Attorney-General (SA) v Owen - [2023] SASC 126

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v OWEN
[2023] SASC 126
Reasons for Decision of the Honourable Justice Kimber
1 September 2023
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AND OTHER MATTERS RELATING TO TERRORISM - CONTROL, EXTENDED SUPERVISION, PREVENTATIVE DETENTION AND CONTINUING DETENTION ORDERS
On 7 March 2023, the Parole Board determined that the respondent be detained in custody pending determination by this Court of whether a continuing detention order should be made by this Court pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). The respondent was made subject to an extended supervision order (ESO) on 27 October 2022; the breaches of which, had caused the Parole Board to take the respondent into custody.
The respondent’s breaches of his ESO were predominantly related to his use of illicit drugs. The respondent suffers an intellectual disability and a psychiatrist has reported the respondent’s drug use, along with his intellectual disability, places him at a high risk of reoffending.
The applicant submits the nature of the respondent’s breaches place him at a higher risk to the community and that a continuing detention order should be imposed to enable him to complete a particular program which might address his risk of reoffending and reduce the risk to the community. The respondent submits that a continuing detention order is not appropriate.
Held:
1. The discretion to make a continuing detention order is exercised.
2.The duration of that order is to 25 October 2024.

Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 17 and 18, referred to.
Attorney General (SA) v Brandon [2019] SASC 85; Attorney General (SA) v Drion [2020] SASC 120; Attorney General v Francis [2007] 1 Qd R 396; Attorney-General (SA) v Coaby [2019] SASC 137, applied.

ATTORNEY-GENERAL (SA) v OWEN
[2023] SASC 126
Criminal: Application
KIMBER J:

This is an application by the Attorney-General for a continuing detention order pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act).
On 26 October 2022, this Court made an extended supervision order with respect to Mr Wayne Anthony Owen (the respondent) pursuant to s 7(4) of the Act. The extended supervision order is not due to expire until 25 October 2024.
On 27 October 2022, the day after his extended supervision order was confirmed, the respondent breached a condition of the order by testing positive to illicit drugs. He went on to commit further breaches by again testing positive to illicit drugs and failing to comply with conditions directed at limiting his use of a mobile phone. On 4 December 2022, the Parole Board issued a warrant for the arrest of the respondent. The warrant was executed the next day.
On 7 March 2023, the Parole Board determined pursuant to s 17(1)(b)(ii) of the Act that Mr Owen be detained in custody pending determination by this Court whether a continuing detention order should be made.
Material received
On…

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 Owen

Details

AGLC: Attorney-General (SA) v Owen [2023] SASC 126
Case: [2023] SASC 126
Decision Date

CaseChat Overview and Summary

The case of Attorney-General (SA) v Owen involved the decision of the South Australian Supreme Court regarding the risk posed by the respondent, Mr Owen, to the community if not detained in custody. The court was tasked with determining whether there was an appreciable risk of Mr Owen committing serious sexual or violent offences if not detained, and if so, whether the discretion to make a continuing detention order should be exercised. The respondent had a history of sexual and violent offending, and the court had to consider the potential for reoffending given Mr Owen's continued use of illicit drugs, which he admitted increased his sex drive.

The legal issues before the court involved assessing the risk of reoffending by Mr Owen and determining the appropriate conditions under which he should be detained. Counsel for the respondent argued that Mr Owen's history of drug use could be managed through home detention conditions, while the applicant highlighted that home detention would not prevent illicit drugs from being brought to his residence. The court had to weigh the risks against the potential benefits of community-based treatment programs, which could only be realistically completed in detention. The court also had to consider the Parole Board's opinion that Mr Owen was a high risk to the community and strongly supported a continuing detention order.

In reaching its decision, the court found that there was an appreciable risk of serious sexual and violent offending by Mr Owen if not detained. The risk was considered significant due to Mr Owen's history of offending, continued drug use, and the Parole Board's expert opinion. The court determined that the treatment programs available, such as the SBC-me program, had a higher likelihood of completion in detention rather than in the community. The court emphasised the importance of public safety and concluded that a continuing detention order was necessary to adequately protect the community. Consequently, the court made a continuing detention order until 25 October 2024, to allow Mr Owen to complete the treatment programs in custody.

