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 with a company involved in Aboriginal art and then with a lettuce growing company.
In about 2001, at the age of 16, Ms Nyari entered into what became a long term relationship with F. They have three children. Ms Nyari stopped work when she fell pregnant with her first child.
Ms Nyari has numerous prior convictions. They include convictions or findings of guilt for assault in December 1998; breaking and entering in September 1999; assault in November 1999, December 2000, August 2001 and June 2002; serious criminal trespass in June 2002; assault in July 2003; possessing an unregistered firearm without a licence in July 2003; and serious criminal trespass in July 2003.
In February 2007 Ms Nyari’s elder son was born and in December 2008 her daughter was born.
Ms Nyari has convictions for assault in May and August 2008.
In March 2010 the Department for Child Protection removed Ms Nyari’s two children from her and they were placed in the care of an approved carer, G. In June 2010 a child protection order was made by the Youth Court placing the children under the Guardianship of the Minister for Education and Child Development for 12 months and in September 2011 an order was made placing them under the guardianship of the Minister until they attain the age of 18 years old. They remained in the care of G.
Ms Nyari has convictions for serious criminal trespass in May and June 2011; assault in June 2011; serious criminal trespass in July 2011; and assault in September 2011. Ms Nyari also has numerous convictions or findings of guilt for larceny/theft, driving offences, breach of bond and breach of bail.
In February 2013 Ms Nyari’s younger son was born. In May 2013 he was placed in the care of G (with his siblings) and in May 2014 he was placed in the care of his father F. Since February 2015 he has been in the care of G (with his siblings).
In February 2015 Ms Nyari committed robbery of another woman’s purse and mobile phone. She was arrested on 16 May 2015 and remained in custody until being sentenced in November 2015. She was sentenced to imprisonment for four years for the aggravated robbery offence, together with a further month and 10 days for driving offences, backdated to commence on 16 May 2015 with a non-parole period of three years.
In August 2018 a child protection order was made by the Youth Court placing Ms Nyari’s younger son under the Guardianship of the Minister for Education and Child Development for 12 months and in May 2015 an order was made placing him under the Guardianship of the Minister until he attains the age of 18 years old. He remained in the care of G.
Between May and October 2017 Ms Nyari completed the Making Changes program while in prison.
Before the expiration of Ms Nyari’s sentence for the aggravated robbery and driving offences, the Attorney-General applied for an extended supervision order. On 8 May 2019 an interim supervision order was made.
On 28 May 2019 Dr Raeside provided a psychiatric report to the Court in which he expressed the opinion that Ms Nyari was at high risk of further violent offending.
On 25 September 2019 this Court ordered that Ms Nyari be subject to an extended supervision order (the first extended supervision order) for 18 months.
On 23 October 2019 the Parole Board issued a warrant for the arrest of Ms Nyari on suspicion of breaches of conditions relating to curfew, being uncontactable and drug use. Ms Nyari was arrested on 24 October 2019 and detained in custody until 12 December 2019.
On 20 December 2019 the Parole Board issued a warrant for the arrest of Ms Nyari on suspicion of breaches of conditions relating to positive drug testing. Ms Nyari was arrested on 26 December 2019 and detained in custody until 24 January 2020.
On 12 August 2020 the Parole Board issued a warrant for the arrest of Ms Nyari on suspicion of breaches of conditions relating to being uncontactable. Ms Nyari was arrested on 13 August 2020 and detained in custody until 3 September 2020.
On 4 September 2020 the Parole Board issued a warrant for the arrest of Ms Nyari on suspicion of breaches of conditions relating to being contactable and offences (assault). She was arrested on 7 September 2020 and detained in custody. On 27 and 29 October 2020 the Parole Board resolved that she be released upon suitable accommodation being found. Such accommodation was not found and she remained in custody until 24 March 2021 when the first extended supervision order expired (and a new interim supervision order was made as referred to below).
On 13 January 2021 Kim Nejman, the acting Team Supervisor at the Adelaide Community Correctional Centre, provided an Extended Supervision Order Progress Report. The report stated that between February and July 2020 Ms Nyari was referred to a number of community-based support services, and she arranged a number of appointments but failed to engage consistently and made little progress in addressing criminogenic risk factors. It stated that she struggled to comply with her supervision reporting and maintaining her electronic monitoring conditions. The report stated that she remained at high risk of reoffending.
