Attorney-General (SA) v Jackson-Karpany - [2020] SASC 105

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v JACKSON-KARPANY
[2020] SASC 105
Judgment of The Honourable Justice Parker
16 June 2020
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
CRIMINAL LAW - PROCEDURE - ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS - STAY OF PROCEEDINGS - ABUSE OF PROCESS
Application by the Attorney-General (SA) for an adjournment and later determination of its application under s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) for an Extended Supervision Order (ESO) in respect of the respondent.
On 3 June 2015, the respondent was sentenced to imprisonment for four years, five months and 11 days, backdated to commence on 30 January 2014, for offences of serious criminal trespass in a place of residence, aggravated assault causing harm and aggravated threatening harm whilst on parole. His head sentence was due to expire on 4 July 2018. On 26 June 2018, the Attorney-General lodged the ESO application. On 4 July 2018, the Court granted an Interim Supervision Order pending the determination of the ESO application. On 30 September 2018, the respondent committed a further offence of robbery and, on 27 November 2019, was sentenced to a further term of imprisonment. His non-parole period is due to end in February 2022 and his head sentence is due to expire in December 2022. The Attorney-General seeks an adjournment of the ESO application until close to the expiry of the respondent’s current sentence.
The respondent contends that the application for an adjournment and later determination of the ESO application is an abuse of process. The offence for which he is currently imprisoned is not a serious offence of violence and does not support the making on an ESO. The respondent contends that the adjournment should be refused and the application for the ESO dismissed, or alternatively that it be decided forthwith.
Held, allowing the application for adjournment:
1. The question is whether the approach adopted by the Attorney-General involves a misuse of the process of the Court for an improper purpose or in an improper way or for some collateral process.
2. The fact that a Judge of this Court was satisfied that there were proper grounds to order an Interim Supervision Order in respect of the respondent clearly establishes that there was nothing improper about the making of the application for an ESO by the Attorney-General.
3. The situation that the respondent finds himself in is one of his own making. The request for an adjournment and a deferred decision has arisen solely because the respondent committed a further offence that resulted in a lengthy term of imprisonment soon after he was made subject to the Interim Supervision Order. If that had not occurred, the ESO would have been decided on its merits long ago.
4. There is no trickery or sharp or deceptive conduct or misuse of the process of the Court on the part of the Attorney-General. She has proposed an appropriate solution to a situation caused solely by the conduct of the respondent. There is no abuse of process.
5. The application for an ESO is adjourned to an appropriate date closer to the respondent’s likely release date.
Criminal Law (High Risk Offenders) Act 2015 (SA); Criminal Law Consolidation Act 1935 (SA), referred to.
Acre Developments Pty Ltd v National Companies Securities Commission (1987) 138 LSJS 481; JT Nominees Pty Ltd v Macks (2007) 97 SASR 471, applied.

ATTORNEY-GENERAL (SA) v JACKSON-KARPANY
[2020] SASC 105
Criminal

PARKER J: On 26 June 2018, the Attorney-General applied for an extended supervision order (ESO) under s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the HRO Act) in respect of the respondent, Jason Jackson-Karpany. The Attorney‑General has sought that the matter be adjourned until a date closer to his release from custody. His current non-parole period ends on 19 February 2022 and his sentence expires on 21 December 2022.
The respondent submits that the request for an adjournment to allow the application to be determined in the future is an abuse of process. The offence for which the respondent is currently imprisoned is not a serious offence of violence. It therefore does not support the making of an ESO. Thus, the adjournment should be refused and the application for an ESO dismissed. Alternatively, if that submission is rejected, the application should be decided forthwith.
Chronology
The chronology relevant to the present issue is as follows:
·29 January 2014 – whilst on parole, the respondent commits offences of serious criminal trespass in a place of residence, aggravated assault causing harm and aggravated threatening harm.
·3 June 2015 – following a guilty plea, the respondent is imprisoned for four years, five months and 11 days backdated to commence on 30 January 2014.
·26 June 2018 – Attorney-General lodges ESO application.
·4 July 2018 – respondent’s head sentence due to expire.
·4 July 2018 – this Court makes an interim supervision order.
·30 September 2018 – respondent commits offence of robbery using force.
·27 November 2019 – after pleading guilty, the respondent is sentenced to imprisonment for four years, two months, one week and five days with a non-parole period of three years, four months, one week and two days commencing on 10 October 2018.
·19 February 2022 – respondent’s non-parole period due to end.
·21 December 2022 – respondent’s head sentence due to expire.
