Attorney-General (SA) v Humes

Case [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

  1. 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).

  2. 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.

  3. 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.

  4. For the…

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

CaseChat Overview and Summary

The matter of Attorney-General (SA) v Humes involved a consideration of the imposition of an extended supervision order on Mr Humes under the Criminal Law (High Risk Offenders) Act 2015 (SA). Mr Humes had been convicted of aggravated robbery, a serious offence of violence, and was deemed to be a serious violent offender. The primary legal issue before the court was whether Mr Humes posed an appreciable risk to the safety of the community if not supervised under an extended supervision order. This decision hinged on whether the court could be satisfied that Mr Humes was a high-risk offender who needed supervision and what conditions, if any, should be included in the extended supervision order.

The court examined the evidence presented, including a psychiatric report from Dr Megan Ferris, who assessed Mr Humes' likelihood of committing an offence of serious violence. Dr Ferris concluded that Mr Humes had a history of antisocial behaviour and substance abuse, but noted his compliance with parole conditions and his efforts to abstain from illicit substances and alcohol since his release from prison. The court also considered Mr Humes' expressed remorse for his past violent offending and his intention to remain abstinent and engage in positive activities. The court had to balance the need for community safety against Mr Humes' arguments that the curfew and electronic monitoring conditions were limiting his reintegration into society.

The court concluded that while Mr Humes was a high-risk offender and had committed a serious violent offence, the evidence suggested that he had made positive changes and was complying with parole conditions. The court decided to impose an extended supervision order for 12 months but deferred the final decision on the specific conditions until further submissions from counsel. The court emphasized that the paramount consideration in determining the order was the safety of the community and that Mr Humes' compliance with parole and his efforts to abstain from substance abuse were positive indicators. The court also noted that the curfew condition might not be necessary, as Mr Humes' risk factors could manifest at any time of the day.

The final order was that Mr Humes would be subject to an extended supervision order for a period of 12 months, with further discussion on the specific conditions to be included in the order. This decision underscored the court's focus on balancing the need for public safety with the rehabilitation and reintegration of high-risk offenders.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.