Attorney-General (SA) v Karpany - [2020] SASC 219

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 219
Criminal: 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) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act or the High Risk Offenders Act).
Mr Karpany is a man well‑known to the criminal court. His offender history report runs close to eight pages, having been convicted of 98 offences over the past 25 years. Relevantly, in 2019, he was sentenced to a period of imprisonment for indecent assault contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA).
Mr Karpany has frequently required assistance from the State’s mental health service. He has received a comorbid diagnosis of chronic disorganised schizophrenia and antisocial personality disorder. He also presents with an intellectual impairment and has a significant history of polysubstance abuse. He has previously been found unfit to plead.
Since 18 October 2019, Mr Karpany has been subject to an interim supervision order made pursuant to s 9 of the High Risk Offenders Act. The terms of that order are set out later in these reasons. It contains conditions typically found in these orders. There is an electronic monitoring condition, a condition prohibiting Mr Karpany from leaving his place of residence other than for limited, specified purposes, and conditions prohibiting contact, or potential contact, with persons under the age of 18.
The application for an extended supervision order
The Attorney seeks an extended supervision order with conditions identical to those in the interim supervision order for a period of up to five years.
Mr Karpany concedes that, by virtue of his 2019 sentence to imprisonment for indecent assault, he is a “high risk offender” within the meaning of the Act. He does not explicitly contest that he poses an appreciable risk to the safety of the community. His primary contention is that he lacks the capacity to understand the nature and terms of an extended supervision order, and that he will inevitably fail to comply with its conditions. As a consequence, he submits, an extended supervision order cannot reduce the risk that he poses to the safety of the community.
For the reasons that follow, I reject this submission. I grant the application and order that Mr Karpany be subject to an extended supervision order for a period of five years, commencing from the date of this judgment.
Material received
The Attorney’s application was heard on 5 August 2020. The following material was tendered on that occasion:
1Affidavit of Karim Wardhana Soetratma affirmed on 11 October 2019 (exhibit AG1);
2Report of Dr N P Nambiar dated 29 January 2020 and letter of request (exhibit AG2);
3Parole Board Report dated 17 December 2020 (exhibit AG3);
4Letter from the Parole Board dated 4 August 2020 (exhibit AG4); and
5Release Order dated 4 August 2020 (exhibit R5).
In addition, Dr Nambiar was called by the Attorney to give evidence. He was cross-examined by counsel for Mr Karpany.
At the commencement of the hearing, counsel for Mr Karpany advised that his client had been released from prison only a few hours earlier. I was told that Mr Karpany had contacted his counsel using a public telephone box and had instructed that he was doing his best to travel to the hearing using public transport. The parties were in agreement that the hearing could commence in his absence. Mr Karpany eventually arrived within the hour.
Following the hearing, counsel for Mr Karpany provided the Court with a supervision order made in relation to Mr Karpany pursuant to Part 8A of the Criminal Law Consolidation Act 1935 (SA). The Attorney did not object to my receiving the supervision order. I have had regard to it and the evidence adduced.
Applicable legal principles
The objective of the High Risk Offenders Act is to protect the community from exposure to an appreciable risk of harm posed by high risk offenders,[1] defined as either serious sexual offenders or serious violent offenders.[2]
[1] Criminal Law (High Risk Offenders) Act 2015 (SA), s 3.
[2] Criminal Law (High Risk Offenders) Act 2015 (SA), s 4.
A “serious sexual offender” means a person who has been convicted of a “serious sexual offence”, which includes an offence against s 56(1) of the Criminal Law Consolidation Act 1935 (SA).[3]
[3] Criminal Law (High Risk Offenders) Act 2015 (SA), s 4.
Under s 7(1) of the High Risk Offenders Act, the Attorney may make an application to this Court for an extended supervision order to be made with respect to a high risk offender. Section 7(4) then provides:
(4)The Supreme Court may, on application under this section, order that the respondent is to be subject to an extended supervision order if satisfied that—
(a)the respondent is a high risk offender; and
(b)the respondent poses an appreciable risk to the safety of the community if not supervised under the order.
I recently considered s 7(4) and made the following observations in Attorney‑General (SA) v Fenner:[4]
[4]    Attorney-General (SA) v Fenner [2020] SASC 107, [16]-[21] (Livesey J).
… subparagraphs (a) and (b) [of s 7(4)] are in the nature of jurisdictional facts which must be proved before the Court’s power to make an extended supervision order is enlivened.[5] Once these have been proved the Court may, but need not, make an extended supervision order. The burden lies with the Attorney-General to adduce evidence that the qualifying criteria are proved and that the case is a proper one for the exercise of the Court’s discretion.[6]
[5] As has been said of s 18(2) of the Criminal Law (High Risk Offenders) Act 2015 (SA), which provides this Court with the power to make a continuing detention order, see Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74, [9] (Hinton J).
[6]    Attorney-General (SA) v Wells [2017] SASC 149, [9] (Hinton J).
The power contained in s 7(4) is further conditioned by s 7(3) which requires that the Court, before determining whether to make an extended supervision order, direct one or more prescribed health professionals to examine the respondent and report to the Court on the results of that examination including the likelihood of the respondent committing a further serious sexual offence or a serious offence of violence. Section 21 then provides:
Where, for the purposes of an application for an extended supervision order, the Supreme Court directs 1 or more prescribed health professionals to examine the respondent to the application and report to the Court on the results of the examination, each prescribed health professional so nominated—
(a)     must carry out an independent personal examination of the respondent; and
(b)     may have access to any evidence before the court by which the respondent was convicted; and
(c)     may obtain the assistance of a medical practitioner, psychologist, social worker, community corrections officer or any other person.
Returning to s 7(4), in Attorney-General (SA) v Grosser (Grosser) Stanley J explained “appreciable risk” for the purposes of s 7(4)(b):[7]
I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible. Necessarily, a risk must be anticipatory. An appreciable risk is a risk that is not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in future in a manner that poses a risk to the safety of the community. It is a question of degree. …
(Footnote omitted.)
Section 7(5) mandates that the paramount consideration for the Court in determining whether to make an extended supervision order is “the safety of the community”. In Grosser Stanley J held that whether the respondent poses an “appreciable risk to the safety of the community” is informed by s 7(5):[8]
The extent of the appreciable risk is informed by the consideration that in determining whether to make an extended supervision order the safety of the community is paramount. I construe that requirement to mean that where a court considers that the question of whether to make an order is finely balanced, the protection of the community would favour making the order rather than declining to do so. I do not suggest that this consideration is exhaustive of the work to be performed by s 7(5) of the Act. The full extent of the operation of this provision falls to be considered on another occasion.