The respondent has an extensive criminal history. While the greater number of convictions relate to road traffic and public order offences and breaches of bail, he has also been convicted on several occasions of offences of violence. For present purposes, it is not necessary to traverse that history in detail. It is only necessary to refer to those convictions directly relevant to the present issue.
On 3 June 2015, the respondent was sentenced, following a guilty plea, for the offences of aggravated serious criminal trespass in a place of residence, aggravated assault causing harm and aggravated threatening harm. These offences each occurred on 29 January 2014. When the respondent committed these three offences he was on parole for sentences that had been imposed on 8 July 2010 and 19 July 2010. As at 29 January 2014, the period of unexpired parole was one year, five months and 11 days.
Prior to committing the three offences on 29 January 2014, the respondent had been drinking with his then domestic partner and was intoxicated. She was previously a partner of the respondent’s victim. The respondent’s partner had armed herself with a knife and “in a hysterical state” had started to run to confront her former partner. The respondent disarmed her of the knife but then decided to go to his victim’s house to “sort matters out”. He took with him the knife he had removed from his partner and also a pair of scissors.
The victim was at home and heard yelling from the respondent, who was walking towards his house. The respondent knocked on the front door but went to the back of the house when the victim did not answer. The respondent then gained entry to the victim’s house. This constituted the offence of aggravated serious criminal trespass in a place of residence.
In the meantime, the victim had climbed out a window and run across the front lawn. The respondent came out of the house and chased him. He attacked the victim with the scissors, punched him in the face repeatedly and threatened him with the knife. The victim suffered lacerations to his hand, swelling around his nose and a small arterial bleed of a finger on his right hand. This conduct constituted the offence of aggravated assault causing harm and also the offence of aggravated threatening harm.
When the police arrived, the victim ran towards them with the respondent following a few metres behind. The respondent told the police that he had gone to the house of the victim to talk to him “man to man”. The respondent suggested to the police that his conduct was in self-defence because the victim had antagonised his partner.
After referring to the history of the respondent and the difficulties the respondent had experienced when he was imprisoned in Port Augusta, rather than Adelaide where his family live, the sentencing Judge noted that the respondent had worked in custody when possible and that there had been no adverse reports about his behaviour while in prison. The Judge adopted a starting point of imprisonment for four years and reduced that to a head sentence of imprisonment for three years in recognition of the respondent’s guilty pleas. The unexpired parole period was added to that sentence, resulting in a head sentence of four years, five months and 11 days. The non-parole period was fixed at two years and six months. The head sentence and non-parole period were backdated to commence on 30 January 2014.
On 26 June 2018, the Attorney-General lodged an ESO application. An interim supervision order was made on 4 July 2018, being the date that the respondent’s head sentence was due to expire. While he remained in custody for a short period on other charges, those matters were not proceeded with and he was then released.
On 27 September 2018, the Parole Board issued a warrant for the arrest of the respondent. The basis for the decision was that the respondent had allegedly returned a positive urine sample on 19 September 2018 for methamphetamine/amphetamine and benzodiazepine. He had also failed to report for supervision on 26 September 2018 as directed. The warrant was executed on 10 October 2018.
On 27 November 2019, the appellant was sentenced in the District Court following his plea of guilty to one count of committing theft using force, contrary to s 137(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). The circumstances of the offending were that on 30 September 2018 at about 2:00 am the victim had parked his car in the driveway of his house and walked inside. He returned soon after to collect something from the car and found the respondent inside the car going through the glove box. The respondent then approached the victim and pushed his chest against him so as to pin the victim between him and the car. The respondent told the victim to give him everything that he had. The victim handed over his wallet but there was no money in it. The respondent told the victim to drive him to a bank so he could withdraw money out of an ATM. He originally asked for $500 and then $1,000. However, the victim said that he only had $400 in his account. The victim withdrew $400 and handed it to the respondent. He then told the victim to drive him to a nearby place and warned him not to tell anyone what had happened because he knew his vehicle number and “[has] eyes everywhere”. The respondent also told the victim to move out of his house because he would come back in a week for his housemate. The victim recognised the voice of the respondent as being that of the man who had attended his home the previous day and threatened his housemate.
