating in the VPP Mr Humes presented with the following protective factors:
Mr. Humes presented with several protective factors that may support his successful release. Mr. Humes reported some familial support and also described generally close relationships with some pro-social long-term friends. He reported an ability to maintain stable employment and it was noted that Mr. Humes had remained offence free for four years in the community when he was engaged in employment, although he conceded that he had regularly used substances throughout this period. Mr. Humes obtained qualifications in welding and metal fabrication which he hoped to build upon once released. He reported a strong desire to be “culturally strong” and reconnect with his country and traditions. Mr. Humes reported a high level of motivation to be offence free in the community through his focus on re-connecting with his culture, family and pro-social friends, gaining full-time employment and self-improvement through exercise and healthy eating. Furthermore, when Mr. Humes was able to manage his propensity for low mood and hostile presentation, he showed good interpersonal skills and the ability to interact in a pro-social and helpful manner with his peers and facilitators within the treatment group environment. However, those techniques were untested in the community where a variety of different emotive triggers, such as contact with negative social influences, may be present.
Following Mr Humes’ participation in the VPP he was assessed as remaining at high risk of violent re-offending. It was noted that his risk would likely increase if he were to start using illicit substances. Among other things, it was recommended that his ability to remain drug free be monitored through regular urinalysis and that he be referred to drug and alcohol counselling, grief and loss counselling and domestic and family violence counselling. It was also recommended that his intimate relationships be monitored and that he should be encouraged to connect with his Aboriginal culture through services at Nunkuwarrin Yunti.
Mr Humes was released on parole on 23 November 2017. Following his release he engaged with drug and alcohol counselling, and he made contact with Nunkuwarrin Yunti. Despite this, between March and May 2018 he breached a number of his parole conditions including by testing positive to illicit substances, not reporting for supervision as directed and contacting his former partner who was listed as a no-contact person on his parole conditions. It was also noted on his return to prison that he had changed his parole address without permission and that he had been absent during his curfew. He reported that he had decided to re-establish a relationship with his ex-partner, despite knowing that she was listed as a no-contact on his parole, and that this relationship had caused him to experience stress which resulted in his relapse to drug use.
The breaches of his parole conditions led to the cancellation of Mr Humes’ parole. On 28 March 2018 he was returned to prison and ordered to serve the remainder of his sentence for the index offending being a further one year, eight months and 28 days’ imprisonment.
In January 2019, whilst incarcerated, Mr Humes was assessed as suitable for participation in the Domestic and Family Violence Intervention (DFVI) program in part because of his history of domestic violence within intimate relationships. He commenced participation in the program at Port Augusta Prison, only to withdraw eight days later. He did not consider the DFVI program to be appropriate for him given that it was his first time serving a sentence of imprisonment and he did not consider himself to be “a serious offender”.
A report from the Parole Board dated 26 November 2019 indicated that the Board supported this Court making an extended supervision order with respect to Mr Humes. Among other things, it was recommended that Mr Humes be subject to an electronic monitoring condition given that he had previously breached his parole by contacting his former partner.
On 24 December 2019 Mr Humes was released from prison. Since then he has been subject to an interim supervision order that was made by a Judge of this Court pursuant to s 9 of the High Risk Offenders Act. The interim supervision order contains conditions that are typically found in such an order, together with an electronic monitoring condition, a curfew condition and a condition prohibiting Mr Humes from visiting licensed hotels or entertainment venues without permission. Mr Humes has been compliant with his interim supervision order.
A report from the Parole Board dated 20 April 2020 advised that the Board maintained its support for a 12-month extended supervision order but suggested that an electronic monitoring condition was no longer required given that Mr Humes “remained abstinent from illegal substances and his behaviour appears to be improving considerably given his previous poor response to parole”.
On 22 April 2020 I varied Mr Humes’ interim supervision order by suspending his electronic monitoring condition and permitting his curfew condition to be removed by the Parole Board.[3] The variation was made following an application by Mr Humes for the removal of these conditions on the basis that they were significantly limiting his ability to engage in water sports and exercise at the gym.
[3] Pursuant to s 13(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA).
The medical evidence
Dr Megan Ferris, a forensic consultant psychiatrist, provided this Court with a psychiatric report and gave evidence on the hearing of the application. She assessed Mr Humes on 11 February 2020 to determine his likelihood of committing an offence of serious violence.
