Attorney General (SA) v Pan - [2023] SASC 171

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY GENERAL (SA) v PAN
[2023] SASC 171
Judgment of the Honourable Justice McIntyre
1 December 2023
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 - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
The applicant seeks a second extended supervision order be granted substantially in the same terms as the interim supervision order currently in place. The applicant submits that the respondent still poses a high risk to the community and has repeatedly breached conditions of both his first extended supervision order, and now interim supervision order.
The respondent opposes a further extended supervision order or, in the alternative, if an order is made the respondent seek an order in terms that permit his immediate return to the Anangu Pitjantjatjara Yankunytjatjara Lands (‘APY Lands’).
Held:
1. The respondent is a high-risk offender within the meaning of s 5(d) of the Criminal Law      (High Risk Offenders) Act 2015 (SA).
2.      The respondent poses an appreciable risk to the safety of the community if not supervised    under an extended supervision order.
3.      Application for extended supervision order is granted for a period of 12 months.
4.      The terms of the order are intended to facilitate the respondent to transition to living in the APY Lands
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 5(d), 7(1), referred to.

ATTORNEY GENERAL (SA) v PAN
[2023] SASC 171
Criminal: Application

McINTYRE J: The applicant, the Attorney General for the State of South Australia, applies for an Extended Supervision Order (‘ESO’) under s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’).
The respondent has been subject to a prior ESO made on 6 October 2021 for a period of 18 months. He is currently subject to an Interim Supervision Order (‘ISO’) made on 5 April 2023. The applicant seeks a further ESO for a period of 12 months.
I am satisfied that the respondent is a high-risk offender within the meaning of s 5(d) of the HRO Act. The issue is whether the respondent poses an appreciable risk to the safety of the community if not supervised under the order sought and, if he does, whether the terms of the order should permit him to reside on the Anangu Pitjantjatjara Yankunytjatjara Lands (‘APY Lands’).
For the reasons that follow, I consider that the respondent does pose an appreciable risk to the safety of the community. I further consider it appropriate to grant the application for a further ESO of 12 months duration in terms of the minutes of order filed by the applicant.
The respondent
The respondent is a 39 year old initiated Aboriginal man from the APY Lands of South Australia. He was born at Amata on the country of his Pitjantjatjara parents. A detailed cultural report was prepared by Ms Anderson for the purpose of sentencing submissions in 2007.[1] The contents of that report are uncontentious. In brief the report indicates that the respondent has a strong connection with the APY Lands and that, as he grew up, he practised traditional customs learning the language, law and specific cultural beliefs. He has close kinship ties with his father’s and grandfather’s family and country. As an initiated man he has specific obligations and knowledge including the responsibility to care for important sites and for maintaining spiritual beliefs associated with country. Ms Anderson concluded her report by saying that the respondent’s inability to perform his social and ritual obligations on his country, to care for his relatives, and to attend funerals;[2]
…..will have a negative impact on his state of mind as long as he is absent from his homeland. These factors feed into cultural sickness or watjilpa which is often a significant factor contributing to why Aboriginal people commit suicide in custody.
[1] Report of Sue Anderson dated March 2007 (Exhibit A8).
[2] Exhibit A8 at 16
Unfortunately, the respondent also has a significant history of violent offending, including offences against partners or former partners often involving the use of weapons. Details of this history are set out in the exhibits to the affidavit of Alexander Falcinella made on 23 March 2023. In brief these offences include:
·On 13 May 2006 the respondent endangered the life of his partner by throwing petrol on her clothing and setting her clothing on fire with a cigarette lighter. The victim lived at Ernabella with her family and the respondent was living at Amata with his family. He was heavily intoxicated as a result of petrol sniffing. He was sentenced in the District Court on 22 March 2007 to a period of imprisonment of three years and seven months with a non-parole period of 15 months backdated to 13 May 2006.
·On 7 March 2008 the respondent committed an aggravated assault on the same victim, for which he was sentenced to three months imprisonment.
·On 13 July 2012 the respondent was sentenced to 15 months imprisonment for a series of offences including:
a.On 18 May 2010 he assaulted his partner at Amata.
b.On 30 January 2011 he breached bail by being at Pukatja, contacting his victim and assaulting her by pushing and throwing rocks.
c.On 5 December 2011 he entered the Amata Medical clinic where his victim was undergoing treatment, he refused to leave and was abusive to staff. Police were called and he violently resisted arrest.
·The respondent was convicted in June 2014 of assaulting police and in February 2015 of breaching an intervention order.
·On 15 May 2015 the respondent was sentenced in the District Court to 12 months imprisonment with a non-parole period 8 months for the offences of aggravated assault and contravention of an intervention order by punching his partner.
·Between 10 - 13 July 2017 the respondent committed offences of breaching an intervention order and two counts of aggravated assault at Pukatja. He again breached an intervention order on 26 June 2017. The victim of the offending was his former partner. The respondent was sentenced to imprisonment for one year and two weeks and a suspended sentence for offences of property damage, aggravated assault, breaching bail and affray imposed on 7 March 2017 was revoked. Accordingly, the respondent was sentenced to an overall period of imprisonment of one year, three months and five weeks, with a non-parole period of 11 months backdated to 2 August 2017.