The sentencing Judge noted at some length the personal history of the respondent. He had been addicted to methamphetamine for many years, although his addiction took the form of long periods of regular use followed by long periods of abstinence. He suffered from depression and anxiety. A psychologist had reported that a lack of family support had been a significant trigger for these conditions. The psychologist also reported that the respondent met the criteria for a personality disorder with mixed borderline/antisocial traits. She suggested that he would benefit from counselling and a structured or heavily practical pre‑release program so as to encourage the building of skills and reintegration into the community. A report from the Aboriginal Sobriety Group stated that the respondent would be an excellent candidate for one of the rehabilitation programs offered by the Group on a farm at Monarto. While in custody the respondent had completed a number of general education courses and the violence prevention program. He was regarded as “somewhat of a leader” in the Indigenous community within prison, and a positive role model to other inmates.
At the time of the offence, the respondent had been drinking at the home of a relative. He spoke about the grief he had suffered upon the death of his sister several years earlier. The relative then ridiculed him, which made him angry and sad. Due to his feeling of resentment and abandonment, he decided to obtain some drugs to make himself feel better. The money taken from his victim was used to buy methamphetamine.
The Judge noted that “your offence is not an aggravated one, your conduct was, nevertheless, violent in a somewhat sinister way bearing in mind there were aspects of kidnapping”. The Judge described the offence as being of a relatively high level when compared to other offences of this nature. The Judge adopted a starting point of imprisonment of six years, which was reduced to four years, two months, one week and five days to reflect the discount for his early guilty plea. As the respondent was a serious repeat offender, the non-parole period was fixed at four-fifths of the head sentence and was thus three years, four months, one week and two days. The sentence and the non-parole period were to commence on 10 October 2018, when the respondent was taken into custody on the Parole Board warrant.
The proceedings concerning the ESO application
Following the sentencing of the respondent on 27 November 2019, the applicant pursued the ESO application. The matter was adjourned on several occasions before it eventually came before me in the HRO list.
In the meantime, on 11 March 2020 the Parole Board provided its views to the applicant. The Presiding Member noted that, because the respondent was not then eligible to apply for parole until 18 August 2021, it was difficult to consider in advance whether he would undertake sufficient intervention whilst in custody to reduce his criminogenic factors. The Presiding Member indicated that, in the view of the Parole Board, the imposition of an ESO would be justified because of the respondent’s offending history and his need for intervention to deal with his substance abuse and offending characteristics.
The Presiding Member also noted that the respondent had been convicted on 18 November 2019 of possession of a knife in a school or a public place. He had also been convicted on 21 January 2020 for interfering with a motor vehicle without consent. He was imprisoned for three months and disqualified from holding a driver’s licence for 12 months after his release from prison.
The Presiding Member concluded her report with the following observations:
The psychiatric report advises that his risk of re-offending is high. Much of his offending has been driven by his substance abuse problems, he has behavioural issues, his decision making is poor and his offending is frequently impulsive. All of those matters increase significantly his risk of offending and his risk of violent offending. It would be beneficial to Mr Jackson-Karpany to have assistance to deal with those factors. Experience tells us that given an entrenched pattern of behaviour those factors will not be dealt with in the short term. It will require long term and consistent intervention.
I note that there are a large number of reports relating to the respondent annexed to affidavits affirmed on behalf of the applicant. There are also psychiatric reports dated 3 March 2019 and 4 May 2020 prepared by Dr Catherine Crouch. The most recent report from Dr Crouch was received after the respondent’s counsel had made written submissions to the Court but before the applicant provided her submissions. For that reason, and in particular because the respondent had informed Dr Crouch that the making of an extended supervision order would potentially assist him to achieve his goal of ceasing to offend, I provided the respondent’s counsel with two opportunities to make further written submissions. However, no further submissions were made.
In the present context, it is not necessary to refer in any detail to the contents of the various reports. However, I do note that Dr Crouch stated in her report dated 4 May 2020 that “without further change and intervention it is likely that Mr Jackson-Karpany’s risk of reoffending in general would be high”. At a later point, she observed that if he “were to continue or relapse into use of alcohol and illicit substances this risk would be considered high”. Importantly, Dr Crouch also noted that much of the respondent’s offending was non-violent and the risk of further serious violent offending was moderate.
The respondent’s submissions
The respondent submits that the offence for which he is currently serving a term of imprisonment was not a serious offence of violence. Thus, it is not possible to make an ESO in reliance upon that conviction. The applicant is seeking to adjourn the matter for more than four years so as to keep alive the application made in 2018. That approach has been adopted because the applicant will not be able to obtain an ESO upon the expiry of the current sentence in 2022.