In February 2021 orders were made by the Youth Court placing Ms Nyari’s children under the guardianship of G in lieu of the Minister.
On 16 March 2021, before the expiration of the first extended supervision order, the Attorney-General made the current application for a second extended supervision order.
On 24 March 2021 an interim supervision order (the interim supervision order) was made. It included conditions that Ms Nyari not contact or communicate with F 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.
Ms Nyari initially remained in custody.
In May 2021 Ms Nyari was accepted into the High Intensity Treatment Program (HIT Program). Kylie Ramsay was assigned as her Clinician – HIT Program. Ms Nyari has seen Ms Ramsay weekly since being accepted into the program in May 2021. The HIT Program is operated by the Department for Correctional Services and funded by the State Government and the Department. It is a pilot program involving 30 participants. It presently has funding to April 2022 but there is a prospect that it will be extended beyond that date.
During the first 10 weeks engaging in the program, Ms Nyari participated in safety planning, relapse prevention and developing coping strategies while still in custody to assist her navigate a return to the community.
In July 2021 Ms Nyari saw Dr Catherine Crouch for the purpose of Dr Crouch preparing a psychiatric report as ordered by the Court when the interim supervision order was made. On 5 July 2021 Dr Crouch provided a report to the Court. I am required by section 7(6)(b) of the Act to have regard to that report. Dr Crouch summarised what she was told by Ms Nyari and other information provided to her. Dr Crouch expressed the opinion that Ms Nyari does not suffer from a major mental illness but does have an Antisocial Personality Disorder and Substance Use Disorder. Dr Crouch expressed the opinion that Ms Nyari has numerous static and dynamic criminogenic risk factors with a general lack of protective factors; despite her engagement in the Making Changes program, there was evidence of prior criminal attitudes, unlawful behaviour, poor supervision compliance, lack of empathy for others and a lack of taking responsibility for her actions; and, although she expresses motivation to change, there is little physical evidence to suggest that she has done so. Dr Crouch expressed the opinion that Ms Nyari remains at high risk of future violent offending. Dr Crouch recommended that, if an extended supervision order is made, Ms Nyari engage in further anger management treatment and counselling with a focus on responsibility and empathy building and ongoing drug counselling with a focus on building coping skills, frustration tolerance and emotional regulation.
In August 2021 Ms Nyari was released from custody and commenced to live at supported accommodation in greater Adelaide (Adelaide) provided by Cornerstone Housing and Ezer Foundation under the name Project Safe Haven under a 12 month lease. Cornerstone Housing has house rules, including that tenants must participate in a program of workshops, volunteering and mentoring implemented by Project Safe Haven.
Since her release from custody, Ms Nyari has attended weekly therapeutic sessions with Ms Ramsay. Those sessions involve Dialectical Behavioural Therapy, which is an evidence-based therapy specifically for people with Borderline Personality Disorder. Ms Nyari has also participated in weekly lifestyle-based programs at her accommodation.
In October 2021 Ms Nyari commenced counselling sessions with Rosemary Wanganeen, a griefologist. Those sessions were arranged and at least initially attended by Ms Ramsay and have been funded by the Department for Correctional Services.
On 22 November 2021 Ms Ramsay provided an Interim Supervision Order Progress Report. She described Ms Nyari’s progress since May 2021 and said that she has been engaging well with the HIT Program and the other supports. She said that Ms Nyari has a strong desire to be reunited with her children.
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.
Accordingly, there are three procedural preconditions, and two substantive preconditions, that enliven the discretion of the Court to make an extended supervision order. The procedural preconditions are:
1an application by the Attorney-General;
2the application being made within the prescribed 12 month period; and
3the Court having directed the prescribed examination(s) and report(s).
The substantive preconditions are:
1the respondent is a high risk offender; and
2the respondent poses an appreciable risk to the safety of the community if not supervised under an extended supervision order.
