Attorney-General (SA) v Moyle [No 2]

[2019] SASC 31

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

ATTORNEY-GENERAL (SA) v MOYLE [NO 2]

[2019] SASC 31

Judgment of The Honourable Justice Hinton

8 March 2019

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS

On 25 July 2018 this Court made an interim supervision order with respect to Mr Jason Scott Moyle pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). On 27 July 2018 the order was varied and Mr Moyle was released from prison that same day.

Between 27 July 2018 and 30 July 2018 Mr Moyle breached three conditions of the interim supervision order and was taken back into custody. On 5 September 2018 the Parole Board satisfied itself that Mr Moyle had breached the interim supervision order. Pursuant to s 17(1)(b)(ii) the Parole Board directed that Mr Moyle be detained in custody pending attendance before this Court for determination as to whether a continuing detention order should be made under s 18(2) of the Act.

Held, Mr Moyle breached three conditions of his interim supervision order and poses an appreciable risk to the safety of the community if not detained in custody. He is to be detained in custody under s 18(2) of the Act from the date of this judgment until 16 December 2019.

Criminal Law (High Risk Offenders) Act 2015 (SA) ss 4, 7, 9, 10(4), 12, 13, 15, 17, 18, 21, 22; Criminal Law (High Risk Offenders) Bill 2015 (SA); Criminal Law (Sentencing) Act 1988 (SA), s 23, referred to.
Attorney-General (SA) v Moyle [2018] SASC 106; Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74; Attorney-General (SA) v V, ZR [2019] SASC 1; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; Moloney v Motor Accident Commission (2013) 117 SASR 189; Moreton Bay Regional Council v Mekpine Pty Ltd (2016) 256 CLR 437; Weinstock v Beck (2013) 251 CLR 396; White v Police (SA) [2018] SASC 124, considered.

ATTORNEY-GENERAL (SA) v MOYLE [NO 2]
[2019] SASC 31

Criminal

HINTON J:

Introduction

1. On 25 July 2018 this Court made an interim supervision order with respect to Mr Jason Scott Moyle pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). On 27 July 2018 that order was varied and, on that same date, Mr Moyle was released from prison.

2. Between 27 July 2018 and 30 July 2018 Mr Moyle breached three conditions of the interim supervision order. On 30 July 2018 the Parole Board issued a warrant for Mr Moyle’s arrest under s 15 of the Act. Later that same day the warrant was executed and Mr Moyle was taken into custody. He has remained in custody ever since.

3. On 5 September 2018 the Parole Board satisfied itself that Mr Moyle had breached the interim supervision order. Pursuant to s 17(1) of the Act the Parole Board directed that Mr Moyle be detained in custody pending attendance before this Court for determination as to whether a continuing detention order should be made.

4. The Parole Board’s direction under s 17(1) enlivens the jurisdiction of this Court under s 18(2) to determine whether to make a continuing detention order.[1]

   [1]    Criminal Law (High Risk Offenders) Act 2015 (SA), s 18(1).

5. For the reasons that follow I am satisfied that Mr Moyle has breached the interim supervision order and that he poses an appreciable risk to the safety of the community if not detained in custody. In my view Mr Moyle should be detained in custody until 16 December 2019. My reasons follow.

   Material received and some preliminaries

6. I received the following material:

   i.Affidavit of Catherine Mary Nolan, sworn on 20 March 2018 (exhibit P1)

   ii.Report of Dr Owen Haeney, dated 21 June 2018 (exhibit P2)

   iii.Report of Dr Pei Lim, dated 4 July 2018 (exhibit P3)

   iv.Affidavit of Colin Mercer, sworn on 6 September 2018 (exhibit P4)

   v.Affidavit of Catherine Mary Nolan, sworn on 25 September 2018 (exhibit P5)

   vi.Affidavit of Henry Pharo, sworn on 7 September 2018 (exhibit P6)

   vii.Affidavit of Catherine Mary Nolan, sworn 4 October 2018 (exhibit P7)

   viii.Affidavit of Ryan Mark Harber, sworn 4 October 2018 (exhibit P8)

   ix.Affidavit of Sylma Malyschko, sworn 4 October 2018 (exhibit P9)

   x.Report of Dr Craig W J Raeside, dated 4 October 2018 (exhibit P10)

   xi.Affidavit of Catherine Mary Nolan, sworn 15 September 2017 (exhibit P11)

   xii.Affidavit of Catherine Mary Nolan, sworn 5 June 2018 (exhibit P12)

   xiii.Affidavit of Clark Sim, affirmed 7 June 2018 (exhibit P13)

   xiv.Documents subpoenaed from the Royal Adelaide Hospital, Central Adelaide Local Health Network (exhibit P14)

   xv.Report of Dr Owen Haeney, dated 10 February 2018 (exhibit P15)

   xvi.Report of Dr Pei Lim, dated 28 December 2017 (exhibit P16)

   xvii.Report of Dr Craig W J Raeside, dated 26 May 2018 (exhibit P17)

   xviii.Client case management document, dated 17 October 2018 (exhibit P18)

7. In addition, I have had regard to the oral evidence given by Dr Raeside and Dr Pharo supplementing, in Dr Raeside’s case, his reports (exhibit P10 and P17), and in Dr Pharo’s, his affidavit (exhibit P6).

8. With the consent of the parties I have also had regard to and relied upon my reasons in Attorney-General (SA) v Moyle.[2] Those reasons were provided in relation to an application by the Attorney-General for an order that Mr Moyle be indeterminately detained on the basis that he was unwilling to control his sexual instincts.[3] That application was instituted at the same time as the application for an extended supervision order in relation to which the interim supervision order, the breach of which is subject of these proceedings, was made. It was determined that the Court should proceed to hear the application that Mr Moyle be detained indeterminately first. I refused that application. Thereafter, I made the interim supervision order.

   [2] [2018] SASC 106.

   [3]    Criminal Law (Sentencing) Act 1988 (SA), s 23.

9. As the reasons in Attorney-General (SA) v Moyle demonstrate exhibits P11-P17 were tendered in both proceedings.[4] Drawing on that material, in Attorney-General (SA) v Moyle I set out Mr Moyle’s personal circumstances,[5] his antecedents,[6] the details of his sexual offending,[7] and the details of treatment provided to and assessments conducted of Mr Moyle by the Department for Correctional Services.[8] Nothing in the additional material filed in support of the extended supervision order and continuing detention order causes me to rethink anything I wrote in relation to those topics. Accordingly, these reasons should be read as incorporating paragraphs [10]-[84] of my reasons in Attorney-General (SA) v Moyle.

   [4]    Attorney-General (SA) v Moyle [2018] SASC 106 at [7].

   [5] [2018] SASC 106 at [10]-[28].

   [6] [2018] SASC 106 at [29]-[45].

   [7] [2018] SASC 106 at [46]-[57].

   [8] [2018] SASC 106 at [58]-[84].