Dr Ferris noted that the index offending coincided with heavy alcohol, marijuana and amphetamine use and subsequent behavioural disturbance, violence and threatening behaviour. She said that Mr Humes had a past history of an antisocial personality structure as evidenced by his past failures to comply with the law and conditions of supervision. However, Mr Humes informed her that he had previously received counselling with Drug and Alcohol Services SA (DASSA) and had managed to remain abstinent for six months on two occasions when he was subject to a court order to not drink alcohol.
Mr Humes displayed some remorse in relation to his previous violent offending but told the doctor that he had “done his time” and that he now wanted to move on. He said that he felt strongly about not wanting to go back to prison and that he was “going to do the right thing”.
It was apparent to Dr Ferris that Mr Humes displayed a willingness to abstain from illicit substances and that he had increased insight into the problematic nature of his previous use. She noted that since Mr Humes’ release from prison in December 2019 he had complied with the conditions of his interim supervision order. His abstinence from illicit substances, she said, had led to mood and behavioural stability and there had been no concerns voiced about his behaviour from either his home environment or from his community corrections officer to whom he reported to regularly. He had also interacted with the Aboriginal Health Clinic to help with his mental health. She stated that Mr Humes had made it clear that he did not want to utilise mainstream drug and alcohol services, preferring to utilise Aboriginal services instead.

Mr Humes told the doctor that he intended to remain abstinent from illicit substances and alcohol. He was interested in possible employment and was content to have regular reviews by the Department for Correctional Services. Mr Humes said that he had some support from a few close friends and was getting on well with the people with whom he lived. He spoke very positively about his volunteer work at a foodbank once a week.
Mr Humes told the doctor that he believed that he had an increased ability to engage in recreational sports and link in with his cultural heritage and supportive family members. He was finding the interim supervision order incredibly limiting on his ability to reacclimatise into society. He said that he had been wanting to engage in water activities with his family in Point Pearce and join a boxing gym to increase his fitness but had been unable to do so due to his electronic monitoring bracelet.
Dr Ferris opined that Mr Humes was not currently presenting with any acute mental health symptoms and there appeared to be no ongoing evidence of depressive symptoms over the last 12 to 18 months. However, she considered that Mr Humes fitted the criteria of an antisocial personality disorder, even though he was not presenting with any acute symptoms of the disorder at the time of her assessment. She also considered that he previously satisfied the criteria for alcohol dependence syndrome, marijuana dependence syndrome and amphetamine dependence syndrome prior to the index offending, but these issues had been in remission since his release from custody in December 2019.
In bringing her report to a close Dr Ferris stated:
At review, Mr Humes presented with a decrease in the documented risk factors that led to him being assessed as being at high risk of violent offending. He had remained abstinent from illicit substances since December 2019, he was participating in prosocial activities with the family he was living with and a few social contacts, and he was abiding all of his Interim Order conditions and reporting requirements through Community Corrections. He showed some improved insight into the problematic nature of his previous illicit substance use and had remained abstinent since his release and was purposefully avoiding contacts who used illicit substances.
Based on my assessment, collateral history and consideration of relevant risk factors, it is my opinion that Mr Humes fits the criteria of being a high risk violent offender. His risk profile includes many static risk factors including antisocial attitudes, offending from a young age and limited social support. His dynamic risk factors most importantly revolve around his ability to abstain from illicit substances as well as stability in his mental state and stability in his intimate relationships.
Given his previous risk history, it is impossible for me to say he would not pose an appreciable risk to the safety of the community in the future. However, it is my opinion that if he continues to abstain from illicit substances this risk would be markedly decreased. It appears that his main risk factor for violence appears to be resumption of illicit substance use and there would be a low likelihood of him committing a further violent offence should he remain abstinent from substances. There does not appear to be any associated mental health risk in regards to his risk of recidivism.
Thus, based on my assessment, it is my opinion that Mr Humes is currently presenting with a low risk of committing a further serous violent offence in the immediate future, as he is currently remaining abstinent from illicit substances and based on his presentation, insight at interview and his current behaviour in the community. It is clear that his risk of recidivism is strongly related to his past history of illicit substance abuse (amphetamines, alcohol and THC) and close monitoring of his return to illicit substances is going to be essential in continuing to lower his risk in the community. His ongoing involvement with cultural activities through Nunkawarrin Yunti and the Aboriginal Health Clinic, together with prosocial activities, possible resumption of employment possibilities and close monitoring of his intimate relationships is going to lead to a better outcome for Mr Humes.
