Attorney-General (SA) v Nelson - [2023] SASC 24

Supreme Court of South Australia
(Criminal: Application)

ATTORNEY-GENERAL (SA) v NELSON
[2023] SASC 24
Judgment of the Honourable Justice McDonald
21 February 2023
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
Mr Nelson was referred to this Court by the Parole Board for consideration of the imposition of a continuing detention order (‘CDO’) pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’). The Attorney-General and the Parole Board support the making of such an order. Mr Nelson is currently the subject of an Extended Supervision Order (‘ESO’), which was made on 4 August 2021 for two years. Mr Nelson has an extensive history of breaching his ESO, demonstrating a woefully inadequate capacity to live in the community without committing breaches of the ESO. Mr Nelson opposed the imposition of a CDO. There is no doubt that the nature and number of Mr Nelson’s breaches of the ESO suggest he is at great risk of committing further serious offences.
There have recently been some further developments in relation to Mr Nelson’s personal circumstances, specifically addressing the gaps in his NDIS support. It appears that those gaps will be remedied by the Exceptional Needs Unit working with the NDIS. Another important development is the Guardianship and Administration Order made in SACAT, appointing the public advocate as the full guardian for Mr Nelson, and the Public Trustee being appointed as the full administrator of Mr Nelson’s estate. Importantly, the Public Trustee will take on responsibility for Mr Nelson’s expenditure which, if successful, will reduce his ability to binge drink and spend most of his income on alcohol.
Such changes in Mr Nelson’s circumstances mean that if there was ever an opportunity for Mr Nelson to step back from the cycle of breaching and reincarceration, it may be now. In all of the circumstances, I have come to the view that there are now sufficient supports to minimise the risk that Mr Nelson poses to the community if not detained in custody. The proposed level of supervision is such that any breach would be very quickly detected, and action taken.
I decline to make a continuing detention order.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 18; Criminal Law Consolidation Act 1935 (SA) s 23, referred to.
Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11., considered.

ATTORNEY-GENERAL (SA) v NELSON
[2023] SASC 24
Criminal: Application
McDONALD J.

Mr Nelson has been referred to this Court by the Parole Board for consideration of the imposition of a continuing detention order (‘CDO’) pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’). The Attorney-General and the Parole Board support the making of such an order. Mr Nelson is currently the subject of an extended supervision order (‘ESO’). That order was made on 4 August 2021 for the duration of two years.
On 20 July 2022 a Parole Board warrant was issued for Mr Nelson’s arrest. It was executed that same day. Since that time, Mr Nelson has remained in custody.
The Parole Board warrant was issued on the basis of a number of alleged breaches by Mr Nelson of his ESO. Three of those were subsequently found proved. These were a breach of the condition that he not consume alcohol (condition 2.6.1), a breach of the condition requiring electronic monitoring (condition 2.12), and the failure to obey the reasonable directions of his Community Corrections Officer (‘CCO’) (condition 2.3.2).
These were the most recent breaches in a long history of Mr Nelson breaching the conditions of the ESO as well as an interim supervision order (‘ISO’) that preceded it.
Background
A convenient starting point for a consideration of this referral is Mr Nelson’s index offending which resulted in him becoming liable for the imposition of an ESO.
The relevant offence was causing serious harm with intent to cause serious harm contrary to s 23 of the Criminal Law Consolidation Act 1935 (SA). The victim of the offence was Mr Nelson’s former wife. On 31 August 2015 Mr Nelson launched a violent, protracted and unprovoked attack upon her. It involved him dragging his victim out of the house and punching and kicking her to the head and body as she lay on the driveway. As a result of this attack, she lost teeth and suffered facial fractures to the jaw, nose and cheekbones. The victim was unconscious for a period of some time after the attack and was admitted to the intensive care unit. She required surgery to deal with the fractures. The victim suffered a serious traumatic head injury and permanent brain damage as a result of the offending.
Of particular relevance to this referral is that at the time of this offending Mr Nelson was highly intoxicated. He was under the influence of alcohol and cannabis. In a report that I will subsequently come to, Richard Balfour, a clinical psychologist, expressed the view that Mr Nelson’s social judgement would have been impaired and he would have been both behaviourally disinhibited and emotionally labile. His intoxication would have been a primary factor contributing to his offending behaviour.[1]
[1] Sentencing Remarks of Judge Soulio in R v Nelson (District Court of South Australia, DCCRM-16-411, 11 November 2016).
