Attorney-General (SA) v Omar - [2025] SASC 117

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v OMAR
[2025] SASC 117
Judgment of the Honourable Justice Stein
22 July 2025
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - PREVENTIVE DETENTION
An application for a continuing detention order (“CDO”) under s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
The Attorney-General filed an originating application and notice of referral seeking determination as to whether a CDO should be made in respect of the respondent on the basis of alleged breaches of an extended supervision order (“ESO”) imposed on him in 2024.
Held (dismissing the application):
1.Whilst the respondent breached conditions of his ESO, the Court is not satisfied that the proved breaches establish that the respondent poses an appreciable risk to the safety of the community if not detained.

Criminal Law (High Risk Offenders) Act 2015 (SA) s 18; Sentencing Act 2017 (SA) s 57, referred to.
Attorney-General (SA) v Drion [2020] SASC 120; Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11; Attorney General v Francis [2007] 1 Qd R 396; Attorney-General (SA) v Coaby [2019] SASC 137, considered.

ATTORNEY-GENERAL (SA) v OMAR
[2025] SASC 117
Criminal: Application

STEIN J: The Attorney-General has applied for a continuing detention order (“CDO”) in respect of the respondent, Mr Abdishakur Omar, pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“HRO Act”). The application for a CDO is based on alleged breaches of an extended supervision order (“ESO”) imposed on Mr Omar in 2024.
On 6 June 2024, the Parole Board issued a warrant for the arrest of Mr Omar following allegations of breach of conditions of the ESO. In September 2024, the Parole Board satisfied itself Mr Omar had breached conditions of the ESO. The Parole Board directed Mr Omar be detained pending determination as to whether a CDO should be made.
Section 18(2) of the HRO Act provides that this Court may make a CDO for the remainder of the term of the ESO, or for such lesser period as the Court thinks fit, if the Court is satisfied that Mr Omar has breached a condition of his ESO and poses an appreciable risk to the safety of the community if not detained in custody. The paramount consideration in exercising the power conferred by s 18 of the HRO Act is the safety of the community.[1]
[1] Criminal Law (High Risk Offenders) Act 2015 (SA), s 18(3).
Breaches of the ESO
The first jurisdictional requirement under s 18 of the HRO Act is a breach of the ESO.
The alleged breaches were breaches of conditions to:
·Obey the reasonable directions of the supervising officer;
·To be subject to an intensive supervision regime with home detention and obey all requirements and directions of the supervising officer;
·Wear an electronic transmitter and obey the rules of electronic monitoring;
·Not loiter without reasonable excuse at or in the vicinity of any public toilet or other places where children and regularly present.
The Parole Board found the breaches proved.
Mr Omar concedes that attending the Colonnades Shopping Centre was a breach which enlivens jurisdiction and, for the jurisdiction to be enlivened, the Court does not need to find all the alleged breaches proven.
In relation to the alleged breached of the loitering condition, Mr Omar submits that the monitoring data shows the transmitter travelled through the shopping centre during the time Mr Omar was said to have been loitering and there is insufficient evidence to be satisfied of the breach. The Attorney-General accepts there is a deficiency in the evidence in relation to the alleged breach of the no loitering condition and does not rely for the purposes of the application for a CDO on an allegation that Mr Omar loitered near a public toilet.
I am satisfied that Mr Omar breached conditions of the ESO. However, in light of the submissions and the Attorney-General’s concession, I do not rely on the allegation that Mr Omar breached the loitering condition of the ESO.
Accordingly, the first jurisdictional pre-requisite is satisfied.
The nature of the admitted breaches are relevant to my consideration of appreciable risk and also whether to exercise the discretion in the event I am satisfied Mr Omar poses the necessary appreciable risk to the community. I return to this topic further below.
Principles
Without referring to all of the authorities, I note that the paramount consideration is the safety of community.[2] I must consider whether the drastic step of incarcerating Mr Omar is necessary to protect the community from an appreciable risk to its safety as posed by him.[3] The risk posed must be reassessed in the light of the nature and circumstances of the breaches of the ESO.[4] The alternative is continuation of the ESO.[5] The authorities make clear that consideration is to be given to whether supervision is apt to ensure adequate protection, having regard to the risk posed. If so, supervised release is to be preferred to a CDO on the basis that the liberty of the respondent should not be constrained to a greater extent than warranted.[6] If breach of the ESO does not indicate a failure of the ESO to protect the community, or if the risk can be addressed differently, a CDO should not be made.[7]
[2]    Attorney-General (SA) v Drion [2020] SASC 120 at [69].
[3]    Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11 at [85].
[4]    Attorney-General (SA) v Drion [2020] SASC 120 at [68].
[5]    Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11 at [85].
[6]    Attorney‑General v Francis [2007] 1 Qd R 396 at [39].
[7]    Attorney-General (SA) v Coaby [2019] SASC 137 at [19].