High risk offender
The first substantive precondition is that the respondent is a high risk offender. When the application was made, Ms Nyari was subject to an extended supervision order and hence was a high risk offender within the meaning of the Act. The first precondition is not in dispute.
Appreciable risk if not supervised
The second substantive precondition is that the respondent poses an appreciable risk to the safety of the community if not supervised under an extended supervision order. This precondition is in dispute.
In Attorney-General v Grosser[1] Stanley J said:
I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible. Necessarily, a risk must be anticipatory. An appreciable risk is a risk that is not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in future in a manner that poses a risk to the safety of the community. It is a question of degree. The extent of the appreciable risk is informed by the consideration that in determining whether to make an extended supervision order the safety of the community is paramount. I construe that requirement to mean that where a court considers that the question of whether to make an order is finely balanced, the protection of the community would favour making the order rather than declining to do so. I do not suggest that this consideration is exhaustive of the work to be performed by s 7(5) of the Act.[2]
[1] [2016] SASC 49.
[2] At [29]. (Footnotes omitted)
Literally section 7(4)(b) is expressed in terms of an absolute test (as opposed to a comparative test): assessed prospectively does the respondent pose an appreciable risk to the safety of the community if not supervised under an extended supervision order? However I accept Ms Nyari’s submission that, construed in context and having regard to its evident purpose, that provision involves both an absolute and comparative test: assessed prospectively does the respondent pose an appreciable risk to the safety of the community if not supervised under an extended supervision order and is the risk to the safety of the community greater if the respondent is not supervised under an extended supervision order? The Attorney-General does not take issue with that construction. In any event, if the risk to the safety of the community were assessed prospectively as being greater if the respondent is supervised under an extended supervision order than being unsupervised, it may be expected that the discretion would be exercised against making an order.
If Ms Nyari is not supervised under an extended supervision order, she will no longer be eligible to participate in the HIT Program. Her participation in that program has been beneficial (both to Ms Nyari and for the community) to date and, if she were to cease to participate in the program at this stage, I am satisfied that it would substantially increase the risk of future offending, including future violent offending, thereby adversely affecting the safety of the community.

If Ms Nyari is not supervised under an extended supervision order, she will lose the opportunity of funding from the Department for Correctional Services for grief counselling with Ms Wanganeen. Again, her participation in that counselling has been beneficial to date. Ms Nyari submits that, if no extended supervision order is made, she might obtain funding for grief counselling from the National Disability Insurance Scheme. However, Ms Wanganeen has not been assessed as eligible under the Scheme by the National Disability Insurance Agency and there is no evidence on which I could find that she is or may be eligible under the Scheme. On the contrary, Ms Ramsay gave evidence, which I accept, that in August 2021 the Department assessed Ms Nyari’s eligibility under the Scheme and assessed that she was not eligible. If Ms Nyari were to cease to participate in the grief counselling prematurely, I am satisfied that it would substantially increase the risk of future offending including future violent offending, thereby adversely affecting the safety of the community. This is not, however, such a significant factor as Ms Nyari losing support through the HIT Program because the grief counselling is likely to have a shorter duration than the HIT Program and there is no affirmative evidence of funding by the Department of the grief counselling beyond March 2022.
Ms Nyari submits that, if she were not supervised under an extended supervision order, she could nevertheless continue to reside at the Cornerstone Housing accommodation and participate in the programs undertaken by Project Safe Haven. I accept that this is so. However, the letter from Ms Rutland describes the programs run by Project Safe Haven. They are very elementary compared to the therapy undertaken by Ms Ramsay or by Ms Wanganeen and would be no substitute for that therapy. In addition, Ms Nyari would not be subject to any other form of supervision as she would be if an extended supervision order is made. Although I accept that Ms Nyari resents being subject to any form of supervision (as opposed to participating in therapy with Ms Ramsay and Ms Wanganeen, which she appreciates as being beneficial), assessed prospectively an appropriate level of supervision under an extended supervision order, in conjunction with ongoing therapy, is likely to reduce substantially the prospect of future offending compared to Ms Nyari not being subject to an extended supervision order.
