SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v KARPANY
[2020] SASC 219
Reasons for Decision of The Honourable Justice Livesey
13 November 2020
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
Pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (“the Act”), the Attorney General made an application for the respondent to be subject to an extended supervision order for a period of up to five years.
On 24 September 2019, the Magistrates Court of South Australia sentenced the respondent to terms of imprisonment totalling five months and 18 days in relation to offences of indecent assault, attempted theft and assault. The sentence expired on 21 October 2019.
The respondent has comorbid diagnoses of chronic disorganised schizophrenia and antisocial personality disorder. The respondent also presents with an intellectual impairment and has a significant history of polysubstance abuse.
The respondent submitted that the Act was not designed for persons whose offending is largely linked to a mental condition and who cannot understand or comply with the Act. Accordingly, the respondent submitted that the Mental Health Act 2009 (SA) and the Guardianship and Administration Act 1993 (SA) are the more appropriate legislative instruments to govern the respondent’s behaviour because they enable the assessment of risk by reference to the medical issues affecting him.
Held, granting the application:
1. The respondent is a “high risk offender” within the meaning of s 5(a) of the Criminal Law (High Risk Offenders) Act 2015 (SA).
2. The respondent poses an appreciable risk to the safety of the community if not supervised under an extended supervision order.
3. Neither the Mental Health Act 2009 (SA) nor the Guardianship and Administration Act 1993 (SA) provide sufficient mechanisms to appropriately monitor and supervise the respondent.
4. The respondent is to be subject to an extended supervision order for a period of five years commencing on 13 November 2020.
Criminal Law (High Risk Offenders) Act 2015 (SA); Criminal Law Consolidation Act 1935 (SA); Guardianship and Administration Act 1993 (SA); Mental Health Act 2009 (SA), referred to.
Attorney-General (SA) v Humes [2020] SASC 123; Attorney-General (SA) v Coulter (No 2) [2019] SASC 25; Attorney-General (SA) v Fenner [2020] SASC 107; Attorney-General (SA) v Grosser [2016] SASC 49; Attorney-General (SA) v Moyle (No 2) (2019) 134 SASR 257; Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74; Attorney-General (SA) v Wells [2017] SASC 149; Attorney-General v Grosser (No 3) [2017] SASC 89; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11; The Public Advocate v C, B (2019) 133 SASR 353, considered.
ATTORNEY-GENERAL (SA) v KARPANY
[2020] SASC 219Criminal: Application
LIVESEY J:
Introduction
This is an application by the Attorney-General for an extended supervision order to be made with respect to the respondent, Trevor John Karpany, pursuant to s 7(4)…
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- Case
- [2020] SASC 219
- Decision Date
CaseChat Overview and Summary
The court found that Mr Karpany’s case was indeed complex, with entrenched adverse social behaviours and a significant risk of reoffending. The evidence showed that when Mr Karpany adhered to a consistent treatment regime and was abstinent from substances, his mental condition improved. However, when left to his own devices, he tended to relapse into substance abuse and abscond from supervision. The court concluded that it was necessary to impose an extended supervision order for five years, with home detention conditions for the first two years, to protect the community while providing Mr Karpany with the necessary support and supervision.
The court's reasoning hinged on the balance between Mr Karpany's need for rehabilitation and the necessity to protect the public. The court found that the jurisdictional facts specified in section 7 of the High Risk Offenders Act had been satisfied, making the imposition of an extended supervision order both necessary and appropriate. The final orders reflect the court's determination that Mr Karpany should be closely monitored and supervised for five years, with the possibility of review by the Parole Board after the initial two years of home detention.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Although the ground covered by CTOs or ITOs may be partially coextensive with the ground covered by extended supervision orders, the degree of common ground is far from extensive. In any event, this Court does not have jurisdiction to make CTOs or ITOs.The Guardianship and Administration Act The Parliament introduced the Guardianship and Administration Act in 1993 with three key purposes in mind: first, to provide flexible provisions which facilitate the operations of the Guardianship Board and the persons it serves; secondly, to create a key position of Public Advocate with an important “watchdog role” on behalf of those who lack mental capacity; and thirdly, to remove guardianship and administrative from the previous Mental Health Act 1977 (SA) and establish it under its separate legislation.[44] [44] South Australia, Parliamentary Debates, Legislative Council, 30 March 1993, 1764 (the Hon C J Sumner, Attorney-General). The Guardianship and Administration Act contains a number of “[p]rinciples to be observed” under s 5. This establishes “a clear philosophy for the way in which all matters will be dealt with”.[45] In the main, these principles emphasise the primacy of the decision that the protected person would have made (to the extent that this can be determined) had that person not been mentally incapacitated.[46][45] South Australia, Parliamentary Debates, Legislative Council, 30 March 1993, 1765 (the Hon C J Sumner, Attorney-General).[46] South Australia, Parliamentary Debates, Legislative Council, 30 March 1993, 1765 (the Hon C J Sumner, Attorney-General). Under the Guardianship and Administration Act, the SACAT may make a guardianship order against a person (the protected person) who has a mental incapacity, if it is satisfied that a guardianship order should be made.[47] Applications may be made by the persons itemised in s 33, including persons who satisfy the SACAT that “they have a proper interest in the welfare of the [protected] person”.[48] The Attorney submitted that the Public Advocate would be the relevant person to make an application for a guardianship order with respect to Mr Karpany.[47] Guardianship and Administration Act 1993 (SA), s 29(1).[48] Guardianship and Administration Act 1993 (SA), s 33(1)(e)(ii). Guardianship orders can be made conferring “full guardianship” or they can be limited to specific aspects of care.[49] A guardian may exercise any powers that were available to a guardian at law or in equity, subject to any limitation contained in the Guardianship and Administration Act or specified by the SACAT.[50] [49] Guardianship and Administration Act 1993 (SA), ss 29(1)(d)-(e) and 29(2).[50] Guardianship and Administration Act 1993 (SA), s 31. See generally, The Public Advocate v C, B (2019) 133 SASR 353. On the application of a protected person’s guardian,[51] the SACAT may make an order (a special powers order)[52] that the protected person reside and be detained at a specified place.[53] On these applications, the SACAT may also authorise persons involved in the care of the protected person to use reasonable force to ensure that the protected person obtains treatment and care.[54] These orders can only be made if the SACAT is satisfied that the health and safety of the protected person or others would, but for the order, be seriously at risk.[55] Whilst the orders remain operative, the guardian and police officers are empowered to, by the use of reasonable force, enter any premises to take the protected person to the place at which he or she is ordered to be placed or detained.[56][51] Guardianship and Administration Act 1993 (SA), ss 32(1) and 32(8) (definition of ‘appropriate authority’).[52] The term “special powers” is not used in the Guardianship and Administration Act 1993 (SA) but is often used in the course of hearings before the SACAT.[53] Guardianship and Administration Act 1993 (SA), ss 32(1)(a)-(b), but not in a correctional institution or an approved treatment centre under the Mental Health Act 2009 (SA), see Guardianship and Administration Act 1993 (SA), s 32(3).[54] Guardianship and Administration Act 1993 (SA), s 32(1)(c).[55] Guardianship and Administration Act 1993 (SA), s 32(2).[56] Guardianship and Administration Act 1993 (SA), ss 32(4) and 32(6).