10. Lastly, on 9 October 2018 I indicated that I would make an extended supervision order of five years’ duration containing the same terms as the interim supervision order. I am yet to make such order. It occurred to me that the making of an extended supervision order may bring to an end the interim supervision order with the consequence that any continuing detention order made in relation to the breach of the interim supervision order could not be for a period extending beyond the life of the interim supervision order. I had the matter called on and heard submissions on this question. Since then judgment was handed down in Attorney-General (SA) v V, ZR. In that case Hughes J held:[9]

    For the reasons that follow, in making an extended supervision order, the Court’s power to issue a continuing detention order is by that act, extinguished. Further, if I were to impose a continuing detention order before determination of the extended supervision order, the continuing detention order could only endure during the life of the interim supervision order, though it could be made for a specified period within the life of the interim supervision order. The legislative scheme does not envisage that a continuing detention order issued as a consequence of a breach of an interim supervision order will operate on an extended supervision order that succeeds that interim supervision order.

    [9] [2019] SASC 1 at [43].

11. The power to make a continuing detention order is contained in s 18(2) of the Act. It provides:

    (2)   The Supreme Court may, if satisfied that the person—

    (a)has breached a condition of the supervision order; and

    (b)poses an appreciable risk to the safety of the community if not detained in custody,

    order that the person be detained in custody (a continuing detention order) until the expiration of the supervision order, or for such lesser period as may be specified by the Court.

12. Before me counsel for the Attorney-General submitted that I should not adopt the construction of s 18(2) that found favour with Hughes J. Acknowledging that ordinary principles of respect and comity meant that I should exercise significant caution before departing from Hughes J’s decision, counsel nonetheless contended that I should do so.[10] Counsel submitted that the first reference to “supervision order” in s 18(2) identified the order breached and was to be construed, consistent with the definition of “supervision order” contained in s 4 of the Act, as referring to either an extended supervision order or an interim supervision order. Next, the second reference to “supervision order” contained in the chausette to s 18(2) was to be read as meaning neither an interim supervision order nor an extended supervision order, but, rather, as if it related to one order comprised of an interim supervision order merged into an extended supervision order. So construed where the breach alleged is of an interim supervision order the duration of any continuing detention order is bounded by the length of any subsequent extended supervision order.

    [10]   White v Police (SA) [2018] SASC 124 at [20] (Nicholson J).

13. Counsel added that if the second reference to “supervision order” contained in the chausette to s 18(2) is not read in the manner contended, the consequence is that the statutory scheme is defeated as an offender could breach an interim supervision order and avoid a continuing detention order, or, be subject to a continuing detention order for a period less than necessary to protect the community from the risk posed by the offender. Further, no action could be taken in relation to the breach of an interim supervision order discovered after the making of an extended supervision order.

14. It appears that the same argument or a variant of it was put to Hughes J in Attorney-General (SA) v V, ZR. Hughes J held:[11]

    It is plain that the second occurrence of the phrase “the supervision order” is a reference to the order that has been breached. It is also evident from s 9 that an interim supervision order is an order in its own right and that it continues until the application for the extended supervision order is determined. At that point in time, if the extended supervision order is made, such order replaces the interim supervision order. If the Court determines that an extended supervision order should not be made, the interim order has no further effect. Although the interim supervision order is defined by reference to a subsequent event, namely the making or refusal of an extended supervision order, it is not accurate to characterise the interim order as part of, or synonymous with, an extended supervision order that may or may not be made. The scheme of the Act makes it clear that the two orders are distinct. The interim order has all of the capacity of an extended supervision order. The fact that it requires an application for an extended supervision order to be on foot for it to be made does not mean that the interim supervision order becomes the extended supervision order.

    [11] [2019] SASC 1 at [45].

15. I agree. Hughes J’s construction accords with the ordinary meaning of the text. It is underpinned by s 9(2) and the definition of “supervision order” contained in s 4. I accept that a definition is merely an aid to construction that must yield to context,[12] but I am not persuaded that either textually or contextually there is any reason to read down the second reference to “supervision order” in s 18(2) to mean either a merged order or an extended supervision order and only an extended supervision order.

    [12]   Moreton Bay Regional Council v Mekpine Pty Ltd (2016) 256 CLR 437 at [61] (French CJ, Kiefel, Bell and Nettle JJ).

16. The Attorney-General’s submission is founded on the proposition that an interim supervision order does not have an expiry date and, therefore, cannot be one in relation to which a continuing detention order is made for the life of the supervision order or for a lesser period. I do not accept the proposition and the related consequence. The language of the chausette to s 18(2) is “until the expiration of the supervision order, or for such lesser period as may be specified by the Court”. Section 9(2) provides that an interim supervision order takes effect on the making of the order until the application for the extended supervision order is determined. It follows then that the expiration of an interim supervision order is capable of being discerned and a continuing detention order for a lesser period made.

17. There is a further reason to reject counsel for the Attorney-General’s construction. The second reference to a supervision order in s 18(2) is to an order in existence, not to an order that might be made. If the Attorney-General’s construction is accepted, the power conferred by s 18(2) cannot be exercised until such time as an extended supervision order is made, if at all. Counsel was concerned to remind me that a grant of jurisdiction “is not to be hedged about by any implied limitation”,[13] but it seems to me that the very construction advanced by the Attorney-General is amenable to such criticism. It would mean that the power vested by s 18(2) was implicitly conditioned on the exercise of the power contained in s 7(4) and the making of an extended supervision order. Flowing from this, it would also mean, that implicitly the power contained in s 18(4) is to be construed as exercisable pending proceedings under s 7 and, only if an order is made pursuant to s7, pending proceedings under s 18(2). As indicated, I do not think the second reference to a “supervision order” contained in s 18(2) can be construed as including an order as yet not made.

    [13]   Weinstock v Beck (2013) 251 CLR 396 at [55] (Hayne, Crennan and Kiefel JJ).

18. The construction advanced by the Attorney-General seeks to overcome the situation where an offender breaches an interim supervision order warranting the making of a continuing detention order but is released, even though the Court had determined that the protection of the community from the appreciable risk that the offender posed requires that the offender be detained in custody, upon the making of an extended supervision order. The argument is really one that Parliament could not have intended such consequence and that an alternative construction should be preferred.[14] Two observations may be made here; first, the consequence is founded on the assumption that the Court must proceed to determine an application for an extended supervision order without regard to a continuing detention order and its purpose. How an offender responds to a continuing detention order made in consequence of the breach of an interim supervision order would be highly relevant to the terms of any extended supervision order. I see nothing in the Act that obliges the Court to proceed to determine an application and no reason why the application could not be adjourned. Indeed s 7(6)(f) would support adjourning the application for an extended supervision order where a continuing detention order has been made and the term of such order correlates to the duration of a treatment or educative program that it is intended the offender undertake. I acknowledge that that introduces the possibility of an indeterminate continuing detention order and that it is unlikely that Parliament contemplated such outcome, particularly where a detention order made in relation to an extended supervision could not have a lifespan greater than the order itself. Such possibility will weigh heavily with the Court in the exercise of the powers conferred and it has troubled me in the course of undertaking the construction exercise. However, in the end I do not think it can overcome the strength of Hughes J’s construction or the additional observations I have made. I take some comfort in the fact that a continuing detention order may be varied or revoked and is subject to appeal. Second, it strikes me that the submission is drawn from a policy construct extraneous to the text. I bear in mind the observations made by Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation:[15]

    … if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that “it may degrade into mere judicial criticism of the propriety of the acts of the Legislature”, as Lord Moulton said in Vacher & Sons Ltd. v. London Society of Compositors; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied.

