Attorney-General (SA) v MCKENZIE - [2019] SASC 202

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v MCKENZIE
[2019] SASC 202
Judgment of The Honourable Justice Nicholson
25 November 2019
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
The Attorney-General (SA) has applied pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) for an extended supervision order in relation to the respondent. Pending the determination of the application for an extended supervision order, the Court made an interim supervision order against the respondent on 22 May 2019. The Attorney-General seeks a three-year extended supervision order. The respondent concedes that he is a high risk offender within the meaning of Criminal Law (High Risk Offenders) Act but challenges two proposed conditions: (1) a curfew condition; and (2) a condition restricting the respondent’s entitlement to enter any licensed premises.
Held, the respondent is to be subject to an extended supervision order for three years on the conditions sought by the Attorney-General, including the curfew condition in the terms as sought, but including a licensed premises condition in the varied form set out in paragraph [26] of the reasons.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, s 10, s 11, referred to.

ATTORNEY-GENERAL (SA) v MCKENZIE
[2019] SASC 202
Criminal: Application
NICHOLSON J.
Introduction

These reasons concern a contested application by the Attorney-General, pursuant to section 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act), for an order that would subject the respondent to an extended supervision order for a period of three years.
Subsection 7(4) of the Act provides as follows.
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.
By force of section 10 of the Act, an extended supervision order once made is to contain certain mandatory conditions together with any other condition the Court “thinks fit” and any conditions imposed by the Parole Board including but not limited to those listed in section 11. Typically, the conditions imposed will allow for a significant measure of supervision of and control over a criminal offender both as to their location and activities once the offender is released from custody to again live in the community. The paramount consideration in determining whether to make an extended supervision order is the safety of the community.[1]
[1] Subsection 7(5) of the Act.
At the time of the argument, the respondent indicated that he would consent to the making of an extended supervision order for three years but wished to challenge two of the conditions that the applicant sought to have included in the order. By giving his consent, albeit qualified with respect to the two conditions in contention, the respondent had conceded that paragraphs (a) and (b) of subsection 7(4) have been established on the evidence. That concession was properly given; I have considered the evidence before the Court and have satisfied myself as required by subsection 7(4) of the Act.
The terms of the extended supervision order as sought by the applicant do not contain a home detention condition nor a requirement for electronic monitoring but are, otherwise, in relatively common form. The two conditions to which the respondent objects are in these terms.
(q)the Respondent will not enter or remain upon any licensed hotel, clubroom or licensed entertainment venue without prior approval of his Community Corrections Officer.
.. . .
(t)Subject to the direction of the Parole Board the Respondent will be subject to a curfew and is to remain in his approved place of residence between 9.00pm and 6.00am, save and except in the case of a medical emergency or with the prior written permission of his Community Corrections Officer, and he will present to police, a Community Corrections Officer or such person as is authorised to conduct a curfew check at his front door on request unless absent for medical emergencies or with prior written permission; with liberty to apply to the Parole Board for variation or revocation of this condition.
Both parties read affidavits on the hearing of the application, without objection. Received on behalf of the applicant were three affidavits of Sergey Fursa, a legal practitioner employed within the Crown Solicitor’s Office who has the responsibility for the conduct of the matter on behalf of the applicant, affirmed on 14 May 2019, 21 May 2019 and 24 October 2019. The applicant also relied upon a report prepared by the forensic psychiatrist, Dr Craig Raeside, dated 13 September 2019. Dr Raeside attended at the hearing and gave short oral evidence. The affidavit material relied upon by the respondent comprised two affidavits sworn by his solicitor, Garen Morocco Truscott, on 17 October 2019 and 28 October 2019. In addition, the respondent gave short sworn evidence.
Background
The respondent is currently living in the community and is subject to an interim supervision order made on 22 May 2019. That order was made immediately prior to his release from custody after having served a term of imprisonment for six years for the offence of manslaughter. This offence was committed in December 2012 when the respondent, whilst intoxicated and in the midst of an argument with a close friend, picked up a cricket bat and struck the friend twice to the head in quick succession. The attack was not premeditated. The respondent ran away but returned some hours later to find the victim unconscious. The respondent attempted to administer first aid (CPR) and called an ambulance. However, the victim did not survive.
