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 126Criminal: 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 14 July 2023, I heard submissions from counsel for the Attorney‑General and counsel for the respondent with respect to whether I should make a continuing detention order. I have also been assisted by written submissions from both counsel. With the consent of the parties, I have received the following material:
1.The affidavit of Ida Jou Sim dated 6 April 2023;
2.The affidavit of Ida Jou Sim dated 19 April 2023;
3.The affidavit of Ida Jou Sim dated 20 April 2023;
4.The affidavit of Ida Jou Sim dated 16 June 2023;
5.The affidavit of Ida Jou Sim dated 19 June 2023; and
6.The affidavit of Ida Jou Sim dated 29 June 2023.
The affidavits above have a large volume of material attached as exhibits. I have had particular regard to the aspects of that material to which I was specifically directed. A concern was raised by counsel for the respondent about some of the material containing unproven allegations. I have disregarded any reference in the material to allegations that are not admitted or otherwise proven.
Continuing detention orders
Section 18(2) provides:
(2)The Supreme Court may, if satisfied that the person—
(a) has breached a condition of the supervision order; and
(b) poses an appreciable risk to the safety of the community if not detained in custody,
order that the person be detained in custody (a continuing detention order) until the expiration of the supervision order, or for such lesser period as may be specified by the Court.
Section 18(2)(a) and (b) are in the nature of jurisdictional facts. A finding of the existence of both jurisdictional facts enlivens a discretionary power. Section 18(3) provides that the paramount consideration in determining whether to make a continuing must be the safety of the community.
Breaches of the extended supervision order
On 7 March 2023, the Parole Board interviewed the respondent and found that he had breached the following three conditions of his extended supervision order:
1.The ‘obey CCO’ condition (condition 4) by failing to give his previous mobile phone to his mother for safe keeping since 3 November 2022, as directed by his Community Corrections Officer (CCO);
2.The ‘no drugs condition’ (condition 8) on four occasions by being found to be in possession of a glass pipe on 4 December 2022 and admitting to using it to smoke methamphetamine, providing positive urine samples on 27 October 2022 and 17 November 2022, and providing a saliva sample (on 12 November 2022) and a urine sample (on 24 November 2022) that tested positive to illicit substances; and
3.The ‘no electronic device without CCO approval’ condition (condition 17) by being found to have a mobile phone with capacity for internet connection on 4 December 2022.[1]
[1] Affidavit of Ida Jou Sim, 6 April 2023 (FDN 10), 11 (Second Sim Affidavit).
The circumstances leading to detection of the breaches on 4 December 2022 are that ANCOR members attended at Mr Owen’s residence to conduct a compliance search. During the search, ANCOR members located on Mr Owen’s bed a mobile phone device (with no SIM card). Upon inspection, that phone appeared to be being used for the purpose of using internet at the home address. The device was inspected and the following was detected:
·Chrome Browser History disclosing access to adult porn sites;
·Facebook messenger with messages to/from other persons as recent as 4/12/2022; and
·An extensive amount of images of pornography which had been recently downloaded.[2]
[2] Affidavit of Ida Jou Sim, 29 June 2023 (FDN 20), 6.
Mr Owen had not been granted approval by his CCO to be in possession of a mobile phone with internet capabilities. Indeed, on 3 November 2022, Mr Owen had been directed by his CCO to give the mobile phone to his mother to put in a place where he could not access it, and to purchase a new mobile phone without internet capabilities.[3]
[3] Ibid.
The respondent does not dispute the conduct giving rise to the alleged breaches. I am satisfied that the respondent has breached conditions 4, 8 and 17 of the extended supervision order.
Mr Owen’s personal circumstances and criminal antecedents
The respondent is now 42 years of age. Dr Raeside has opined that he has a mild intellectual disability and autism spectrum disorder while showing no signs of any formal psychiatric illness.[4]
[4] Second Sim Affidavit, 215 — Psychiatric Report, 30 August 2022, 7 line 24.