    [footnote omitted]

    I consider these observations apposite.

    [14]   Legal Services Board v Gillespie-Jones (2013) 249 CLR 493 at [48] (French CJ, Hayne, Crennan and Kiefel JJ).

    [15] (1981) 147 CLR 297 at 305.

19. The composite phrase “supervision order” is not used in Part 1 of the Act, save s 4, and in Part 2 it is only used in ss 10(4), 13 and 14. In Part 2 in each respect it is used in a manner consistent with the definition of the phrase as contained in s 4. Within Part 3 of the Act no use is made by the drafter of the phrases “extended supervision order” or “interim supervision order”. In Part 4 the drafter is once again, and understandably having regard to the subject matter of ss 21 and 22, discerning.

20. Part 3 of the Act deals with continuing detention orders. It would be wrong to characterise this Part as providing for the enforcement of the orders that may be made under Part 2. Having regard to ss 17(1) and 18(2) the purpose is to facilitate the review of the protection afforded by an order made under Part 2 in view of the breach of a condition or conditions having occurred and to take ameliorative action as permitted by the Act so as to ensure that the community is protected from the appreciable risk to its safety that the offender poses. Hughes J’s construction does not offend that purpose. However, neither does the construction advanced by the Attorney-General.

1. The Act commenced life in the House of Assembly as the Criminal Law (Extended Supervision Orders) Bill 2015 (SA).[16] The Bill in its original form included provision for the making of an interim supervision order.[17] It also provided that breach of a supervision order was an offence punishable by imprisonment for up to five years.[18] It made no provision for a continuing detention order. The amendment of the Bill to incorporate continuing detention orders occurred in the Legislative Council as did the amendment altering the name of the Bill to the Criminal Law (High Risk Offenders) Bill 2015 (SA).[19] In the course of amending the Bill to provide for continuing detention orders, which in effect inserted what is now Part 3 of the Act, original clause 17, the offence creating clause, was deleted. Ordinarily, the mischief that a legislative enactment is intended to address is discerned from the Second Reading Speech. However, where, as here, amendment occurs once the relevant House has moved to the committee stage I do not think that a court in this State is barred from having regard to Hansard in order to discern the mischief that an amendment to a Bill which is accepted by both Houses of Parliament and which finds its way into the Act was intended to address.[20] I would characterise the purpose of the amendment as providing for detention for protective purposes where a supervision order has been breached as opposed to a punitive regime. I do not gainsay what the opinion of the members of the Houses of Parliament may have been more specifically. To do so forms no part of the construction exercise. What is clear is that it was intended to substitute one approach that catered for the breach of both an interim supervision order and an extended supervision order for another.

   [16]   See Parliament of South Australia, House of Assembly, Hansard, 11 February 2015 at 39; Parliament of South Australia, Legislative Council, Hansard, 18 June 2015 at 1029.

   [17]   Parliament of South Australia, House of Assembly, Hansard, 11 February 2015 at 43-44 (clause 9).

   [18]   Parliament of South Australia, House of Assembly, Hansard, 11 February 2015 at 44 (clause 17).

   [19]   Parliament of South Australia, Legislative Council, Hansard, 18 June 2015 at 1029.

   [20]   Moloney v Motor Accident Commission (2013) 117 SASR 189 at [90]-[91] (White J).

2. The legislative history of Part 3 does not suggest that s 18(2) should be afforded a construction different to that to which the ordinary meaning of the text gives rise.

3. The only provision in Part 3 that suggests that it is possible that the drafter has used the expression “supervision order” in the chausette of s 18(2) to mean something different to that contained in the definition in s 4 is s 18(7). I consider that where s 18(7) refers to a supervision order it means an extended supervision order and only an extended supervision order. Working backwards, this conclusion  follows from the reference in s 18(7)(b) to the supervision order, being the order in relation to which the person continues to be subject after release upon the expiration for a continuing detention order made for less than the life of the supervision order, having a date of expiry under s 12. Section 12 applies only to extended supervision orders. Next, s 18(7)(b) deals with the alternative to s 18(7)(a). Accordingly, if s 18(7)(b) applies only to extended supervision orders, s 18(7)(a) must do likewise.

4. Accepting this, however, provides no real assistance to the Attorney-General. Nothing in s 18(7) suggests that the phrase “supervision order” in the chausette to s 18(2) should be construed as counsel for the Attorney-General contends. Neither does it suggest that where s 18(2) refers to a supervision order it means an extended supervision order and only an extended supervision order. Counsel submitted that I should construe the reference to “supervision order” in s 18(7) as having the same meaning as that submitted should be given to the second reference to “supervision order” in s 18(2). I can find no textual or contextual reason to do so. Lastly, I have given some thought to whether the principle of legality may provide reason to accept the construction of s 18(2) advanced by counsel for the Attorney-General. This is perhaps another way of approaching the unlikely possibility of an indefinite continuing detention order (i.e. one made until the Court decides to make an extended supervision order). In the end I have concluded that in the absence of either a textual or contextual hook for the Attorney-General’s submission, to invoke the principle of legality would be to cloak a policy choice made by the Court to defeat the ordinary meaning of the text.

5. I proceed on the basis that Hughes J’s construction of s 18(2) in Attorney-General (SA) v V, ZR is correct. Accordingly, it is unnecessary that I determine the application for an extended supervision order before determining whether to make a continuing detention order.

   Continuing detention orders

6. Earlier in these reasons I have set out s 18(2). Section 18(3) makes clear that in determining whether to make a continuing detention order under s 18(2) this Court must give paramount consideration to the safety of the community.

7. In Attorney-General (SA) v Sullivan (No 2), I considered the operation of ss 18(2) and (3):[21]

   [21] [2018] SASC 74 at [9]-[14].

   The power to make a continuing detention order is conditioned on the Court first being satisfied of the existence of the two factual circumstances referred to in s 18(2)(a) and (b). That is, s 18(2)(a) and (b) are in the nature of jurisdictional facts. A finding of the existence of both jurisdictional facts enlivens a discretionary power. In the exercise of the discretion all factors relevant to achieving the purpose of the order are to be taken into account. That begs the question, what is the purpose of a continuing detention order?

   In Police v Sullivan; Attorney-General (SA) v Sullivan (Sullivan No 1) I said:

   The power to make a continuing detention order is not a power to punish a person for breaching a supervision order. It is a power to be exercised for protective not punitive purposes. The question is whether the drastic step of incarcerating the high risk offender for the duration of the extended supervision order or some lesser period is necessary to protect the community from an appreciable risk to its safety as posed by the high risk offender. That question is to be answered in the knowledge that the alternative is the continuation of the supervision order, possibly varied. Obviously the risk posed by the offender subject of the breached supervision order must be reassessed in the light of the nature and circumstances of the breach.

   I remain of this view. The question posed in the passage quoted immediately above reflects the fact that Parliament has said that the paramount consideration in determining whether to make a continuing detention order must be the safety of the community. In R v Schuster the Full Court was required to determine the significance of Parliament making public safety the paramount consideration in determining whether to release a person subject to indeterminate detention on licence. The Court said:

   What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility.