The respondent was about 30 years of age when he committed this offence of manslaughter and already had a criminal record of some significance. Whilst it largely comprises motor vehicle, public disorder, breaches of court orders and dishonesty offences, the respondent has committed two other offences of violence. He committed a basic assault in 2012 for which he received a bond to be of good behaviour for 12 months. Of more significance is that, in November 2015 whilst in custody, he committed an offence of recklessly causing harm for which he was sentenced to imprisonment for six months and two weeks but to be released after serving three months subject to a bond to be of good behaviour for 18 months. The applicant punched and kneed the victim multiple times; injuries included a cut to the left eye, swelling and a cut to the left ear. According to the Magistrate’s sentencing remarks delivered on 12 October 2016, the assault was unprovoked.
The respondent has responded poorly in the past to community based supervision. Following release on parole on 5 February 2016 the respondent was returned to custody on three occasions for parole breaches. The respondent has also received a number of warnings in relation to being threatening and argumentative towards prison staff and other prisoners. Furthermore, after being released from prison and placed on the interim supervision order, a number of breaches of that order were found proved by the Parole Board. On two occasions, the respondent tested positively for methamphetamines and amphetamines.
Dr Raeside provided a report, dated 13 September 2019, prepared after having examined the respondent and considered various written materials provided which canvassed the respondent’s history including his criminal record and various psychiatric, psychological and behavioural assessments. Dr Raeside expressed these conclusions.
In summary, [the respondent] is a 37-year-old Aboriginal man with a long history of difficulty since at least the age of four in which he reportedly suffered a brain injury in a motor vehicle accident. He has been assessed as having extremely low intellectual ability and frontal lobe impairment. It is unclear whether the intellectual disability would have been present before the motor vehicle accident. He has a history of disruptive behaviour including impulsive aggression.
Despite a long history of offending since his teens, [the respondent] does not appear to have had any significant charges of aggression until 2012 when he was charged with assaulting his domestic partner but an Intervention Order was not proceeded with because she failed to attend court. Soon after he was convicted of manslaughter involving the death of a close friend. He was intoxicated with alcohol and amphetamines at the time as well. Subsequently, while serving a term of imprisonment, he was convicted for recklessly causing harm to another prisoner during a fight. He breached parole due to nonreporting and other matters, demonstrating poor compliance and poor attitude.
Since being released from custody on the completion of his head sentence in May of this year [the respondent] has received considerable support at the Aboriginal Sobriety Group, both in terms of accommodation at Cyril Lindsay House as well as through various support workers and psychological therapy. He has been referred to NDIS for further support. This has obviously been beneficial to him in terms of general support and he denied using any illicit drugs or alcohol during that period of time. There have been no reported episodes of violence or aggression.
However, [the respondent] still has the underlying cognitive impairment, intellectual disability, and antisocial personality traits that have been present throughout his life and there is no indication to suggest that these would have improved given their lifelong unchangeable nature.
Dr Raeside described the respondent as presenting a high risk of further violent offending based on his underlying static and dynamic risk factors detailed elsewhere in the report. However, Dr Raeside also observed:
[The respondent’s] risk of further aggression can be reduced/moderated if everything in his environment is going well, including considerable support, help, lack of stress, in a structured environment, as appears to be occurring at present. However, the likelihood of this continuing unchanged indefinitely is remote. Efforts are underway to try to refer him to other appropriate services. However, invariably [the respondent] will experience frustration, small or large, and his underlying impulsive aggression remains an ongoing risk factor. This will only worsen should he again return to drug and alcohol use with its detrimental factors further exacerbating his underlying vulnerabilities.
Submissions and consideration
As I have indicated, it is not contested and I am satisfied that the respondent qualifies as a high risk offender in accordance with the requirements of section 5 of the Act. Further, I am satisfied on the basis of the evidence adduced by the applicant including but not limited to the opinions expressed by Dr Raeside, that the respondent would pose an appreciable risk to the safety of the community if not supervised under an extended supervision order. The issue before me is whether that order should include the curfew condition and the condition prohibiting access to venues that serve alcohol without prior approval.
