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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General (SA) v Karpany

Details

AGLC: Attorney-General (SA) v Karpany [2023] SASC 127
Case: [2023] SASC 127
Decision Date

CaseChat Overview and Summary

In the case of Attorney-General (SA) v Karpany, the South Australian Supreme Court was called upon to determine whether the discretion to make a continuing detention order should be exercised in the context of an extended supervision order (ESO). The primary issue before the court was whether the respondent, Mr Karpany, who had been subject to an ESO, had breached the conditions of that order to such an extent that the drastic measure of continuing detention was warranted. The court was also required to consider the balance between the protective purpose of a continuing detention order and the individual circumstances of Mr Karpany, including his history of non-compliance, his mental health condition, and the potential for rehabilitation.

The court examined the evidence presented regarding Mr Karpany's conduct under the ESO, including his breaches of the order and his engagement with various support services. Expert psychiatric evidence was considered, which highlighted the risk of reoffending posed by Mr Karpany, particularly when he was not compliant with his treatment. The court weighed these factors against the potential benefits of continuing detention, including the likelihood of successful completion of a specialised behavioural modification program in custody. The court ultimately concluded that while the jurisdictional facts were satisfied, the protective factors in place, such as close monitoring and therapeutic support, mitigated the risk to the safety of the community. The court declined to exercise the discretion to make a continuing detention order, preferring instead to maintain the existing order with its conditions and continued supervision.

In reaching its decision, the court emphasised the non-punitive purpose of a continuing detention order and the need to identify the specific risk posed by the offender before determining the necessity of detention. The court highlighted the importance of considering the individual circumstances of the offender, including their mental health, history of non-compliance, and prospects for rehabilitation. The court also noted the complexity of Mr Karpany's case and the entrenched nature of his adverse social behaviours, which required a balanced and cautious approach. The final orders of the court were to subject Mr Karpany to home detention conditions for two years, subject to the Parole Board's assessment, and to impose an ESO for a period of five years with close monitoring and supervision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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; and5. 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.