Attorney-General (SA) v Jackson - [2024] SASC 75

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v JACKSON
[2024] SASC 75
Judgment of the Honourable Chief Justice Kourakis
3 June 2024
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 - DANGEROUS SEXUAL OFFENDER - GENERALLY
This was an application for a continuing detention order against the respondent, pursuant to s 18(2) of the Criminal Law (High Risk Offenders) Act 2015 (SA).
Following the expiration of a term of imprisonment for two counts of serious sexual offending, and informed by a number of prior convictions for serious sexual offending, an extended supervision was imposed on the respondent for a term of 5 years. The terms of that extended supervision order, as varied by the Parole Board, obliged the respondent, inter alia, to comply with his obligations as a registrable offender under the Child Sex Offenders Registration Act 2006 (SA) and not to commit any further criminal offences. Subsequently, the respondent was remanded in custody in November 2023 on a Parole Board warrant, issued upon the discovery of multiple breaches of the respondent’s obligations as a registrable offender and extended supervision order. Those breaches, inter alia, included the respondent surreptitiously undertaking employment at a registered NDIS Provider and maintaining social media accounts and email addresses undeclared to police.
On his application for the imposition of a continuing detention order, the applicant contended that, in light of the respondent’s history of serious sexual offending and non-compliance with supervisory regimes, such an order conduced toward ensuring the safety of the community. The applicant further relied on expert medical evidence diagnosing the respondent with a series of mental illnesses that manifested in duplicitous, deceitful, and entitled behaviour, and observing that the respondent had not complied with medical treatment while on release in the community. Against this, the respondent contended that the safety of the community could be ensured by varying conditions of the pre-existing extended supervision order.
Held, granting the application for a continuing detention:
1.An application for a continuing detention order should proceed in much the same way as charges for criminal or disciplinary offences do, including by way of proper particularisation of any breaches of an extended supervision order and the adducing of evidence in admissible form, so that the respondent is accorded procedural fairness and so that the application is supported by admissible evidence.
2.The respondent had breached the terms of his extended supervision order on each occasion alleged and particularised by the applicant. Accordingly, and in light of the expert medical evidence opining on the risk that the respondent posed to the community of further serious sexual offending, a continuing detention order for a period of one year ought to be made against the respondent.

Child Sex Offenders Registration Act 2006 (SA) s 44(1); Criminal Law Consolidation Act 1935 (SA) s 48, s 49; Criminal Law (High Risk Offenders) Act 2015 (SA) s 17(1)(b)(ii), s 18(1)(2), referred to.
Attorney-General (Qld) v Francis [2007] 1 Qd R 396; Attorney-General (SA) v Coaby [2019] SASC 137; Attorney-General (SA) v Drion [2020] SASC 120; Garlett v Western Australia (2022) 96 ALJR 888; Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11; R v Schuster (2016) 125 SASR 388, applied.

ATTORNEY-GENERAL (SA) v JACKSON
[2024] SASC 75
Criminal

KOURAKIS CJ: This is an application by the Attorney-General made on 20 March 2024 for a continuing detention order (CDO) in respect of the respondent, Mr Simon Jackson, pursuant to s 18(2) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (HRO Act).
This matter was first called on for hearing on 2 May 2024. Unfortunately, the alleged breaches of the respondent’s extended supervision order (ESO) were not properly particularised. Nor was all of the evidence on which the Attorney-General relied in an admissible form. It should not be assumed that the hearing and determination of applications for continuing detention orders can proceed on the amorphous material initially filed in support of the applications. The hearing should proceed in much the same way as charges for criminal or disciplinary offences, so that the respondent is accorded procedural fairness and so that the application is supported by admissible evidence.
On 20 February 2024, the Parole Board interviewed Mr Jackson on alleged breaches of his ESO. The Parole Board was satisfied that Mr Jackson had breached certain conditions of the ESO and directed, pursuant to s 17(1)(b)(ii) of the HRO Act, that he be detained in custody pending his attendance before this Court to determine whether a CDO should be made.
