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)…

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.

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Details

Case: [2020] SASC 219
Decision Date: 13 November 2020

CaseChat Overview and Summary

In Attorney-General (SA) v Karpany, the applicant, the Attorney-General for South Australia, sought orders under the High Risk Offenders Act 2009 (SA) in relation to the respondent, Mr Karpany. The primary issue before the court was whether Mr Karpany, who has a history of serious criminal offending, poses a significant risk of committing serious sexual offences if released into the community, and if so, whether he should be subjected to an extended supervision order. The court had to consider the psychiatric evidence presented, which indicated that while Mr Karpany was at high risk of reoffending, his mental condition improved with consistent medication and abstinence from substance abuse.

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

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

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).