Attorney-General (SA) v Karpany - [2023] SASC 127

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v KARPANY
[2023] SASC 127
Reasons for Decision of the Honourable Justice Kimber
26 September 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AND OTHER MATTERS RELATING TO TERRORISM - CONTROL, EXTENDED SUPERVISION, PREVENTATIVE DETENTION AND CONTINUING DETENTION ORDERS
On 13 November 2020, the respondent was made subject to an extended supervision order (ESO) pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act) for the second time. On 18 July 2022, the respondent was taken into custody on a Parole Board warrant in respect of breaches of the ESO. On 25 October 2022, the Parole board directed that the respondent be detained in custody pending the determination of this Court whether a continuing detention order should be made pursuant to s 18 of the Act.
The respondent has breached his current ESO and prior ESO on a number of occasions. Counsel for the applicant submitted that this placed the respondent at a high risk of reoffending. Furthermore, that the respondent should be detained in custody for the purpose of completing individualised treatment programs.
The respondent submitted a continuing detention order should not be made. The respondent emphasised, among other things, that he has not reoffended in any significant way and that his level of risk to the community has not changed since he was placed on the second ESO.
Held:
1. The application is dismissed.
2.While the respondent poses an appreciable risk to the safety of the community, the discretion should not be exercised to impose a continuing detention order. The ESO has not failed to safeguard the community.

Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 17 and 18, referred to.
Attorney-General v Drion [2020] SASC 120; Attorney-General v Sullivan (No 2) [2018] SASC 74; Attorney-General (SA) v Coaby [2019] SASC 137; Garlett v Western Australia [2022] HCA 30; Attorney-General v Francis [2007] 1 Qd R 396; R v Schuster [2016] SASCFC 86; Attorney-General (SA) v Brandon [2019] SASC 85, applied.
Attorney-General (SA) v Karpany [2020] SASC 219, discussed.

ATTORNEY-GENERAL (SA) v KARPANY
[2023] SASC 127
Criminal: Application
KIMBER J:

This is an application by the Attorney‑General for a continuing detention order pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act).
On 13 November 2020, this Court made an extended supervision order (the ESO) with respect to Trevor John Karpany (the respondent) pursuant to s 7(4) of the Act. The ESO is not due to expire until 12 November 2025.
Between 13 to 18 July 2022, the respondent breached conditions of the ESO by testing positive to illicit drugs and loitering at a public toilet in the Adelaide City Parklands. On 18 July 2022, the Parole Board issued a warrant for the respondent’s arrest which was executed the same day. On 25 October 2022, the Parole Board satisfied itself that the respondent had breached the conditions of the ESO and determined pursuant to s 17(1)(b)(ii) of the Act that Mr Karpany be detained in custody pending determination by this Court whether a continuing detention order should be made.
Material received
On 21 July 2023, I heard submissions from counsel for the Attorney‑General and counsel for the respondent with respect to whether I should make a continuing detention order. I have also been assisted by written submissions from both counsel. With the consent of the parties, I have received into evidence the following material:
1The first affidavit of Chol Pager dated 15 November 2022;
2.The second affidavit of Chol Pager dated 16 December 2022;
3.The third affidavit of Chol Pager dated 24 February 2023;
4.Psychological report of Luke Williams dated 2 June 2023;
5.Affidavit of Aayla Watts dated 17 July 2023; and
6.The fourth affidavit of Chol Pager dated 17 July 2023.
Mr Williams gave evidence and was cross‑examined. In addition, I also received a National Disability Insurance Scheme (NDIS) plan for the respondent approved on 27 July 2023.
Continuing detention orders
Section 18(2) of the Act provides:
(2)The Supreme Court may, if satisfied that the person—
(a) has breached a condition of the supervision order; and
(b) poses an appreciable risk to the safety of the community if not detained in custody,
order that the person be detained in custody (a continuing detention order) until the expiration of the supervision order, or for such lesser period as may be specified by the Court.
Section 18(2)(a) and (b) are in the nature of jurisdictional facts. A finding of the existence of both jurisdictional facts enlivens a discretionary power.
Section 18(3) provides that the paramount consideration of this Court in determining whether to make a continuing must be the safety of the community.
Breaches of the ESO
On 25 October 2022, the Parole Board interviewed the respondent and found that he had breached conditions of the ESO on three occasions:
1.The ‘not loiter’ condition (condition 2(e)(iii)) by loitering at a public toilet in the Adelaide City Parklands between 1316 hrs and 1348 hours on 13 July 2022;
2.The ‘no drugs’ condition (condition 2(f)(ii)) on 14 July 2022 by providing a urine sample that tested positive to illicit substances (methamphetamine/amphetamine and cannabis); and
3.The ‘no drugs’ condition (condition 2(f)(ii)) on 18 July 2022 by providing a urine sample that tested positive to illicit substances.
The respondent does not dispute the conduct giving rise to the alleged breaches. Accordingly, I am satisfied that the respondent has breached his ESO.
Mr Karpany’s personal circumstances and criminal antecedents
The respondent is 39 years of age. There is evidence establishing that he has a diagnosis of chronic treatment resistant schizophrenia, an antisocial personality disorder and a history of polysubstance abuse. Mr Karpany also has impaired cognitive functioning and meets the criteria for a diagnosis of an intellectual developmental disorder.
Mr Karpany’s background has previously been summarised by Livesey J (as he then was) in Attorney-General (SA) v Karpany [2020] SASC 219 (Karpany). I respectfully adopt that summary:
33.Mr Karpany was born to a Kukutha man and Narrunga woman. His childhood was disruptive. His father was violent and had very little involvement in his upbringing. Mr Karpany says that his mother “was bashed, and subsequently died while drinking” when he was 12 years old. There are varied reports as to what then happened to Mr Karpany. Some reports say that he was raised by his maternal aunt, others that he was taken into foster care.
34.Mr Karpany attended schools at Klemzig, Salisbury and Waikerie before leaving school at the age of approximately 15 years. He also attended the Tauondi College one day a week for numeracy and literacy classes. He has difficulties with literacy and numeracy, and identifies English as his second language after Ngarrindjeri.