Section 18(1) of the HRO Act provides that, by force of that direction, Mr Jackson’s matter is taken to have been referred to this Court. Section 18(2) of the HRO Act provides that this Court may make a CDO for the remainder of the term of Mr Jackson’s ESO, or for such lesser period as the Court thinks fit, if the Court is satisfied that Mr Jackson has breached a condition of his ESO and poses an appreciable risk to the safety of the community if not detained in custody. The paramount consideration in exercising the power conferred by s 18 of the HRO Act is the safety of the community.[1]
Legal Principles
[1] HRO Act s 18(3).
The Discretion
In Police v Sullivan; A-G (SA) v Sullivan,[2] Hinton J outlined an approach to the discretion conferred by s 18 of the HRO Act which I respectfully adopt:
[85]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. The 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.
[2] [2018] SASC 11.
In A-G (SA) v Drion,[3] Livesey J identified the following relevant consideration in the exercise of that discretion:
·the purpose of detention is protective, not punitive;
·the risk to the community is to be reassessed against the nature and circumstances of the breach;
·if the risk to the community is immediate or high, detention may be necessary;
·the Respondent should not be detained for any longer than is necessary to ensure adequate protection of the community.
[3] [2020] SASC 120, [68].
In Garlett v Western Australia,[4] the majority of the High Court endorsed the Queensland Court of Appeal’s decision in A-G (Qld) v Francis.[5] In Francis, Keane, Holmes JJA and Dutney J explained, in relation to the choice to be made by the Supreme Court between a CDO and a supervision order:
The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.[6]
[4] (2022) 96 ALJR 888.
[5] [2007] 1 Qd R 396.
[6] Ibid 405 [39].
In A-G (SA) v Coaby,[7] Hughes J observed:
[19]A continuing detention order is not the only response that can be made to a breach of a supervision order. If the circumstances or nature of the breach does not indicate a failure of the supervision order to safeguard the community, or if the risk has been addressed since the breach, or if the risk can be addressed in another way such as further or different conditions on the supervision order, then a detention order should not be made.
(Underlining added)
[7] [2019] SASC 137.
The effect paramount of the safety of the community was explained by the Full Court in R v Schuster,[8] as follows:
…The effect of making public safety the paramount consideration is that, speaking generally, relatively smaller degrees of risk will outweigh considerations which, even strongly, support release. The exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety.[9]
[8] (2016) 125 SASR 388.
[9] Ibid 406 [80] (Kourakis CJ, Blue and Doyle JJ).
An ESO was made in respect of Mr Jackson on 9 September 2021 by a Judge of this Court (the first ESO). The offences which enlivened the power to make the order were two counts of rape contrary to s 48 of the Criminal Law Consolidation Act 1935 (SA) (CLCA) of which Mr Jackson was convicted on 15 April 2009. The circumstances of those offences were as follows.
Mr Jackson approached his male victim, who was sitting in a car shortly after midnight on 27 October 2006. Mr Jackson pretended to be a police officer and handcuffed his victim. He then drove his victim to a secluded area where he forced him to perform fellatio by threatening to shoot and anally rape him if he did not. Mr Jackson then drove his victim to a second location where he again forced the victim to perform fellatio upon him. Mr Jackson was sentenced to a head sentence of ten years and two months. However, the sentence was made cumulative on other offending, leading to an effective overall sentence of 13 years and two months with a non‑parole period of eight years, 11 months, both of which were ordered to commence on 4 March 2008.
Those offences were not the first sexual offences of which Mr Jackson had been convicted. Mr Jackson had earlier been convicted on 30 November 2000 on two counts of unlawful sexual intercourse contrary to s 49 of the CLCA. At the time of the offending Mr Jackson was 21 years of age and his victim 15 years of age. Mr Jackson was sentenced to three years of imprisonment with a non‑parole period of one year and seven months which was wholly suspended.
Mr Jackson became a registered child sex offender on 10 September 2021 and was subject to the Child Sex Offenders Registration Act 2006 (SA) (CSOR Act). As such, he was required to provide an annual report of prescribed personal details including details of email addresses, passwords, internet usernames, instant messaging usernames, chatroom usernames, and any other access code username or identity used for electronic communication by 9 September 2022.