In her oral evidence Dr Ferris said that she considered Mr Humes’ recent prosocial behaviours, such as his volunteering at the foodbank and his training courses, to be a positive step forward, and that he was currently at low risk of reoffending. Nevertheless, she opined that this risk would increase if he were to fail to comply with the conditions of his supervision order or if he were to return to using alcohol and illicit substances. In relation to Mr Humes’ drug and alcohol abuse the following exchange occurred:
HIS HONOUR
QThe circumstances that led to the dependence disorder and the reliance upon alcohol, marijuana and amphetamines, what was your view about that.
A… it started at a very early age, and certainly he lost his mother at an early age and it seems to coincide with an increase then, and then, because he moved around in his childhood, he said it was very easy to get in with the wrong gang and the wrong groups and then it sort of exploded from there. His alcohol use he spoke about being very problematic from the age of 15 and he’d really struggled with that over a long time, and certainly prior to the offence, the history is that there was heavy, heavy use, up to 5 l a day of alcohol. Certainly his use of the three illicit substances would definitely be explained by the chaos and the developmental difficulties that he had during his childhood.
QThe recent history that you obtained suggests that a number of those problems were no longer apparent.
ANot acutely apparent, although he did mention, and I think I’ve mentioned in my report later on, that there were still some grief issues in regards to his mother’s death and how he felt he still needed to work through that with a counsellor. So I would say that lots of these issues of his childhood haven’t gone away, they are just not at the forefront at the moment, but they are certainly something that we see in people with dependence disorder can still pop up in times of stress and lead them to resuming illicit substance user later down the track.
QSo stress is a trigger.
AMost definitely, yes.
…
QAnything apart from that dysfunctional childhood or stress that you can pinpoint.
ATo resume drug use?
QThat may cause a return to drug use.
AWe often see when someone has a change in their mental state, in terms of the onset of a depression or a psychosis or an anxiety, that they might resume illicit substance use, we see when there’s work pressures they might resume, we also see relationship instabilities are a very big one as well, and I have mentioned that in his history as well, as being a trigger for illicit substance use and stress.
And in examination-in-chief it was said:
QIf, at the end of these proceedings, Mr Humes was able to walk from here with no prohibition upon the use of alcohol and amphetamine and cannabis and no way of monitoring his use of those substances, what would be the effect, in your opinion, upon the risk of him reoffending.
AWell, the short answer is I believe it would go up. It would increase. What we know is that in terms of the risk of violence for someone that often the historical risks involved with the patient or client are very important and with him, with the very longstanding history of heavy use of three different illicit substances, where he has told me he has very rarely been abstinent of, he told me on two occasions, under orders, he managed to remain abstinent during those items, but otherwise has struggled to remain abstinent, I would have concerns with him that if there was not an order of some kind that the risk of him returning to illicit substance would be reasonably high and then subsequently would go up with Mr Humes.
Whilst Dr Ferris was aware that Mr Humes’ parole conditions had not in the past prevented him from consuming drugs, she did not agree with the proposition that restrictive conditions would not result in Mr Humes altering his behaviour. She considered that the interim supervision order may have influenced Mr Humes’ behaviour to engage in prosocial behaviours, such as his volunteering work, as it would “look good in terms of how he’s complying with the order overall” and thus enable him to eventually “com[e] off the order”.
Dr Ferris was then taken to the conditions of the proposed extended supervision order. In particular, she was taken to the proposed curfew condition which as currently drafted provides:
2.7until the Parole Board directs that this condition no longer applies, the Respondent will be subject to a curfew requiring him:
2.7.1 to remain in his residence between 9pm and 6am (or at other times provided by the Parole Board) except in the case of a medical emergency or with the prior written permission of his Community Corrections Officer;
2.7.2 to present himself at his front door between 9pm and 6am (or during the period of time provided in paragraph 2.7.1 or as provided by the Parole Board) on the request of any police officer, Community Corrections Officer or person authorised to conduct a curfew check;
Mr Humes had told the doctor that this condition would limit his ability to make contact with people after 9 pm. Dr Ferris was of the opinion that associating with antisocial peers and using illicit substances could equally happen during the day as it could at night.
Consideration
The two jurisdictional facts that the Attorney-General must prove to enliven this Court’s discretion to make an extended supervision order are set out in s 7(4) of the High Risk Offenders Act. They provide that the Court must first be satisfied that the respondent is a “high risk offender”[4] and secondly that he or she “poses an appreciable risk to the safety of the community if not supervised under the order”.[5]
[4] Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(4)(a).
[5] Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(4)(b).
Section 7(5) makes clear that the paramount consideration of the Court in determining whether to make an extended supervision order is the safety of the community.