   More fundamentally, it is in the very nature of a discretion that the level of risk, whatever it is, may nonetheless be sufficiently outweighed by other factors to justify release on licence. For example, an offender with some degree of short term risk of reoffending who has excellent prospects of medium to long-term rehabilitation might be released on licence, when an offender with the same risk profile but poor prospects of rehabilitation would not. The effect of making public safety the paramount consideration is that, speaking generally, relatively smaller degrees of risk will outweigh considerations which, even strongly, support release. The exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety.

   The same may be said about s 18(2) considered in the light of s 18(3) of the Act.

   The Full Court also said:

   ... it demands a normative judgment which is quite different from traditional judicial discretions. This Court has been entrusted with a mandate to ensure public security by sacrificing, for the remainder of their natural lives if necessary, the right to liberty of persons who are found to be unable or unwilling to control their sexual instincts. There are good reasons to commit this function to the independent judiciary of this State even though it is foreign to the traditional judicial function. However, the discretion having been conferred, it is important for the community to understand that it will be exercised having regard to both the interests of the community and the interests of the person in question, but by according the consideration of public safety paramountcy.

   This approach is reflected in the judgment of the Queensland Court of Appeal in relation to applications for indefinite detention under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). In Attorney-General (Qld) v Francis, Keane and Holmes JJA and Dutney J said:

   The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.

   [footnotes omitted]

   The same may be said of the task committed to this Court under s 18(2) of the Act (save of course that it is not a matter of whether the respondent is incapable or unwilling to control his or her sexual instincts and the duration of detention cannot exceed the term of the extended supervision order). Although consideration of a continuing detention order is triggered by the breach of an extended supervision order, the measure of the period of detention is not the units of punishment. The respondent is detained to prevent what he or she might never do. This being so, the respondent should not be detained for any longer than is necessary to ensure adequate protection of the community. Accepting this it is self-evidently important to identify with some particularity the risk that a respondent poses before turning to consider whether detention is necessary to adequately protect the community from that risk. In some cases the risk may be immediate and the appropriate response may simply be incapacitation. In other cases it may be less immediate but no less profound and may require detention in order to facilitate different measures of intervention and prevention. Where a continuing detention order of a shorter duration than the period of the extended supervision order is contemplated, that period will be determined by the anticipated effect of detaining the respondent, including all interventions and treatments that may be undertaken whilst in detention, upon the risk posed by the respondent.

   [footnotes omitted]

8. I remain of this view and proceed accordingly. I add, notwithstanding that the Court’s jurisdiction is enlivened by the Parole Board’s direction, the executive bears the onus of satisfying this Court that it should make a continuing detention order.

   Has Mr Moyle breached the interim supervision order?

9. The Attorney-General filed a document particularising the alleged breaches of the interim supervision order as follows:

   1.Between his release from custody on 27 July 2018 at approximately 9.50 am and 8.30 pm on 28 July 2018, Mr Moyle consumed illicit drugs, namely methamphetamine and amphetamine. This is a breach of condition 2.13.2 of the interim supervision order.

   2.On 30 July 2018 at approximately 1 pm, Mr Moyle reported for supervision at the Noarlunga Community Correctional Centre. He was directed by his Community Compliance Officer, Colin Mercer, to provide a urine sample. Mr Moyle failed to meet this requirement within a reasonable timeframe. This is a breach of condition 2.15 of the interim supervision order.

   3.On 30 July 2018 at approximately 1 pm, Mr Moyle reported for supervision at the Noarlunga Community Correctional Centre. He was directed by his Community Compliance Officer, Colin Mercer, to attend an appointment at Drug and Alcohol Services South Australia that was scheduled immediately after supervision. Mr Moyle did not attend the appointment and as such did not meet this requirement. This is a breach of condition 2.3.2 of the interim supervision order.

10. Through his counsel Mr Moyle acknowledged that he had committed each of the breaches of the interim supervision order as alleged by the Attorney-General. Accordingly, I am satisfied that Mr Moyle has breached a condition of the interim supervision order imposed on 25 July 2018.

    The second jurisdictional fact and the exercise of the discretion

11. In Attorney-General (SA) v Moyle I concluded:[22]

    I am satisfied that with his poor coping skills it is likely that without assistance Mr Moyle will revert to his maladaptive behaviours in the community. That carries with it a risk that he will engage in exhibitionistic behaviour, more particularly masturbating in public. I agree with Dr Raeside that such risk is low to moderate. It must be said that there is no necessary immediate risk. The risk only arises when Mr Moyle reverts to his maladaptive behaviours, even then his doing so does not carry with it anything more than the low to moderate risk of his engaging in indecent behaviour. In that context indecent behavior has not been the primary maladaptive behavior engaged in by Mr Moyle. It is more likely that he will engage in a violent act or a non-sexual criminal act. Here too it is likely that Mr Moyle would resort to drink and drugs which might fuel the prospect of his engaging in a non-sexual criminal act but is not, having regard to the context of his offending in custody, necessarily associated with his sexual behaviour. Admittedly the 2012 offending occurred under the influence of Ice and ecstasy. That perhaps suggests a departure from the norm.

    [22] [2018] SASC 106 at [169].

12. Nothing occurred in the three days that Mr Moyle was in the community to alter my assessment of the risk he posed and poses as set out in the passage quoted above.

13. The reports prepared by each of Drs Haeney, Lim and Raeside focused in the main upon Mr Moyle’s risk of future sexual offending for the obvious reason that the primary application made was for an order that Mr Moyle be detained indefinitely on the basis that he was incapable or unwilling to control his sexual instincts. Similarly, my judgment in Attorney-General (SA) v Moyle focused on such risk. However, neither I nor the doctors could or did overlook Mr Moyle’s history of violent offending. That offending is referred to in [29]-[45] of Attorney-General (SA) v Moyle.

14. In his report of 10 February 2018 Dr Haeney expressed the opinion:

    Mr Moyle has numerous risk factors for violence and general antisocial behaviour, many of which overlap with the risk factors for sexual offending … In many respects, future violence is felt to be more likely than sexual assault. I believe there is evidence that Mr Moyle does have a capability and willingness to control his sexual instincts, when it suits him, as evidenced by periods without sexually inappropriate behaviour/offending. Inappropriate behaviour has occurred both in the community and in prison, perhaps being more common in institutional care as a result of the majority of his time being in such placements and due to the relative lack of consequences. … It appears that when he sees a correlation between such behaviour and the risk of prolonged detention, it can be controlled.

15. In her report of 28 December 2017 Dr Lim opined:

    Although I have not been asked to assess Mr Moyle’s risk of violent reoffending, I consider that he is more likely to commit a violent offence than a sexual offence upon release. He has an extensive history of violence from a young age, with his most serious act of violence perpetrated within the prison environment. He has an anti-social personality, deflects responsibility, demonstrates limited remorse and victim empathy. He is impulsive and easily disinhibited by substances. … he is likely to resume substance use upon release. Possible risk scenarios for violent reoffending include assaults in the context of interpersonal conflicts and/or intoxication, or violent reoffending to fund a drug addiction in the community.