The conditions of the ESO included a condition that Mr Jackson not commit any further offence (condition 2.1). Condition 2.19 of the ESO provided:
The Respondent will only engage in employment that has been approved by his Community Corrections Officer and will not undertake any renumerated or voluntary work with persons under the age of 18 years or participate in any organisation which provides recreation, social, educational or other activities or facilities for persons under the age of 18 years.
On 28 October 2022, pursuant to s 11 of the HRO Act, the Parole Board imposed an additional condition to those imposed by this Court. That condition (condition 2.22) requires Mr Jackson to take all necessary steps to comply with the Australian National Child Offender Register (ANCOR).
Mr Jackson was initially subject to home detention conditions (condition 2.9) but, on 5 July 2023, that condition was varied by a Judge of this Court. In its place a condition was imposed prohibiting Mr Jackson from leaving his approved place of residence between the hours of 9 pm and 6 am except in the case of medical emergency or with prior approval of his supervising officer. Mr Jackson was still required to wear an electronic monitoring device.
On 3 November 2023, Mr Jackson was taken into custody pursuant to a Parole Board warrant issued on 2 November 2023.
On 8 February 2024, Mr Jackson pleaded guilty and was convicted in the Magistrates Court on three counts of failing to comply with his reporting obligations under the CSOR Act. He was sentenced to seven weeks’ imprisonment commencing on 2 November 2023. Mr Jackson had failed to provide his prescribed personal details as at 1 October 2022. In particular, between late 2021 and early 2022, he created three Facebook accounts – two in the name of “Madonna Barrett” and one in the name of Simon Jackson. He failed to report those accounts within seven days of their creation, thereby breaching s 44(1) of the CSRO Act.
On 25 October 2023, police attended at his home and inspected his work mobile telephone locating a WhatsApp account in the name of “Madonna Barrett” which Mr Jackson had used since 24 June 2023 but had failed to report. That, too, was a contravention of s 44(1) of the CSRO Act.
The above convictions constitute breaches of conditions 2.1 and 2.22 of the ESO as varied.
Mr Jackson is eligible for support from NDIS for a borderline intellectual disability, diagnosed by a psychologist on the basis of the results of testing he administered to Mr Jackson. Having regard to the evidence adduced before me on this application, including recorded telephone conversations between Mr Jackson and his former romantic partner, Mr Williams, intercepted whilst Mr Jackson was in custody, the transcript of Mr Jackson’s interview by the Parole Board, screenshots of messages on phones which he used and Mr Jackson’s interactions with the Court in the course of his appearance on this application, manifest an appreciably higher level of cognitive functioning. His level of functioning appears to be much more sophisticated and intelligent than that assessment suggests. I accept Dr Raeside’s evidence that Mr Jackson’s level of functioning is significantly greater than that assessed by the psychologist on the basis of tests administered to and completed by him. In the absence of any explanation for what appears to be a significant discrepancy between the test-based diagnosis, and the evidence before me, it is plain, that, for one reason or another, Mr Jackson did not perform at his best when completing those tests.
Mr Jackson had the permission of his Community Corrections Officer to attend an organisation calling itself Everyone Has a Story To Tell (EHASTT) for counselling.
EHASTT is a registered provider for NDIS. Its website lists:
(a)    “EHASTT Mentoring offers tailored youth and mental health support programs, providing guidance and dynamic workshops to overcome challenges and build resilience”.
(b)    “We offer, children’s, and adult’s Core Support services, in Homecare and Psychosocial Mentoring to ensure that they’re meeting their NDIS Goals or personal goals”.
(c)    “Soccer is a sport that can be enjoyed by people of all ages and abilities. So, EHASTT mentoring offers soccer programs designed for all…”.
I find that EHASTT is an organisation which provides recreational, social, and educational or other activities for persons under the age of 18 years.
Mr Jackson later told a police officer with the Offender Management Team of SA Police that he was given permission to attend at EHASTT for mentoring purposes.
A record of Mr Jackson’s tracked movements outside of his home in accordance with the permission of his supervising officer records the purpose of these visits as counselling. I reject the contention that permission was given for Mr Jackson to attend EHASTT for any form of mentoring.
I am satisfied, on Mr Jackson’s own admissions in the interview with the Parole Board, that he performed work, whether it was voluntary or paid, for EHASTT. His work included locating rental premises which might be suitable for EHASTT clients.