35.Mr Karpany claims that he sustained brain damage as a result of being hit by a vehicle, allegedly running a red light, at the age of 14. There is no firm evidence that this accident took place. There is no evidence of trauma in medical scans of the head. Nonetheless, it forms an integral part of his narrative.
36.Mr Karpany commenced using cannabis at the age of 13. He started stealing the drug from his older brother, who was growing it. He used cannabis several times a week. This pattern continued for decades.
37.Mr Karpany first used heroin at the age of 23. He claims that he became immediately “hooked” because of its relaxation effects. Mr Karpany became a prolific user. He continued taking heroin until he was 28 years. He then switched to methamphetamines. Initially, he smoked it through an “ice pipe”. Later, he commenced intravenous use.
38.Mr Karpany also has a history of taking solvents and opioids, though amphetamines remain his substance of choice. He has admitted breaking into cars “every once in a while” in order to fund his drug abuse and basic needs.
39.Whilst Mr Karpany does not consider himself “much of a drinker”, a report from the Department for Correctional Services dated 16 February 2018 states that he has a “long history of problematic alcohol use”. He has previously disclosed that he drank a bottle of whiskey or a carton of beer with friends and relatives whenever someone received their pay.
40.Mr Karpany has a limited employment history. His only employment whilst in the community was with United Enterprises where he engaged in a supported work program in gardening and maintenance. He took part in this work between late 2015 and mid-2016, but the placement ended when he relapsed into regular drug use. He was also employed as an assembly worker during his time at Mobilong Prison.
41.Mr Karpany has previously had romantic relationships with women. His longest relationships have been between three and four years in duration. He claims to have had two children but is not in contact with either of them.
42.Mr Karpany has an intellectual impairment. His IQ has been assessed at or around the level of 65 and in the intellectual disability zone. Nevertheless, he has been found to function at a higher level and have a “street-wise” quality about him.
43.Mr Karpany first came to the attention of Mental Health Services in 1999. He has had a number of admissions for substance-induced episodes at Glenside, the Royal Adelaide Hospital and the Queen Elizabeth Hospital. He has spent significant portions of the previous decade in various other facilities including James Nash House, Ashton House and the Margaret Tobin Centre in order to receive treatment. Mr Karpany has been diagnosed with an antisocial personality disorder. In 2003, he was formally diagnosed with schizophrenia and has since been prescribed, and has taken, various forms of antipsychotic medication. Nonetheless, he has a history of non-compliance with treatment. He has, historically, relapsed into substance abuse after his release from the facilities in which he was being treated.
Mr Karpany’s criminal antecedents are also summarised in that judgment. I respectfully adopt that summary:[1]
45.Mr Karpany was convicted of his first offences in May 1997 (larceny and resisting police) at the age of 13 in the Adelaide Children’s Court. He received a sentence of five weeks’ detention, suspended upon the entering into a bond to be of good behaviour for 12 months.
46.Since then Mr Karpany has appeared almost every year before the State’s criminal courts, often on multiple occasions. The predominant pattern of his offending includes larceny, driving-related offences, assaults and trespass. He has a very poor history of compliance, having received 30 convictions for failing to comply with bail conditions. He has breached good behaviour bonds on not less than eight occasions. In 2008, 2010 and 2013 Mr Karpany was found not guilty for a string of offences, which included criminal trespass, property damage, assault and dishonestly taking property without consent, pursuant to s 269 of the Criminal Law Consolidation Act 1935 (SA). On each occasion, he was released on conditional licence with supervision.
47.Mr Karpany has also come before the State’s criminal courts in relation to sexually‑related offending. In 1997, when Mr Karpany was just 13 years of age, he was discharged without penalty for allegedly indecently assaulting a 14-year-old girl the year before. It is alleged that Mr Karpany held the victim down whilst another individual lifted up the victim’s shirt to touch her breasts and pulled her pants down in an attempt to touch her vagina. Then, in 2012, Mr Karpany was alleged to have exposed his penis and rubbed it in public whilst on a bus. He was charged with indecent behaviour but was found not guilty by reason of mental incompetence pursuant to s 269 of the Criminal Law Consolidation Act 1935 (SA). In late 2018, Mr Karpany allegedly lifted the dress of a 15-year-old school girl and grabbed her buttock at a shop in the Adelaide CBD whilst the girl was on a school excursion. Mr Karpany is currently awaiting trial for this offending.
48.Relevantly, on 24 September 2019, Mr Karpany was sentenced in the Magistrates Court to a period of imprisonment of five months and 18 days for indecent assault, attempted theft and assault.[25] The sentence was backdated to commence on 4 May 2019.
49.The indecent assault occurred on 4 April 2019. The victim, a 17-year-old girl, was at a bus stop intending to catch a bus to go to school. As she waited, Mr Karpany, who was unknown to her, placed his hand between her legs on her upper thigh and buttocks for a few seconds before fleeing from the scene. He was arrested two days later.
50.Mr Karpany was sentenced in the Magistrates Court. The Magistrate considered it reasonable to sentence Mr Karpany on the basis that he was “unwell” when these offences occurred, but exactly how “unwell” he was, the Magistrate could not say. On this basis, the Magistrate gave a more lenient sentence than he would otherwise have ordered.
[1] Karpany, [45]–[50].
There are two qualifications to Mr Karpany’s history since the above judgment was delivered. First, the alleged offence in 2018 referred to at paragraph 47 was ultimately not proceeded with by prosecution. In the circumstances, that allegation must be ignored. Second, since the above judgment, Mr Karpany has been convicted of an offence of failing to comply with an Australian National Child Offender Register (ANCOR) reporting obligation. Mr Karpany committed that offence on 12 May 2022 by failing to report within seven days of his release from custody. He was sentenced to seven days imprisonment. Mr Karpany has not otherwise offended in the four years since he committed the indecent assault offence in April 2019.
Prior breaches of the interim and extended supervision order
Mr Karpany has an extensive history of breaching the ESO and the interim supervision order (ISO) that preceded it. It is necessary to set that history out in some detail.