The power is protective not punitive.[8]
[8] Attorney-General (SA) v Drion [2020] SASC 120 at [68].
Appreciable risk to the safety of the community
The second jurisdictional requirement under s 18 of the HRO Act is satisfaction that the person poses an appreciable risk to the safety of the community if not detained in custody. The critical question is thus whether Mr Omar poses an appreciable risk to the community and whether, in light of such risk, a continuing detention order should be made.
Mr Omar has an extensive history of offending from 2002. His offending includes loitering, failure to comply with bail conditions, assault, urinating in public and disorderly conduct. The index offending for the ESO was indecent assault committed when Mr Omar was intoxicated. He sat in a bus across from a 14 year old girl asking her a number of questions and moving his hand up and down her upper leg. Mr Omar was previously the subject of an application under s 57 of the Sentencing Act 2017 (SA). That application was dismissed on the basis that Mr Omar was not unable to control his sexual instincts when sober. The offending relevant to those proceedings included other convictions of indecent assault for touching a young woman on the breast on a train, exposing his penis to a young man on a bus and a grossly indecent act having been observed having consensual sex with a man in the parklands. The Attorney-General characterised Mr Omar’s offending history as opportunistic sexual offending against strangers including a child on public transport.
Mr Williams’ report for the ESO proceedings stated that Mr Omar presented with a concerning lack of insight into his offending behaviour. Mr Williams concluded Mr Omar was at high risk of committing another serious sexual offence and would continue to pose an ongoing risk if not appropriately supervised.
A report of Dr Fitzgerald addressing Mr Omar’s neuropsychological functioning was prepared for the purposes of this application. Dr Fitzgerald concluded Mr Omar had an alcohol-induced neurocognitive disorder which can cause impairment in attention, memory, executive functioning, processing speed and visuospatial abilities. The testing suggested Mr Omar was significantly compromised in several domains and indicated cognitive impairment of verbal attention, information processing speed, new learning, memory and executive functioning. Dr Fitzgerald considered Mr Omar’s executive functions have been impacted by his chronic alcohol use giving rise to difficulties with planning, organising, shifting set and inhibiting an automatic response. She suspected Mr Omar’s cognitive impairment will impact on his ability to comply with the terms of the ESO. While it was difficult to know whether poor planning and impulsivity contributed to the breach, Dr Fitzgerald considered Mr Omar at risk of breaching his ESO with his cognitive impairment playing a role. Executive dysfunction may lead to poor decision making and heighten risk of behaving impulsively, lack of self-awareness and having a lower tolerance to frustration. Accordingly, Mr Omar’s dysfunction will contribute to his decision making around alcohol use and thus his risk of reoffending.
Dr Fitzgerald recommended mechanisms to increase Mr Omar’s day to day assistance including therapy and an application for NDIS funding. However, Mr Omar’s migration status is not yet determined, as a consequence of which the Attorney-General submits that those supports are not readily available to him.
Dr Fitzgerald opined that Mr Omar does not have the capacity to take part in the Sexual Behaviour Clinic program (“SBC”). She stated that while Mr Omar may have the skills to participate in the Sexual Behaviour Clinic me program (“SBC-me”) from a cognitive perspective, he will need to have insight into his offending, motivation to change and the ability to persist with the lengthy program, all of which may be challenging for him.
The Attorney-General submitted that the evidence suggests Mr Omar will continue to breach and Mr Omar’s limited ability to comply with the conditions makes him a significant risk of committing further offending such that he cannot be safely managed in the community and poses an appreciable risk if not detained in custody.
Mr Omar does not accept that he poses an appreciable risk to the community unless detained in custody. Counsel pointed to a number of matters including that the breach involved Mr Omar attending an unapproved location, but within the allocated period during which he had a pass out. Counsel submitted that Mr Omar was attempting to comply. He went to Coles instead of Woolworths and to the bank in a shopping centre instead of a different bank branch. Counsel submitted that it is not suggested Mr Omar deliberately failed to comply, that the breach was a result of genuine misunderstanding and was at the lower scale of seriousness of breaches. Further, counsel submitted that Mr Omar’s neurocognitive disorder mitigates the circumstances of the breach explaining Mr Omar’s misunderstanding of what his pass out allowed him to do.
Counsel contended the breach does not indicate a failure to safeguard the community. No offences were committed, the breach was not in pursuit of offending and did not undermine the purpose of the ESO or increase Mr Omar’s risk. Mr Omar’s counsel submitted that his primary risk of further offending is associated with alcohol consumption, relying on prior reports which opined that Mr Omar’s offending appeared to have occurred when intoxicated and pointing to the evidence lead on the application pursuant to s 57 of the Sentencing Act 2017 which was dismissed.