The respondent has submitted that the imposition of the curfew condition is unnecessary and counterproductive. There is no suggestion that the respondent is prone to committing offences during the night hours; none of his past offences of violence took place during the night hours. It is submitted, that the curfew itself will do little if anything to protect the public against possible future offending by the respondent. It is counterproductive because it is a source of great frustration to the respondent and has generated a sense of grievance and unfairness because of the restrictions it imposes on his lifestyle. Furthermore, the respondent is keen, if he can, to obtain work of either a voluntary or a paid nature and it may well be that such work will involve after hours work or even night shifts. The respondent is also anxious to reconnect with and spend time with his immediate and wider family living in the Port Augusta region. The respondent himself lives in the western suburbs of Adelaide. The respondent perceives practical difficulties in being able to spend time in Port Augusta with his family as a consequence of the curfew condition.
During the hearing, the respondent gave brief sworn evidence. He has acknowledged the seriousness of the offence of manslaughter that he committed. Further, the victim was his close friend and remorse, stress and anxiety that has resulted remains today. The respondent also insisted, during his evidence, that he was very anxious not to return to prison, that he no longer drank alcohol and had not done so for many years and that apart from a couple of relapses, which he said were caused by the stress of the court proceedings, he had avoided drug taking.
The respondent believes that he has “done his time” and he has not committed any serious offence or offence of violence for a very long time. A problem, as he explained in his evidence and through his counsel, is that the more extreme the level of restriction on his living arrangements the more frustrated he becomes. This can readily be accepted, given the respondent’s underlying cognitive impairments and intellectual disabilities. The more frustrated he becomes, the more likely it is that he will breach conditions that he perceives as unfairly restricting his freedom.
The evidence demonstrates that the respondent has responded reasonably well to the interim supervision order. There have been no breaches of the electronic monitoring requirement nor of the curfew requirement. Further, according to the letter from the Aboriginal Sobriety Group exhibited to the respondent’s solicitor’s first affidavit, the respondent has been working very hard at rehabilitative activities with the assistance of case workers at the Aboriginal Sobriety Group during his 12 weeks or so at Cyril Lindsay House (CLH). The author of that letter (the respondent’s caseworker) has included the following observations.
∙     Is actively participating in Case Management Processes with his Caseworker …
∙     Complies with his tenancy at CLH and rent is always paid on time
∙     Engages with OARS worker – Amy.
∙     Engages with ASG program – Journey to Home.
∙     ASG will be putting him forward for community housing in the near future and will support him while in the property …
∙     [The respondent] attends a Psychologist Matt Pedler every Thursday through ASG
∙     [The respondent] is in receipt of NDIS plan
∙     [The respondent] has support from Disability Community Services for Housing
∙     [The respondent] is enrolled for 2020 at Taoundi College – Community Services cert 2
∙     [The respondent] participates in all programs that he can besides football and swimming.
The author concluded as follows:
ASG would like to say we are proud of [the respondent’s] accomplishments over the past 12 weeks and we are happy to support [him] going forward on his positive journey.
[The respondent] is a fantastic client who is well respected in our program. [The respondent] cleans and cooks dinner every night for all clients that reside in the hostel. [The respondent] also keeps his room immaculate and this is very important as he is residing in share accommodation.
The respondent is now in receipt of a comprehensive NDIS program in the terms exhibited to his solicitor’s second affidavit.
Under the interim supervision order, the respondent was subjected to electronic monitoring as well as a curfew condition. The electronic monitoring has now been removed. In addition, the curfew condition has been modified. Under the interim supervision order it was in more absolute terms. The only exceptions to the requirement to observe the curfew were the usual ones of medical emergency or prior written permission of the corrections officer. Under the condition that is now proposed, the requirement to observe the curfew is subject to the direction of the Parole Board. In addition, there is liberty to apply to the Parole Board for a variation or revocation of the curfew condition.
Dr Raeside, when giving evidence, was strongly of the view that with the removal of the electronic monitoring the case for a curfew condition became stronger. He observed that typically there would be few prosocial activities that would occur between 9.00 pm and 6.00 am, whereas the respondent would be more likely to mix with antisocial peers and encouraged to fall into bad habits. There also would be a greater likelihood of exposure to alcohol and drugs during these hours.