16. For the purposes of the application for an extended supervision order Dr Haeney felt “unable to say that he [Mr Moyle] would not pose an appreciable risk of further offending”. In her 4 July 2018 report Dr Lim supported the making of an extended supervision order, pointing to the opinion she had expressed regarding Mr Moyle’s risk of sexual offending and her belief that his “risk of violent reoffending is higher than his risk of sexual offending”.

17. As indicated above, I had the benefit of two reports provided by Dr Raeside, one was prepared after Mr Moyle had breached the interim supervision order for the purposes of assisting the Court in determining whether a continuing detention order should be made. I resist the temptation to review a second time Dr Raeside’s report of 26 May 2018 and the oral evidence he gave as part of the application under s 23 of the Criminal Law (Sentencing) Act 1988 (SA). In Attorney-General (SA) v Moyle at paragraphs [124]-[143] I deal with that evidence. I make plain that I have reminded myself of Dr Raeside’s evidence (both in report form and orally) and my review of it in Attorney-General (SA) v Moyle should be treated as incorporated into these reasons. Specific mention should be made of two things; first, Dr Raeside referred to his experience of offenders who have an antisocial personality disorder like Mr Moyle, mellowing by the time of entering middle age. I summarised this evidence as follows:[23]

    Dr Raeside advised that it was not uncommon for a person with an antisocial personality disorder to ““mellow” by mid-age”. This reflected the effect of extended years in prison and the individual becoming “tired of the revolving door of being in prison, short terms in the community, back in prison, and a steady erosion of social skills.” Additionally the previous intense desire for drugs of abuse wanes although “many such people might live quietly in the community smoking marijuana and a little bit of alcohol, but not to the extent that they come into contact with the law.” Such people, Dr Raeside states, often fail when on parole because of a lack of skills and the inability to cope with stressors in the community, following long years of being in custody.

    Dr Raeside considered Mr Moyle to fit this profile. Not only was Mr Moyle making statements consistent with the profile, but Dr Raeside considered that he genuinely wished to live in the community and avoid being returned to custody. Unfortunately he is poorly equipped to succeed.

    [23]   Attorney-General (SA) v Moyle [2018] SASC 106 at [129]-[130].

1. Second, prior to the interim supervision order being breached by Mr Moyle, Dr Raeside expressed the opinion that Mr Moyle was at a relatively high risk of such breach and predicted that “the Court might eventually need to consider a Continuing Detention Order given the potential risk he poses in the community”.

2. Mr Moyle’s criminal history indicates that he last committed an offence of violence in 2010. I assume that the possibility that the Court might infer from this that Mr Moyle was showing signs of “mellowing”, prompted counsel for the Attorney-General to remind me of the evidence of occasions when Mr Moyle had acted violently or displayed violent tendencies in custody. That evidence is to be found in exhibits P11 and P18. I have reminded myself of it.

3. Dr Raeside opened his report of 4 October 2018 summarising Mr Moyle’s position as follows:

   In my earlier report, by way of summary, I stated that I do not believe that Mr Moyle has previously or currently has a psychiatric illness or disorder. Technically he qualifies for an Exhibitionistic Disorder and a significant Substance Use Disorder and has continued to use drugs (cannabis and buprenorphine) whilst in custody. I commented that his risk of continuing to use substances in the community is high, notwithstanding his expressed determination to avoid them. He has an intellectual understanding of the negative consequences that drugs have, but I doubt that he possesses the ability to make good decisions in this regard once he is exposed to the stress that the community will bring. In that regard, he also has a previous episode of exposing himself on a train whilst intoxicated with illicit drugs, but there are no other recorded incidents of doing so whilst using drugs.

   Clearly Mr Moyle’s most significant diagnosis is that of an Antisocial Personality Disorder. He has spent very little time in the community over the last 30 years, with his longest being three months, which would be insufficient to progress any rehabilitation in the community. Breaches of conditions are more likely to be related to his antisocial personality structure and lack of respect for rules, regulations, and authority. Substance abuse and generally poor coping skills, together with institutionalisation and reduced social skills will all be operative as well.

   [Emphasis in original]

4. Dr Raeside interviewed Mr Moyle in Port Augusta Prison after he had been returned to custody for contravening the interim supervision order. Mr Moyle was annoyed and frustrated at being back in custody. He denied taking any illicit drugs whilst in the community. He said that he had used amphetamines the morning of his release from prison in “celebration”, however subsequently stated that he expected to be clear by the time he was tested. Dr Raeside points to this as indicative of a degree of planning and effort on Mr Moyle’s part to avoid detection. Despite the expert evidence indicating that Mr Moyle must have used in the community,[24] he maintained in his interview with Dr Raeside that he had not done so. His acknowledgement of the breach of condition 2.13.2 of the interim supervision order is contrary to this. As far as Dr Raeside was concerned it made little difference whether Mr Moyle had used drugs whilst still in custody or after his release. The fact that Mr Moyle consumed drugs was consistent with his ongoing risk of substance abuse, which, in turn, increased his risk of violent and sexual offending. It was also consistent with his antisocial disregard for rules and conditions.

   [24]   Ms Helen Martin, Unit Head, Toxicology Laboratory, SA Pathology, provided a report indicating that methamphetamine concentration in oral fluids peaks within a few hours of use and falls below cut-off within 24 hours. Bearing this in mind it was not possible for Mr Moyle to have the concentration detected in the sample he provided on 28 July 2018 and have taken the substance prior to his release from custody.

5. Dr Raeside reported that Mr Moyle was also dismissive of the claim that he had refused the urine drug test. Mr Moyle said that he was not “prepared” beforehand and told Dr Raeside that he was not provided with any water to assist him during this time. Further, Mr Moyle stated that because he only had one kidney he experienced less pressure to urinate making it difficult for him to provide a sample on demand. Relying upon his general medical knowledge, Dr Raeside doubted this explanation. By acknowledging the breach of condition 2.15, Mr Moyle accepts that he was able to provide a urine sample within the time available but determined not to do so.

6. As to Mr Moyle’s failure to attend an appointment at Drug and Alcohol Services South Australia, Mr Moyle told Dr Raeside that he simply could not find the address. He said that he had returned to his friend’s house to have his friend drive him there, but was arrested before that could occur. The evidence adduced by the Attorney-General is to the contrary[25] and I do not understand Mr Moyle to maintain this explanation.

   [25]   Mr Moyle was directed by his Community Corrections Officer to attend the offices of Drug and Alcohol Services South Australia immediately after the supervision session that he attended on 30 July 2018 ended. Electronic montoring indicates that he did not do so.

7. For Dr Raeside the important thing about the explanations provided by Mr Moyle was that Mr Moyle externalised blame. Dr Raeside reported:

   Throughout the above explanations Mr Moyle externalised blame for his problems, such as not having a swab test for drugs instead of spitting in a tube, not being helped to get to his appointment, his sole kidney made it hard to urinate, etc.

   Mr Moyle told me that he felt like “shit” being back in custody. He was able to see his girlfriend Amanda briefly upon his release and spoke about her having organised for him to do volunteer work with Meals on Wheels, but this has been postponed. He spoke of his plans to settle down with her and have a family together. Her letter to the Parole Board seems to support this.

   Mr Moyle did not describe any psychiatric symptoms. He said he just wanted to “go home” and get on with life, with no intention to come back into custody.