Initially Mr Nelson was sentenced to three years and three months imprisonment with a non-parole period of one year and six months for this offending. However, the Director of Public Prosecutions appealed that sentence and the Court of Criminal Appeal allowed the appeal and resentenced Mr Nelson to a head sentence of five years imprisonment with a non-parole period of three years.[2] Parker J described the offending as “particularly brutal” with grave consequences for the victim. His Honour also observed that the index offence was committed against a history of offences of violence and breaches of court orders. Mr Nelson had been convicted of assault or aggravated assault on seven occasions and on one occasion for indecent assault. He had also been convicted of making a threat to kill a person, going armed in public, two offences of serious criminal trespass, and a range of traffic offences, breaches of bail agreements and public order offences.
[2] R v Nelson (2017) 266 A Crim R 121.
On 23 June 2020 the Attorney-General made an application under s 7(1) of the HRO Act for Mr Nelson to be the subject of an ESO. On 28 August 2020 he was placed on an ISO pending the determination of the application. Within days of the making of that order Mr Nelson had breached it by attending at the Elephant and Castle Hotel in contravention of a condition that prohibited him from attending at licensed premises.
Thereafter followed a series of breaches of the conditions of the ISO and then the ESO which led to the issue of multiple Parole Board warrants and Mr Nelson’s repeated reincarceration.
Given the nature of the application in question and the potential consequences for Mr Nelson and the community, it is necessary to set out this history of breaching in some detail.
On 15 September 2020, 18 days after Mr Nelson was made the subject of the ISO, a Parole Board warrant was issued which was executed on 16 September 2020. That related to breaches of the ISO by Mr Nelson failing to charge his electronic monitoring device, failing to answer his case manager’s telephone calls and as previously mentioned by attending at the Elephant and Castle Hotel. On 6 October 2020 Mr Nelson was released from custody under the terms of the ISO.
The following day, on 7 October 2020, a further Parole Board warrant was issued and executed. On this occasion it was because Mr Nelson had breached conditions of the ISO by attending at the Strathmore Hotel, by failing to provide Department for Correctional Services (‘DCS’) staff with his telephone number on his release from custody, and on the same day by failing to travel directly to his address to complete an electronic monitoring induction. He had also consumed alcohol.
On 30 December 2020 Mr Nelson was again released from custody under the terms of the ISO. Between 30 December 2020 and 3 January 2021 he committed further breaches. These breaches involved attending at multiple bottle shops and licensed premises, consuming alcohol, failing to maintain a telephone service, failing to maintain and charge his electronic monitoring device and failing to obey the directions of his CCO. A warrant was issued and executed on 4 January 2021.
On 16 February 2021 Mr Nelson was interviewed by the Parole Board about these breaches. At that time the Parole Board determined to detain him in custody pending attendance before the Supreme Court for consideration of a CDO.
The matter came before David J on 26 February 2021. At that time the Attorney-General did not support the making of a CDO. David J declined to make the order on the basis that up to that point Mr Nelson had been detained in custody for almost two months. Her Honour formed the view that in those circumstances Mr Nelson would be under no misapprehension as to the consequences of non-compliance with the order. Mr Nelson was released from custody shortly thereafter.
As mentioned, on 4 August 2021 Mr Nelson was placed on an ESO. A Parole Board warrant was issued on 11 August 2021 and executed on 15 August 2021 as a consequence of Mr Nelson failing to charge his electronic monitoring device. On 12 October 2021 Mr Nelson was released with a requirement by the Parole Board that he report to the High Intervention Team (‘HIT’) within one working day of his release.
It appears that this change in regime had no positive impact, with Mr Nelson breaching the conditions of the ESO within two days of his release, on this occasion by consuming alcohol, by being in possession of a pipe for smoking cannabis and by failing to maintain and charge his electronic monitoring device. A Parole Board warrant was issue on 14 October 2021 and executed on 15 October 2021. He was released on 18 November 2021 again with a direction that he report to the HIT within one working day of his release.
On this occasion Mr Nelson lasted only 24 hours before another Parole Board warrant was issued and executed on 19 November 2021. He had breached the conditions of the ESO by consuming alcohol and had failed to maintain and charge his electronic monitoring device. On 16 February 2022 Mr Nelson was yet again released back into the community under the supervision of the HIT.
The next Parole Board warrant was issued and executed on 5 March 2022. By this date Mr Nelson had committed multiple breaches of the ESO. These were that on three occasions he had consumed alcohol and had also used cannabis. He had attended at two licensed premises and on two occasions had failed to maintain and charge his electronic monitoring device. During this period he had also made threats to NDIS support staff.