The respondent has had a history of illicit drug use, namely amphetamines, since at least the age of 21.[5] Although he has had previous attempts at drug rehabilitation, it is clear that his ongoing illicit amphetamine use remains problematic.
[5] Ibid 212.
The respondent has relevant criminal history. It is necessary to set that out in some detail.
In December 2007, the respondent was convicted of two counts of Unlawful Sexual Intercourse. Both offences were committed in 2006. The first count related to sexual intercourse with a 13 year old girl. Whilst the respondent was on bail for that offence, he committed a second count of Unlawful Sexual Intercourse with a 15 year old girl. For both offences, the respondent was sentenced to a term of imprisonment of three years two months, with a non‑parole period of one year and six months. That sentence was suspended upon him entering into a bond to be of good behaviour for two years with supervision for the first 12 months. The sentencing Judge accepted that Mr Owen was amenable to therapeutic intervention and the risk that he might pose to children could be managed by structured and supervised rehabilitation.[6]
[6] Second Sim Affidavit, 54 — Sentencing Remarks of Judge Bampton, 25 October 2013.
About two months after entering into that bond, the respondent reoffended by having sexual intercourse with a 13 year old girl. In November 2008, he was sentenced for that offending by way of a conviction and no further penalty considering that he had spent 10 months in custody. The sentencing Judge found proper grounds to excuse the breach of the previous bond noting that Mr Owen had not had the benefit of programs which were recommended by the sentencing Judge who had placed Mr Owen on the bond. The period of supervision was extended for the duration of the bond.
The respondent subsequently breached that bond on more than one occasion, including by reoffending. On each occasion, the breaches were excused.
In September 2018, the respondent was convicted in the Elizabeth Magistrates Court of the following offences:
·Two counts of Aggravated Assault Causing Harm with a weapon;
·One count of Fail to Comply with Bail Agreement;
·One count of Contravene Term of Intervention Order;
·Two counts of Fail to Comply with a Reporting Obligation; and
·One count of Fail to Inform of Registerable Offender Charge.
The violent offending involved the respondent assaulting his then partner with a weapon, resulting in her suffering fractures to her eye sockets. The failure to comply with reporting obligations involved the respondent having a Facebook account and failing to report contact with a child. The respondent received a single sentence of seven months imprisonment for the above offending, which commenced on 9 May 2018. The sentence was not suspended.
The respondent has also committed offences that demonstrate a difficulty or unwillingness to comply with court orders. He has a number of convictions for offences such as Drive Disqualified, Fail to Comply with Bail Agreement, Fail to Comply with Reporting Obligations and Fail to Comply with Restraining Orders. The most recent of these is an offence of Failure to Comply with Reporting Obligations committed on 8 March 2022.
Prior breaches of interim and extended supervision orders
On 24 July 2019, the respondent was made subject to an extended supervision order for of three years (the first ESO). Prior to that, on 7 December 2018, he had been made subject to an interim supervision order (the first ISO). The index offending that gave rise to these orders occurred within the cluster of 2018 offences, namely Aggravated Assault Causing Harm and Failure to Comply with Reporting Obligations, for which Mr Owen was sentenced in the Elizabeth Magistrates Court as set out above.
The respondent breached the conditions of both the first ISO and the first ESO on multiple occasions. The respondent was returned to custody on Parole Board warrants on no less than nine occasions during the combined operation of those orders from December 2018 to July 2022. The breaches overwhelmingly consisted of Mr Owen’s non‑compliance with the ‘no drugs’ condition, but also included breaches of the residence condition, the ‘no contact under 18 condition’, and ‘not commit offence’ condition, amongst others. Whenever Mr Owen was released into the community it would only be a matter of time before he would breach again, invariably at least by taking an illicit drug resulting in a return to custody.
At the expiry of the first ESO, Mr Owen was made subject to a second interim supervision order (the second ISO) which operated from 20 July 2022 until the making of the current extended supervision order on 26 October 2022.
Relevantly, the respondent was released from custody on 20 July 2022 at the commencement of the second ISO and remained in the community until his arrest on 5 December 2022. There is limited material before me regarding the respondent’s most recent compliance (or lack of) with the terms of the second ISO during the three month period of its operation before the respondent was returned to custody.