Mr Karpany was subject to the ISO for the period commencing 16 October 2019 until 13 November 2020. Mr Karpany was first released from custody on 21 October 2019 subject to the conditions of the ISO. The following day he was arrested on a Parole Board warrant for breaching the residential and electronic monitoring conditions.
In a letter to the Crown Solicitor’s Office dated 17 December 2019, the Parole Board stated that Mr Karpany had been referred to NDIS, and indicated a concern that Mr Karpany did not fully understand the conditions of the ISO due to his limited capacity. The Parole Board recommended that Mr Karpany be released once NDIS supports and suitable accommodation were in place to suit Mr Karpany’s needs. The Attorney‑General subsequently filed an application for a continuing detention order to be determined by this Court.
By 1 May 2020, the Department for Correctional Services (DCS) advised that it had organised Housing SA accommodation for Mr Karpany as well as other supports including a NDIS support package involving four and half hours of in‑person support on weekdays and three hours’ support on weekends. On 7 May 2020, Mr Karpany was released again subject to the terms of the ISO and with the above supports in place. With the Attorney‑General submitting it was appropriate, the Court declined to make a continuing detention order due the above supports being available to Mr Karpany upon his release.
Nonetheless, within a month of his release, Mr Karpany breached the ISO again on three occasions by consuming alcohol and illicit drugs on 28 May, 1 June and 3 June 2020. On 3 June 2020, the Parole Board issued a warrant for Mr Karpany’s arrest for the breaches of his ISO. The warrant was executed the following day. The Parole Board interviewed and subsequently determined to release Mr Karpany on 1 July 2020.
On 3 July 2020, two days following his release from custody, Mr Karpany breached the electronic monitoring conditions of the ISO. On 7 July 2020, the Parole Board issued a warrant for Mr Karpany’s arrest which was executed on the same day. After appearing before the Parole Board, Mr Karpany was again released from custody on 5 August 2020.
Mr Karpany next breached the ISO on 7 September 2020, about a month after his release, by testing positive to illicit substances. He then committed a further breach of the same nature on 22 September 2020. On 30 September 2020, the Parole Board issued a warrant for Mr Karpany’s arrest which was executed on the same day. After appearing before the Parole Board, Mr Karpany was released from custody on 6 November 2020.
On 13 November 2020, this Court determined to grant the application for the ESO and Mr Karpany was released from custody subject to the conditions of the ESO.
Since the granting of the ESO, Mr Karpany has breached its conditions multiple times. The breaches have been of the same or similar nature to those that occurred under the ISO. It is necessary to set them out in detail. As with breaches of earlier orders, it is also necessary to detail the Parole Board’s responses to the breaches.
The first set of ESO breaches
Eleven days after his release on the ESO, Mr Karpany breached its conditions by failing to attend supervision appointments on 24 and 26 November 2020. He also breached the no alcohol condition and tested positive for methamphetamine on 3 December 2020. On 9 December 2020, a Parole Board warrant was issued and executed the same day. On 10 February 2021, Mr Karpany appeared before the Parole Board and was subsequently released from custody.
The second set of ESO breaches
On 26 February 2021, 16 days after his release, Mr Karpany breached a number of conditions of the ESO by testing positive to illicit drugs, failing to obey his Community Corrections Officer by failing to open his door as directed, failing to answer his telephone, and failing to comply with the rules of electronic monitoring. The Parole Board issued a warrant for his arrest which was executed on 1 March 2021.
On 13 May 2021, the Parole Board found the above breaches proved and varied the conditions of the ESO. The Parole Board ordered that Mr Karpany be released on 14 May 2021, subject to the High Intensity Treatment team (HIT) providing supervision to Mr Karpany upon his release. It also imposed further conditions within the ESO that Mr Karpany comply with the directions of the HIT team and the directions of NDIS support workers.
The third set of ESO breaches
On 31 May, 1 June and 17 June 2021, Mr Karpany again breached the conditions of his ESO by consuming illicit substances. The first of the breaches occurred just over a fortnight after his release. On 5 July 2021, the Parole Board issued a summons for Mr Karpany to attend before it. Subsequently, the Parole Board was alerted to further breaches of the no drugs condition occurring on 1 and 19 July 2021. However, those breaches did not result in a warrant being issued for his arrest.
On 3 August 2021, the Parole Board interviewed Mr Karpany who attended in answer to the summons. The Parole Board found the breaches proved. The Parole Board resolved to warn Mr Karpany with respect to the breaches and take no further action, save and except to vary the ESO home detention condition to allow freedom of movement subject to a curfew between the hours of 6.00pm to 8.00am.
The fourth set of ESO breaches

Mr Karpany subsequently breached the no drugs condition of his ESO on fourteen separate occasions between 3 August 2021 and 24 November 2021 (by testing positive to, or admitting, cannabis and amphetamine use). He also breached the curfew condition on one occasion on 7 September 2021. On 12 October 2021, the Parole Board issued a summons for Mr Karpany to appear before it. In answer to the summons, Mr Karpany appeared for interview on 25 November 2021. The Parole Board found the breaches proved and warned Mr Karpany that a warrant would be issued for further breaches. The Parole Board deferred decision pending updates as to Mr Karpany’s progress.
The fifth set of ESO breaches
Mr Karpany next breached the conditions of his ESO on 17 December 2021 and committed the following further breaches: on 7 January 2022, by testing positive to cannabis; on 18 January 2022, by breaching the curfew condition; and by failing to maintain a telephone service for several weeks. The Parole Board again issued a summons for Mr Karpany to attend before it. Mr Karpany attended for interview on 3 March 2022. The Parole Board found the breaches proved and resolved to take no further action.
The sixth set of ESO breaches
Mr Karpany next breached the ESO between 22 March 2022 and 12 April 2022 with six breaches of the no drugs condition and one breach of the curfew condition. Mr Karpany spent time in the Adelaide Remand Centre between 14 April 2022 and 4 May 2022 due to the Parole Board issuing a warrant for Mr Karpany’s arrest for the alleged breaches. He was released on 4 May 2022 and summonsed to appear before the Parole Board. On 22 June 2022, the Parole Board found the breaches proved, warned Mr Karpany and took no further action.