Section 7(6) prescribes a non-exhaustive list of additional factors that the Court must consider when determining whether to make an extended supervision order. These include any treatment or rehabilitation programs in which the respondent has had an opportunity to participate, including his or her willingness to participate in the programs,[9] and the circumstances and seriousness of any offence for which the respondent has been found guilty and any pattern of offending behaviour disclosed by that offending history.[10]
Ultimately, if the Court is satisfied about the existence of the preconditions set out in subparagraphs (a) and (b), then the power contained in s 7(4):[11]
… is to be exercised having regard to both the interests of the community and the interests of the respondent, but by according the consideration of public safety paramountcy. Here there are two competing considerations. On the one hand, the respondent to an application by the Attorney-General has completed his or her sentence. There is a common law rule that his personal liberty and freedom of movement will not be infringed absent clear, unambiguous lawful authority. On the other hand, there is the need to protect the community from the risk of him reoffending. In construing the statute which infringes those rights and freedoms the Court will do so in a manner which limits the infringement to what is strictly required to effect the purpose of the statute. Given the terms of the Act, specifically the paramount consideration of public safety, in the exercise of this Court’s discretion relatively smaller degrees of risk will outweigh considerations which, even strongly, would militate against the making of an extended supervision order. The same principles inform consideration of what are appropriate conditions to impose in making an extended supervision order and in determining the length of that order. The efficacy of the order is determined by the conditions it imposes. That warrants the same consideration applying to the conditions imposed as to the making of the order per se.
(Footnote omitted.)
[7]    Attorney-General (SA) v Grosser [2016] SASC 49, [29].
[8]    Attorney-General (SA) v Grosser [2016] SASC 49, [29].
[9]    Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(6)(f).
[10] Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(6)(j).
[11] Attorney-General v Grosser (No 3) [2017] SASC 89, [12] (Stanley J).
I add the following observations with respect to s 7(4)(b).
Section 7(4)(b) contemplates that a risk to the safety of the community that falls short of being “appreciable” does not require that an extended supervision order be made. That is so even for high risk offenders who have been convicted of the most serious violent or sexual offences. This accords with the objective of the Act, which is to “protect the community from being exposed to an appreciable risk of harm”.[12]
[12] Criminal Law (High Risk Offenders) Act 2015 (SA), s 3 (emphasis added).
The use of the phrase “if not supervised under the order” in s 7(4)(b) is important. It indicates that, even if a high risk offender poses an appreciable risk, the s 7(4)(b) jurisdictional fact will not be made out if an extended supervision order will not protect the public against the manifestation of an appreciable risk. For example, the risk of harm may be so great that an extended supervision order cannot protect the community from exposure to that risk. That is not to say that offenders who present these risks will be left to roam freely in the community. Rather, other, perhaps more intrusive, mechanisms may need to be called upon to ensure the community’s safety. For example, in relation to a serious sexual offender, the Court may order that he or she be detained in custody until the further order of this Court under s 57(7) of the Sentencing Act 2017 (SA).
Nonetheless, if some other mechanism is available that presents a less intrusive imposition on personal liberty, and which will protect the community from the appreciable risk that the high risk offender poses, then again, the requirement “if not supervised under the order”,[13] will not be satisfied. This accords with the general principle that “the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint”.[14]
[13] Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(4)(b).
[14] Attorney-General (Qld) v Francis [2007] 1 Qd R 396, [39] (Keane, Holmes and Dutney JJA).
Evidently, the assessment of risk necessarily requires estimation or prediction about what may or may not occur in the future. It is an exercise fraught with difficulty and uncertainty. Indeed, it may be because any estimation of risk is apt to be unreliable that the legislature has, in the case of the High Risk Offenders Act, left the time at which the estimation of risk must be made to a point close to the respondent’s release date.[15] Nevertheless, as Gleeson CJ said in Fardon v Attorney-General (Qld), “[n]o doubt, predictions of future danger may be unreliable, but … they may also be right”.[16]
[15] Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(2). See also Attorney-General (SA) v Fenner [2020] SASC 107, [122] (Livesey J).
[16] Fardon v Attorney-General (Qld) (2004) 223 CLR 575, [12] (Gleeson CJ).
As mentioned earlier in these reasons, where the s 7(4)(b) jurisdictional fact has been made out, the Act confers a discretion on this Court to make an extended supervision order. The discretion must, of course, be exercised judicially and consistently with the circumstances proved and the scope and object of the Act by which it is conferred. Nevertheless, as I explained in Attorney-General (SA) v Humes:[17]
What is in contention is whether [the respondent] poses an appreciable risk to the safety of the community if not supervised under an extended supervision order. Put differently, the question to be asked is: is the risk that [the respondent] poses appreciable such that an extended supervision order ought to be made to protect the safety of the community? To pose the question in this way is to perhaps conflate the second jurisdictional fact with the exercise of the discretion that becomes enlivened upon the Court finding that both jurisdictional facts contained in s 7(4) have been satisfied. Nonetheless, a finding that the jurisdictional fact in s 7(4)(b) has been established will often suggest that the discretion should be exercised in favour of making an extended supervision order because the paramount consideration is the safety of the community.[18]
[17] Attorney-General (SA) v Humes [2020] SASC 123, [51] (Livesey J).
[18] See Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(5) and s 3 more generally. Similar observations have been made in relation to s 18(2) of the Criminal Law (High Risk Offenders) Act 2015 (SA), see Attorney-General (SA) v Moyle (No 2) (2019) 134 SASR 257, [60] (Hinton J).
Section 10(1) provides that the following conditions apply in relation to an extended supervision order:
(a)a condition that the person subject to the order not commit any offence;
(b)a condition that the person subject to the order is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 2015) or any part of a firearm;
(c)a condition prohibiting the person subject to the order from possessing an offensive weapon unless the Supreme Court permits the person to possess such a weapon and the person complies with the terms and conditions of the permission;
(d)    a condition that the person subject to the order—
(i)    be under the supervision of a community corrections officer; and
(ii)     obey the reasonable directions of the community corrections officer; and
(iii)    submit to such tests (including testing without notice) for gunshot residue as the community corrections officer may reasonably require;
(e)      any other condition that the Court thinks fit and specifies in the order;
(f) any condition imposed by the Parole Board under section 11.