Section 7(6) provides a non-exhaustive list of additional factors that the Court may take into account in determining whether to make an extended supervision order including the extent to which the respondent has complied with his or her parole conditions,[6] any treatment or rehabilitation programs he or she has undertaken,[7] and any relevant evidence or representations that the respondent puts before this Court.[8]
[6]    Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(6)(g).
[7]    Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(6)(f).
[8]    Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(6)(e).
A high risk offender is defined by s 5(c) to include a “serious violent offender” who was sentenced to a period of imprisonment with respect to a “serious offence of violence”. The various interlocking definitions contained in the High Risk Offenders Act and the Criminal Law Consolidation Act 1935 (SA), which govern the question whether or not a respondent has been sentenced to a period of imprisonment for a “serious offence of violence” and is thus a “serious violent offender”,[9] have been discussed in many cases before this Court.[10] Those definitions need not be discussed or set out here. Before me, there was no dispute that Mr Humes satisfies the definition of high risk offender under s 5(c). The parties were at one in submitting that the aggravated robbery, for which Mr Humes was sentenced to a period of imprisonment, constituted a “serious offence of violence” which made him a “serious violent offender”.
[9] See s 4 of the Criminal Law (High Risk Offenders) Act 2015 (SA) and ss 21(1) and 83D(1) of the Criminal Law Consolidation Act 1935 (SA).
[10] Attorney-General (SA) v Wikaire (2017) 127 SASR 565; Attorney-General (SA) v Wells [2017] SASC 149; Attorney-General (SA) v Jeffery (2018) 130 SASR 300; Attorney-General (SA) v Davidson [2018] SASC 91; Attorney-General (SA) v Laughlin [2019] SASC 105; Attorney-General (SA) v Kember [2019] SASC 19 and Attorney-General (SA) v Gates (2017) 129 SASR 298.
What is in contention is whether Mr Humes poses an appreciable risk to the safety of the community if not supervised under an extended supervision order. Put differently, the question to be asked is: is the risk that Mr Humes poses appreciable such that an extended supervision order ought to be made to protect the safety of the community? To pose the question in this way is to perhaps conflate the second jurisdictional fact with the exercise of the discretion that becomes enlivened upon the Court finding that both jurisdictional facts contained in s 7(4) have been satisfied. Nonetheless, a finding that the jurisdictional fact in s 7(4)(b) has been established will often suggest that the discretion should be exercised in favour of making an extended supervision order because the paramount consideration is the safety of the community.[11] I return to this observation below.
[11] See Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(5) and s 3 more generally. Similar observations have been made in relation to s 18(2) of the Criminal Law (High Risk Offenders) Act 2015 (SA), see Attorney-General (SA) v Moyle (No 2) (2019) 134 SASR 257, [60] (Hinton J).
In Attorney-General (SA) v Grosser (Grosser) Stanley J explained “appreciable risk” for the purposes of s 7(4)(b) as follows:[12]
I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible. Necessarily, a risk must be anticipatory. An appreciable risk is a risk that is not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in future in a manner that poses a risk to the safety of the community. It is a question of degree. …
(Footnote omitted.)
[12] [2016] SASC 49, [29].
In this case, both sides emphasised to the Court that Mr Humes has in recent times made many positive attitudinal and behavioural changes.
Since being released from prison in December 2019 Mr Humes has abstained from alcohol and drugs.
Mr Humes has complied with the conditions of his interim supervision order.
He has made various attempts to upskill his capabilities and skillsets by engaging in training programs in construction and infrastructure work. Indeed, a letter from Workskil Australia reveals that Mr Humes has been engaging in a voluntary program designed to assist his transition into the workforce and has been demonstrating “a very positive outlook towards his job seeking and … to secure suitable and sustainable employment”.
Since February 2020 Mr Humes has been volunteering at a food relief group and distributes food to those in need.
He leads a physically active life.
He assists the family with whom he lives with household chores, supervising the children and “basically whatever [else] is required in a normal [household]”. They speak very highly of the positive contribution that he makes to their home.
Mr Humes has also reconnected with his own family in Point Pearce and desires to be culturally strong in the community and form a greater connection to his language and country.
The positive changes that Mr Humes has made in his life since his release in December 2019 are encouraging. I commend him for the actions he has taken.
But in the background looms Mr Humes’ history. Experience has shown that when Mr Humes is confronted with stressors in the community, and in particular when experiencing some type of grief or loss, he engages in maladaptive behaviours to mask those negative feelings rather than deal with them and manage the associated pain. It is no coincidence that Mr Humes’ drug and alcohol abuse began when his mother died. The spike in his amphetamine use in 2013 coincided with his grandmother’s death. The loss of a family member and the ending of a romantic relationship in February 2015 resulted in a suicide attempt. The stress he experienced from his relationship with his ex-partner resulted in a relapse to drug use whilst on parole.