In making the prospective assessment of the risk to the safety of the community, regard is to be had both to the short to medium term period of the proposed extended supervision order and also to the long term encompassing the period after expiration of the proposed extended supervision order when a respondent will be living in the community unsupervised.
Dr Crouch expressed the opinion that Ms Nyari remains at high risk of future violent offending if not supervised under an extended supervision order. Dr Crouch explained in her oral evidence that this assessment was not an intuitive or purely subjective assessment but was based on the application of developed and documented risk assessment tools (including HCR20 which is a structured professional judgment tool widely used in forensic psychiatry for assessing risk of violence). Dr Crouch explained at length how she made the assessment in respect of Ms Nyari. Dr Crouch was cross-examined at some length in relation to that assessment. I found Dr Crouch to be an impressive witness. Although cross-examination identified one or two matters relied on by her that might be regarded as speculative, I accept Dr Crouch’s evidence, and in particular her opinion about the risk of future violent offending if Ms Nyari is not supervised under an extended supervision order.
Dr Crouch referred to Ms Nyari’s strong desire to get her children back. While she expressed the opinion that this is a motivation for Ms Nyari not to offend in future, she also expressed the opinion that it would be a difficult process involving a lot of restrictions and steps and likely to lead to ongoing frustrations given that there will be many factors outside of her control.
Dr Crouch said that she supports Ms Nyari remaining engaged with the HIT Program and expressed the opinion that the support obtained through weekly therapy therapeutic sessions with a clinician [Ms Ramsay] go towards addressing her criminogenic risk factors. Dr Crouch said that this covers some of the recommendations made at the conclusion of her report and involves the sort of intervention Ms Nyari needs to target her dynamic risk factors. Dr Crouch said that addressing lifelong issues of anger, emotional tolerance, distress tolerance and emotional regulation as a result of childhood experiences requires ongoing counselling and support; while there can be positive short term benefits, it is important to build a long-term basis; and trying to change maladaptive patterns takes a long time.
Dr Crouch expressed the opinion that, without the supervision involved in an extended supervision order, outside external factors may well disrupt Ms Nyari continuing her engagement to address the challenges that she faces. Dr Crouch expressed the opinion that having additional supports and measures to help Ms Nyari maintain that engagement is really important to ensure that it succeeds.
Dr Crouch said that she would be concerned if the HIT Program were no longer involved; programs for Ms Nyari outside that Program are limited and really hard to find; even if Ms Nyari is highly motivated to continue to engage in a kind of therapy, finding therapy that is affordable or covered under Medicare would be highly difficult for her; and, without a structured program, her ability to voluntarily engage might be poor and she might be easily led by external influences to no longer engage in the same level of supports.
Dr Crouch said that the HIT Program addresses building some of the interpersonal skills referred to in her report. She expressed the opinion that it is key to ensure that Ms Nyari has a graduated return to independence and autonomy moving forward. She said that there is evidence that Ms Nyari’s participation in the HIT Program has reduced her risk here and now while engaged in the program but, without the supports and structure of the program around her, her risk changes completely and, to address her risks, the program needs to be quite protracted.
The effect of the evidence of Dr Crouch summarised above is that the risk to the safety of the community is substantially greater if Ms Nyari is not supervised under an extended supervision order compared to her being supervised under an extended supervision order. Dr Crouch’s evidence was highly persuasive in this respect and I accept it.
Although his report was provided some time ago, the opinion of Dr Raeside is generally corroborative of Dr Crouch’s opinion.
Ms Ramsay gave oral evidence describing in detail her weekly counselling sessions with Ms Nyari and also Ms Nyari’s grief counselling sessions with Ms Wanganeen, which Ms Ramsay has also attended to date. The effect of Ms Ramsay’s evidence is that both types of counselling sessions have been productive and beneficial to date; Ms Nyari is on a path to recovery and rehabilitation; and, without those sessions, the risk of Ms Nyari re-offending would be substantially increased. I accept Ms Ramsay’s evidence in this respect.