Sections 10(1)(a)-(d) impose mandatory conditions which must form part of all extended supervision orders. No differentiation is made between serious sexual offenders and serious violent offenders, or as between high risk offenders more generally.[19]
[19] However, the Court can vary or revoke the condition imposed by s 10(1)(b) of the Criminal Law (High Risk Offenders) Act 2015 (SA) in certain circumstances, see s 10(3).
Section 10(1)(e), by contrast, is discretionary. The discretion that it confers on this Court is broad but must be exercised having regard to the scope and object of the Act.
Its scope, so far as it is relevant to the making of an extended supervision order, is to be found in the provisions that govern the making and determination of such an order, namely ss 7(3) and 7(5).[20] The object of the High Risk Offenders Act is referred to at [12] of these reasons.
[20] Attorney-General v Grosser [2016] SASC 49 (Stanley J).
Having regard to the scope and objects of the Act, it is appropriate to impose a condition in an extended supervision order if it addresses the appreciable risk of harm that the high risk offender poses to the safety of the community. Any lack of opposition to, or acquiescence in, the conditions being sought does not relieve the Court from the task of determining whether an order should be made, and what conditions should be imposed, as part of the order. The onus lies on the Attorney, as the applicant, to justify the imposition of both an order and a particular condition. Put simply, it is “for the State to justify interference with the liberty of the subject”.[21]
[21] Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11, [97] (Hinton J).
The conditions that may be imposed can, in one sense, be categorised into two classes. There are prohibitive conditions which are restrictive of the respondent’s liberty. These seek to reduce or remove opportunities for particular conduct by excluding, banning, restraining or confining a respondent’s movement, association or social activities. Then there are those conditions that impose positive obligations on the respondent, such as the ordering of mandatory participation in treatment and rehabilitation programs. Prohibitive conditions often have a negative impact on the individual’s ability to pursue ordinary employment, family and social life, while conditions that impose positive obligations can be burdensome and onerous.
The breach of any conditions of an extended or interim supervision order may expose the respondent to arrest and detention pursuant to the provisions in Part 3 of the High Risk Offenders Act.
Thus, the restrictive and burdensome nature of the conditions, coupled with the potential consequences that may flow from breach, emphasise the need for the Attorney to demonstrate that there exists a proper basis or reason for the imposition of both an order and any condition.
Finally, the duration of an extended supervision order, once it takes effect, remains in force for a period of five years, or such lesser period as is determined by this Court.[22] In Attorney-General (SA) v Coulter (No 2) Hinton J, when considering the task of this Court in determining the duration of an extended supervision order, observed:[23]
If an extended supervision order of less than five years in duration is made it will be because the Court considers it likely that at the end of the period nominated the appreciable risk that the offender poses will have abated to the extent that the order will no longer be necessary for the protection of the community. …
Plainly, the predictive task is inherently difficult. Importantly, that task is not bounded by the five-year maximum in the same way that the imposition of a sentence is bounded by the maximum penalty prescribed and the principle of proportionality. It may well be that the particular high risk offender requires supervision for a period longer than five years. In this regard the Attorney-General may apply for a second or subsequent extended supervision order if the risk posed by the high risk offender has not sufficiently abated within the term of the expiring order.
[22] Criminal Law (High Risk Offenders) Act 2015 (SA), s 12(1).
[23] Attorney-General (SA) v Coulter (No 2) [2019] SASC 25, [51]-[52].
In the light of these principles, I shall now consider the Attorney’s application for an extended supervision order with respect to Mr Karpany.
Personal circumstances
Mr Karpany is 36 years old.[24] He was previously known as Trevor Sinclair but changed his name to Trevor Karpany approximately five years ago. Karpany is the name of his biological family and that which appears on his birth certificate. He found it difficult to get appropriate ID without reverting to his birth name.
[24] Certain records provide multiple dates for Mr Karpany’s date of birth, though the majority of reports cite his date of birth as 7 March 1984.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
I return to Mr Karpany’s cognitive functioning and mental illnesses later in these reasons.
Criminal antecedents
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.
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.
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.
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.
[25] The Magistrate also dealt with charges against Mr Karpany for disorderly behaviour, unlawful possession, an assault committed against another prisoner at the Adelaide Remand Centre and nine counts of breach of bail. For these offences, Mr Karpany was convicted without penalty. The Magistrate also ordered that Mr Karpany enter into a simple bond for 10 months in respect of convictions recorded for two counts of dishonestly take property without consent. These charges related to Mr Karpany’s taking mail from post boxes. The conditions of that bond were that Mr Karpany be of good behaviour and be under the supervision of the Department for Correctional Services.
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.
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.
Assessments undertaken by the Department for Correctional Services
In February 2018, the Department for Correctional Services assessed Mr Karpany as being at high risk of violent offending. However, he was found unsuitable for participation in the Violence Prevention Program (VPP) due to insufficient time remaining on his first parole order and “his significant responsivity issues which included mental health concerns, borderline intellectual functioning, and limited and numeracy abilities”. It was recommended that Mr Karpany be referred to a community-based psychologist and that if he were re-incarcerated he should be considered for further referral to the VPP Me Program as a priority.
Mr Karpany was also assessed as being at high risk of sexual re-offending without treatment, but was found unsuitable for involvement in the Sexual Behaviour Clinic, again due to insufficient time remaining on his order. As part of this assessment the Department noted:
… Mr Karpany demonstrated periods of relative stability in the community when he was compliant with his mental health treatment and accessing available support networks. As such, compliance with his mental health treatment was considered a high priority in reducing his risk of further offending.
