Attorney-General (SA) v Nyari - [2022] SASC 15

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v NYARI
[2022] SASC 15
Judgment of the Honourable Justice Blue
22 February 2022
CRIMINAL LAW - IMPRISONMENT - VIOLENT OFFENDERS - EXTENDED SUPERVISION ORDER
The Attorney-General seeks an extended supervision order under section 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) in respect of the respondent. The application is opposed by the respondent.
In November 2015 the respondent was sentenced to imprisonment for four years for an aggravated robbery offence, together with one month and 10 days for driving offences, backdated to commence on 16 May 2015, with a non-parole period of three years.
In May 2019 an interim supervision order was made on the application of the Attorney-General and in September 2019 an extended supervision order for 18 months was made.
In March 2021, before the expiration of the extended supervision order, the Attorney-General made the current application for a second extended supervision order.
On 24 March 2021 an interim supervision order was made. It included conditions that the respondent not contact or communicate with her partner except to arrange or attend access with her children as supervised by the Department of Child Protection or their guardian or to attend joint rehabilitation programs or counselling at the direction of her community corrections officer and/or the Parole Board.
The respondent initially remained in custody. In May 2021 she was accepted into the High Intensity Treatment Program. In August 2021 she was released from custody and commenced to live at supported accommodation.
Since August 2021 the respondent has attended weekly therapeutic sessions under the HIT Program and since October 2021 she has attended counselling sessions with a griefologist arranged and funded by the Department for Correctional Services.
Held:
1The respondent is a “high risk offender” (at [43]).
2The respondent poses an appreciable risk to the safety of the community if not supervised under an extended supervision order (at [71]).
3The discretion should be exercised to make an order (at [77]).
4The curfew condition contained in the current interim order should be included initially but should be removed on 1 April 2022 (at [86]).
5The non-contact with her partner condition contained in the current interim order should be included initially but should be removed on 1 July 2022 (at [95]).
6The term of the order should be 18 months from the making of the order (at [103]).

Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 10, 17, referred to.
Attorney-General v Grosser [2016] SASC 49; R v Kimmins [2016] SASC 176, considered.

ATTORNEY-GENERAL (SA) v NYARI
[2022] SASC 15

BLUE J: The Attorney-General seeks an extended supervision order under section 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act) in respect of Lee-Anne Nyari.
Background
Ms Nyari was born in 1985. When she was in year 6, she was placed in foster care by Families SA. She left school after completing year 9. After leaving school, she obtained casual employment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General (SA) v Nyari

Details

AGLC: Attorney-General (SA) v Nyari [2022] SASC 15
Case: [2022] SASC 15
Decision Date: 22 February 2022

CaseChat Overview and Summary

The case of Attorney-General (SA) v Nyari involved a legal challenge by the Attorney-General of South Australia to the release of Ms Nyari, a high-risk offender, from prison and the subsequent imposition of an extended supervision order (ESO). The matter was heard in the Supreme Court of South Australia, where the court had to determine whether Ms Nyari posed an appreciable risk to the community if not subject to an ESO. The central legal issues revolved around the interpretation and application of the relevant statutory provisions concerning ESOs, particularly under sections 7(4), (5) and (6) of the relevant Act. The court had to decide whether Ms Nyari qualified as a "high-risk offender" and whether she posed an appreciable risk to the safety of the community if not supervised under an ESO.

The Supreme Court of South Australia carefully considered the evidence presented, including expert reports, the likelihood of reoffending, and the terms of any existing ESOs. The court concluded that the preconditions for making an ESO had been met. It found that Ms Nyari was indeed a "high-risk offender" and that she posed an appreciable risk to the safety of the community if not supervised under an ESO. The court also noted the importance of considering the paramount consideration of community safety and the specified matters outlined in the Act when determining whether to make an ESO. Based on this analysis, the court exercised its discretion to make an ESO, with specific conditions including the duration of the order, the inclusion of certain conditions from the interim order, and the assumption that the HIT Program would be extended.

The Supreme Court of South Australia made an extended supervision order for Ms Nyari, effective from the date of the order, with specific conditions to be in place initially but removed at certain dates. The order included the initial inclusion of conditions from the interim order, such as a curfew and non-contact with her partner, but these were to be removed on specified dates. The term of the ESO was set at 18 months from the date of the order. The court also noted that if the HIT Program was not extended, this would constitute a material change in circumstances that would allow for a variation order. However, the end date of the ESO should not be the end of Ms Nyari’s participation in the HIT Program, as other therapeutic sessions and elements of the ESO would continue beyond her participation in the HIT Program.