There is a Minute dated 18 April 2023 of Ms Lauren Hawkshaw from the Sentencing Management Unit where she reports:
It is noted that when he was last in the community, Mr Owen was linked with Sonder AOD counselling and whilst he was attending these sessions on a regular basis, he admitted to his Community Corrections Officer that he was not honest with his counsellor and had continued to use illicit substances throughout the period that he was attending counselling.[7]
[7] Second Sim Affidavit, 217; see also Affidavit of Ida Jou Sim, 16 June 2023 (FDN 14), 19–20 (Fourth Sim Affidavit) — Minute of Ms Hawkshaw dated 15 June 2023.
I will proceed on the basis the above Minute accurately record a truthful admission by the respondent. This information was referred to in the written submissions of the respondent and was not disputed. Drug use in that period is consistent with the conduct of the respondent before and after that period.
The extended supervision progress report
In an Extended Supervision Progress Report dated 10 May 2022 from the Department for Correctional Services (DCS), the author stated that for the period 1 March 2022 to 10 May 2022 Mr Owen had been engaging well with his supervision, although I note that there were two positive drug tests during the earlier part of this period. The shift of environment occasioned by Mr Owen moving in with his mother was regarded as a positive change and he had been able to establish a good relationship with his NDIS support worker. The report notes that Mr Owen was first approved for NDIS funding in 2021 with his next review in September 2023. A Functional Capacity Assessment had been completed around this time highlighting the intensive support necessary for Mr Owen to function independently in the community. The Court was not provided with a copy of the Functional Capacity Assessment, nor details of the NDIS support available to Mr Owen if he were to be released again on the extended supervision order.
The writer of the Progress Report further stated that:
Mr Owen has shown minimal insight into his past offending and required close monitoring and/or reminders for complying with his order conditions, including that of ANCOR reporting obligations. Due to several returns to custody during the period of the current ESO, his identified treatment needs, namely risk of sexual offending, emotional regulation, pro-criminal associations, and illicit substance use remain unaddressed. Additionally, there has been a lack of continuity with intervention/support services that Mr Owen was linked to within the community.[8]
...
Mr Owen’s criminogenic risks identified were substance abuse, problematic relationships, pro-criminal associations, and poor problem-solving skills. Overall, Mr Owen presents as an easily influenced and highly vulnerable individual and requires significant support in the community.[9]
[8] Second Sim Affidavit, 202 — Parole Board of South Australia, Extended Supervision Order Progress Report, 10 May 2022.
[9] Ibid 204.
After this report was authored, Mr Owen again returned to custody on 20 June 2022 on a Parole Board Warrant for further breaches of the ‘no drugs’ condition of his extended supervision order.
The reports of Dr Raeside
The risk of the respondent committing a serious offence has been assessed more than once since his initial release on an ISO in December 2018. Among the reports are two provided by Dr Raeside in respect of applications for an extended supervision order.
In his report dated 4 April 2019, Dr Raeside opined the respondent had the following criminogenic factors relevant to his risk of reoffending:
In terms of Mr Owen’s past offending behaviour I think the combination of his intellectual disability and the difficulty in forming appropriate relationships and perceiving other people because of his Autism Spectrum Disorder is likely to have produced difficulties for him and been a significant factor, but not the only factor in his recurrent offending.[10]
...
Additionally, and unfortunately, Mr Owen has also begun using crystal methamphetamine in recent years when in the community, which further increases the likelihood of offending without treatment.[11]
[10] Second Sim Affidavit, 140 — Psychiatric Report, 4 April 2019.
[11] Ibid 141.
The most recent psychiatric report is the report of Dr Raeside dated 30 August 2022 which was requested in respect of the application for the current extended supervision order. In that report, Dr Raeside opined:
I previously supported an Extended Supervision Order on the basis that Mr Owen remained a high risk of further serious offending in the future, specifically sexual offending and violent offending. Although he does not appear to have had any new charges during the period of his previous Extended Supervision Order, it is clear that he has had significant difficulty complying with obligations and conditions. Clearly, as he continues to use illicit drugs and associate with negative peers, as well as communicating with underage females, then his risk remains high that he will once again engage in sexual offending.