Ms Nyari submits that she has not committed any offences since being placed under the first extended supervision order in 2019 and it follows that she does not pose an appreciable risk to the safety of the community if not supervised under an extended supervision order. In relation to the first proposition, on the one hand, if the Attorney-General wishes to rely in this application on Ms Nyari having committed offences, the onus lies on the Attorney-General to adduce evidence proving that proposition and, although there are suggestions in reports by the Department for Correctional Services that she has committed offences including one of violence over that period, this is not only hearsay but too vague to amount to proof of commission of an offence. On the other hand, if Ms Nyari wishes to rely in this application on her not having committed any offences, the onus lies on her to adduce evidence proving that proposition and she has not done so. The Attorney-General bears the ultimate onus of proof in respect of the precondition. In the particular circumstances of this application, I proceed on the basis that Ms Nyari has not committed any offences of violence over that period.
In relation to Ms Nyari’s second proposition, throughout the period since she was placed under the first interim supervision order in May 2019, Ms Nyari has either been in custody or been supervised under a supervision order. Although I take into account the fact that Ms Nyari has not committed offences over that period, it does not follow that she would not have done so (and will not in future do so) in the absence of a supervision order. I also take into account the fact that she did fail to comply with the conditions of the first extended supervision order, although she has complied with the conditions of the interim supervision order (during which period she has been engaged in the HIT Program).
Ms Nyari puts several propositions in support of a submission that the risk to the safety of the community is no greater (and indeed may be less) if she is not supervised under an extended supervision order than if she is so supervised.
First Ms Nyari points to the fact that she spent four periods in custody during the currency of the first extended supervision order. Ms Nyari contends that this is contrary to the purpose of an extended supervision order, which is not to incarcerate a person but to assist them to integrate into the community. Ms Nyari contends that her experience under the first extended supervision order is an example of the supervision order regime failing and weakens the argument that another supervision order should be made.
In respect of the first three periods spent by Ms Nyari in custody during the currency of the first extended supervision order, they were the result of Ms Nyari breaching the conditions of that order, which resulted in the Parole Board issuing a warrant for her arrest and Ms Nyari remaining in custody while the Parole Board determined whether to direct under section 17(1)(b)(ii) of the Act that she be detained in custody pending attendance before this Court for determination whether a continuing detention order should be made or to direct under section 17(1)(b)(i) of the Act that she be released. The fact that Ms Nyari spent these periods in custody does not indicate that the supervision order regime failed but is an inherent part of the supervision order regime legislated by the Act.
The position is different in respect of the fourth period spent by Ms Nyari in custody after 29 October 2020. Although the initial part of the fourth period spent in custody was the same as in respect of the first three periods, after 29 October 2020 the Parole Board had resolved under section 17(1)(a) of the Act that Ms Nyari be released upon satisfactory accommodation being found. Accommodation satisfactory to the Parole Board was not found up to 24 March 2021 when the first extended supervision order expired. One proposed address was considered by the Parole Board on 9 December 2020 to be unsuitable and another proposed address was considered by the Parole Board on 2 February 2021 to be unsuitable. No other evidence was adduced concerning the process between 29 October 2020 and 24 March 2021, including the nature of the accommodation proposed, by whom it was proposed or why it was considered unsuitable. On the one hand, I am not in a position to make any finding as to whose responsibility it is for Ms Nyari remaining in custody over this five month period. On the other hand, given the purpose of the extended supervision order regime, it is highly undesirable that a respondent remain in custody for such a length of time in the absence of an application for a continuing detention order. It is desirable that the Parole Board review the position with a view to this situation not being repeated generally in future.
Taking into account the undesirability of Ms Nyari having remained in custody for more than six months during the fourth period, nevertheless it does not demonstrate that there is no utility in making a further extended supervision order. The fact remains that, for whatever reason, while Ms Nyari was in the community under the first extended supervision order, she did not offend. More importantly, the position is materially different in respect of a prospective second extended supervision order. Since the interim supervision order was made, Ms Nyari has not breached its conditions and Ms Nyari has had the benefit of weekly sessions with Ms Ramsay and more recently with Ms Wanganeen.