The interim supervision order
As mentioned earlier in these reasons, this Court made an interim supervision order with respect to Mr Karpany on 16 October 2019. I set out the conditions of this interim supervision order in full:
2.1       the respondent will not commit any offence;
2.2the respondent is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 1977) or any part of a firearm or offensive weapon unless the Supreme Court permits the person to possess such a weapon and the person complies with the terms and conditions of the permission;
2.3       the respondent will:
2.3.1be under the supervision of a Community Corrections Officer;
2.3.2obey the reasonable directions of that Community Corrections Officer; and
2.3.3submit to such tests (including testing without notice) for gunshot residue as the Community Corrections Officer may reasonably require;
2.4the respondent –
2.4.1will report to his Community Corrections Officer
2.4.1.1immediately upon his release; and
2.4.1.2whenever required by his Community Corrections Officer; and
2.4.1.3in any event - twice weekly in person to his Community Corrections Officer until the Parole Board orders otherwise;
2.4.2will not depart or attempt to depart South Australia without the Parole Board’s written approval given at least 7 days prior to departure;
2.4.3will reside at an address approved by his Community Corrections Officer in writing, and not change addresses without the approval of his Community Corrections Officer;
2.4.4will not, unless the Parole Board orders otherwise, leave his approved place of residence at any time, except:
2.4.4.1for the purpose of approved remunerated employment, urgent medical or dental treatment,
2.4.4.2to minimise the risk of serious injury or death to himself or to any other person, or
2.4.4.3for any purpose approved or directed by an officer of the Department for Correctional Services;
2.4.5will, until the Parole Board orders otherwise, wear an electronic monitoring device (to be fitted and maintained as required by his Community Corrections Officer or the Parole Board) and will comply with the rules of electronic monitoring;
2.4.6will maintain a telephone service for the duration of this order, and will provide his Community Corrections Officer with its phone number(s);
2.5     the respondent will not:
2.5.1contact, attempt to contact or associate in any way with any person under the age of 18 years unless his Community Corrections Officer (or a person nominated and approved by the Parole Board) is present;
2.5.2undertake any work (paid or unpaid) with persons under the age of 18 years, or participate in any organisation which provides recreational, social, educational or other activities or facilities for persons under the age of 18 years;
2.5.3loiter without reasonable excuse at, or in the vicinity of, a school, public toilet, playground or place at which children are regularly present;
2.6     the respondent –
2.6.1will not consume alcohol, nor enter upon or remain upon any licensed premises;
2.6.2will not use, possess or administer any illegal or prescription drug except in accordance with the directions or prescription of a legally qualified medical practitioner (and will advise his Community Corrections Officer of any drug prescribed to him by a legally qualified medical practitioner);
2.6.3will submit to drug and alcohol testing (including testing without notice) as directed by his Community Corrections Officer, and will do all things and provide all consents necessary to enable his drug and alcohol testing samples to be analysed and the results provided to his Community Corrections Officer;
2.7    the respondent will attend, undertake and satisfactorily complete all assessments, programs or treatment as directed by his Community Corrections Officer, including but not restricted to:
2.7.1psychiatric assessment and comply with any treatment or mental health intervention required thereafter;
2.7.2assessment and counselling for substance abuse;
2.7.3counselling or treatment for sexual offending;
2.7.4intervention or treatment for violent offending;
2.8 any condition imposed by the Parole Board under section 11 of the Act.
Mr Karpany was released from custody five days later on 21 October 2019. The following day, he was arrested pursuant to a warrant issued by the Parole Board for allegedly breaching the residential and electronic monitoring conditions of his interim supervision order. Whilst the Parole Board found both breaches proved, it resolved to release Mr Karpany on 1 July 2020.
Eight days later Mr Karpany was again arrested pursuant to a Parole Board warrant for allegedly breaching the electronic monitoring and residence conditions of the order. He was released on 5 August 2020, the morning on which the present application was heard.
The medical evidence
Annexed to the affidavit of Mr Soetratma (exhibit AG1) were six psychiatric reports which were prepared between 2012 and 2017.[26] The reports addressed Mr Karpany’s mental health conditions and, at times, his fitness to plead, the availability of a mental impairment defence and the appropriateness of him being released into the community on licence.
[26] Report of Dr Ken O’Brien dated 26 September 2012 (annexure KWS10); Report of Dr Andrew Czechowicz dated 7 August 2013 (annexure KWS11); Report of Dr William Brereton dated 10 December 2013 (annexure KWS12); Report of Dr Jules Begg (annexure KWS13); Report of Dr William Brereton dated 26 August 2015 (annexure KWS14); Report of Dr N P Nambiar dated 8 February 2017 (annexure KWS15).
However, a common thread woven through these reports is that whilst Mr Karpany is considered to be at high risk of reoffending, in part due to his poor insight into his previous offending and risk of absconding, when he is on a consistent medication regime and abstinent from substance abuse, his mental condition improves to the point where it is thought that he can function effectively in the community, albeit with supervision.
Of most relevance to the Attorney’s present proceedings, however, is the report prepared by Dr Nambiar (exhibit AG2).

As mentioned earlier in these reasons, Dr Nambiar interviewed Mr Karpany on 24 January 2020 and provided this Court with a report dated 29 January 2020 pursuant to s 7(3) of the High Risk Offenders Act. He was requested to assess the likelihood of Mr Karpany committing a serious sexual offence and whether Mr Karpany is fit to instruct a lawyer and understand the present proceedings.
Dr Nambiar reiterated that Mr Karpany has an established diagnosis of chronic schizophrenia, an antisocial personality disorder and a history of polysubstance abuse. He said that Mr Karpany’s cognitive functioning was impaired due to the effects of substance abuse and the possibility of an acquired brain injury due to the motor vehicle accident that may have occurred in his childhood.
Dr Nambiar said that Mr Karpany’s response to treatment had been good on many occasions but best when hospitalised. The doctor said that when Mr Karpany was left on his own in the community he tended to be itinerant, did not attend for regular psychiatric appointments and was poorly compliant as he took illicit substances which caused a relapse of his illness with acute symptoms. For example, during Mr Karpany’s last admission to Forensic Mental Health Services between 2013 and 2015 — which involved a gradual transition from the Forensic Hospital to the Ashton House stepdown unit, and then into the community — Mr Karpany interfered with this transition by poor adherence to conditions. Once transferred to the stepdown unit, he absconded without permission and was returned by his family. He had been using amphetamines and had brought amphetamines back when on leave. Whilst on unsupervised periods of leave he did not attend designated programs as required.
Dr Nambiar said that, following Mr Karpany’s release from custody at the end of 2019, his mental state deteriorated significantly and this warranted an admission to the psychiatric ward of the Flinders Medical Centre. He tested positive for opiates and presented as acutely unwell, demonstrating unusual and disinhibited behaviours. Since his readmission to the Flinders Medical Centre, and subsequent transfer back to the prison environment, Dr Nambiar explained that Mr Karpany had been taking zuclopenthixol decanoate (300 mg by injection every two weeks) and mirtazapine (30 mg at night). He also used a ventolin inhaler.
The medical prison files to which Dr Nambiar had access also revealed that Mr Karpany had been assessed on 10 January 2020 as having schizophrenia with thought disorder. There were reports of increased confusion, paranoia, disorganisation, and strange and aggressive behaviour such as pouring water on the beds of other inmates, washing his genitals in front of other inmates, then claiming that he had been sexually assaulted by another inmate (though he retracted this claim), and being involved in two physical altercations with other inmates.