Around this time, Mr Karpany also committed the offence of failing to comply with his ANCOR reporting obligations by failing to report within seven days of his release from custody on 4 May 2022. Mr Karpany was later convicted and sentenced.
The seventh set of ESO breaches
Mr Karpany next breached the ESO on 13 July 2022 by loitering near a public toilet and on 14 and 18 July 2022 by testing positive to illicit drugs. These are the breaches for which the Parole Board issued a warrant for his arrest and, having been satisfied the breaches were proved, directed Mr Karpany be detained in custody pending attendance before the Supreme Court pursuant to s 17(1)(b)(ii) of the Act.
Management of Mr Karpany on the ISO and ESO
As can be seen from the above, when Mr Karpany was first placed on the ISO, he breached the conditions the following day. That caused him to be remanded in custody for some months while community supports were put in place to aid him in compliance with the conditions of the ISO on his subsequent release. When he was released in May 2020, Mr Karpany had the benefit of Housing SA accommodation and NDIS support for approximately four hours per day. Nonetheless, Mr Karpany continued to breach the conditions of the ISO and later the ESO. In particular, the conditions relating to electronic monitoring and the no drugs and alcohol conditions. For 12 months from May 2020 to May 2021, the Parole Board responded to these breaches by issuing warrants for Mr Karpany’s arrest reasonably soon after the breaches occurred. Mr Karpany would almost invariably be arrested that same day; would spend some time in custody; appear before the Parole Board for interview; be released subject to the terms of the ISO or ESO; and would breach again. In short, the cycle of breaches, time in custody and release continued.
From 14 May 2021, however, there was a change in how Mr Karpany was managed. On that day, Mr Karpany was placed on the High Intensity Treatment Program (the HIT Program) and was required to comply with any direction from the HIT team. Under this regime, DCS would alert the Parole Board to any breach of the ESO conditions as they had done previously (and there were many), but DCS would recommend that the Parole Board issue a summons for Mr Karpany to appear before it in answer to the breaches, rather than issuing a warrant which would have seen him arrested. This allowed Mr Karpany to remain in the community for a significant amount of time rather than cycle in and out of custody as had previously occurred. In addition, as has been set out above, on 5 August 2021 the Parole Board relaxed the home detention condition of the ESO to allow Mr Karpany freedom of movement during the day (whilst still being subject to electronic monitoring and a curfew).
It can be inferred that the reason for this change in approach was to allow Mr Karpany the opportunity to progress his rehabilitation under the management of the HIT Program without the constant disruption of being taken into custody for repeated breaches, whilst presumably also carefully monitoring the level of risk that he posed to the safety of the community as the breaches arose. When Mr Karpany appeared before the Parole Board in answer to these summonses, he was invariably released with a warning and no further action was taken in respect of the breaches. This was presumably to allow his rehabilitation in the community to continue. For example, the Minute from the HIT Program manager dated 15 December 2021 recommended to the Parole Board that the HIT Program have further time to work with Mr Karpany in the community to address his substance use. The writer acknowledged the substance use breached the ESO, however noted that Mr Karpany’s substance use had reduced while on the program.[2]
[2] Affidavit of Chol Garang Pager, 16 December 2022 (FDN 7), 161 (exhibit pagination).
It would appear that if DCS were particularly concerned about the nature of any breach, DCS would recommend that the Parole Board issue a warrant for Mr Karpany’s arrest, which the Parole Board would do. This occurred on 14 April 2022,[3] with Mr Karpany subsequently being released on 4 May 2022, and July 2022.[4] It was the warrant in July 2022 that has led to Mr Karpany’s current remand in custody pending determination of the continuing detention order by this Court. On both these occasions, accompanying a recommendation for a warrant, DCS documented a particular concern in respect of the deterioration of Mr Karpany’s behaviour and mental health.
[3] Ibid, 24.
[4] Ibid, 216.
It is notable that Mr Karpany remained in the community approximately 14 months from 14 May 2021 to when he was taken into custody on 18 July 2022, being managed under the HIT Program while subject to the ESO (save for 21 days spent in custody in April/May 2022). During this period Mr Karpany only committed one offence, failing to report to police within seven days of his release from custody on 4 May 2022 in accordance with his ANCOR obligations. It can be observed that Mr Karpany’s time in custody is the context in which his only instance of criminal offending occurred during the operation of both the ISO and ESO.
Despite the repeated breaches of the order, it appears that DCS was able to make efforts to advance the rehabilitation of Mr Karpany whilst at the same time contribute to the protection of the safety of the community. Despite the difficulties posed by the complexity of Mr Karpany’s needs, his entrenched illicit substance abuse and other anti-social behaviours, the HIT program appears to have been moderately successful in advancing Mr Karpany’s rehabilitation without repeated imprisonment for the breaches and while mitigating risk to the community.
Mr Karpany’s progress on the HIT Program
Among the materials before me is a document outlining the principles and objectives of the HIT Program.[5] To summarise, the HIT Program is a pilot program run by DCS that was specifically introduced to assist with management of individuals subject to interim and extended supervision orders pursuant to the Act. It provides intensive treatment and supervision to address the complex needs of selected individuals subject to these orders. The overall aim of the HIT Program is to assist individuals to successfully complete their supervision orders in the community. Mr Karpany appears to have satisfied the criteria for eligibility for the HIT Program and to have fallen within the priority group for selection. Individuals who are unwilling or unable to comply with the requirements of the HIT Program may not be included for participation.
[5] Affidavit of Chol Garang Pager, 16 December 2022 (FDN 7), 226.