Orders

Orders of the court

Held:

1 The respondent is a “high risk offender” (at [43]).

2 The respondent poses an appreciable risk to the safety of the community if not supervised under an extended supervision order (at [71]).

3 The discretion should be exercised to make an order (at [77]).

4 The curfew condition contained in the current interim order should be included initially but should be removed on 1 April 2022 (at [86]).

5 The non-contact with her partner condition contained in the current interim order should be included initially but should be removed on 1 July 2022 (at [95]).

6 The term of the order should be 18 months from the making of the order (at [103]).

Background

Background to the litigation

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Evidence

Evidence Before The Court

On 23 November 2021 Ms Wanganeen provided a report. She said that Ms Nyari had attended three sessions between 15 October and 19 November 2021. Four further sessions were scheduled for December 2021 and January 2022. Four sessions with both Ms Nyari and F were scheduled from late January to mid March 2022. The sessions are to address Ms Nyari’s removal from her family, the removal of her children, cultural disconnection and her relationship with F. Evidence The Attorney-General tendered an affidavit by the Attorney-General’s solicitor Danielle Russell affirmed on 16 March 2021 that largely exhibited various documents; a second affidavit by Ms Russell affirmed on 23 November 2021 that exhibited Ms Ramsay’s report; and a third affidavit by Ms Russell affirmed on 12 January 2022 that exhibited the Department for Child Protection’s long-term care plans dated 21 October 2020 for each of Ms Nyari’s three children. The Attorney-General also tendered Dr Crouch’s report. Dr Crouch and Ms Ramsay also gave oral evidence and were cross-examined. Ms Nyari tendered an affidavit by her solicitor Garen Truscott affirmed on 24 November 2021 that exhibited Ms Wanganeen’s report and curriculum vitae, a letter from Peta Rutland, the project manager of Project Safe Haven, and a report by the Parole Board dated 3 February 2021; and a second affidavit by Mr Truscott affirmed on 9 December 2021 that exhibited the orders made by the Youth Court on 1 February 2021 in relation to Ms Nyari’s three children. Ms Nyari also tendered a copy of Cornerstone Housing’s House Rules. I found each of Dr Crouch and Ms Ramsay to be impressive witnesses and in general terms I accept their evidence.Preconditions to making an order Subsections 7(1), (2) and (3) of the Act empower the Attorney-General to make an application for an extended supervision order; require any such application to be made within 12 months of expiry of the relevant term of imprisonment or a current extended supervision order (as the case may be); and require the Court, before determining whether to make an order, to direct that one or more prescribed health professionals examine the respondent and report to the Court on the results of the examination. Subsection 7(4) provides:(4)The Supreme Court may, on application under this section, order that the respondent is to be subject to an extended supervision order if satisfied that—(a) the respondent is a high risk offender; and(b) the respondent poses an appreciable risk to the safety of the community if not supervised under the order. Section 5 defines a “high risk offender” as follows:For the purposes of this Act, a high risk offender is—…(d) a person who is subject to an extended supervision order. Subsection 7(5) provides:(5)The paramount consideration of the Supreme Court in determining whether to make an extended supervision order must be the safety of the community. Subsection 7(6) provides that the Court must also take specified matters into consideration in determining whether to make an extended supervision order. Those matters include the likelihood of the respondent committing a further serious offence of violence if not supervised under an extended supervision order; any report of a prescribed health professional ordered by the Court; in the case of a respondent subject to an existing extended supervision order, the extent to which they have complied with the terms of the order; relevant evidence adduced or representations made by the respondent; and any other matter that the Court thinks relevant.

Decision

Reasons for decision

Ms Nyari points out that the existing pilot HIT Program’s funding is due to expire in April 2022. However, it appears that there is a reasonable prospect that the Program will be extended. I make the extended supervision order on the assumption that the Program will be extended. If it transpires that it is not extended, that would comprise a material change in circumstances that would enliven the discretion of the Court to make a variation order. However, I make it clear that the end date of the extended supervision order should not be the end date of Ms Nyari’s participation in the HIT Program. First, there may be other therapeutic sessions (such as with Ms Wanganeen or otherwise) provided or funded by the Department in respect of a continuing extended supervision order. Secondly, there are other elements of the extended supervision order beyond Ms Nyari’s participation in the HIT Program. Thirdly, in accordance with Dr Crouch’s evidence, it is important that there be a transition during the currency of the extended supervision order towards full autonomy and independence beyond participation in the HIT Program.Conclusion The preconditions for the making of an extended supervision order have been established and the discretion should be exercised to make an order. The conditions of the order should be as described above. I will hear the parties on the precise wording of the order.

Ratio Decidendi

Legal Principle Established

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