Dr Nambiar opined that Mr Karpany had experienced a further relapse of schizophrenia in the context of opiate or other substance use and had not been compliant with treatment whilst in the community.
At the time of Dr Nambiar’s interview, Mr Karpany had been in custody for a number of months. Notwithstanding a period without illicit substances under a supervised treatment regime, Mr Karpany continued to present with thought disorder characterised by disorganised thoughts, looseness of association (sentences and themes that did not connect) during conversation, tangential thought (thoughts that began with answers to questions and very quickly deviated off topic never returning to the original point) and poor concentration.
As a consequence of Mr Karpany’s significant thought disorder, he was unable to articulate any particular explanation for his previous offending or the breaches of his interim supervision order. He told Dr Nambiar that he had committed the previous offences because he was “vulnerable”, but when questioned about this he could not explain how he was vulnerable or how this was connected to the offending.
When Dr Nambiar attempted to explore Mr Karpany’s sexual offending over the last 20 years, Mr Karpany focused on the fact that they were old charges that had been dealt with and were no longer relevant. He said that whilst his sex drive was high when he was young, it was not so now. He vehemently denied any sexual fantasies or masturbating whilst in custody. He denied any deviant fantasies including paedophilia. He told the doctor that he had never intentionally “gone out to molest girls” but gave no explanation as to why the offences occurred. Dr Nambiar stated that Mr Karpany did not appear to appreciate the relevance or gravity of his history of offending and its connection to the application presently being sought in court.
When Dr Nambiar explained that there were at least four significant incidents that equated to sex offending, and described the offences in general terms, Mr Karpany replied, “it was only four times, it’s less than five times”. His response to his most recent offending of a sexual nature was, “the girls targeted me, they followed me, I went home” and “I’d been to the market, they followed me”. Mr Karpany could offer no explanation for his sexual offending beyond stating he had been “unstable and pushed by the girl”.
Dr Nambiar said that Mr Karpany’s offending at the age of 13, which was in the company of others, suggested an antisocial nature to sex offending:
Subsequently, the sex offences in 2011, 2018 and 2019 [some of which are alleged] appear to have a degree of disinhibition and less planning suggesting an association with his mental illness. Having said that, it would appear that both his antisocial tendencies and untreated illness contribute to his offending.
Dr Nambiar noted that, in addition to offending of a sexual nature, there was a litany of offences that pre-dated his first sexual offence and had continued throughout and up to and including his most recent incarceration. He said that this highlighted the fact that, in addition to his schizophrenia, Mr Karpany has an anti-social personality disorder, worsened by impaired cognitive functioning, all of which contributed to a higher risk for offending in general.
With regard to Mr Karpany’s risk of further offending Dr Nambiar stated:
In my opinion Mr Karpany’s risk of general offending remains high whether treated or untreated for his Schizophrenia. The very fact that Mar [sic] Karpany continues to be poor with compliance and uses illicit substances increases his degree of disinhibition that would appear to further contribute to sex offending. Although there does not appear to be any specific paraphilia diagnosed nor a preference for a paraphilic orientation it is of note that the majority of his offending both as a youth and adult, has involved young females. I would suggest that Mr Karpany has an inappropriate attraction for that profile of victim and that given an opportunity, would remain a relatively high risk of reoffending. If his Schizophrenia is treated and he remains compliant with treatment, his risk of reoffending in a sexual manner is reduced.
Additionally, Mr Karpany has demonstrated a significant risk for aggressive behaviour as well.
Dr Nambiar said that when he attempted to explain the intention of the extended supervision order Mr Karpany did not appear to understand. Any attempt to clarify the extended supervision order was met with disorganised thought.
In relation to Mr Karpany’s fitness to instruct a lawyer and understand the present proceedings, Dr Nambiar came to the following conclusions:
At the present time I am of the opinion that Mr Karpany is unfit and unable to provide instructions to his lawyer in a meaningful way or take part in proceedings, given the degree of thought disorder that he currently exhibits.
Mr Karpany’s thought disorder may improve over time if he were accepting of the gold standard treatment (Clozapine) which would need to be initiated by an admission to James Nash House. At the present time, Mr Karpany is on the James Nash House wait list and would be made a priority for admission however, it is unclear as to when a vacancy may arise. With the commencement of Clozapine there may well be an improvement in his thought processes and therefor [sic] an ability to provide adequate instructions to his lawyer.
Without being presumptuous I might suggest that it may be prudent to adjourn proceedings for a period of 3-6 months to allow for Mr Karpany to be admitted to James Nash House for further treatment at which time a further assessment can be conducted as to his fitness to participate in the order that has been applied for.
In his oral evidence, Dr Nambiar agreed that the mere administration of medication for Mr Karpany’s schizophrenia would not be sufficient unless there were conditions, including supervision, which restrained Mr Karpany’s opportunity to take illicit substances. He considered that if no restrictions were in place then there was an extremely low likelihood of Mr Karpany receiving the medication that he requires for his schizophrenia.
In relation to Mr Karpany’s comorbidity, and how it was related to his risk of offending, Dr Nambiar gave the following evidence:
HIS HONOUR
Q… Can you explain for me what you regard the connection as being between schizophrenia and a high risk of reoffending in this case.
ASo it’s not as if the schizophrenia produces a thought to offend in this manner. It’s more about him being disinhibited and so, if an opportunity presents itself, he is more likely to show poor judgment and give in to his impulses.
QIs that an aspect of his antisocial personality disorder.
AYes.
QIn what way is there an interplay between that and schizophrenia.
AYes, well there is a comorbidity. So if a personal [sic] has a well-established antisocial personality disorder, by definition they have difficulty controlling their impulses. If, on top of that, they have schizophrenia which can also affect your thought processes, that can increase that disinhibition or inability to control the impulses.
QAnd are you saying that, if the schizophrenia is treated, that will have some moderating effect on disinhibition.
AThat’s correct.
However, in cross-examination the doctor conceded the following:
QI put to you that substance abuse isn’t necessarily tied to his mental health given that he was quite disordered and unwell when you saw him and he had been in custody for some amount of time and we can never say he wasn’t using drugs at all but there was no evidence to suggest that drugs were an issue. Is it possible to say substance abuse is not necessarily tied to how well he is functioning.
AThat is always the case, yes.
QHe could be very thought disordered. He might not be able to understand it. There might be drugs playing an issue, there might not.
AThat is right.