Over the course of the approximately 14 months that Mr Karpany was on the HIT Program, clinicians appeared to develop a reasonably good working relationship with him, and some progress toward rehabilitation was made. This is not to ignore that it was noted in various DCS Minutes that Mr Karpany: continued to breach the order by alcohol and illicit drug use, often accompanied by a decline in his engagement with supervision; occasionally breached his curfew; at times was deceitful; and displayed minimal insight into his behaviour. However, the Minutes over this period also provide evidence of a trajectory of potential, albeit slow, progress, including the following:
·Mr Karpany’s compliance in attending regular medical appointments to receive depot injections for his Schizophrenia;
·Mr Karpany’s attendance at fortnightly alcohol and drug counselling with Nunkuwarrin Yunti and subsequently Centacare;
·Mr Karpany’s attendance and participation in the Yarning Circle where he was the only participant to attend all sessions; engaged well; demonstrated insight into his drug use; and showed a willingness to minimise his use of drugs as a coping mechanism;
·Mr Karpany made frank admissions to the High Intensity Treatment Clinician and the Aboriginal Specialist in respect of his drug and alcohol use and openly discussed his reasons for relapse, again demonstrating meaningful engagement with the support offered and allowing easy detection of his drug use as well as the development of strategies to prevent further misuse;
·A Behaviour Management Plan was implemented in the latter half of 2021. It was noted that Mr Karpany responded well and there had been a reduction in his THC levels which was described as promising given his chronic THC use throughout his life;[6]
·Mr Karpany’s THC levels and his sporadic use of methamphetamine was constantly monitored. In light of his drug use, regular reassessments were made in respect of Mr Karpany’s level of risk of reoffending, as documented in DCS Minutes and reported to the Parole Board;
·Mr Karpany increasing engagement in pro-social activities such as daily exercise; the Kura Yerlo Men’s Shed; grief and trauma counselling; and appearing to benefit from an improved weekly structure.
The expert evidence
[6] Affidavit of Chol Garang Pager, 16 December 2022 (FDN 7), 161.
The report of Dr Nambiar
A psychiatric report dated 29 January 2020 was obtained under s 7(3)(a) of the Act from Dr Nambiar. This report was considered by Livesey J in determination of the application for the ESO.
Dr Nambiar considered that Mr Karpany poses a high risk of general offending whether treated for his Schizophrenia or not. Dr Nambiar opined that Mr Karpany’s use of illicit substances increases his degree of disinhibition, and that would appear to further contribute to a risk of sex offending if the opportunity presented itself. However, Mr Karpany’s risk of reoffending in a sexual manner is reduced if his Schizophrenia is treated and he remains compliant with his treatment. Dr Nambiar also gave evidence before Livesey J. The effect of his evidence was summarised as follows:
As may be obvious, Dr Nambiar was strongly supportive of the imposition of an order with conditions. As I understood his evidence, whilst there was some risk of non-compliance regardless of illicit drug use, subjecting Mr Karpany to an order with conditions carried with it the best prospect of both treating Mr Karpany and curbing the risk that he otherwise poses to the community.[7]
[7] Attorney-General (SA) v Karpany [2020] SASC 219, [86].
The report of Ms Boyd
On 19 December 2022, in respect of the current proceeding, this Court referred Mr Karpany for an updated cognitive and neuropsychological assessment and a full dynamic assessment of Mr Karpany’s risk of sexual reoffending. The results of that assessment are contained in the report of Ms Stephanie Boyd dated 10 February 2023 (the report of Ms Boyd).
To summarise, Ms Boyd concluded that:
·Mr Karpany’s cognitive ability and neuropsychological were assessed to be within the extremely low range of functioning, demonstrating significant defects in verbal comprehension, working memory and processing speed, and overall he presents with significant cognitive and executive functioning difficulties;
·Mr Karpany was determined to be at above‑average risk of sexual re‑offending, or moderate to high-risk according to DCS’s operational risk language;
·Mr Karpany does not have the intellectual capacity to participate in a mainstream criminogenic program;
·To reduce his risk of reoffending and engage successfully in group treatment, Mr Karpany should engage in a program that is better suited to his cognitive and neuropsychological functioning, such as the SBC‑me program; and
·The report then makes recommendations to support Mr Karpany’s learning in the SBC‑me program.
The report of Mr Luke Williams
Pursuant to s 20 of the Act, a psychological report dated 2 June 2023, was obtained from Mr Luke Williams. The report was ordered to provide an expert opinion on Mr Karpany’s cognitive capacity to understand and obey the conditions of the ESO, given the large number of breaches that had occurred, and to provide an assessment of what may assist Mr Karpany’s capacity to obey and understand the conditions of the ESO or assist in relation to his various mental health diagnoses.
In respect of Mr Karpany’s ability to comply with the conditions of the ESO, Mr Williams opined that:
Mr Karpany’s ability to comply with the conditions of an ESO are less than the average individual. He may at times fail to comprehend verbal or written instructions, particularly when they are communicated without significant repetition or changed. His ability to communicate with his case manager is likely to be poor, which would inhibit his ability to seek appropriate support or discuss problematic behaviour prior to it occurring. He is likely to struggle with remembering information presented to him by his case manager regarding appointments or changes to his routine.
It should be noted, however, that Mr Karpany’s cognitive abilities would not preclude him from being able to comply with the requirements of conditional release. Rather, his frequent breaches have also been influenced by other factors. At interview, Mr Karpany described a limited willingness to comply with conditions, particularly regarding his ongoing use of illicit substances. He reported that he had understood the potential consequences of using and stated that the possibility of imprisonment was of limited deterrence. He made statements that were dismissive of the ESO and the case management process in general, expressing the opinion that he should be ‘allowed to do what [he] wanted’.
Mr Karpany’s mental health, exacerbated by his ongoing use of illicit substances, has also played a significant role in his history of non-compliance and offending behaviour. During periods of decline Mr Karpany’s ability and willingness to comply with conditions is significantly impaired. His use of illicit substances has both a causative and exacerbating effect on his mental health and represents a significant risk factor in relation to future offending and compliance with supervision.
Whatever the aetiology, it is clear from his history that Mr Karpany’s ability to comply with ESO conditions is poor. DCS have deployed significant resources to support Mr Karpany to remain in the community via the HIT program, however this appears to have been of limited efficacy thus far. Through this program Mr Karpany has been provided with intensive psychological, social and cultural support, assertive case management and treatment, and a continuity of care between the custodial and community environments. He has been engaged with significant treatment resources to assist him in reducing his use of illicit substances with little apparent effect. Despite this, he has displayed a consistent pattern of non-compliance with the requirements of his ESO that will most likely continue into the future.[8]
[8] Report of Mr Williams, p 12–13.