Mr Nelson was released from custody on 8 June 2022 with a variation to his ESO conditions. The new condition imposed a curfew requiring Mr Nelson to be present at his home address between the hours of 9.00pm and 6.00am. This was obviously an attempt to further tighten the conditions to try to ensure that Mr Nelson became compliant and did not commit any further offences.
Two days later, on 10 June 2022, Mr Nelson breached the curfew and the following day, on 11 June 2022, committed a further breach by returning a breath analysis result of 0.038. A Parole Board warrant was issued and executed on 11 June 2022 however Mr Nelson was released on 29 June 2022.
A further Parole Board warrant was issued and executed on 4 July 2022. Between 10 June 2022 and 3 July 2022 Mr Nelson committed three further breaches of the ESO. He had breached the order by consuming alcohol and had breached the curfew on two occasions. On 18 July 2022 Mr Nelson was released from custody with a further variation to the terms of the ESO. A home detention condition was added requiring Mr Nelson to remain at home at all times except for one of the numerated purposes set out in the conditions.
The following day, on 19 July 2022, Mr Nelson left his inclusion zone. He refused to comply with the directions of his NDIS support worker. He said that he was going to “buy some drinks”. He was tracked by GPS to a drive‑in bottle shop. Mr Nelson’s CCO spoke with the NDIS workers and asked that they liaise with the intensive compliance unit and attempt to locate Mr Nelson and return him home. He was located in the city and despite being warned about a potential return to custody, Mr Nelson absconded. SAPOL eventually located him outside a bottle shop. They attempted to have him return home, but he refused to listen. The Aboriginal Sobriety Group were contacted for assistance but Mr Nelson refused to engage and again absconded.
The following day, on 20 July 2022, a Parole Board warrant was issued and executed which resulted in the referral of Mr Nelson to this Court for consideration of a CDO.
In a letter to the Attorney-General setting out the basis for the referral, the Presiding Member of the Parole Board made the following observations about Mr Nelson’s response to the level of support that was being offered to him in the community.[3]
His NDIS plan has support workers providing support 6 hours per day. He does not, however, obey their directions, nor does he engage with them.
The Parole Board brought him back into custody and interviewed him with the assistance of an interpreter on 4 October 2022.
He was asked why he did not engage with the Aboriginal Sobriety Group and he said nobody told him about it. He said he would work with them, he “just remembered them.” At that stage, he was in receipt of 24/7 support, one on one from NDIS with a cultural agency, but the reports are that he goes and drinks alcohol irrespective of that. His support agency was putting in place a lot of cultural activities for him but it was difficult to engage him because his preference was to drink alcohol.
[3] Letter from the Parole Board to the Attorney-General dated 20 October 2022, CAC-3 to Affidavit of Catherine Ann Clemow made on 24 October 2022 (FDN 3).
I have set out in some detail the history of the proceedings leading up to the matter coming before this Court in order to demonstrate the extent of the breaching conduct that has occurred in the limited time that Mr Nelson has spent out of custody whilst on the ISO and ESO. It also highlights the opportunities that Mr Nelson had been provided with in order to prove that he poses no risk to the safety of the community.
Overall Mr Nelson has demonstrated a woefully inadequate capacity to live in the community without breaching the ESO leading to the potential for him to commit further offences. Absent any significant change in his circumstances, Mr Nelson’s history suggests that it is almost inevitable that when he is released from custody, he will continue to breach the conditions of the ESO, consume alcohol and consequently put the community at risk.
Application for a continuing detention order
Both the Attorney-General and the Parole Board support the making of an order that Mr Nelson be detained for the duration of his ESO, that is until 4 August 2023. In a report provided to the Court the Parole Board summarised their position in the following terms:[4]
The Parole Board formed the view that Mr Nelson regrettably has no motivation to change his drinking habits. When he drinks alcohol, he can become violent and represents a risk to the community. He has had the benefit of significant supports but he is not engaging with those supports. We strongly recommend a continuing detention order for Mr Nelson.
[4] Letter from the Parole Board to the Attorney-General dated 20 October 2022, CAC-3 to Affidavit of Catherine Ann Clemow made on 24 October 2022 (FDN 3).
The power of the Court to make a CDO is set out in s 18(2) of the HRO Act. It relevantly reads:
(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.
It follows that the Court may make a CDO, if satisfied, that the person has breached a condition of their supervision order and that the person poses an appreciable risk to the safety of the community if not detained in custody. As with all applications made under the HRO Act, the paramount consideration at all times remains the safety of the community.[5]
[5] Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(5).