8. Dr Raeside concluded his report by expressing the following opinion:

   I continue to offer the same opinions as previously expressed. Mr Moyle continues to represent a high risk of offending. He obviously thinks that if everything goes well for him in the community (which he expects will be the case) then he will not reoffend. Obviously everything will not go perfectly, he will have stressful days, and he will need to adapt to various difficulties. Unfortunately at such times he is at high risk of reverting to long ingrained maladaptive coping measures, such as drug and alcohol use, with the associated risks.

   I predicted that he would be at high risk of breaching conditions of an Extended Supervision Order such that a Continuing Detention Order might be necessary to protect the community. These recent events continue to indicate he remains a high risk of violent offending and an appreciable risk to the community. Whether the Court considered these breaches sufficient is obviously a matter for the Court to determine.

   Finally, I note the recommendations that Mr Moyle needs to complete a Violence Prevention Program, which is not currently available in the community, but could commence in custody in December 2018 until November 2019. This would also incorporate a drug and alcohol component and he could have 1:1 counselling with respect to his sexual offending. This would be preferable to no such management, but I think it unlikely that Mr Moyle would benefit greatly from the programs. This is not a reflection of the programs, rather related to Mr Moyle’s entrenched problems and limited insight and acceptance that he needs to change.

9. In his oral evidence Dr Raeside stated that overall he considered there to be some reduction in Mr Moyle’s propensity to act violently. However, Mr Moyle was at high risk of substance abuse and if that occurred his risk of acting violently escalated. Dr Raeside was of the opinion that Mr Moyle would not intentionally go out “looking for trouble” but rather if he found himself in a situation where he felt frustrated, was struggling to adapt to re-entering the community and taking drugs, he could lose his temper and act aggressively. He stated that Mr Moyle’s risk of re-offending in this way was no different to that existing before his release because, given that he had spent only three days in the community, insufficient time elapsed for anything to have changed.

10. Dr Raeside was of the view that Mr Moyle was more likely to act aggressively and violently when disinhibited by alcohol and aroused by amphetamines, hence Mr Moyle’s substance abuse remained a high priority for treatment. If Mr Moyle’s substance abuse issues are successfully treated they could have the correlative effect of reducing his risk of engaging in antisocial and criminal behaviour, improving, in turn, his chance of complying with the supervision order once in the community.

11. Dr Raeside added that the rapid resort to amphetamines by Mr Moyle indicated that he had not as yet “mellowed” in the sense that he wished to avoid coming into contact with the authorities and the risk of returning to prison. Rather, it was concerning that he had referred to his having thought it likely that the drug he had taken would have cleared his system by the time of his being tested. That suggested that he would look for opportunities to breach the conditions of any order if he thought it might not result in him getting caught. Dr Raeside added:

    … When I spoke to Mr Moyle last week he certainly appeared genuine and I believe him that he doesn’t want to go back to gaol, that he wants to live a successful life in the community. He has some prosocial desires to get on with his life, establish a good relationship and I think that they’re all genuine desires that he has. The concern is more in his ability to do that and the main areas would be in his substance abuse and the other would be in accepting responsibility for his own actions rather than blaming circumstances such that if something happened that would stress him out he would be able to take the appropriate measures to deal with that appropriately rather than resort to maladaptive patterns that he has used before. And that’s where he would need support to do that, I think that that would be a tall order for him to immediately be released from custody and be able to act like that in the community from day one.

12. I note that Mr Moyle expressed similar “prosocial desires” in his interview with the Parole Board on 5 September 2018 and was supported in his hopes for the future by a letter from his partner.

13. Dr Raeside’s evidence turned to Mr Moyle’s antisocial personality disorder which, Dr Raeside said, overlaid the way in which Mr Moyle viewed the world and responded to it.[26] Such a person could respond to treatment to the extent that, like mellowing, the individual learned ways of adapting their behaviour to be more socially acceptable and remain out of gaol. However, at a fundamental level the individual’s world view did not change. In this connection he referred to programs such as drug and alcohol counselling and violence prevention as targeting specific components of an antisocial personality disorder. Such programs left untouched core attitudes but attempted to assist the individual to identify the problems that their entrenched behaviours created and to look at adaptive ways of managing those behaviours. Again, treatment for substance abuse was to be regarded as a priority in Mr Moyle’s case.

    [26]   Mr Moyle's antisocial personality disorder is marked, among other things, by a low tolerance of frustration, a low threshold for aggression and violence, repeated failure to conform to social norms with respect to lawful behaviours, impulsivity, reckless disregard for the safety of others, lack of remorse and a tendency to blame others, see Attorney-General (SA) v Moyle [2018] SASC 106 at [21], [98].

14. Dr Raeside also gave evidence regarding the effectiveness of Mr Moyle engaging either in a custodial-based treatment program (such as the Department for Correctional Services’ Violence Prevention Program), a community-based treatment program or a step-down treatment program.

15. In relation to the first, and in further elaborating on the opinion expressed in his report, Dr Raeside stated that Mr Moyle “would benefit somewhat but not greatly” from the Violence Prevention Program. He was of the view that if an order were made that Mr Moyle be detained in custody he would support Mr Moyle undertaking the program. But if he did not engage in the Violence Prevention Program or some type of drug and alcohol program whilst in custody, no therapeutic reason existed for Mr Moyle to remain detained.

16. In terms of mellowing, Dr Raeside was of the opinion that if Mr Moyle were to spend another 18 months in custody to undertake the Violence Prevention Program, this would not be a long time to mellow and in any case it would need to be counterbalanced by the aggression he would feel by having to spend additional time in custody beyond his sentence.

17. In relation to custodial treatment programs more broadly, Dr Raeside gave the following evidence in cross-examination:

    Q    … is it the case that, essentially, this man having been in custody for a long time, then released for three days, then back in custody, he would be just as likely to breach the conditions when he’s released after, say, 18 months as he was back when he was released in July.

    A    I would not say ‘just as likely’. Hopefully with treatment, whatever the programs in custody would reduce that risk somewhat otherwise there is no point in doing them. But I would still think there’s a significant chance that he would breach them even after those programs.

    HIS HONOUR

    Q    Is that just because the underlying personality is so entrenched.

    A    Yes and disregard for rules that he sees are either silly or don’t apply to him or maybe he might think that he’s capable of doing what he wants and not using but misjudging his ability. So, personality-based rather than any other major factors.

    Q    … In terms of the risk of breach of the conditions, will that remain high for a longer period of time than risk of violence, as in ages.