Therefore, in my opinion, there is little doubt that Mr Owen remains a high risk of further sexual offending in the future and requires an Extended Supervision Order to provide support and monitoring to assist him to avoid circumstances and situations that would either increase his risk or maintain it at the current level. In particular, abstaining from illicit drugs, avoiding negative peers, and complying with ANCOR obligations are all of high importance.
Even Mr Owen seemed to acknowledge the potential benefit from having ongoing supervision under an Extended Supervision Order, notwithstanding his past difficulties.
Further, Mr Owen does not appear to have received any particular programs during the period of the last ESO, primarily because of his recurrent reincarceration for breaching conditions. It is important that he receive drug rehabilitation and I would still recommend a referral to Owenia House for a community based SBC-Me program.[12]
[12] Ibid 216 — Psychiatric Report, 30 August 2022.
The reference in the above to ‘communicating with underage females’ appears to be a reference to an allegation that Mr Owen had contacted a 15 year old by phone.[13] The circumstance of that allegation is that in 2021, the respondent communicated with a 15 year old girl via Facebook and Messenger.[14] That allegation does not appear to have been admitted or otherwise proven. To the contrary, a Parole Board Minute appears to record that a Minute of a Senior Case Manager dated 3 February 2021 had ascertained that SAPOL had confirmed there was no evidence of that conduct.[15] In the circumstances, I disregard that allegation. Dr Raeside has provided an addendum report dated 16 August 2023. Dr Raeside says that disregarding the alleged conduct involving the 15 year old girl does not alter his opinion as to the risk of the respondent engaging in further serious sexual offending. Dr Raeside remains of the opinion that risk is ‘high’.
[13] Ibid 215.
[14] Ibid 214.
[15] Ibid 197.
In his report dated 30 August 2022, Dr Raeside also opined that the respondent’s mild intellectual disability and autism spectrum disorder would have produced difficulties for him in the past, including being easily influenced by negative peers and drug associates.[16]
[16] Ibid 215.
Involvement in programs
As set out above, Dr Raeside believes the Sexual Behaviour Clinic‑me program (SBC-me program) is likely to be appropriate for the respondent. Given that, I infer that the SBC‑me program is one that might reduce the respondent’s risk of sexual reoffending. However, there is nothing before me which might permit a finding of the likelihood of a reduction in risk if that program is completed successfully.
Despite receiving sentences for his sexual offending aimed at addressing his rehabilitation, the respondent has not completed any sex offender treatment programs while in the community. He was referred to Owenia House for a group treatment program in 2008, 2009 and 2010 and, whilst attempts were made, he did not complete that program. This was due to a combination of his non‑attendance and his behaviour both within and outside the group. In 2010 he was not accepted for further treatment at Owenia House. Owenia House has indicated that the respondent will not be treated if he is affected by illicit substances.[17] The respondent also does not appear to have received the benefit of any sexual offender treatment program during the period of the first ESO. This appears to be the consequence of his recurrent reincarceration for breaching conditions. Whenever the respondent has been detained in custody, it has been for too short a period to facilitate him undergoing any such program.
[17] Minute of Ms Hawkshaw dated 18 April 2023.
However, during his current time in custody, the respondent has now commenced the SBC-me program. The SBC-me program is designed for participants who have been assessed to have cognitive deficits which would preclude them from participating in a mainstream sexual offender program. The respondent commenced the program in custody in May 2023. The program runs for 15 months and will conclude in either September or October 2024. The applicant informed me that should a continuing detention order not be made, the next available date for the respondent to commence the SBC-me program in the community would not be until approximately May 2024.