I am also satisfied, on the basis of evidence of messages which are, on the face of them, written by Mr Jackson, and sent on services to which he was the subscriber, that he undertook substantial administrative work for EHASTT. In that respect, I also rely on admissions in a telephone conversation recorded between Mr Jackson and his then partner, Mr Williams, that Mr Jackson kept a substantial amount of office equipment in the premises of EHASTT.
The Attorney‑General also relies on the following further breaches of condition 2.22 which have been charged as breaches of the CSOR Act but have not yet been determined.
The Respondent failed to report a change in his personal details, being the email address “[email protected]” that he acquired on 6 October 2023 to the Commissioner within 7 days of that change occurring. The particulars and evidence relied upon to establish this are as follows:
(a)SAPOL officers attended at the residence of the Respondent on 16 October 2023, during which they located on the Respondent’s mobile telephone an active WhatsApp account in the name “Madonna Barrett.”
(b)On the said WhatsApp account was a chat log dated 6 October 2023, between the Respondent and Chance Ndume, the director of EHASTT, in which the latter sent an email address “[email protected]” to the Respondent and the related password.
(c)The Respondent, being a registrable offender under the CSOR Act, was required to report this change in his personal details within 7 days of acquiring the said email. He was required to report that change to his personal details by 12:01 am on 14 October 2023.
(d)A check by an officer of SAPOL on 21 November 2023 revealed that the Respondent had not reported the said email address to the Commissioner as of that date.
The Respondent failed to report changes in his personal details, namely becoming the registered owner of two motor vehicles on 26 October 2023, to the Commissioner within 7 days of those changes occurring. The particulars and evidence relied upon to establish are as follows:
(a)On 21 November 2023, checks by an officer of SAPOL on the Police Vehicle and Licensing System with regard to the Respondent revealed that he had registered two new motor vehicles in the name of “Madonna Barrett” on 26 October 2023 (the same day that Police had attended at his residence). The details of those vehicles are:
(i) Renault Megane, registration number [XXX]; and
(ii) Holden Commodore, registration number [XXX].
(b)Information provided by the Registrar of Motor Vehicles to SAPOL confirmed the above.
(c)The Respondent, being a registrable offender under the CSOR Act, was required to report the change in his personal details within 7 days after that change occurs, which includes “the make, model, colour and registration number of any motor vehicle owned by, or generally driven by, him”. The Respondent was required report these changes by 12:01 am on 3 November 2023.
(d)A check by an officer of SAPOL on 21 November 2023 revealed that the Respondent had not reported the prescribed details of the two said motor vehicles to the Commissioner as of that date.

The evidence adduced by the Attorney‑General to the above effect has not been contradicted by Mr Jackson. I find that Mr Jackson has breached condition 2.22 as so particularised.
The Attorney‑General relies on the following assessment of Mr Jackson’s risk of re‑offending after undertaking Sexual Behaviour Clinic programs in prison.
Following completion of the program between April 2010 and June 2011 Mr Jackson was estimated as being in the very high range of sexual reoffending.
The Respondent participated in the SBC-me Program at Mount Gambier Prison. At the conclusion of a program between 29 November 2017 to 14 March 2019, Mr Jackson’s risk of sexual reoffending was estimated to remain at a very high range.
The Attorney‑General relies on the opinion of Dr Paul Furst. Following examination of Mr Jackson on 24/8/21, Dr Furst reported that Mr Jackson remained a very high risk of committing a further serious sexual offence. In arriving at this conclusion, Dr Furst noted:
Mr Jackson has a well-documented history of Borderline Personality Disorder with the limited documentation provided indicating that he has a pattern of unstable and intense interpersonal relationships, identity disturbance, impulsivity and failure to plan ahead, affective instability and inappropriate and intense anger as well as history of previous suicide attempts or gestures. In addition, Mr Jackson has a history of failing to conform to social norms with respect to lawful behaviours, a history of deceitfulness by repeated lying and use of aliases as well as conning others for personal profit or pleasure, impulsivity and failure to plan ahead, irritability and aggressiveness at times, a history of reckless disregard for the safety of self or others and consistent irresponsibility and lack of remorse consistent with Antisocial Personality Disorder”. …
“Whilst … Mr Jackson has undertaken considerable psychological treatment and been a willing participant in that he has also sought out medical treatment to reduce his sexual drive, these efforts have not substantially reduced his risk of sexual reoffending.