Secondly Ms Nyari contends that, given that she was assessed by Dr Crouch in July 2021, after the expiration of the first extended supervision order, as still being at high risk of future violent offending, it follows that the first extended supervision order failed to achieve its object. However, the Act empowers the making of an extended supervision order for a period up to five years and the Court often makes orders for 18 to 24 months in circumstances in which the Act contemplates that a further extended supervision order might be made if the risk to the safety of the community has not been sufficiently ameliorated at the end of the first extended supervision order. In addition, the circumstances in relation to a second extended supervision order are markedly different in the respects identified above.
Thirdly Ms Nyari contends that, in the absence of an extended supervision order, she can still reside at the Cornerstone accommodation and will be subject to the Project Safe Haven programs and she can continue counselling with Ms Wanganeen if it is funded by the National Disability Insurance Scheme. However, as addressed above, the Project Safe Haven program is extremely limited and is simply not comparable to the HIT Program and the only evidence adduced concerning the Scheme is that Ms Nyari is not eligible for assistance under the Scheme.
Fourthly Ms Nyari contends that the operation of the supervision orders has deprived her of what limited social supports she has and is setting her up to fail. However, subject to her relationship with F (addressed below), the conditions of a second extended supervision order need not deprive Ms Nyari of social supports and could not be characterised as setting her up to fail and, on the contrary, the operation of the interim supervision order to date has been positive.
Fifthly Ms Nyari contends that, if she is subject to an extended supervision order, although there would be no condition preventing contact with her children, a residential condition and curfew condition would render this difficult. However, this can be addressed in considering what conditions would be appropriate at what stages if it is determined that an extended supervision order should be made.
Taking into account all of the evidence adduced and the matters referred to in subsection 7(6) of the Act, I am satisfied that Ms Nyari poses an appreciable risk to the safety of the community if not supervised under an extended supervision order and that that risk would be substantially diminished if she is supervised under an extended supervision order.
Discretion to make an order
If the two preconditions are satisfied, subsection 7(4) confers on the Court a discretion whether or not to make an extended supervision order.
In R v Kimmins[3] Stanley J said:
The Act requires the Court to interfere with the liberty of the subject by making an extended supervision order only if it is satisfied that the respondent is a high risk offender and an order is necessary to ensure the respondent does not pose an appreciable risk to the safety of the community. The discretion to be exercised pursuant to s 7 of the Act, like the discretion conferred pursuant to s 24 of the Sentencing Act, demands a normative judgment which is quite different from traditional judicial discretions. The Court has been entrusted with a mandate to ensure public security by interfering with the right to liberty of a person who is a high risk offender and poses an appreciable risk to the safety of the community if not supervised. The discretion is to be exercised having regard to both the interests of the community and the interests of the respondent, but by according the consideration of public safety paramountcy. Here there are two competing considerations. On the one hand, the respondent to an application by the Attorney-General has completed his or her sentence. There is a common law rule that his personal liberty and freedom of movement will not be infringed absent clear, unambiguous lawful authority. On the other hand, there is the need to protect the community from the risk of him reoffending. In construing a statute which infringes those rights and freedoms the court will do so in a manner which limits the infringement to what is strictly required to effect the purpose of the statute. In this case, given the terms of this legislation, specifically the paramount consideration of public safety, in the exercise of the Court’s discretion relatively smaller degrees of risk will outweigh considerations which, even strongly, would militate against the making of an extended supervision order.[4]
[3] [2016] SASC 176.
[4] [38]. (Footnotes omitted)
In exercising the discretion, I am required to weigh the increased risk to the safety of the community due to prospective future offending by Ms Nyari if an extended supervision order is not made against the infringement on her liberty entailed by the making of an extended supervision order. In exercising the discretion, I take into account the proposed terms of the extended supervision order and the terms that I consider would be appropriate if such an order is to be made (addressed below).
I have found above that, if an extended supervision order is not made, there is an appreciable risk to the safety of the community and that risk would be substantially reduced if an order is made. An order will infringe on Ms Nyari’s liberty. In weighing these respective prejudices, I am required to give paramount consideration to the safety of the community.
Many of the factors addressed above (including Ms Nyari’s contentions) also apply when considering the exercise of the discretion.
Giving the requisite paramountcy to the safety of the community, it is necessary to exercise the discretion by making an extended supervision order in the terms referred to below.