In respect of family violence programs, Mr Owen has previously been considered for the Domestic Violence and Family Violence Intervention program (DFVIP), but in 2019, he was found unsuitable for the program on the basis of his intellectual disability. In 2020, Mr Owen was also found unsuitable for the Making Changes program due to his impaired cognitive functioning. DCS have deemed that this treatment need will be best addressed through Mr Owen engaging in individual treatment with a community‑based psychologist. Mr Owen was attending monthly mental health reviews when he was last in the community, but it is unclear whether he received this specific treatment from a psychologist.
As for alcohol and drug counselling, I am satisfied this is a critical treatment need for the respondent. The respondent’s consumption of illicit drugs exacerbates his difficulties in engaging with treatment. I accept the opinion of Dr Raeside that contributes to his risk of serious sexual offending being high.[18] Consumption of illicit drugs also means he is in breach of the terms of his supervision orders which has caused repeated returns to custody. That then becomes another barrier to meaningful treatment in the community. I am told the respondent was engaged with Sonder for drug counselling during his most recent period in the community whilst he was subject to the second ISO. He attended fortnightly sessions from 8 June 2022 to 5 December 2022 until he was returned to custody for the latest of the breaches.
[18] Ibid 209–216.
While he remains in custody, the respondent has available to him drug counselling via phone through Life Without Barriers. The respondent was referred to this program in April 2023 but I have not received any additional information with respect to that. It follows that I do not know whether the respondent has been engaged in drug counselling during his current remand.
The Parole Board
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.
I am satisfied that the respondent presents an appreciable risk of sexual offending with respect to a child and violent offending, if not subject to a continuing detention order. Although I do not understand it to be alleged that the respondent has contacted, or attempted to contact, a child or to have committed, or attempted to commit, any assault while subject to a supervision order, the continued use of drugs gives rise to an appreciable risk of the conditions of his supervision order not reducing the risk below one that is not appreciable. The risk of him making contact with a child for a sexual motive must be viewed in light of him disobeying orders with respect to the use of a phone. I have not overlooked that the pornography accessed in November 2022 did not depict children. Nonetheless, using a phone with internet capability would be an obvious way in which contact might be made with a child.
The discretion
Satisfaction of the two jurisdictional facts in s 18(1)(a) and (b) of the Act does not mean that a continuing detention order must be made. The decision whether to make a continuing detention order is a discretionary one. In considering whether the discretion should be exercised the paramount consideration is the safety of the community.
The applicant submits that the nature of the respondent’s most recent breaches are particularly concerning, especially in light of his criminogenic risks (i.e. – illicit drug use) and his previous sexual offending, and must be considered in the context of a significant pattern of non-compliance with supervision orders.[22] Further, the applicant submits that the respondent’s risk of sexual reoffending can be lowered by him engaging in the SBC‑me program while in custody where he stands a better chance of completing the program than in the community due to the increased likelihood of being drug free and not subject to disruption through being arrested due to breaches of his ESO.
[22] Applicant’s submissions, [28].
The prospect of Mr Owen having improved rehabilitative prospects if he is detained in custody is not the test posed by the legislation, but it is a relevant consideration to the exercise of the discretion.[23] I am satisfied that there is a real risk that the respondent will not complete the SBC‑me program in the community for at least two reasons. First, the respondent has a history of breaching orders, including by taking drugs, which has led to him being taken into custody. It is more likely than not that will occur again if the respondent is in the community and that will then disrupt the respondent’s ability to complete the program. Second, as set above, the respondent has been referred to Owenia House in the past, albeit some considerable time ago, without being able to complete the program.
[23] Attorney‑General (SA) v Drion [2020] SASC 120, [69].
The respondent submits that he should not be detained to complete the SBC‑me program. The respondent does not concede that would be appropriate but adds that, even if appropriate in some instances, I should not be satisfied it would be of utility in this case. It is submitted that there is no guarantee the respondent will complete that program in custody; limited evidence, other than the opinion Dr Raeside, that it is an appropriate program for the respondent; and no evidence as to the likelihood of reduced risk even if completed. Among the submissions, as I have understood it, is a submission that the respondent’s history and intellectual disability may inhibit completion of the program even in custody. The respondent submits that despite not completing the SBC-me program, he has not engaged in sexual offending since 2008. The real issue, counsel for the respondent submits, is Mr Owen’s ongoing illicit drug use which it is submitted can be treated in the community.