The respondent submits that the approach adopted by the applicant amounts to an abuse of process. The law is clear as to when an ESO may be made and in what circumstances. ESO’s are oppressive and a deprivation of a person’s liberty. The respondent does not “qualify” under the HRO Act and the Court should not permit the applicant to manipulate the framework so as to keep alive an application that would not otherwise be permitted. For these reasons, the respondent submits that the application for an adjournment should be refused as an abuse of process and the application for an ESO dismissed. The respondent also observes that if the Court was now to grant an ESO it would effectively be redundant as the respondent will be in custody for close to two years.
If the Court does not accept the preceding submissions, the respondent requests that the Court consider the application now on its merits and make final orders.
The applicant’s submissions
The applicant submits that the facts of the offences committed by the respondent on 29 January 2014 arguably establish that he is a “high risk offender” as defined in s 5 of the HRO Act. That proposition is advanced on the basis that the injuries suffered by the victim arguably meet the threshold of “harm that endangers a person’s life” as defined in s 21 of the CLCA. Alternatively, the applicant contends that the action of the respondent in punching the victim in the face and attacking him with scissors posed an obvious risk of serious harm. The applicant also submits that the conduct of threatening the victim with a knife also posed a risk of serious mental harm to the victim, being harm that consists of, or results in, serious and protracted impairment of a mental function within the meaning of s 21 of the CLCA. Thus, the applicant contends that because the respondent has been convicted of two serious offences of violence, he is a “serious violent offender” and thus a “high risk offender” within the meaning of s 5 of the HRO Act.
The applicant further submits that the reports of Dr Crouch support a finding that the respondent poses an appreciable risk to the safety of the community if not supervised under an ESO. The applicant contends that such a finding is supported by the respondent’s criminal history and also by the views expressed by the Parole Board.

The applicant submits that the respondent’s contention that the approach advocated by the applicant would be an abuse of process reflects a misunderstanding of the nature of the application, the operation of the HRO Act and the basis upon which the request for an adjournment has been made.
The applicant submits that the application for an ESO was properly brought at the appropriate time prior to the expiry of the respondent’s sentence in July 2018. The evidence filed in support of the application established a prima facie case for the making of an ESO. The correctness of this contention is said to be demonstrated by the making of the interim supervision order on 4 July 2018.
The applicant further submits that the making of an ESO does not constitute punishment and nor is it related to any particular offending. It is solely a measure undertaken to protect the community. The primary consideration for the Court is the risk to the community if a person is left unsupervised. The mere fact that a person who is subject to an order may subsequently be convicted and sentenced for further offences does not negate the need for the Court to have regard to the protection of the community and the management of risk in respect of any application that has been properly made under the Act.
An ESO may be made for a period of up to five years. There is nothing in the HRO Act to preclude the making of an order in respect of a person who is in custody or who will be in custody for part of the term of the proposed order. That situation is anticipated by the HRO Act and dealt with in s 12(2), which provides for the suspension of an order during any period that a person is in government custody.
The applicant contends that there is sufficient evidence before the Court for it to be satisfied that its jurisdiction to make an ESO has been enlivened and, further, that this is an appropriate case in which to make an order.
There is no basis to suggest that the further conviction and imprisonment of a respondent can convert an otherwise properly made application for an ESO into an abuse of process. The applicant also submits that whether or not the Court will have jurisdiction to make an ESO based upon the most recent offending, should an application be made, is not relevant to the determination of the current application. It is not clear whether the most recent offending would support an application for an ESO and, in any event, such an application cannot be made until 12 months prior to the expiry of the current sentence.
The applicant also observes that if the respondent were to be released upon the expiry of his non-parole period, he would only be required to spend a short period under supervision as the non-parole period is four-fifths of his sentence. If he is required to serve the full sentence, then he would be released into the community without supervision. The applicant submits that this would pose an unacceptable risk to the safety of the community.
In support of her contention that there is no abuse of process, the applicant submits that there is currently a sufficient basis for the application to be determined and orders made. Given the nature of the risk posed by the respondent, it will be appropriate for an ESO to be made regardless of the steps taken to address the risk of reoffending whilst the respondent is imprisoned. Nevertheless, the applicant acknowledges that it is reasonably likely that events may occur, in particular the undertaking of rehabilitation programs, while the respondent is in custody that may be relevant to the conditions attached to a future ESO. In that respect, the Department for Correctional Services has advised that there are a number of programs and services available to and suitable for the respondent should he choose to participate. The extent of any such participation will be an important consideration for the Court in determining whether to make an ESO and, if an order is made, the appropriate conditions and length of such an order. The adjournment of proceedings will enable the Court to take into account a current assessment of the risk that the respondent may pose to the community.