In relation to the proposed treatment that may assist Mr Karpany’s capacity to understand and comply with the conditions of his ESO, Mr Williams opined as follows:
Given the closely identified link between Mr Karpany’s mental health and risk to others, assertive management of his medication compliance through continued CTO’s and engagement with Community Mental Health Teams will be important in ensuring his ongoing stability following his release into the community.
Mr Karpany retains significant treatment needs in relation to his use of illicit substances. This presents the greatest risk in terms of his reoffending. Whilst significant treatment resources have been directed towards Mr Karpany, he will require ongoing intervention and support to promote abstinence. However, given the longstanding effective input of Mr Karpany’s case management via the HIT Program there is nothing that can be further recommended to manage this.
Monitoring Mr Karpany’s usage of illicit substance via urinalysis will likely be the most effective tool in mitigating his risk to others and of further offending. This must be balanced against Mr Karpany’s apparent inability to refrain from usage and the resulting high likelihood of him breaching the condition of his ESO.
Mr Karpany has a current plan in place with the National Disability Insurance Scheme (NDIS) which provides funding for a range of supportive services. A review of collateral information suggests that these supports have been comprehensive and cognisant of Mr Karpany’s mental health and cultural needs. The only additional consideration I would suggest is the provision of supported accommodation in the community, which would provide added mental health assistance and an extra level of monitoring/control in terms of Mr Karpany’s substance use and associations with antisocial individuals.[9]
[9] Ibid.
Mr Williams gave evidence before me. There were two main aspects to his evidence.
First, consistent with his report above, Mr Williams recommended that Mr Karpany receive supported accommodation which would involve constant care. Mr Williams stated:
It’s generally referred to as supportive residential facilities so it’s like, you know, a structure or a house in which there’s support staff who are there, you know, generally around the clock. They provide assistance in terms of providing medication, you know helping assisting people with their self-care activities, there are structures and rules and curfews in place, restrictions around who is allowed to come in and out of the house.[10]
[10] T9, ln 32–38.
Mr Williams stated that a level of care that involved only three to four hours of support each day would be insufficient to manage Mr Karpany’s needs.
Second, Mr Williams opined that as a result of the period of time Mr Karpany had spent in custody, his mental health had reached a point of being as stable as it might be. The risk of a decline in the mental health of Mr Karpany lies, Mr Williams said, in Mr Karpany’s release from custody when some of the factors that have assisted in him reaching the level of stability that currently exists are not present, or new risks arise, such as illicit drug use. In my view, given Mr Karpany’s history, drug use in the community is likely inevitable.
The NDIS Plan

I have been provided with a NDIS plan for the respondent. It has a start date of 27 July 2023 and a review date of 26 July 2024. The NDIS plan sets out a number of goals and potential supports. It records the funded supports are $301,226.09 in total. Those supports include, but are not limited to, help living independently; some occupational therapy; and specialist behavioural intervention support. While the plan obviously involves substantial supports and expenditure, it does not appear to provide the support recommended by Mr Williams.
Rehabilitative programs and support
Subsequent to the provision of the report of Ms Boyd, Mr Karpany was accepted into the SBC‑me program in March 2023. This was to undertake that program in custody. Mr Karpany attended two group sessions but due to his complex responsivity factors, he was considered to be unsuitable for group‑based criminogenic intervention programs and was removed from the program. The consequence is that Mr Karpany is precluded from undertaking the group‑based SBC‑me program while in custody.
After submissions were heard, the applicant provided a letter from the Rehabilitations Programs Branch (RPB) of DCS which stated that if a continuing detention order were made, DCS would engage Mr Karpany in individual treatment. The letter from RPB sets out that it was difficult to provide a definitive timeframe given ‘Mr Karpany’s multiple sexual offender treatment needs, high risk of reoffending and serious responsivity concerns (motivation, current presentation of mental health symptomology, capacity to maintain concentration and retain information)’. A period of 18 months to complete that program, with 12 months being while subject to continuing detention, followed by a further six months of treatment in a community setting, is proposed in the letter. It must be observed that the letter from the RPB expresses reservations about the prospect of Mr Karpany completing the program and/or there being confidence about improvements in his thinking should it be completed. The letter directs attention to the following within the Termination Summary from the SBC‑me program:
The attempts made by facilitators to engage Mr Karpany in intervention appeared to provide an indication of Mr Karpany’s likely engagement in future intervention. Mr Karpany’s responsivity issues appeared to be consistent across time, contexts, assessors and clinicians. Attempts to manage these in group and individually (i.e., frequent breaks, frequent attempts to reorientate off topic contributions back to the relevant topic, providing repeated clarification and reassurance in response to much misinformation etc.) did not prove to yield notable improvements in Mr Karpany’s participation or responsivity to content. Mr Karpany’s presentation at assessment and in group sessions indicated significant issues with comprehension and communication. These issues created a substantial challenge in attempting to determine the level of Mr Karpany’s understanding, and the veracity of his statements and reflections through the program. Due to the nature and extent of Mr Karpany’s responsivity factors, any recommendations regarding his capacity to engage in individual treatment, or the length of time required, would be tentative.
The letter sets out that reviews would be conducted and if Mr Karpany was assessed not to have benefited from individual treatment during three‑monthly review periods, continued incarceration would not result in any reduction to the risk of his sexual reoffending in the community after release.
If released into the community, Mr Karpany would continue to have the support of the HIT Program, including access to the same services and prosocial activities that the HIT Team linked him to previously. I note that his participation in group therapy, such as the Yarning circle, appears to have been demonstrably better in the community than in custody, and he has not been excluded from these programs. Mr Karpany would also continue to have NDIS housing and support available if released. I have set out some aspects of that support above.
The submissions
There are essentially two main planks to the applicant’s submissions in support of a continuing detention order being made. First, due to the number and nature of the breaches of the ISO and ESO, Mr Karpany is at a significant risk of committing further offences if not detained. Second, Mr Karpany should be detained in custody to allow him to complete individualised treatment in order to reduce his risk of re‑offending.