    A    From what I understand from reviewing the material previously, his actual aggression and violent episode has reduced over the years since he has been in custody and obviously a custodial setting is a reasonable way of assessing someone’s violence and it has certainly decreased from Mr Moyle’s younger years. I think with this mellowing that is occurring he is less likely but still possible to act aggressively. …

18. Turning to community-based programs, Dr Raeside stated that if Mr Moyle were released he would require assertive community supervision and support in that proactive steps would need to be taken to ensure that he complied with the conditions of his supervision order. He was of the opinion that whilst a custodial-based program would be helpful, a community-based program is where Mr Moyle could receive “optimal treatment”. He said that one of the benefits of community-based programs, such as those that focus on alcohol and drug abuse, is that by being in the “real world” participants in the program are surrounded by temptation to engage in substance abuse and other antisocial behaviour, thus giving them opportunities to reflect and receive feedback if they revert to maladaptive behaviours. However, Dr Raeside emphasised that in the case of Mr Moyle the “bigger issue” was whether Correctional Services and the conditions of his supervision order could accommodate this. If, for example, in times of stress he engaged in substance abuse this would result in a breach of his supervision order and put him at risk of being placed back in custody, rather than remaining in the community where he could continue to receive support and learn from his mistakes. Further, Dr Raeside explained that the Violence Prevention Program is offered only in custody, and whilst community-based programs that focus on drug and alcohol abuse are available, they are not particularly assertive in that the therapeutic model on which they are based relies on the person being self-motivated to attend the program rather than the person having to depend on another to motivate them to take part. Thus, whilst Mr Moyle would have difficulty successfully completing a prison-based program, Dr Raeside stated he would be even less likely to complete a program offered in the community successfully.

19. In terms of the effectiveness of engaging in a step-down program, Dr Raeside gave the following evidence:

    QWould a step down program in that regard, from out of the custodial setting into the community setting, be of assistance for Mr Moyle in being able to say he learnt the treatment goals in a custodial setting to then, in a balanced way, put them into practice in the community.

    AIn a general sense yes, but in a practical sense if he was out in the community and he went down to the pub and that was contrary to his conditions of his day release, then those conditions would be removed straightaway and he then wouldn’t have the opportunity to say ‘Okay, this is what I’ve learnt, I will see how I go next week when I go into the community’. So, in a practical sense it is not as responsive and he would have consequences to limit his freedom if he would do those things.

    QIt is very much contingent on the conditions of his release or his gradual step down.

    AIt would be contingent but the concern would be if he was on a step down you wouldn’t want him to be accessing drugs or getting drunk during those periods of time because that would significantly put the community at risk. So, it does allow him the opportunity to be in the real world a little bit but it doesn’t allow the flexibility to learn from his mistakes in that way.

20. Dr Raeside advised:

    In isolation the only particular benefit that I would see is it [a step-down program] gauges and assesses Mr Moyle’s compliance in those periods when he can go into the community but recent experience shows there still remains a significant risk of breaching those conditions early on, so it might benefit in terms of gauging him but I don’t think it would particularly benefit him in terms of helping him reduce that risk. The only benefit is that it’s a gradual release and it maybe can improve his social skills before he is released completely but I don’t think that’s a major factor.

21. Dr Raeside made plain that from an optimal treatment point of view it was better to have Mr Moyle in the community, however, the test being one that affords the safety of the community paramountcy, he was supportive of a continuing detention order. He said:

    … he needs some treatment and it needs to be in a way in which he is more likely to benefit from it. I think I’d lean towards the optimal treatment would be in the community. He can receive the support and feedback and benefit from it but the programs he needs aren’t available in the community. The drug and alcohol program would be but not the violence prevention program. As his Honour just said, the other thing we haven’t talked about is his very little social skills and his ability to successfully function in the community and that would be the major stress that he would experience. If he’s able to successfully function in the community, have good relationships with people, have some meaningful work or activity to do, that would in turn significantly reduce his risk in the other areas. At times where he is stressed and things go wrong, he would probably revert to maladaptive behaviours, like drug use, but the community could help him. But your question was how best to protect the community, the best way to protect the community is not have him in the community but that obviously is not a long-term strategy.

1. In cross-examination the notion of Mr Moyle having mellowed was returned to. Dr Raeside explained:

   … If Mr Moyle was in the community and someone got in his face, with the mellowing that’s occurring, he might think ‘this is stupid, I’m just going to walk away, I’m not going to get myself in trouble over this person, it’s not worth it’. But if he was disinhibited by alcohol or already aroused and agitated by amphetamines, he might act before he even thinks ‘what have I done?’. So the substances reduce his control, where his personality style and then him mellowing might affect how he feels about a particular situation. There still might be situations in which he might think and say ‘what am I going to do?’ and still decides to hit the person, but what I’m talking about is that degree of control, that allows him at least a moment to think about how he wants to act. The substances remove that even small gap of thinking before you act.

2. Pausing here; the evidence of each of the forensic psychiatrists is that Mr Moyle poses a risk to the safety of the community. I accept that evidence. I remain of the view expressed in Attorney-General (SA) v Moyle regarding the risk that Mr Moyle poses. In addition I accept that he poses an appreciable risk of committing a serious offence of violence. That is to say, the appreciable risk he poses to the safety of the community is not confined to the risk of his committing a sexual offence as dealt with in detail in Attorney-General (SA) v Moyle, but includes an appreciable risk that he will commit a serious offence of violence. I also agree with Dr Lim that the risk of Mr Moyle committing an offence of violence is greater than that of his committing a sexual offence. The risk may be characterised as it being likely that confronted by stressors upon release into the community, which is very likely given the fact of Mr Moyle’s institutionalisation, Mr Moyle will resort to maladaptive behaviours as a means of coping, in particular the abuse of alcohol and illicit drugs. Resorting to those maladaptive behaviours increases the likelihood that, bearing in mind his dynamic risk factors[27] and his antisocial personality disorder, he will commit an offence of violence and/or a sexual offence. I consider this risk more than just appreciable. There is no real dispute about it. The real question is, is the risk Mr Moyle poses such that a continuing detention order ought be made in order to ensure the safety of the community? To pose the question in this way may be to conflate the second jurisdictional fact and the exercise of the discretion enlivened upon the Court being satisfied that each of the two jurisdictional facts contained in ss 18(2)(a) and (b) are established. That reflects the fact that the answer to the question posed by s 18(2)(b) will often foreclose the question of the exercise of the discretion.

   [27]   Mr Moyle's dynamic risk factors of re-offending include: substance abuse, impulsivity, poor problem solving skills, emotional control, compliance with supervision, interpersonal aggression, criminal associates and weapon use.

3. Mr Moyle has been in custody of one sort or another for around 28 out of the last 30 years. As is to be expected he is institutionalised.

4. He has participated in some courses in custody but none that have comprehensively dealt with his dynamic risk factors. He has not had the benefit of any assistance in resocialisation. Much of this is his doing. The consequence is that if released he is not adequately equipped to deal with the stressors of life in the community. I do not overlook the support he has of his partner, nor that he may be surrounded by assistance under the umbrella of supervision by an officer of the Department for Correctional Services. But that was the position between 27 July 2018 and 30 July 2018, and yet Mr Moyle returned immediately to engage in his maladaptive behaviours. I add that he did this notwithstanding that he appeared in Court before me on 25 and 27 July 2018 during which hearings I referred to the importance of his being compliant if he was to stay out of gaol.

5. The speed with which Mr Moyle returned to his maladaptive behaviours is concerning. It is those behaviours that precipitate likely offending. That is to say, within less than three days Mr Moyle was again on the path that leads in all likelihood to him committing a sexual offence or an offence involving violence.