Dr Nambiar considered Mr Karpany to be at high risk of general reoffending regardless of whether his schizophrenia was treated because of his underlying antisocial personality disorder and history. The doctor agreed, however, that if a regime were in place that treated his schizophrenia and also minimised, if not eliminated, his drug abuse, that would reduce Mr Karpany’s risk of reoffending.
Dr Nambiar considered Mr Karpany to be at relatively high risk of sexual reoffending, especially if under the influence of illicit substances. In this regard, he gave the following evidence in examination-in-chief:
XN
QThese proceedings relate to, amongst other things, the risk that Mr Karpany might pose to the safety of the community if he’s released without any sort of restrictive order upon him. I’m interested to hear what you have to say about what risk he may have for sexual offending if he is released without an order; are you able to comment on that.
AYes, I can. I basically refer to his history. So his pattern of offending seems to have changed in the last decade whereby he’s been now convicted of sexual-type offences, the most recent obviously being when he was last in prison and served a sentence only recently.
HIS HONOUR
QThat’s [the] 2019 offence.
AThat’s correct, yes.
XN
QYou don’t diagnose any formal paraphilia or paedophilia as such, but you have noted that the pattern of offences involves a specific profile of victim.
AThat’s right, when I have explored this topic with him he doesn’t appear to have any paraphilic tendencies and specifically not paedophilic, but he tends to target the same profile as an offender; that is a vulnerable young female.
HIS HONOUR
QAnd when you’re referring to the term ‘young’ do you incorporate children or do you exclude children.
AIn terms of his pattern of offending, in terms of that definition I guess, if we’re talking about a minor, it has involved victims who are younger than 16. More recently it was a 17-year-old so I guess we’re talking about young females, probably teenager or slightly older, certainly not children.
Dr Nambiar reiterated that the “gold standard” treatment for schizophrenia is clozapine, but its effectiveness is dependent on compliance. Mr Karpany had in the past taken clozapine whilst in hospital and this had improved his mental condition at the time. The next best option would be an injection called zuclopenthixol but it was not as effective and it too required compliance — the respondent must attend an appointment to receive the injection or have the injection delivered.
The doctor explained that Mr Karpany is on a waiting list to be admitted to a forensic hospital and, if a vacancy arose, the hospital would organise his admission. However, due to an “embarrassment of resources” a vacancy had not arisen. Dr Nambiar predicted that it would be a matter of “months” before a vacancy arose. Once in James Nash House, Mr Karpany would need to be established on clozapine and this would take a minimum of 18 weeks. He predicted that Mr Karpany would need about four and half months at James Nash House, but potentially longer, depending on how he responded. There is, he said, less chance of Mr Karpany receiving a trial on clozapine within the community.
Dr Nambiar was then cross-examined about the Mental Health Act 2009 (SA) and the Guardianship and Administration Act 1993 (SA). The doctor was asked:
QYou talked about him being referred to James Nash through actions of the Mental Health Act. Is it possible through the Guardianship Act and possibly provisions of the Mental Health Act to supply him with the - ignore issues of availability for the moment let’s assume we have unlimited resources for the purposes of this exercise - would it be possible to deal with this situation and needs through the Guardianship Act, Mental Health Act and any other operation of the mental health legislation.
AOnly so far as ensuring he has treatment and has accommodation with support but he wouldn’t be able to enforce that he remains in the accommodation. You wouldn’t be able to enforce that there are certain places he couldn’t attend, those sorts of things would be a little bit more difficulty [sic].
In relation to Mr Karpany’s capacity to understand the nature of an extended supervision order, the doctor explained that, whilst Mr Karpany would have difficulty understanding abstract issues, if he were told in simple terms “not to do something”, then he would understand. The issue in Mr Karpany’s case, Dr Nambiar explained, was not so much that Mr Karpany did not understand, but more that he chose to not follow “the rules”. For example, the doctor agreed that Mr Karpany’s recent removal of his electronic monitoring bracelet did not happen because Mr Karpany did not understand the nature of the bracelet or the obligation to wear it.
Nevertheless, the doctor explained that the issue of fitness could vary over time and was dependent on whether Mr Karpany was using illicit substances. He conceded that Mr Karpany’s mental illness could impact on his ability to comply with some directions under a supervision order, though not all directions. To a certain extent, he could even say that Mr Karpany’s mental illness might cause him to breach his conditions, and that when Mr Karpany was unwell he would be less willing or less able to comply with the conditions of an order.
Dr Nambiar understood Mr Karpany to be aware of the present proceedings. The doctor agreed that the fact that Mr Karpany had contacted his solicitor on the morning of the hearing on 5 August 2020 suggested that he understood that there are proceedings on foot and that it was important for him to attend them.
Dr Nambiar was then taken to the conditions of Mr Karpany’s interim supervision order. He said he could see the benefit of having Mr Karpany reside at a particular address because having no fixed accommodation was a risk factor. Mr Karpany has in the past been described as a “wanderer”, tending to move from place to place, which exposes the community to risk and makes it difficult to track him down to receive treatment. The doctor could also see benefit in imposing a condition prohibiting contact or potential contact with children under the age of 18 years given the profile of the victims that Mr Karpany chooses when he sexually offends.
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 abuse, 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.
Submissions
As mentioned earlier in these reasons, the parties were united in submitting that, by virtue of Mr Karpany’s 2019 sentence to imprisonment for indecent assault,[27] which is a serious sexual offence within the meaning of s 4, he is a “serious sexual offender” and thus a “high risk offender” within the meaning of s 5(a) of the Act. Where the parties differed is whether the s 7(4)(b) jurisdictional fact had been made out, and if so, whether the discretion of this Court should be exercised in favour of the making of an extended supervision order.
[27] Contrary to s 56(1) of the Criminal Law Consolidation Act 1935 (SA).
It is convenient to first outline the submissions made by the respondent.
It was acknowledged that the risk that Mr Karpany poses to the safety of the community is a risk that waxes and wanes over time. Nevertheless, counsel for Mr Karpany submitted that a person who is unfit to instruct, even periodically, cannot meet the requirements of the High Risk Offenders Act. He contended that this is because an extended supervision order would not reduce the risk that Mr Karpany poses to the community as he would not be able to understand the nature and conditions of an extended supervision order. More particularly, he submitted that if an extended supervision order were made Mr Karpany would likely breach the conditions of the order as he may not be able to understand how the process operates or what is required of him. As a consequence, there was always the concern that Mr Karpany would engage in a constant cycle of being taken into custody for breaching his supervision order, then released, only to be taken back into custody for another breach. In the long term, Mr Karpany’s counsel said, this could result in “institutionalisation” which would increase the risk that Mr Karpany poses as well as frustrate his resettlement into the community.