I accept the respondent’s drug use is a particularly important issue, both in terms of a rehabilitative need and the risk he poses to the community. He can continue to receive counselling for drug use in the community. It is positive that he attended fortnightly sessions while subject to the second ISO, even if he has some way to go in making any meaningful progress. The respondent has been referred to Life Without Barriers and had an initial appointment on 8 June 2023. On the material before me, the need to treat the risk of domestic and family violence would be best dealt with ‘in individual treatment with a community‑based psychologist’.[24]
[24] Fourth Sim Affidavit, 19–20.
I am satisfied that, given the failures to complete the SBC‑me program in the community and the real risk that further breaches of the ESO will see the respondent taken into custody, it is unlikely the respondent would complete the SBC‑me program in the community. However, on the material before me, I cannot reach a view of the prospects of a reduction in risk on the assumption the program is completed while subject to a continuing detention order. In my view, it is relevant to whether the discretion should be exercised that the evidence about the SBC‑me program rises no higher than it is an appropriate program for the respondent. There is no evidence before me of the likelihood of a reduction of risk in the event the program is completed. The Attorney‑General’s submission is that the respondent be detained for over a year, in part, so that he may complete a course that may, or may not, reduce one of the risks the respondent poses. In making this observation, I do not disregard that the risk posed is not just of sexual offending if the respondent is in the community.
Completion of the SBC‑me program in custody would require the respondent to remain in custody until October 2024. That is for the whole term of the extended supervision order or close to it. The respondent has already been in custody since 5 December 2022, a significant period of time. If detained in custody for the period necessary to complete the SBC-me program, the respondent would be detained for almost two years. There is cause to doubt whether the respondent will complete the program in the community. If not detained, I assume, without deciding, that any improvement realised thus far might be lost. At the same time, while where a respondent might be more likely to engage with programs designed to promote his rehabilitation and the safety of the community is relevant to the exercise of the discretion, it is not the only relevant consideration.
The consideration of the possible benefit of the completion of the SBC‑me program must be balanced with all other considerations. One of those is that the need for the respondent to engage in a program which might reduce his risk of violent offending is one best addressed in the community.
The breaches, while serious, did not involve offending against members of the community. They were detected by DCS and ANCOR members and dealt with promptly by the Parole Board. The respondent has not committed any violent offence since 2018 and no sexual offence since 2008. The matters for which he has been convicted since then could generally be described as non‑compliance type offences. Given the history of the respondent, it is likely that if a continuing detention order is not made, it will only be a matter of time before the respondent will breach the conditions of the extended supervision order again. However, the test is not the likelihood of a supervision order being breached. The conditions of orders made pursuant to the Act and the vigilance of those supervising compliance and the ANCOR reporting obligations which existed for some years prior to the making of these orders, appear to have assisted in mitigating the risk to the community.
Because the primary consideration of the protection of the community, any immediate appreciable risk will usually outweigh any considerations of medium to long‑term rehabilitation.[25]
[25] Attorney‑General v Drion [2020] SASC 120, [70]; Attorney‑General v Schmidt [2018] SASC 80, [168].
What I must consider is whether supervision ensures adequate protection. In Attorney‑General (Qld) v Francis, Keane and Holmes JJA and Dutney J explained:
The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.[26]
[26] [2007] 1 QD R 396, [39].
I must consider whether the risk can be addressed in another way, such as further or varied conditions of the extended supervision order. Justice Hughes remarked in the Attorney‑General v Coaby at [19]:
A continuing detention order is not the only response that can be made to a breach of a supervision order. If the circumstances or nature of the breach does not indicate a failure of the supervision order to safeguard the community, or if the risk has been addressed since the breach, or if the risk can be addressed in another way such as further or different conditions on the supervision order, then a detention order should not be made.[27]
[27] Attorney-General (SA) v Coaby [2019] SASC 137, [19].
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.
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