6. I appreciate that Dr Raeside predicted that Mr Moyle would breach his interim supervision order, and, predicts that he will likely do so again. The fact is, absent any intervention, and there has been no intervention resulting in Mr Moyle realising lasting gains, it is almost certain that Mr Moyle will re-offend. Short term that offending may not be violent or sexual, but as time passes and he adheres, as is likely, to his maladaptive behaviours the risk increases. Intervention now will not remove that risk entirely and may not, due to Mr Moyle’s entrenched antisocial personality disorder, reduce it all. But absent intervention the risk to the community is unacceptable. At present I have little faith that Mr Moyle will comply with the conditions of a supervision order sufficiently such that I can be confident that such order will adequately protect the community from the risk of him re-offending. In arriving at this conclusion I am influenced in particular by Dr Raeside’s evidence of the need for assertive supervision, which is generally not provided in the community, by Mr Moyle’s history of failing to respond to court orders, by Mr Moyle’s antisocial personality disorder and related traits, and by Mr Moyle’s speedy breach of the interim supervision order. The latter is particularly concerning. It provides reason to think that the prospect of any intervention being successful is improved if it is provided in the custodial environment.

7. I accept Dr Raeside’s opinion that from the treatment perspective it is better to have Mr Moyle in the community where any lapses can be worked through with a therapist and protective factors improved. However, the programs that best address Mr Moyle’s dynamic risk factors are not available in the community. Like Dr Raeside I conclude that affording the safety of the community paramountcy, it is necessary that Mr Moyle be detained in custody at this time. The next question is for how long. Before answering this question I deal with Dr Pharo’s evidence.

8. Dr Pharo is a clinical psychologist who holds the position of Director, Offender Rehabilitation Services with the Department for Correctional Services. Dr Pharo’s evidence must be considered in the light of the content of Mr Sim’s affidavit (exhibit P13). In his affidavit Mr Sim refers to the numerous assessments undertaken by Corrections between 2004 and 2016 regarding Mr Moyle’s risk of re-offending and related referrals to the Violence Prevention Program and/or Sexual Behaviour Clinic. In Attorney General (SA) v Moyle at [85]-[92] I explain the background to Mr Moyle’s undertaking of the Violence Prevention Program and allude to his history of refusing to undertake programs intended to assist him until such time as confronted by the Attorney-General’s applications. I do not repeat that explanation here.

9. In passing I note that in the transcript of his interview with the Parole Board Mr Moyle maintains that he is not a sex offender. It is that same attitude that has led him to refuse to take part in the Sexual Behaviour Clinic program.

10. Prior to his release on the interim supervision order, Mr Moyle commenced the Violence Prevention Program. In his affidavit Mr Sim refers to his participation as being positive. The program required three group sessions per week and one individual session every three weeks. It was due to end in January 2019. In a Departmental record Dr Pharo records:

    Mr Moyle commenced the Yatala Violence Prevention Program on 16/05/2018 and attended all group sessions offered (15 sessions). On 05/07/2018 Mr Moyle provided information pertaining to the possibility of a riot eventuating at YLP in the near future in which female officers would be targeted for assault and/or rape. This was viewed as a threat that could jeopardise the security and good order of the prison and action was taken to separate him from other prisoners. As a result of these threats he had his regime regressed on 10/07/2018. He was subsequently transferred from B Division to G Division. This operational decision meant he could not return to the group and his involvement in the VPP was therefore terminated.  …

11. At present the Violence Prevention Program is not offered in the community by the Department.

12. In his affidavit, Dr Pharo advises that if Mr Moyle were detained in custody pursuant to a continuing detention order Corrections proposes that he join the Violence Prevention Program commencing in February 2019 at Port Augusta Prison. In addition, it is proposed that Mr Moyle take part in specialist one-to-one intervention to address the psychological factors related to his risk of sexual reoffending that are not targeted by the Violence Prevention Program.

13. Importantly, the Violence Prevention Program has a component dealing extensively with alcohol and drug abuse. Dr Pharo considered that from an “evidence-based practice” approach, “providing AOD [alcohol and other drug] treatment within a wider treatment program” was the best way to address Mr Moyle’s many risk factors and treatment targets.

14. I return to the question of for how long should Mr Moyle be detained in custody. That question is better framed as follows; what period of detention is necessary before the risk posed by Mr Moyle to the community is likely to abate to the extent that his return to the community subject to the terms of a supervision order of either description will adequately protect the community? In some cases the answer will be that the risk will not sufficiently abate, in which case a continuing detention order will be made for the duration of the extended supervision order, or conceivably, as indicated above for an indeterminate period where the order breached was an interim supervision order. More often the Court will have the benefit of expert evidence as to treatment and education programs that may be undertaken during a continuing detention order which, if the offender engages in the program and makes lasting or sufficiently lasting gains, will impact the risk he or she poses. That is this case.

15. The Attorney-General submits that any continuing detention order made should be for a period equating to the duration of the Violence Prevention Program. The obvious intent is that Mr Moyle undertake that program which will, as Dr Pharo and Dr Raeside made clear, address many of his maladaptive behaviours, in particular his alcohol and drug abuse. In the same period of time it is intended that Mr Moyle receive the assistance of a psychologist on a one-on-one basis to address the psychological factors related to his risk of sexual offending.

16. Whilst Dr Raeside appeared to doubt that treatment would be effective in Mr Moyle’s case, he was not without hope that some gains would be made and was supportive of Mr Moyle undertaking the Violence Prevention Program.

17. I accept the submission of counsel for the Attorney-General. I agree that a continuing detention order of a length sufficient to allow for Mr Moyle to undertake the Violence Prevention Program should be made. In arriving at that conclusion I have in mind the Program that commenced in February of this year which as I understand Mr Moyle can join. That Program should be completed in December of this year.

18. I make plain that I also place significant weight in arriving at my conclusions on the fact that Mr Moyle is institutionalised and has not had the benefit of any resocialisation program. This fact, after the best part of three decades of incarceration, coupled with his antisocial personality disorder and his non-participation in ideal programs, no doubt informed Dr Raeside’s prediction that it was likely Mr Moyle would breach the interim supervision order. However, in my view a continuing detention order should also allow for resocialisation to commence if, ultimately, the risk posed by Mr Moyle is truly to be addressed by executive intervention. In the course of this matter there was much discussion of the possibility and benefits of a “step-down” approach broadly analogous to that implemented in relation to persons found not guilty by reason of mental impairment. A continuing detention order cannot prescribe that this sort of approach be taken, but it can allow time for it to commence. Ultimately, it is a matter for the executive, but I would hope that with Mr Moyle’s cooperation some form of resocialisation involving time spent in the community, accompanied and unaccompanied, may occur. Further, I was told of a number of programs run in Port Augusta Prison designed to assist Aboriginal prisoners in maintaining connection with their culture. These programs are available to Mr Moyle and, if he were to undertake them, would provide him with an additional layer of protective factors upon his release.

19. Lastly, I have not overlooked the incentive to comply with the terms of the interim supervision order that a period in custody of itself might provide to Mr Moyle. I have, however, given this factor little weight in view of Dr Raeside’s opinion as to the likelihood of Mr Moyle being compliant without intervention, his antisocial personality disorder and the speed of his breach of the interim supervision order.

    Conclusion and orders

20. I order that Mr Moyle be detained in custody under s 18(2) of the Act until 16 December 2019.