The applicant submits that Mr Karpany’s extensive history of breaches strongly suggests Mr Karpany is at significant risk of committing further serious offences. It is submitted that where Mr Karpany’s risk of offending is related to his mental health and his breaches involve the use of illicit substances which have a degenerative effect on his mental health, the risk of reoffending is particularly appreciable. The applicant submits the breaches have occurred in circumstances where there were multiple agencies supporting Mr Karpany, and the level of support available on his release is inadequate to manage his needs. The applicant submits the consequence of what I accept is the inevitability of further breaches by using illicit drugs, is a risk of reoffending which amounts to an appreciable risk to the safety of the community.
The respondent submits that he has not reoffended in any significant way, and despite a lengthy criminal history, he has only committed one offence that causes him to be placed under the regime of the Act. The respondent submits that notwithstanding the numerous breaches, the level of risk that he poses has not changed since he was placed on the ESO in November 2020. The respondent submits that due to Mr Karpany’s cognitive defects and the relative lack of seriousness of his past sexual offending, he would achieve more effective rehabilitation in the community with appropriate supports than in custody. It must be noted that I was not directed to material which might suggest the SBC‑me program, delivered as contemplated in custody as evidenced by the RPB letter, would be provided in the community.
The respondent submitted that since Mr Karpany was detained in custody there has been an amendment to the Act. Section 17(1)(b)(ia) has been inserted and provides:
(1)The following provisions apply in relation to proceedings relating to an alleged breach of a supervision order before the Parole Board under this Part:
(a) the person subject to the order and the Attorney‑General must be afforded a reasonable opportunity to make submissions to the Board on the matter;
(b) if the Board is satisfied that the person has breached a condition of the order, the Board may vary or revoke a condition of the order imposed by the Board under this Act or impose further conditions on the order and, if the person is in custody—
(i)direct that the person be released from custody; or
(ia)direct that the person be detained in custody pending circumstances necessary for the purposes of ensuring the person's compliance with a condition of the order being in place; or.
It was submitted the effect of the amendment was that it provides the Parole Board with an additional option for the management of Mr Karpany that could promote the protection of the safety of the community. For present purposes, it can be assumed that s 17(1)(b)(ia) may provide the Parole Board with a further option for the management of Mr Karpany that could promote the protection of the safety of the community while Mr Karpany was detained for such a purpose. That said, the potential breadth of s 17(1)(b)(ia) was not the subject of detailed submissions. Identification of the limits of what may be done pursuant to s 17(1)(b)(ia) is best left to be determined in a case in which the Parole Board has given a relevant direction and/or after more detailed submissions.
Consideration
In Attorney‑General (SA) v Sullivan (No 2),[11] Hinton J stated:
The power to make a continuing detention order is not a power to punish a person for breaching a supervision order. It is a power to be exercised for protective not punitive purposes. The question is whether the drastic step of incarcerating the high risk offender for the duration of the extended supervision order or some lesser period is necessary to protect the community from an appreciable risk to its safety as posed by the high risk offender. That question is to be answered in the knowledge that the alternative is the continuation of the supervision order, possibly varied. Obviously the risk posed by the offender subject of the breached supervision order must be reassessed in the light of the nature and circumstances of the breach.
[11] [2018] SASC 74 [9].
In Attorney‑General (SA) v Drion,[12] Livesey J (as he then was) held:
The authorities to which I have referred suggest that the following considerations (amongst others) are relevant to the determination that this Court must make under s 18(2) of the Act where continuing detention is sought:
1.     The purpose of detention is not punitive but protective;
2.     When assessing the risk posed by a respondent, it is relevant to re-assess the risk given the nature and circumstances of any breach;
3.     It is necessary to identify with some particularity the risk that the respondent poses to the community, before turning to consider whether detention is necessary to adequately protect the community from that risk;
4.     In some cases the risk to the community may be immediate and the appropriate response may need to be detention. However, in other cases the risk may be less immediate, but no less profound, and may require detention so as to facilitate different measures associated with intervention and prevention; and
5.     The respondent should not be detained for any longer than is necessary to ensure adequate protection of the community.
[12] [2020] SASC 120, [68].
Livesey J’s analysis of Mr Karpany’s situation applies equally in this case as it did when the ESO was made:
Mr Karpany’s offending and his many failures to comply with bail agreements and conditions of his interim supervision order are best understood by reference to his psychological condition at any particular time. When Mr Karpany’s symptoms are at their worst, his risk of offending is at its highest. When Mr Karpany is not incarcerated, or in the care of appropriate medical facilities, he is unlikely to accept or comply with a regime of treatment, and it is at these times that his risk of offending is at its highest. Mr Karpany’s mental disposition has alternated between periods of some improvement and periods of marked deterioration. Typically, the former periods are coextensive with when Mr Karpany has received and accepted appropriate medical treatment, and the latter periods are those during which Mr Karpany relapses into substance abuse.
It is clear that, in broad terms, Mr Karpany’s capacity to learn and gain insight has been impaired significantly by the poor level of care received during his adolescence. Subsequently, his criminal behaviour has restricted his capacity to positively integrate with society. Additionally, his established intellectual impairment and his substance abuse have impeded his capacity to function effectively within the community.
Mr Karpany’s case is complex and his needs and adverse social behaviours entrenched. While this is not a case where there is no cause for optimism, rehabilitating Mr Karpany whilst, at the same time, protecting the community, is not an easy exercise. It will take time and a combination of stable treatment, care and residence. In my view, it is appropriate to subject Mr Karpany to home detention conditions for two years, subject to whether the Parole Board is of the opinion that those conditions are no longer required. I will otherwise order that Mr Karpany be subject to an extended supervision order for a period of five years. He will, naturally enough, continue to be monitored closely over that period and his progress, or any relapses, supervised and reviewed.