Dr Craig Raeside’s report, dated 29 May 2021, also concluded that the Respondent remained in the very high risk of further sexual reoffending. Dr Raeside expressed the following views:
I believe his primary diagnosis is that of a Mixed Personality Disorder with borderline, antisocial, and narcissistic personality traits… Mr Jackson does not simply has (sic) a Borderline Personality Disorder but his history also supports an underlying Antisocial Personality Disorder (as evidenced by his nonsexual offending and recurrent pattern of dishonesty and deception). He also has narcissistic features, with lack of empathy for others, the so called “callous disregard” and even an inability to fully comprehend the nature of his actions on others. He has a sense of entitlement, grandiosity, and a constant need for admiration from others.”
…
“Impulsivity and poor problem solving were noted to be significant problems for Mr Jackson and throughout treatment he continued to engage in impulsive behaviour, but perhaps to a lesser frequency, which was considered positive. Nevertheless, he “admitted to continuing to engage in unsafe sexual practices while in prison despite awareness of the risk of sexually transmitted infections and availability of condoms” and I would add risk of allegations. At times he expressed antiauthority statements. He continued to have difficulty with distress tolerance and emotional regulation skills consistent with his underlying personality disorder.
Dr Raeside was asked to review a number of documents and provide an opinion as to the Respondent’s level of risk to the safety of the community for the purposes of the current proceedings. In his report dated 22 April 2024, Dr Raeside:
·reported that the Respondent’s combination of Borderline, Antisocial, and [Narcissistic Personalist disorders] is “particularly pernicious in its impact on manipulative offending and self-gratification”;
·advised that caution should be exercised in believing what the Respondent self-reports given his tendency to be manipulative;
·expressed the opinion that while the offending to which the Respondent had been convicted and sentenced for on 8 February 2024 (i.e. the three counts of failing to comply with his reporting obligations pursuant to the CSOR Act) does not increase the Respondent’s already high risk of sexual offending, they make further offending more imminent;
·expressed concern regarding the Respondent’s duplicitous and devious behaviour, and in particular with his involvement with EHASTT, as it raises concerns about his dishonesty and deception, and also predatory type behaviour;
·noted that the Respondent, while in the community, had ceased taking his anti-libidinal medication as well as ceasing engagement with various services, including behavioural therapy;
·concluded there is no indication that the Respondent’s risk of further sexual offending has reduced, and it continues at a very high level; and
·queried the reliance on the possible non-custodial measure of anti-libidinal medication given that it cannot be mandated and relies on the willingness and co-operation of the Respondent; and expressed the view that psychological therapy is of limited utility given the Respondent’s deceptive behaviour.
Dr Raeside did not change his opinion, in any material respect, after cross-examination on this application.
Conclusion
For those reasons, I will make a CDO. The imminent risks of which Dr Raeside testified require something more than a very short period of detention. It is necessary that Mr Jackson be detained for a sufficiently long time for him to continue taking the anti‑libidinal medication, if that is what he chooses to do, whilst he is in custody. A moderate period of detention is also necessary so that Mr Jackson comes to appreciate fully that his poor compliance with conditions calculated to minimise risk will have seriously adverse consequences. It is necessary so that he comes to appreciate that his attempts to deceive will not be successful. Those reflections conduce toward the protection of the community in so far as they discourage further deceitful behaviour and offending. A period of continuing detention is necessary to protect the community in that period, but also to provide greater assurance that Mr Jackson will not offend when he is released.
On the other hand, it is necessary to work toward Mr Jackson’s release back into the community at some point. It is best that those attempts start in a carefully confined and controlled manner before his current extended supervision order ends by the effluxion of time. A period of closely supervised return to the community will better inform future decisions on whether or not to impose a further extended supervision order, its duration and its conditions.
For those reasons, I impose a CDO for a period of one year from today’s date, 3 June 2024.