Whilst there have been numerous breaches of the orders, the Attorney-General relies on the most recent breaches for which the Parole Board warrant was executed on 20 July 2022 to enliven the Court’s discretion to make a CDO.
There is no real issue that the first precedent condition has been satisfied in that Mr Nelson has breached conditions of the ESO. The real contest that arises is whether Mr Nelson poses an appreciable risk to the community if not detained in custody.
Ms Clemow appeared for the Attorney-General. She made submissions in support of a CDO. She did so on three bases.
The first is the link between Mr Nelson’s substance abuse which is primarily the abuse of alcohol and his history of violent offending whilst intoxicated. It was submitted that as a consequence, Mr Nelson’s failure to abstain from the consumption of alcohol significantly increases the likelihood that he will commit a further serious offence of violence. He has been described as an impulsive individual who very much lives for the moment which is exponentially exacerbated by his consumption of alcohol.[6]
[6] Report of Mr Richard Balfour dated 20 June 2021 at 4, CAC-14 to Affidavit of Catherine Ann Clemow made on 26 October 2022 (FDN 6) (‘2021 Balfour Report’).
The second matter relied upon by the Attorney-General is the frequency of the breaches of the orders. In summary, Mr Nelson has breached the condition requiring him to be the subject of electronic monitoring eight times; the condition requiring him to not attend licensed premises eight times; the condition requiring him to abstain from alcohol use eight times; the condition requiring him to not use, consume or possess any illicit substance twice; the condition requiring him to be subject to curfew twice; the condition requiring him to maintain a telephone four times; and on one occasion the condition requiring him to comply with the directions of his CCO. These breaches have all occurred very soon after Mr Nelson’s release into the community and it was submitted that they are indicative of Mr Nelson’s inability or unwillingness to comply with the terms of the orders.
The third matter relied upon by the Attorney-General is Mr Nelson’s very limited insight into his offending and his criminogenic risk. In support of this submission, Ms Clemow took me to an observation made by Mr Balfour, that while Mr Nelson acknowledges that violence against women is wrong, he has very poor insight and is unable to openly discuss his offending behaviour to learn from his mistakes.[7] This situation is further complicated by the fact that as a traditional aboriginal man there are cultural sensitivities surrounding such conversations particularly in circumstances in which there are feelings of shame accompanying the prior offending behaviour.
[7] 2021 Balfour Report at 12-13.

During her submissions, Ms Clemow also advised the Court that she had made some enquiries with DCS about what treatment options were available to Mr Nelson in both a custodial and a non‑custodial environment. She had received an email in response which she provided to the Court that sets out the options open. Those options are described in the following terms:[8]
The Rehabilitation Programs Branch are willing to work with Mr Nelson in custody (should a CDO be made). They would offer him 1:1 intervention with a male clinician and they would utilise the assistance of an interpreter to help reduce language barriers. By offering 1:1 intervention, the work can be adapted to fit Mr Nelson’s learning style and level of cognitive functioning. It is considered that by modifying the work and information provided to Mr Nelson to meet his level of cognitive functioning, as well as the requirement for the use of an interpreter, that it will be a slower process to get through program content and to address his criminogenic risk factors. As such, it is considered that if RPB were to offer this 1:1 work with Mr Nelson in custody, they would likely require the entirety of the time remaining on his ESO to work with him. This would limit the amount of support he could obtain with his transition back into the community and with linking him in with community based services and his NDIS providers.
It is considered that from a cultural perspective, a further period of incarceration, due to a CDO being in place, is likely to exacerbate a loss of cultural connection for Mr Nelson. It is considered that this may increase his level of institutionalisation and worsen his living skills in the community. As it has previously been noted, Mr Nelson is a traditional Aboriginal male for whom English is a second language and who also presents with significant cognitive deficits, these factors make it difficult to engage him in treatment programs to address his criminogenic risk factors. It is important that any work done with Mr Nelson takes into consideration his cultural needs and is also adapted to meet his level of cognitive functioning and language needs.
Should a CDO not be made, Mr Nelson would continue to be supported through the High Intensity Treatment Program, where he would be able to work with the Aboriginal Clinician within this team. It has recently been identified that there is an DASSA Pilot Program for Aboriginal people to address their substance misuse in a culturally appropriate manner that Mr Nelson may be suitable for. This program will be run at Noarlunga Health Campus and will be running from January – July 2023.