The first question for me is whether Mr Karpany poses an appreciable risk to the safety of the community if not detained in custody. If the answer to that question is in the affirmative, the second question is whether, in light of that risk, a continuing detention order should be made, and if so, the duration of that order.[13]
[13] Attorney General (SA) v Brandon [2019] SASC 85, [12].
An appreciable risk
I am satisfied that Mr Karpany poses an appreciable risk to the safety of the community if not detained in custody. There is no reason to doubt the opinion of Dr Nambiar given in 2020 that Mr Karpany is at high risk of sexual offending and no reason to conclude that risk has diminished since then. Mr Karpany’s drug use is not behind him. To the contrary, Mr Karpany has made comments consistent with him intending to continue to use drugs. The risk is that Mr Karpany will, notwithstanding the conditions of an ESO, commit a sexual offence involving a child. That risk is likely to be heightened if Mr Karpany uses drugs and/or his mental state declines should he be in the community. On the material before me, I am satisfied there is a real risk of both.
It follows I am satisfied of the two jurisdictional facts in s 18(2)(a) and (b) of the Act.
The discretion
I turn to whether the discretion should be exercised.
I agree with Hinton J that the power to make a continuing detention order is a ‘drastic step’. It is not a discretion to be exercised lightly. It is one to be considered in the knowledge that the alternative is a supervision order. I must consider whether the terms of a supervision order, possibly varied, are a sufficient safeguard. I must keep in mind that the safety of the community is the paramount consideration.
In Garlett v Western Australia,[14] the majority of the High Court endorsed the Court of Appeal of the Supreme Court of Queensland’s decision in Attorney‑General v Francis.[15] In Francis, Keane and Holmes JJA and Dutney J explained, in relation to the choice to be made between a continuing detention order 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.
[14] [2022] HCA 30, [105] (Kiefel CJ, Keane and Steward JJ).
[15] [2007] 1 Qd R 396, 405 [39] (‘Francis’).
Further, as Hughes J remarked in the Attorney-General v Coaby:[16]
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.
[16] Attorney-General (SA) v Coaby [2019] SASC 137, [19].
The paramount consideration of the safety of the community must be born in mind. As the Full Court stated R v Schuster:[17]
… 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.
[17] [2016] SASCFC 86, [80]. See also Attorney-General (SA) v Coaby [2019] SASC 137, [18] Hughes J considered that the Full Court’s remarks were instructive in relation to the operation of s 18 of the Act.
In this case, there is little prospect of change if Mr Karpany is released. Given his history, I am satisfied at that at the present time, further breaches are inevitable. In addition, Mr Karpany will not have the level of support in the community which has been recommended by Mr Williams. Greater support than appears to be contemplated would likely assist in mitigating risk.
As set out above, there is nothing before me which permits a finding that the SBC‑me program would be provided in the community in the way necessary for Mr Karpany.
On the material before me, there is a willingness on the part of DCS through the RPB to attempt to meet the needs of Mr Karpany through the provision of a tailored SBC‑me program where his participation would be closely monitored every three months. In considering whether to exercise the discretion, it must be recognised that better prospects of rehabilitation if a person is detained is not the test. However, it is a relevant consideration.[18] At the same time, there are reasons to doubt the respondent would complete the SBC‑me program while detained in custody. For that reason, I have reached the view that it is only appropriate to place limited weight upon the availability of that program in custody.
[18] Attorney‑General v Drion [2020] SASC 120, [69]; see also Attorney‑General v Sullivan (No 2) [2018] SASC 74, [14].
The vigilance of the Parole Board and others in managing Mr Karpany has, to date, apparently succeeded in promoting the safety of the community. This is not to overlook the concern that arises about him being in the area of a public toilet for a period of time that may not be consistent with an innocent purpose. Furthermore, in recognising the above, I do not overlook the nature of Mr Karpany’s offending being opportunistic as a factor relevant to an assessment of the weight to be given to the apparent success of the Parole Board and others as reflected in the absence of further offending by Mr Karpany. There is only so much that can be done to manage the risk of offending that is engaged in opportunistically. In circumstances where Mr Karpany will engage in the use of illicit substances if not detained, his risk of reoffending remains high.
It is not the position that the discretion should only be exercised where there is satisfaction a respondent has caused harm to the safety of the community when subject to an order pursuant to the Act. This is obviously not the approach. The purpose of a continuing detention order is to protect from the risk bearing in mind that the paramount consideration is the safety of the community. Any immediate appreciable risk will, speaking generally, outweigh considerations that support release.[19]
[19] Attorney‑General v Schmidt [2018] SASC 80, [168].
Conclusion
In my view, the decision whether I should exercise the discretion is not an easy one.
On the one hand, the jurisdictional facts are satisfied; the respondent will not get all of the supervision that he needs in the community; the respondent remains at risk of committing a sexual offence against a child; there is a willingness to attempt to provide an SBC‑me program tailored to the needs of the respondent in custody; and if released, he will continue to breach the ESO and, at least for that reason, when that occurs the risk to the safety of the community will likely increase.
On the other hand, the purpose of a continuing detention order is not punitive; strict supervision appears to have minimised the risk of sexual offending; there are very good reasons to be guarded about the prospects of successful completion of the SBC‑me program in custody; and Mr Karpany has not attempted to offend in a sexual way since 2019 despite being in the community for a considerable period of time.

The close monitoring and therapeutic support provided by DCS, the HIT Team and NDIS are important protective factors. While the level of support is likely inadequate to prevent further breaches, it appears to have been adequate to allow timely detection and, when considered appropriate, response to breaches. Those protective factors tend to mitigate, but certainly do not remove, the risk to the safety of the community. It is not submitted that additional conditions could be imposed.
I am satisfied the circumstances and nature of the breaches, while numerous, do not indicate a failure of the ESO to safeguard the community while Mr Karpany has these supports in place.
Notwithstanding the risk to the safety of the community if Mr Karpany is not detained in custody, I decline to exercise the discretion to make a continuing detention order. The conditions of the current order; the vigilance with which Mr Karpany has been supervised and the cautious approach that is appropriate to the likelihood of the SBC‑me program being completed in custody leave me to conclude that the drastic step of a continuing detention order is not appropriate.