Counsel for Mr Karpany submitted that the evidence adduced by the Attorney had failed to demonstrate that supervision would reduce Mr Karpany’s risk of reoffending. For example, it was unclear if he would be able to participate in the rehabilitation programs during the period in which the extended supervision order was operative. On occasions, Mr Karpany had instructed that he found compliance with stringent conditions of his interim supervision order difficult. For example, in the past he was not able to plan ahead to perform simple tasks, such as obtaining food, due to the home detention condition of the supervision order.

However, even if the s 7(4)(b) jurisdictional fact were made out, counsel for Mr Karpany emphasised that the High Risk Offenders Act was not designed to capture persons such as Mr Karpany whose offending is linked largely to his mental condition. Indeed, he said, it could be considered the bluntest and least flexible instrument available for Mr Karpany. Instead, other legislative instruments could be called upon, such as the Mental Health Act 2009 (SA) (Mental Health Act) and the Guardianship and Administration Act 1993 (SA) (Guardianship and Administration Act), because they target the medical issues affecting the individual and enable the assessment of risk by reference to those issues. Other mechanisms were also available, such as Housing SA and NDIS funding, which Mr Karpany had previously received.
In contrast, the Attorney submitted that Mr Karpany poses an appreciable risk to the safety of the community if not supervised under an extended supervision order. The risk was particularised to include indecent acts on young women. While the Attorney conceded that the task of supervising Mr Karpany under an order would be far more difficult when his mental state reduces his capacity to understand his obligations, Mr Karpany’s mental state provided no reason to not make the order. To the contrary, it was submitted that this was a classic case where supervision was required. It was contended:
The paramount consideration of the Court in determining whether to make an extended supervision order must be the safety of the community. The respondent submits that the regime intends that supervision should reduce the risk of reoffending. That is only partly right. The regime is intended to protect the public against the risk of reoffending. Its object is to provide the means to protect the community from being exposed to an appreciable risk of harm posed by serious sexual offenders and serious violent offenders: s 3. Protection can be afforded to the community from that appreciable risk by an order, whether or not that order also has some sort of rehabilitative effect upon its subject. Electronic monitoring can permit authorities to know where the high risk offender is, and permit them to intervene if the high risk offender is somewhere contrary to the order placing the public a risk. Curfews and residential conditions serve the same purpose.
(Emphasis in original.)
And further:
The argument that is put by the respondent has an illusory attraction if you accept its premise that the object of these orders is purely to reduce the offender’s offending. If you accept that it is purely to rehabilitate or to treat a condition that they have and that it is aimed at bringing them to a position where they are less likely to offend, but that is not the sole object of an order of this type. The paramount consideration is the safety of the community and the object of the Act is to provide means to protect the community from being exposed to the appreciable risk of harm that the offender poses. It is to protect the community. If that happens to involve the treatment of the offender, or the rehabilitation of the offender, then so be it but that’s not the primary purpose. The purpose is to protect the community and the community needs protection from Mr Karpany. …
Whilst the Attorney conceded that the availability of alternative means is a relevant factor in the exercise of the s 7(4) discretion, it was contended that the Mental Health Act and the Guardianship and Administration Act had limited utility in protecting the public from the risk that Mr Karpany poses. The Attorney emphasised that these Acts serve a different purpose to the High Risk Offenders Act, with the consequence that the former two Acts provide significantly less community protection than the High Risk Offenders Act.
The mental health legislation
The evidence adduced and the submissions made before me highlighted the uneasy interconnection between the criminal law, and in particular the High Risk Offenders Act, and legislation that specifically targets mental illness and mental incapacity in this State. It is appropriate to consider briefly the Mental Health Act and the Guardianship and Administration Act.
The Mental Health Act
The objects of Mental Health Act are found in s 6 of the Act which provides:
6—Objects
The objects of this Act are—
(a) to ensure that persons with severe mental illness—
(i)receive a comprehensive range of services of the highest standard for their treatment, care and rehabilitation with the goal of bringing about their recovery as far as is possible; and
(ii)retain their freedom, rights, dignity and self-respect as far as is consistent with their protection, the protection of the public and the proper delivery of the services; and
(b) for that purpose, to confer appropriately limited powers to make orders for community treatment, or inpatient treatment, of such persons where required.
Section 7 of the Mental Health Act then provides a number of guiding principles for persons and bodies involved in the administration of the Act to be guided by in the performance of their functions. It includes that “mental health services should be designed to bring about the best therapeutic outcomes for patients” and, as far as possible, ensure “their recovery and participation in community life”.[28] Another guiding principle is that “restrictive practices should be used only as a last resort for safety reasons and not as punishment or for the convenience of others”.[29]
[28] Mental Health Act 2009 (SA), s 7(1)(a).
[29] Mental Health Act 2009 (SA), s 7(1)(h).
The Mental Health Act provides for three levels of community treatment orders (CTOs). Persons the subject of a CTO can generally be compelled, notwithstanding an absence of consent, to receive medical treatment.[30] Mr Karpany is currently subject to a Level 2 Community Treatment Order (CTO) under the Mental Health Act that expires in December 2020. Level 2 CTOs are made by the South Australian Civil and Administrative Tribunal (SACAT),[31] and remain in place for 12 months for adults, unless earlier revoked.[32] The person over whom an order is to be made must have a mental illness[33] that causes the person or others to require protection from harm.[34] It must also appear to the medical practitioner that the person has impaired decision-making capacity in relation to treatment,[35] and that there are no less restrictive means than a CTO to ensure that the person receives appropriate treatment.[36]
[30] Mental Health Act2009 (SA), ss 13 and 18.
[31] Mental Health Act2009 (SA), s 16(1).
[32] Mental Health Act2009 (SA), s 16(5)(b).
[33] Mental Health Act2009 (SA), s 16(1)(a).
[34] Mental Health Act2009 (SA), s 16(1)(b).
[35] Mental Health Act2009 (SA), s 16(1)(c).
[36] Mental Health Act2009 (SA), s 16(1)(d).
Where a person the subject of a CTO has failed to comply with the order, a medical practitioner or mental health clinician may issue a patient assistance request which has the effect of engaging police assistance whilst treatment is administered.[37] The treatment is administered at the place at which the person the subject of the CTO is located.[38]
[37] Mental Health Act2009 (SA), s 54A.