Terms of order
Section 10(1)(a) to (d) of the Act prescribes four mandatory conditions. These are that the respondent not commit an offence; the respondent is prohibited from possessing a firearm, firearm part or ammunition or, without the permission of the Court, an offensive weapon; the respondent be under the supervision and obey the reasonable directions of a community corrections officer; and the respondent submit to tests (including without notice) for gunshot residue as their community corrections officer may reasonably require.
The Attorney-General seeks the inclusion of a number of relatively standard conditions in respect of which Ms Nyari makes no submissions.
The parties make submissions concerning conditions sought by the Attorney-General in relation to a curfew and contact with F.
Curfew
The first extended supervision order and the interim supervision order contained a condition that Ms Nyari be subject to a curfew and remain in her residence between 9.00 pm and 5.30 am and present to an authorised person conducting a curfew check at her front door on request for the duration of the order or until such period as determined by the Parole Board.

The first extended supervision order and the original interim supervision order (until it was varied by consent on 2 December 2021) contained a condition that Ms Nyari wear and maintain the charging of an electronic transmitter for the duration of the order or until such period as determined by the Parole Board.
The Attorney-General seeks a curfew condition in the same terms as the previous orders. This is opposed by Ms Nyari.
Dr Crouch gave evidence in relation to electronic monitoring and curfew conditions. She expressed the opinion that they have a place initially in any period of supervision to ensure an ongoing level of engagement as a person reintegrates into the community. She said that, as a period of supervision goes on, in order to ensure that a person slowly shifts to doing things more independently, such controls need to slowly lessen. She said that it is important to have a graduated return to independence and autonomy moving forward, so that slowly Ms Nyari is given more choice and more liberties to manage her own life going on. Otherwise, there is a risk of re-institutionalising Ms Nyari. Dr Crouch said that there should be an initial period of electronic monitoring coupled with a curfew, followed by removal of the monitoring with just the curfew for a set period, followed by removal of the curfew.
During the hearing, after Dr Crouch gave this evidence, I made an order on 2 December 2021 by consent removing the electronic monitoring condition from the interim supervision order.
In accordance with Dr Crouch’s evidence, it is appropriate that a limited period be set for the removal of the curfew condition for the reasons articulated by Dr Crouch. Weighing the competing considerations, the limited period be until 31 March 2022 (and the condition removed with effect on 1 April 2022).
Contact with F
The original first extended supervision order did not contain a condition concerning contact with F. On 3 September 2020 the Parole Board imposed a condition that Ms Nyari not have contact with F. This was the result of a statement made by Ms Nyari to the Parole Board on 12 August 2020 referred to below.
The interim supervision order made on 24 March 2021 contains conditions that Ms Nyari not contact or communicate with F 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 Attorney-General seeks a condition that Ms Nyari not contact or communicate with F except with the prior approval of her community corrections officer. This is opposed by Ms Nyari.
The report by Ms Nejman dated 13 January 2021 states that, in relation to the failure to report on 12 August 2020, Ms Nyari informed the Parole Board that she was the victim of domestic violence and F had drugged her and stolen her phone, which resulted in her breach. The report states that this is why the Parole Board imposed the non-contact condition in the first extended supervision order on 3 September 2020.
The Nejman report also states that Ms Nyari was provided with IHEP [Integrated Housing Exits Program] housing and it was believed that F stayed there on a regular basis in breach of the terms of the lease agreement. The report also states that neighbours made noise complaints and the property was damaged, resulting in IHEP not agreeing to provide further accommodation for Ms Nyari.
Ms Nyari does not in her submissions deny what she is alleged to have told the Parole Board but she does deny that F perpetrated domestic violence on her. Ms Nyari did not give evidence in relation to these (or any) matters.