In addition, to the extent that the respondent might demonstrate that prosocial activities were to be undertaken from time to time during those hours such as work commitments or visits to family in Port Augusta, permission could be sought from the community corrections officer or the Parole Board approached for a variation. Under the proposed conditions, there would be scope for the curfew requirement to be waived for the number of days that the respondent expected to be in Port Augusta visiting family or for the curfew requirement to be varied so that whilst it would still apply according to its terms, the respondent would only need to be at a nominated residence in Port Augusta during the curfew hours.
The applicant submits that the risk of further offending which might be amplified by the respondent’s particular vulnerabilities, resulting from his intellectual disability, frontal lobe brain damage and propensity for substance abuse, would be ameliorated by confining the respondent to a safe and secure environment during the night hours. A curfew would provide structure which would assist in managing the risk of further offending. The applicant also maintains that a curfew would assist Corrections in monitoring any difficulties the respondent, who has a history of homelessness, might experience with his ongoing accommodation needs.
Ultimately, I am confronted with a balancing exercise. The protection of the public is a paramount consideration. The protection of the public will be enhanced by putting in place during the early years of release structures that will promote the respondent’s rehabilitation and engagement in prosocial and rejection of antisocial activities. The curfew condition is an important aspect of this for the reasons given by Dr Raeside; particularly now that there is to be no electronic monitoring. I am satisfied that the respondent’s concerns can be accommodated should Community Corrections and the Parole Board take a reasonable and flexible approach to any proper request for variation or permission and provided the respondent continues to observe the terms of the supervision order. The extended supervision order that I will make will contain a curfew condition in the terms sought by the applicant.
I turn to consider the restriction concerning being present at venues that sell alcohol. I accept the evidence of the respondent, given with some insistence, that he has no desire to drink alcohol again. It would also appear to be the case that he has not consumed alcohol for many years now. He said that the last time he consumed alcohol was at the time he committed the manslaughter offence in late 2012. In eleven or so random tests during the period of the interim supervision order, the respondent has not once tested positive for alcohol consumption. Whilst one can never be certain of the future, alcohol does not appear to be a present problem although it has been in the past.

The respondent sees this condition as an unnecessary and counterproductive restriction on his liberty and freedom of movement. In its present form, it prohibits him from attending a large number of recreational venues. According to the respondent, it unfairly and unnecessarily restricts his capacity to go out for lunch or dinner or to simply meet socially with friends or family. Many sporting and other clubs and entertainment venues now sell alcohol. The condition is of uncertain breadth. Can the respondent attend a football game or a cinema or theatre venue where alcohol is served? Might he attend the Adelaide Oval or Festival Theatre or Entertainment Centre? The proposed condition does provide for prior approval to be obtained but this can be impractical and require a level of forethought and planning that might not always be available. Furthermore, the respondent insists that he does not drink alcohol and does not have an alcohol problem.
The applicant is concerned primarily to keep the respondent away from temptation and from the risk of mixing with undesirables. However, ultimately the respondent will have to be given the chance to prove himself in this respect. His progress to date, as is apparent from the Aboriginal Sobriety Group letter, is very encouraging. Furthermore, the supervision order contains conditions prohibiting the consumption of alcohol and requiring the respondent to undertake random testing.
In my view, the proposed licensed venue condition is unnecessarily restrictive in its present form. I will amend it so that the respondent will be entitled to attend such venues provided he gives to his Community Corrections officer three hours notice of his intention to do so. This would permit random checking of the respondent’s whereabouts and activities to take place and post-visit alcohol testing to be arranged, to any extent thought appropriate. Of course, any such visits by the respondent would not be permitted within the curfew hours of 9.00 pm to 6.00 am unless prior permission were to be obtained.
Conclusion
The respondent is to be subject to an extended supervision order for three years on the terms as sought by the applicant, being the terms of the interim supervision order made on 22 May 2019 as varied by me at the close of the hearing on 29 October 2019, save that clause 2(q) (the licensed venue condition) will be amended to read as follows.
(q)The Respondent will not enter or remain upon any licensed hotel, clubroom or licensed entertainment venue without first giving his Community Corrections Officer three hours notice of the venue he intends to visit, when he intends to visit it and with whom he intends to visit it.