The final orders of the court included the making of a continuing detention order for Mr Owen, with a duration set until 25 October 2024. This order was based on the court's determination that there was an appreciable risk of serious sexual and violent offending by Mr Owen if not detained, and that detention was necessary for the adequate protection of the community. The order also recognised the importance of Mr Owen completing the recommended treatment programs in detention to address his risk factors.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Counsel for the respondent submits that Mr Owen has previously been subject to home detention conditions on an interim or extended supervision order, although when this occurred is unclear. He submits that conditions can be fashioned to further reduce the risk of the respondent obtaining drugs. In response to this, the applicant pointed out that the respondent had previously gained access to drugs by people bringing them to his house, and home detention would not be a barrier to this occurring again. Nonetheless, the home detention regime does bring with it more intensive monitoring. Conclusion There is an appreciable risk of serious sexual offending and violent offending if a continuing detention order is not made. The SBC‑me program, which might address one of those risks, has been commenced in custody. The earliest that program could be commenced in the community is May 2024. The likelihood of completion of that program is substantially greater if the respondent is detained than if he is subject to an ESO. History suggests that, given intellectual disability and continued drug use, the respondent is likely to breach his ESO and be arrested when in the community. That will almost certainly frustrate the completion of any program in the community. The effect of making public safety the paramount consideration ‘is that, speaking generally, relatively smaller degrees of risk will outweigh considerations which even strongly support release’.[28] [28] Attorney-General v Schmidt [2018] SASC 80, [168]. The respondent is at high risk of sexual reoffending. The respondent has continued to use drugs and has admitted to the Parole Board that doing so increases his sex drive. The SBC‑me program is a program recommended for the respondent. It is a program which the respondent has commenced. Given the respondent’s continued drug use, I am satisfied that it is unlikely that the SBC‑me program will be completed in the community. Owenia House has indicated the respondent will not be treated if he is affected by drugs. The likelihood of illicit drug use by the respondent in the community is high. Despite it not being suggested the respondent has attempted to reoffend against a child or in a violent way and relevant programs are either available in the community (i.e. – the SBC‑me program) or will only be available in the community (i.e. – a program with respect to violent reoffending); the vigilance of those monitoring compliance with the conditions of the ESO and where home detention with electronic monitoring is likely to further reduce the risk of physical contact with a child — I am satisfied the discretion to make a continuing detention order should be exercised. In my view, adequate protection of the community from the risk the respondent poses, particularly of sexual offending, requires that he receive the treatment that I am satisfied only has a realistic chance of being completed in detention. I make a continuing detention order pursuant to s 18(2) of the Act. I order the duration of that order be to 25 October 2024. On the material before me, that will provide the opportunity to complete the SBC‑me program.

Ratio Decidendi

Legal Principle Established

Before me is a letter from the Parole Board dated 3 April 2023. The respondent was interviewed on 7 March 2023. The respondent acknowledged that using methamphetamine ‘increased his sex drive significantly’. The respondent said he would not sexually offend again. In the opinion of the Parole Board, the respondent is a high risk to the community. The Parole Board strongly supports a continuing detention order. Consideration The critical questions for me are whether Mr Owen poses an appreciable risk to the safety of the community if not detained in custody and, if he does, whether the discretion to make a continuing detention order should be exercised.[19] [19] Attorney‑General (SA) v Brandon [2019] SASC 85, [12].Appreciable risk In considering the first of the questions immediately above, it is necessary to identify with some particularity, the risk the respondent poses to the safety of the community if not detained.[20] [20] Attorney‑General (SA) v Drion [2020] SASC 120, [16]. Counsel for respondent submits I should not find that there is an appreciable risk of the respondent committing a serious sexual offence given that offending of that type occurred over 15 years ago and, apart from some periods in custody, the respondent has been in the community for considerable periods of time without reoffending in that manner despite his continued use of illicit substances. The same is said regarding the respondent’s risk of violent offending, noting that the particular offending of that type occurred more than five years ago and appears a somewhat isolated occurrence in the respondent’s criminal history. I acknowledge, as counsel for the respondent submitted, that the respondent was not placed on the extended supervision order due to the sexual offending in his criminal history and that offending occurred some time ago. As for the passage of time, that does not, of itself, mean that there is not the relevant appreciable risk. I accept the opinion of Dr Raeside that the respondent is at a high risk of serious sexual offending. The respondent has continued to use drugs and I accept the opinion of Dr Raeside that drug use contributes to the risk. However, as the respondent acknowledged, whether he poses an appreciable risk to the safety of the community is not a question that is confined to a risk of reoffending that is of the same nature as the index offending. Although Dr Raeside does not explicitly readdress the risk of the respondent engaging in violent offending in his 2022 report, in his 2019 report he opined that the respondent was at a high risk of committing a further serious offence of violence.[21] As Dr Raeside stated, domestic violence is a significant predictor of future violence more generally. I am satisfied that the respondent continues to pose a risk of engaging in violent offending, a risk that is also likely to be exacerbated by his ongoing illicit drug use. [21] Second Sim Affidavit, 141. In coming to the views above, I have not overlooked that there is nothing in the material before me to indicate that the respondent had engaged in illicit drug use at the times of committing the previous sexual or violent offences.