Mr Nelson has accommodation available to him in the community and can be supported by his NDIS support workers upon his release from custody. Mr Nelson is also linked with the Exceptional Needs Unit who are currently assisting with gaps in his NDIS funding to ensure that he is able to obtain 24/7 support in the community, whilst an application to increase his NDIS funding is considered. Mr Nelson was recently placed on a Community Treatment Order with full guardianship from the Public Advocate.
[8] Email from Lauren Hawkshaw, Acting Specialist Clinician, Department for Correctional Services, dated 29 November 2022.
Whilst the author of the email highlights the simplicity of the approach in detaining Mr Nelson in custody to ensure that he can receive 1:1 intervention, it was acknowledged that from a cultural perspective, this will only further exacerbate Mr Nelson’s loss of cultural connection, his institutionalisation and further diminish his ability to function in the community.
In summary, Ms Clemow submitted that despite the concerns raised in the DCS report, the combined effect of the matters raised by the Attorney-General weigh heavily in favour of a CDO being made.
Mr Truscott, who appeared for Mr Nelson, made submissions in opposition to the imposition of a CDO. He mounted two arguments. The first was that the Attorney‑General relied upon the three most recent breaches of the conditions of the ESO as the basis for the application. It was submitted that these were not the most serious type of breaches and all occurred on the same day. It was further submitted that on the basis of those breaches, the Attorney‑General cannot demonstrate any level of elevated risk to the community posed by Mr Nelson since his release and therefore any application to make a CDO should fail.
I do not find much force in that submission. In order to enliven the discretion to make such an order, the Court must be satisfied that there has been a breach of a condition of the supervision order and that the respondent poses an appreciable risk to the safety of the community if not detained in custody. Although the Attorney‑General relies on the three most recent breaches to satisfy the first limb of the test in determining the question of whether he poses an appreciable risk, the Court must take into account the entirety of Mr Nelson’s conduct. That includes his recent history of continually breaching various conditions and consuming alcohol in circumstances in which historically there is a direct link between his alcohol consumption and his criminal offending. It is the totality of that conduct that informs the Court of the risk that Mr Nelson poses if not detained in custody on a CDO.
The second argument made by Mr Truscott was that there has been a change in Mr Nelson’s circumstances which ameliorate the risk that Mr Nelson now poses absent a CDO.
It was submitted that a combination of events have occurred since Mr Nelson’s most recent incarceration that mean that if released under the terms of the ESO, Mr Nelson will have systems and supports in place that will assist him in not reoffending. These were Guardianship and Administration orders made in relation to Mr Nelson on 23 November 2022 and the involvement of the Exceptional Needs Unit (‘ENU’) in obtaining additional funding for supports to be put in place for Mr Nelson upon his return to the community.
It was submitted by Mr Truscott that Mr Nelson’s personal circumstances are such that given his longstanding problem with alcohol abuse, it would be expected that he would breach the condition that he not consume alcohol. Such a result is hardly surprising. Mr Truscott made the submission that detaining Mr Nelson will simply defer the problem rather than treat it. The practical reality is that at some point Mr Nelson will be released back into the community and it is far more constructive to treat his addiction with the supports that are now available. Mr Truscott put to the Court that the use of the words “if not detained” in the section suggest that if there are other legal or even non-legal mechanisms that could moderate the risk that Mr Nelson poses to the community, then those should be pursued in preference to making a detention order. He summarised the position in the following terms:[9]
[W]e now have an opportunity to pursue new legal options through the [exceptional needs] finances and the guardianship powers which are quite potentially broad and when that’s combined with his NDIS funding, I think that is a strategy that needs to be pursued over one of simple detention.
[9] T31.
Reports and evidence of Richard Balfour
For consideration in this matter I have been provided with two reports from Mr Balfour dated 20 June 2021 and 23 June 2022. I have already made reference to these reports in passing. The first was prepared in order to assist the Court in determining whether an ESO should be made and the second was a neuropsychological assessment prepared for the ENU in order to assist in making an application for guardianship and administration orders. I have also had the benefit of hearing evidence from Mr Balfour.
By way of background, Mr Balfour is a psychologist who has extensive experience in working with aboriginal people. Mr Balfour was the visiting psychologist to the Port Augusta prison for a number of years. The inmate population at that prison consists of in excess of 80 per cent aboriginal people with a significant proportion from traditional cultures (e.g. Pitjantjara, Yankunytjatjara, Antikirinya etc). Mr Balfour is also fluent in the Pitjantjara language and consults with clients in that language.
By the time of preparing his first report in this matter Mr Nelson was well known to Mr Balfour. Mr Balfour had prepared a comprehensive psychological report in relation to Mr Nelson in 2016. The second report was prepared only 12 months later. There is a considerable overlap between the two reports. In those circumstances it is appropriate to deal with them compendiously.