Dr Crouch gave evidence that she had read Ms Nejman’s report and said that she had not discussed the topic of domestic violence with Ms Nyari. Dr Crouch said that Ms Nyari considers the relationship with F to be very important for her. Dr Crouch expressed the opinion that it would facilitate her rehabilitation to support her in that, but it needs to be done in a monitored and supervised manner to ensure that they can work together, receive the counselling that they need to continue their relationship moving forward and that it can develop into a more positive sort of pro-social relationship. Dr Crouch expressed the opinion that engagement in a program like the HIT Program gives the opportunity for Ms Nyari and F to be able to work together with additional supports around them, to be able to engage in some counselling to slowly integrate F into the therapy and the recovery and rehabilitation process for Ms Nyari; that relationship can be continued to be built and fostered but in a supportive, controlled environment; and then over time that might then lead, once the program comes to an end, to their being in a position to go on to live together and live as a family as they choose.
There is no direct evidence one way or the other as to whether F has in fact perpetrated domestic violence on Ms Nyari. Her statement to that effect as part of her explanation for failing to report on 12 August 2020 may or may not be true. On the one hand, prohibiting contact, other than with the prior approval of a community corrections officer, with the partner of a person subject to an extended supervision order represents a very substantial intrusion on the personal liberty of the subject. On the other hand, one of the matters being addressed by Ms Wanganeen in her counselling is Ms Nyari’s relationship with F and this together with Ms Ramsay’s evidence suggests that in general terms the relationship is problematic.
The appropriate balance is to include a condition for a limited period prohibiting contact other than either for the purposes of access to their children or their attending joint rehabilitation programs or counselling or with the prior approval of Ms Nyari’s community corrections officer. Such a condition for a limited period will allow Ms Ramsay and Ms Wanganeen to assist Ms Nyari in the relationship in the manner described by Dr Crouch but the expiration of that condition after that limited period will afford to Ms Nyari the autonomy in this important aspect of her life also in the manner prescribed by Dr Crouch. Weighing the competing considerations, the limited period should be until 30 June 2022 (and the condition removed with effect on 1 July 2022).
Residential condition
One of the conditions of the first extended supervision order and of the interim supervision order is that Ms Nyari reside at premises approved by her community corrections officer and not change her place of residence without their prior written permission.
The Attorney-General seeks inclusion of the same term in the extended supervision order. Inclusion of such a term is relatively standard in extended supervision orders. Ms Nyari does not oppose inclusion of this condition but contends that such a condition (in conjunction with a curfew condition) would practically impede access by her to her children and is a reason to exercise the discretion not to make an extended supervision order.
Once the curfew condition has been removed at the end of March 2022, a residential condition in these terms would not prevent Ms Nyari from travelling to the regional city where her children live for the purpose of access to her children or staying overnight for that purpose (provided that she continues to reside at her approved premises in Adelaide). However, it would prevent Ms Nyari from changing her residence to that regional city unless she obtains the approval of her community corrections officer. If she were to change her residence to that regional city, its lack of its proximity to Adelaide would practically prevent her continuing engagement in the HIT Program and counselling with Ms Wanganeen.
Ms Nyari’s long term goal is to resume custody of her children. The evidence suggests that, if she is successful in this regard, it will be a lengthy process and is unlikely to be achieved during the currency of the extended supervision order. However, if it were achieved, it is likely that it would involve a change of residence for Ms Nyari, whether in Adelaide or the regional city. In that event, she could seek permission of her community corrections officer for the change of residence. If for some reason that permission were refused, it would constitute a material change in circumstances that would enliven the discretion of the Court to make a variation order.
It is appropriate to include a residential condition in the terms proposed. For the reasons given above, this is not a reason to exercise the discretion not to make an extended supervision order.
Term of extended supervision order
The Attorney-General seeks that the term of the extended supervision order be a period of two years from the making of the order.
Dr Crouch gave evidence that an extended supervision order for two years would be a sufficient time for Ms Nyari to engage with support services; her hope would be that Ms Nyari would be voluntarily engaging with therapy to help her move forward and continue to address challenges as she faces them; and two years would give Ms Nyari time to slowly gain more independence as she reaches the end of the extended supervision order.
Ms Nyari commenced living in the community under the interim supervision order in August 2021. This is the appropriate starting point in determining the term of an extended supervision order. I accept Dr Crouch’s evidence summarised in the previous paragraph. The term of the extended supervision order should expire in August 2023. It follows that the term of the order to be made in February 2022 should be 18 months.
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.