When the maladaptive behaviour in which Mr Humes engages involves alcohol or drug use this increases his risk of engaging in violent offending. In my view, this risk is “appreciable” in the sense Stanley J described in Grosser if Mr Humes is not supervised under an extended supervision order.
The prerequisites for making an order having been established, this enlivens the Court’s discretion to determine whether Mr Humes should be subject to an extended supervision order.
The risk of Mr Humes engaging in violent reoffending, whilst appreciable, is low. I also accept that being subject to a supervision order will impede significantly on his personal liberty and freedom of movement. But these factors are outweighed by the paramount consideration of public safety. As was said by Stanley J in R v Kimmins when considering s 7(4) of the Act:[13]
… given the terms of this legislation, specifically the paramount consideration of public safety, in the exercise of the Court’s discretion relatively smaller degrees of risk will outweigh considerations which, even strongly, would militate against the making of an extended supervision order.
[13] [2016] SASC 176, [38].
As I have mentioned, a finding that the s 7(4)(b) jurisdictional fact is proved will often suggest that the appropriate exercise of the discretion will favour the making of an extended supervision order. The paramount consideration is public safety. Accordingly, because I have found that Mr Humes poses an appreciable risk to the safety of the community if he is not supervised, there are few countervailing factors against the exercise of the discretion to make an order. These here include the need for Mr Humes to adjust to life outside of prison and the impediments and inconvenience created by an order. One could add that the discretion must be exercised with an eye on the importance of liberty. However, the fact that Parliament has intervened and community safety is paramount means that a number, but not all, of these considerations can be reflected in appropriate conditions.
Accordingly, in the exercise of my discretion, I impose an extended supervision order with respect to Mr Humes.
I consider a supervision order of 12 months, as sought by the Attorney, to be of appropriate duration. I accept that in the past six or so months Mr Humes has made many positive changes. However, insufficient time has passed to determine whether this positive, rehabilitative conduct will persist in the long term. Mr Humes needs to spend more time in the “real world”, where he will encounter stressors and be surrounded by the temptation to drink, engage in drug abuse and other antisocial behaviours, to allow a confident assessment to be made as to whether the risk he poses to the community has abated to the point where a supervision order is no longer necessary to protect the community.
I turn to the conditions attaching to the extended supervision order. These should be limited to addressing the appreciable risk that Mr Humes poses to the safety of the community, and should not be unjustifiably burdensome.[14] It reflects the fact that the s 7(4) power is to be exercised for a protective and not punitive purpose.
[14] Attorney-General (SA) v Fenner [2020] SASC 107, [139] (Livesey J).
The draft extended supervision order that the Attorney provided to this Court contains 16 conditions which mirror those found in the interim supervision order as varied on 22 April 2020. Conditions 2.1-2.4 are mandatory by virtue of ss 10(1)(a)-(d) and condition 2.16 provides that the Parole Board may also impose any other condition under s 11 of the Act.

The remaining conditions, in the main, are directed at preventing Mr Humes consuming alcohol and drugs and to ensure that he engages in counselling and programs for substance abuse, domestic violence and violent reoffending and any other assessments, programs and interventions as directed by his community corrections officer. To this I will add that Mr Humes undertake and satisfactorily complete counselling or programs for dealing with grief and loss as directed by his community corrections officer in light of my observations at [62] of these reasons.
As mentioned earlier, the Attorney also seeks that Mr Humes be subject to a 9 pm to 6 am curfew condition until the Parole Board directs that such a condition is no longer required. I do not think that a curfew condition is necessary in this case. There is no evidence before me to suggest that Mr Humes’ previous drug and alcohol abuse and offending occurred only, or even mostly, during the night. As was put by Dr Ferris, this type of conduct could equally happen during the day as at night, and I do not think that this condition specifically addresses the risk that Mr Humes poses to the safety of the community.
In light of these observations, I am inclined to not include the curfew condition in the extended supervision order but before reaching my final decision I will hear from counsel on this or any other aspect of the proposed conditions.
Conclusion and orders
I order that Mr Humes be subject to an extended supervision order for a period of 12 months commencing from the date of this judgment pursuant to ss 7(4) and 12(1) of the High Risk Offenders Act.
The parties will be heard on the proposed conditions in the extended supervision order.