Cultural Background
Mr Balfour provided a general overview of Mr Nelson’s background. Mr Nelson is a 34 year old traditional aboriginal man who was born in Alice Springs who had been brought up in Ernabella on the APY Lands by his grandfather. Both his father and mother are Warlpiri and he considers himself to be a Warlpiri man. Mr Nelson has spent most of his life in Ernabella although he has travelled between Ernabella, Adelaide and Alice Springs. He became an initiated man when he turned 27.
Substance abuse
Mr Balfour describes Mr Nelson’s history of consuming intoxicating substances at a very young age. Mr Nelson commenced a lifelong pattern of substance abuse when he was only nine or 10 years old by sniffing petrol and Tarzan grip glue. He abused those substances on an almost daily basis for about four years. At that time petrol and glue sniffing were rife on the APY Lands. For that reason Opal fuel which did not contain the usual euphoric sulphates, was introduced to these indigenous communities. Mr Balfour reported that as a consequence Mr Nelson ceased abusing petrol and glue and moved on to cannabis. At the age of 15 he became a daily cannabis user.
Mr Nelson gave conflicting accounts to Mr Balfour about his intentions in relation to continuing to use cannabis. Whilst he initially said that he does not wish to use cannabis, he went on to admit that there had been occasions on which he had smoked it in prison. Mr Nelson then changed his position and told Mr Balfour that he wants to resume smoking cannabis when he is eventually released back into the community. When Mr Balfour asked him why he would want to smoke cannabis again, he replied “I don’t know”.
At the age of 23 years, Mr Nelson commenced abusing alcohol. He told Mr Balfour that he would drink every day to the point of blacking out.
In his interviews with Mr Balfour he described drinking less in more recent years however there is no doubt that alcohol abuse remains an ongoing issue for Mr Nelson and gaining control of his addiction is central to any hope that he has for rehabilitation. As recently as 22 June 2022 the HIT from DCS reported that Mr Nelson had withdrawn all of the money from his bank account on payday and on that same day had spent the entire amount on alcohol. In his most recent interview with Mr Balfour Mr Nelson told him that he wants to keep drinking alcohol. He said he enjoys the sensation of being intoxicated.
In his interviews with Mr Balfour, Mr Nelson also gave conflicting accounts about his more recent alcohol consumption and his attitude towards drinking alcohol in the future. In the 2021 report Mr Balfour said that he asked Mr Nelson whether he wants to use alcohol. He described the response:[10]
He said that he does not want to use alcohol. I asked him why does he want to stop. He paused for a while, and thought before answering. He said that if he is on home-detention, he does not want to use alcohol.
[10] 2021 Balfour Report at 8.
This is to be contrasted with the 2022 report in which Mr Balfour described Mr Nelson as saying:[11]
He consumes alcohol every day until he blacks out. He then changed his mind and said that he now just drinks to be happy. He mainly drinks Fruity Lexi. He said that it is worth about $15.00 a carton. He said that he wants to keep drinking alcohol because he enjoys being intoxicated.
[11] Report of Mr Richard Balfour dated 23 June 2022 at 8, CAC-15 to Affidavit of Catherine Ann Clemow made on 26 October 2022 (FDN 6) (‘2022 Balfour Report’).
Risk of reoffending
In the 2021 report Mr Balfour provided an analysis of Mr Nelson’s offending behaviour. In the interview that was conducted for the report, Mr Balfour explained to Mr Nelson that the Court was concerned that he may assault women again, particularly if he has alcohol and cannabis in his system. When Mr Balfour asked Mr Nelson if he was going to do that again, he replied by shaking his head to indicate no. Mr Balfour asked Mr Nelson about why he hit women in the past. After a period of silence (which Mr Balfour attributed to cultural shame), Mr Nelson said that she was a bad woman because she had slept with other men and that they had become jealous of each other.
In terms of prognosis for the future, Mr Balfour’s opinion did not vary between the two reports. It was far from positive. In the 2021 report he observed:[12]
Mr Nelson has become culturally dislocated due to the overwhelming influence of dominant white culture. He clearly cannot lead a fully traditional lifestyle. However, he is also poorly equipped to adapt to mainstream dominant white culture. The end result is that he has lapsed into a lifestyle of chronic boredom, antisocial behaviour, drug and alcohol abuse, offending, and institutionalisation in the prison system.
[12] 2021 Balfour Report at 12.