[38] Mental Health Act2009 (SA), s 54A(1).
A medical practitioner or mental health clinician could, instead, issue a patient transport request, which would require the person subject to the CTO to be transported to a location where treatment can be administered in accordance with the order.[39]
[39] Mental Health Act2009 (SA), s 55(1)(a).
In the alternative, an Inpatient Treatment Order (ITO) could be made which would require that a person receive treatment as an inpatient in a treatment centre. ITOs require that the relevant decision-maker be satisfied that the person has a mental illness that requires treatment to protect the person or others from harm.[40] Further, the decision-maker must be satisfied that the person has impaired decision-making abilities, insofar as those abilities relate to treatment, and that there are no less restrictive means than an ITO to ensure that the person receives treatment.[41]
[40] Mental Health Act2009 (SA), ss 21(1)(a) and (b), 25(2)(a) and (b), and 29(1)(a) and (b).
[41] Mental Health Act2009 (SA), ss 21(1)(ba) and (c), 25(2)(ba) and (c), and 29(1)(ba) and (c).
In limited circumstances, the Mental Health Act also confers powers on police to allow them to use reasonable force against a person,[42] or to take the person into care and control and transport the person from place to place.[43]
[42] Mental Health Act2009 (SA), s 57(4).
[43] Mental Health Act2009 (SA), ss 57(4)(a) and (b).
The coercive powers of the Mental Health Act are directed toward the delivery of treatment and not any general restriction of the activity or movement of a mentally impaired person. The orders which may be made are not designed to be protective of the community in general, though the applicant concedes that Mental Health Act orders may, to some extent, reduce the potential risk that Mr Karpany poses to the safety of the community.
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).
The Attorney submitted that the Guardianship and Administration Act is not the appropriate legislation to deal with the complex needs of Mr Karpany and ensure the safety of the community. This submission is founded in the fact that, even if a guardianship order were made, a special powers order may not be made. In any event, even if a special powers order were made, these orders do not, unlike extended supervision orders, provide scope for electronic monitoring.
Consideration
The applicant submits that Mr Karpany’s history of offending and the psychiatric evidence indicate that Mr Karpany’s offending is likely to become more severe over time.
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.
Nevertheless, he has at times been able to reside fairly independently in the community, albeit with support in place.
What my earlier review, necessarily brief, of the Mental Health Act and the Guardianship and Administration Act demonstrates, is that neither Act is specifically targeted to the risks posed to the community by high risk offenders.
Whilst it may be true to say that many cases raising the need for ‘protection from harm’ under the Mental Health Act also involve criminal offending, that is not exclusively so. Likewise, whilst the risk posed to the community which is targeted by the High Risk Offenders Act often finds expression in the effects of untreated mental illness, again, that is not exclusively the case. The same may be said about the want of care and welfare that requires the making of a guardianship order, as well as the special powers orders that may, in a specific case, be made regarding residence and detention under the Guardianship and Administration Act.
In truth, where a high risk offender is beset by mental illness and the need for care, residence and the like, no one piece of legislation will address all of the offender’s needs and any consequential risk posed to the community. Rather, different aspects of each piece of legislation must be called upon to meet the various needs and difficulties presented and the risks posed.
This can be illustrated by Mr Karpany’s circumstances. The mechanisms available under the Mental Health Act and the Guardianship and Administration Act are frankly insufficient to ensure that Mr Karpany’s whereabouts and activities can be sufficiently monitored and supervised so as to properly protect the community. As well, though the medical evidence suggests that effective treatment and a stable residence will minimise the risk that Mr Karpany poses to the community, none of the evidence suggests that measures such as these will eliminate that risk, still less render it other than appreciable.
This is arguably best seen in the combination of prohibitive conditions and positive obligations set out in s 10 of the High Risk Offenders Act. Whilst it is true that some of these uneasily interconnect with aspects of the orders that can be made under the Mental Health Act and Guardianship and Administration Act, each Act has markedly different objects and legislative tools with which to meet their respective objectives. For want of a better metaphor, the difficulties, needs and risks posed by persons such as Mr Karpany can be seen as intersecting in a form of Venn diagram, where the separately identifiable areas of operation of each Act at times intersect and partially overlap.
In short, whatever the scope for orders to be made under legislation apart from the High Risk Offenders Act, they do not permit orders with conditions of the kind set out in s 10 which may incidentally target Mr Karpany’s needs but which primarily afford a measure of protection for the community.
There is no dispute in this case that Mr Karpany is a “high risk offender” as required by the s 7(a) jurisdictional fact. Likewise, there is no serious disagreement that Mr Karpany poses an appreciable risk to the safety of the community as required by the first limb of the s 7(b) jurisdictional fact.
As to whether, under the second limb of the s 7(b) jurisdictional fact, Mr Karpany poses an appreciable risk if not supervised under an extended supervision order, I am firmly of the opinion that this is also satisfied. For example, even if Mr Karpany is subject to a community treatment order as well as a guardianship order, neither of these will ensure that Mr Karpany can be electronically monitored at a specified residence and compelled to undertake programmes or other activities which will increase his engagement with the community and minimise his risk of re‑offending.
Where the two jurisdictional facts are made out, the Court will very often exercise its discretion to impose an extended supervision order. Whilst the Court is not compelled to exercise its discretion, a case such as this demonstrates why it is ordinarily appropriate to do so. That is to say, as Mr Karpany is a high risk offender who presents an appreciable risk to the safety of the community if not supervised under an extended supervision order. It is difficult to see why an extended supervision order should not be made. Whilst the terms and conditions of that order might well be supplemented by orders made under the Mental Health Act and the Guardianship and Administration Act, the operation of each, ideally, should be regarded as complementary, targeting different aspects of Mr Karpany’s requirements as well as the community’s need for protection.

Accordingly, in the exercise of my discretion, I will impose an extended supervision order.
As to the terms of that order, it was not seriously suggested that the terms of the present interim supervision order are not appropriate. I will make an order with those conditions.
As for the period of the order, it is plain that Mr Karpany’s case is complex and his needs and adverse social behaviours entrenched. Whilst this is not a case where there is no cause for optimism, rehabilitating Mr Karpany whilst, at the same time, protecting the community, is no 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.
Conclusion
In my opinion, the jurisdictional facts specified by s 7 of the Act have been satisfied and it is, in the exercise of my discretion, necessary that Mr Karpany be subjected to an extended supervision order for a period of five years.