Mr Omar’s position is that the most significant risk factor is being appropriately ameliorated and addressed by the conditions in place at the time of the breach. Further, increased conditions imposed on Mr Omar in 2024 confined Mr Omar to his home address which further decreased any risk. Counsel pointed to the fact Mr Omar has not breached the no alcohol consumption condition and has consistently provided negative samples. Counsel emphasised that the breach does not indicate a failure of the current order to safeguard the community given the nature of the breaches and the circumstances in which they occurred, emphasising Mr Omar’s complete compliance with the no alcohol condition.
It is clear from the evidence filed in support of the application that the primary risk factor for Mr Omar’s offending is intoxication. The abstinence condition was not breached and there was no further offending. The breaches which gave rise to this application for a CDO are of course concerning. However, the alleged breach of the no loitering condition was the most significant. Disregarding that allegation, the admitted breaches do not directly engage Mr Omar’s primary criminogenic risk. They do not establish that supervision has failed or that the appreciable risk posed to the community by Mr Omar giving rise to a need for supervision has increased such that Mr Omar poses an appreciable risk to the community unless detained. Given the nature of the established breaches, even allowing for the importance of the paramount consideration of the safety of the community, the evidence is insufficient to demonstrate that detention is required. In circumstances in which Mr Omar has not breached the abstinence condition and not offended while in the community, I do not consider there has been a failure of supervision.
Discretion
However, if I am wrong about whether Mr Omar presents an appreciable risk if not detained, I would in any event decline to exercise my discretion in favour of detaining Mr Omar for the following reasons.
Counsel for the Attorney-General submitted that to mitigate the risk Mr Omar poses, he must engage in programs to address his criminogenic risk and submitted that Mr Omar must be detained in custody to complete the SBC-me. The Attorney General submits that the risk posed by Mr Omar cannot be properly addressed in any other way given his lack of engagement in services in the community and on the ESO. The Attorney-General relied on opinions of psychologist and psychiatrists who have previously assessed Mr Omar. In particular, Dr Furst recommended Mr Omar complete the SBC in custody. Dr Furst also recommended that Mr Omar’s neuropsychological assessment should be completed to determine if he would be better placed in the SBC-me. The Attorney-General submitted that Dr Fitzgerald’s report indicates Mr Omar may have the skills to participate in the SBC-me. In April 2025, a forensic psychologist assessed Mr Omar and considered he could be trialled in the SBC-me with additional individual cultural support. The Attorney-General accordingly seeks a CDO until the end of the current ESO expires on 20 April 2027 to enable Mr Omar to complete the SBC-me.
Mr Omar’s counsel submitted that Mr Omar’s engagement in a rehabilitation course is not a condition of the order found to be breached and accordingly there is no basis to argue the failure to complete a program has increased the appreciable risk Mr Omar poses to the community. Mr Omar’s counsel did not accept the Attorney-General’s characterisation of Dr Fitzgerald’s conclusions. Counsel submitted that the failure to complete a program is not of Mr Omar’s doing and he has not had a meaningful opportunity to do so as a result of factors beyond his control. Counsel for Mr Omar disputed assertions of refusal to engage, submitting that this arose from misunderstanding as to preference to where the participation would occur and does not indicate a refusal to engage in the community. I do not consider it necessary to determine to what extent Mr Omar’s failure to engage in programs is a result of issues within or beyond his control. Counsel for Mr Omar submitted that Dr Fitzgerald’s assessment did not amount to Mr Omar being likely to possess sufficient literacy skills for the SBC-me.
Mr Omar’s primary criminogenic risk arises from his issues with alcohol. There is no doubt that engagement in a rehabilitation program aimed at sexual offending would still be of benefit, provided Mr Omar has the capacity to engage in the program. The Court is being asked to exercise its discretion to detain Mr Omar in custody until April 2027 to complete the SBC-me program when, on the material before the Court, it is not clear if Mr Omar has sufficient cognitive capacity to engage in the course for its full length or to make it sufficiently useful to justify the step of incarcerating him to facilitate engagement in the program. Further, an SBC-me course commenced in custody in April 2025. Mr Omar missed the intake for that program. The course takes about 15 months to complete. At this time, I understand the Department has not yet determined when the next SBC-me course will be conducted in custody. There is thus no firm foundation to conclude that Mr Omar would be accepted into an SBC-me which could be completed before the end of his ESO, even if he has sufficient capacity to engage in the program.
Given the matters to which I have referred, I would not exercise the discretion in favour of detaining Mr Omar in custody when his capability and capacity to complete the SBC-me program, as well as the program’s availability, remains unclear.
Having reached these views, it would not be appropriate for me to amend the ESO to require Mr Omar to undertake a particular program of rehabilitation. However, the Department can require Mr Omar to attend for assessment and, if assessed as suitable, to go to and complete a range of rehabilitative programs pursuant to condition 9 of the current ESO.
It is an extreme step to detain Mr Omar. I am not persuaded that it is necessary to detain Mr Omar to secure the safety of the community. I decline to make a CDO and I dismiss the application.