The applicant also submits that the adjournment of the proceedings will not cause any prejudice to the respondent as he will be in custody in any event. In fact, the adjournment may benefit the respondent if he participates in appropriate programs and demonstrates progress in reducing his risk of reoffending.
The applicant also submits that if the Court is not minded to grant the adjournment, an ESO should be made with a duration that would allow at least 12 months supervision in the community after the expiry of the respondent’s current sentence. If the Court determines to adopt that approach, the applicant seeks the opportunity to provide further submissions in support of an ESO with conditions revised from those contained in the current interim order.
Consideration
I will assume for the purposes of the present judgment that the respondent is correct in submitting that the offence that occurred on 30 September 2018 would not support the making of an ESO on the basis that it was not a “serious offence of violence” within the meaning of s 83D(1) of the CLCA. However, for completeness, I note that the applicant has not conceded this point and the position may be far less certain than the respondent has suggested. The position is simply that there is currently no information or submissions before the Court concerning any harm, or risk of harm, suffered by the victim that might bring the matter within the definition of “serious offence of violence” in s 83D(1) of the CLCA as applied by s 4(1) of the HRO Act.
I turn to the question of whether the approach adopted by the applicant gives rise to an abuse of the process of the Court. While the meaning of this concept has been considered in a great many authorities, a useful summary was provided by Bleby J in JT Nominees Pty Ltd v Macks where his Honour stated:[1]
Although [abuse of process] is a compendious term, it is usually associated with some improper or collateral purpose, impugning some other court decision, involving more than one action for the same relief or some complaint associated with the process itself rather than the cause of action.
[1] (2007) 97 SASR 471 at [30].
In Acre Development Pty Ltd v National Companies and Securities Commission King CJ stated:[2]
Processes of the court are abused when the issuing of the process or some action taken in pursuance of it amounts to a misuse of the process for some improper purpose or in an improper way.
[2] (1987) 138 LSJS 481 at 484.
In light of these authorities the question is whether the approach adopted by the applicant involves a misuse of the process of the Court for an improper purpose or in an improper way or for some collateral purpose.
The fact that a Judge of this Court was satisfied that there were proper grounds for the issue of an interim supervision order on 4 July 2018 clearly establishes that there was nothing improper about the making of the application for an ESO on 26 June 2018. However, that is not the gravamen of the respondent’s complaint. His concern lies with the request that the matter be adjourned until close to the expiry of his current sentence in circumstances where he contends that the offending which led to this sentence would not support the making of an ESO.
While the circumstances of the present matter are unusual, if not unique, the situation that the respondent finds himself in is one of his own making. I say that because the request for an adjournment and a deferred decision has arisen solely because he committed a further offence that resulted in a lengthy term of imprisonment soon after he was made subject to an interim supervision order. If that had not occurred, the application for an ESO would have been decided on its merits long ago.
What the respondent now seeks is that the Court dismiss what, at least on the basis of a preliminary examination and without having heard from the respondent, appears to be an arguable case for the grant of an ESO solely because he has committed a further offence. There is no trickery or sharp or deceptive conduct or misuse of the processes of the Court on the part of the applicant. It has proposed what I consider to be an appropriate solution to a situation caused solely by the conduct of the respondent.
My conclusion that there is no abuse of process involved in the approach adopted by the applicant, is supported to some extent by the fact that s 12(2) of the HRO Act provides for the suspension of the obligations of a person subject to an ESO during any period that they are in government custody.
As the applicant has noted, her request that the matter not be determined until closer to the time that the respondent is due to be released from custody may potentially work to his advantage. That may be the case if the respondent shows that he has made significant progress towards dealing with his substance abuse problems and reducing the likelihood that he will continue to offend. Those matters would clearly be highly relevant to the future decision of the Court as to whether he should be subject to an ESO and, if so, the terms of such an order. For that reason, I do not consider that it is appropriate to determine immediately the application made in 2018.
The respondent should be given the chance to demonstrate progress towards rehabilitation. In that respect, I note that the most recent report of Dr Crouch suggests that there is some optimism about the prospect of rehabilitation. The Department for Correctional Services has advised that appropriate programs should be available to the respondent.
For these reasons, I reject the respondent’s contention that the application for an adjournment and later determination amounts to an abuse of process of the Court. The application should be set down on an appropriate date closer to the respondent’s likely release date. In due course, orders will need to be made for the preparation of a current report.
Conclusion
I grant the application for an adjournment until a date to be fixed, with liberty to apply.