Mr Balfour went on to note:[13]
Mr Nelson’s psychological profile is not unique. His psychological profile is very similar to that cohort of aboriginal men who are persistent domestic violence offenders.
[13] 2021 Balfour Report at 12.
In concluding the report, Mr Balfour expressed the opinion that Mr Nelson’s risk of committing further acts of violence against women in the community is high. He went on the say:[14]
The reality is that once Mr Nelson is released into the community, he very much lives for the moment. He does not have any constructive goalsetting in his life, or meaningful activities to occupy his time. I anticipate that he will socially gravitate towards other aboriginal people with drug and alcohol abuse problems leading to antisocial behaviour. He is also an impulsive individual.
I do not believe that an Extended Supervision Order by itself will prevent Mr Nelson from committing further acts of violence against women. I believe that it is essential that the order be paired with a comprehensive rehabilitation programme and intense community support; otherwise, he will repeatedly breach the order, and spend most of the order in prison.
[14] 2021 Balfour Report at 14.
In the 2022 report Mr Balfour maintained the same view about the likelihood of Mr Nelson reoffending. As part of his assessment of Mr Nelson for this latter report, Mr Balfour undertook neuropsychological testing. Based on that testing, Mr Balfour expressed the view that Mr Nelson has an intellectual disability of mild severity (i.e., a level of intelligence in the bottom one per cent of the general population for his age group). Mr Balfour went on to elaborate:[15]
He is functionally illiterate and innumerate. He also has impaired short-term visual-spatial memory functioning. His ability for planning, organization and general problem-solving is very poor. He also has very poor living skills.
[15] 2022 Balfour Report at 19.
Recent developments
Mr Balfour gave evidence on this application on 30 November 2022. A particular focus of his evidence was on the recent developments and changes to Mr Nelson’s circumstances that had occurred between his last report and when he came to Court to give evidence.
Mr Balfour explained that it was as a result of a request from the ENU that he came to prepare the 2022 report. The purpose of the report was to clarify Mr Nelson’s eligibility for NDIS funding and support and to make some recommendations about his rehabilitation. In that report Mr Balfour expressed the view that Mr Nelson is not competent to make important lifestyle decisions or to manage his finances. It was at least in part on this basis that the orders for guardianship and administration have since been made.
It was plain from the evidence of Mr Balfour that he was of the view that recent changes to Mr Nelson’s circumstances were a source for some optimism about his future risk profile. Mr Balfour summarised his view of the situation:[16]
So without those orders, the sad trajectory for Mr Nelson would be this endless cycle of going in and out of gaol and becoming increasingly institutionalised and disassociated from his life in the community whether it’s the APY Lands or here. This is a fantastic opportunity with these extensive resources and the expertise of the exceptional needs unit to give him the strongest opportunity to break the offending cycle and to create a pro-social lifestyle for him to replace that. Now, realistically, he’s a challenging client and it won’t be something that will happen straight away and there will be problems in the early stages of him participating in this and it’s a matter of learning, revising, developing compensating strategies and re-grouping to deal with those problems. …
[16] T18-19.
Mr Balfour went on to elaborate about the role of the ENU and the significance of that unit becoming involved with Mr Nelson:[17]
… It’s a fantastic government initiative. There are specific services, so historically what was called the Intellectual Disability Service Council for Intellectually Disabled People. There was a service for people who had acquired brain injury, it’s a service for people, drug and alcohol. But there were these complex cases that slipped between the cracks because they had this co- morbidity. A psychotic illness, an intellectual disability, a brain damage and so they were not getting any service whatsoever. So the government commissioned Dame Roma Mitchell to do a review of how best to assist these individuals. Your Honour, we’re talking more than 30 years ago and she suggested that there needed to be this body called the exceptional needs unit. So what it is is it uses a panel format that there’s a very experienced convenor of the meeting and then on a voluntary basis, they invite different types of experts depending on the client case. So it might be psychiatrists, social workers, psychologists and then you invite all of the various stakeholders, so you might get someone from mental health, some from NDIS, someone from the community, someone from the Housing Trust and you produce the best plan you can to help this person get optimal services because sadly the reality is that a lot of these people that fell between the cracks, were at risk of legal conflict and getting institutionalised into the prison system. So ... one of the exciting developments has been the NDIS because it’s provided funding to help people break away from this cycle. …
[17] T19-20.
Mr Balfour explained that a plan would be developed regarding Mr Nelson’s rehabilitation and funding that could be supplied through the NDIS which would be supplemented by the ENU for each of the elements of the plan. Issues would be addressed about whether Mr Nelson would require the support of a psychologist or a positive behaviour support practitioner.
Mr Balfour contrasted the opportunities now available to Mr Nelson as those provided previously:[18]
… If there was none of this support, NDIS, ENU, his fate would be just to go around and around, in and out of the community, quickly breaching until hopefully he doesn’t do some - he has some serious offending but you know he takes a life or whatever and he ends up in gaol for life. He would become increasingly institutionalised which would make it difficult for him to live in the community but with this support it provides an option to deal with all of his problems, to reduce his chances of offending and coming back to gaol. Without this support, I hope I’m using the right metaphor, it’s a bit like kicking the can further down the road, you’re going to have to deal with at some stage his integration into the community whether it’s now or at the end of an extended supervision order or the end of three extended supervision orders. At some stage you have to give him the best opportunity with the maximum supports to break that cycle and he has those resources at present as I understand it.
[18] T21-22.
Consideration

The power to make a CDO is not punitive. It is a power available to the Court to utilise in extreme circumstances in which there is no other means reasonably open to protect the community from further offending. In Police v Sullivan; Attorney-General (SA) v Sullivan,[19] Hinton J summarised the position in the following terms:
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.
[19] [2018] SASC 11 at [85].
There is no doubt that the nature and number of Mr Nelson’s breaches of the ESO strongly suggest that he is at great risk of committing further serious offences. The fact that he has not done so is more a reflection of the promptness with which police, the parole board and corrections have acted in detecting the breaches and acting upon them, than any desire of Mr Nelson to conduct himself in a pro‑social manner.
It is also significant that these breaches have all occurred in circumstances in which there were multiple agencies involved in supporting Mr Nelson in attempting to assist him in re‑integrating back into the community. NDIS support workers were providing Mr Nelson with six hours 1:1 support a day and he also had 24/7 support if needed. This support agency was putting in place appropriate cultural activities for him. Mr Nelson was being supervised by a community corrections officer with the involvement of the HIT and on occasions the aboriginal sobriety group. From the material before me it is apparent that many people have endeavoured to provide assistance to Mr Nelson with the Parole Board also attempting to provide him with multiple opportunities to demonstrate that he is not at risk of re‑offending.
If that was the end of the matter there is no doubt that this Court would now be at a point at which the only option available to protect the community would be the imposition of a CDO. There have however been some further developments in Mr Nelson’s circumstances and the supports open to him that potentially reduce the risk that he poses.
Although Mr Nelson had previously received NDIS support, it would appear that there were gaps in that support. In recent times there has been an agreement that the ENU will work with the NDIS to fill those gaps. During the periods when NDIS funds are insufficient the ENU will step in.
Another important development has been the orders made in the SACAT for Guardianship and Administration. The public advocate has been appointed as the full guardian for Mr Nelson. That order empowers the public advocate to direct where Mr Nelson resides. Accompanying that power is an obligation to identify and secure appropriate accommodation for Mr Nelson. I have been advised that accommodation options with Aboriginal providers are being explored to determine whether suitable living arrangements can be made which will enable Mr Nelson to reside with other members of his own community from the APY Lands.
The Public Trustee has also been appointed as the full administrator of Mr Nelson’s estate. It follows that the Public Trustee, or an authorised officer, can at their discretion communicate with any person involved in the accommodation, healthcare and lifestyle issues of Mr Nelson. Most importantly the Public Trustee will take on responsibility for monitoring Mr Nelson’s expenditure. If successful this will reduce the ability of Mr Nelson to binge drink and consequently spend most of his income on alcohol as was previously the case.
A detailed activity schedule has also been provided for Mr Nelson by his NDIS provider. This sets out a culturally calibrated program of events intended to occupy Mr Nelson and hence further reduce the risk of him becoming bored and reverting back to his entrenched pattern of alcohol abuse.
The changes in Mr Nelson’s circumstances mean that if there was ever an opportunity for Mr Nelson to step back from the cycle of breaching and reincarceration, it may be now. Given the obstacles Mr Nelson faces, it would be naive to think that the recent developments will mean that he is now on a smooth course to rehabilitation. However, I am of the view that there are now sufficient measures in place to potentially alter the landscape for him.
In all of the circumstances I have come to the view that there are now sufficient supports to minimise the risk that Mr Nelson poses to the community if not detained in custody. The proposed level of supervision is such that any breach of any condition would be very quickly detected and appropriate action taken.
I am not satisfied that Mr Nelson poses an appreciable risk to the community if not detained in custody.
I decline to make a continuing detention order.