·On 1 February 2019, at Amata, the respondent assaulted his partner by hitting her with a fist to the right side of her face and then by hitting her twice with a spanner. The sentencing Magistrate described the respondent’s criminal offending history as one of the worst that he had ever had to consider, noting a history of violence against other people in the community often, but not always, a woman who was his partner or ex-partner. The respondent was sentenced to two years and five months imprisonment with a non-parole period of one year and six months backdated to 1 February 2019.
First ESO
An application for the first ESO was made and granted on 6 October 2021. A report was obtained in relation to that application from Dr Owen Haeney dated 10 September 2021. A personality assessment summary provided by Ms Lee McDonald dated 26 June 2013 and a forensic psychological report of Mr Richard Balfour dated 5 March 2007 were also considered.
Ms McDonald saw the respondent at the request of the Parole Board in 2013. She used the Ontario Domestic Assault Risk Assessment (‘ODARA’) tool to measure the respondent’s risk of domestic violence recidivism. The respondent scored 11 out of a possible 13 predictors of domestic violence which resulted in an ODARA assessment that he was at high risk of future domestic violence without treatment. Ms McDonald recommended that the respondent undertake culturally appropriate counselling and a culturally appropriate domestic violence program.
Mr Balfour’s report was obtained in the context of sentencing for the offending in 2006. Accordingly, it is somewhat dated and deals with the respondent’s then problem with petrol sniffing. Nonetheless, the report is comprehensive and was prepared with the assistance of Reverend Williams who is described as “extremely knowledgeable about cultural matters regarding the Pitjantjatjara people”. Mr Balfour noted that the respondent was a traditional Aboriginal man who had a very limited formal western education. He had poor numeracy skills and a poor understanding of the Western calendar and concepts of time. Mr Balfour made a number of recommendations concerning rehabilitation. Interestingly, he also commented that:
I believe that for as long as Mr Pan resides in the APY Lands with limited access to training, housing, and employment opportunities, he will be prone to further petrol abuse which may lead to offending behaviour.
This report pre-dates the introduction of ‘opal petrol’ which reduces the narcotic effect of petrol sniffing. It does not appear that this is a current problem for the respondent.
Dr Haeney noted, in his 2021 report, that the respondent is a traditional Aboriginal man from the APY Lands of South Australia with a strong connection to culture and country. The respondent described considerable hardship associated with his enforced absence from his traditional home. Dr Haeney said that the respondent had a history of significant substance misuse most notably cannabis, sniffing petrol and drinking alcohol. He does not suffer from a mental illness. Dr Haeney indicated positive steps that the respondent had taken whilst in custody, in particular the commitment and leadership he displayed within the Cross Borders program. Nonetheless, his clear and chronic pattern of violence particularly against partners and ex partners, the presence of outstanding risk factors in particular his history of substance misuse caused Dr Haeney to conclude that the respondent was a moderate to high risk of further violent offending.
The respondent breached the first ESO on numerous occasions by testing positive to cannabis, consuming alcohol, breaching curfew, testing positive to methylamphetamine, attending licensed premises, and failing to comply with conditions of electronic monitoring. The respondent was dealt with on several occasions by the Parole Board. Ultimately, the Parole Board referred the respondent to the Supreme Court for consideration of a Continuing Detention Order (‘CDO’). In dealing with that application on 17 March 2023, Kimber J was satisfied that the respondent had breached the conditions of his ESO and that he posed an appreciable risk to the safety of the community if not detained in custody. The breach did not involve criminal offending. As the ESO, together with the close attention to supervising the respondent, detected breaching behaviour before it escalated and assisted the prevention of further offending Kimber J declined to exercise his discretion to make a CDO.
The current application
The first ESO expired on 5 April 2023. An application was made on 24 March 2023 for a further ESO.
An ISO was made in these proceedings on 5 April 2023. Since that time the respondent has breached the ISO by testing positive to alcohol, breaching his curfew and testing positive to cannabis. In the most recent Parole Board decision of 20 September 2023[3] breaches of the conditions for no alcohol and the curfew conditions were found proven. The respondent was at that time in custody. The determination of the Parole Board was that the respondent be released in so far as the Parole Board warrant was concerned on a date to be advised, subject to confirmation of suitable release accommodation.
[3] Parole Board Minute dated 20 September 2023 (Exhibit A7).
The respondent opposes the making of a further ESO. In the alternative, the respondent says that, if an order is made, it should be made on terms that allow him to return to his home on APY Lands to enable him to participate in traditional business and lifestyle. An address at Amata has been nominated.
The applicant seeks a second ESO on the basis that the respondent is a high-risk offender who poses an appreciable risk to the safety of the community if not on an ESO. Whilst the applicant does not dispute the respondent’s clear connection with the APY Lands and Amata in particular, nor his cultural beliefs it is contended that it is not appropriate to dismiss the application or to make an order that facilitates the respondent’s immediate return to the APY Lands.
The evidence
At the hearing, a large volume of material was tendered as exhibits A1 – A8. That evidence is largely uncontroversial, and I accept it. Two witnesses were called to give oral evidence. Mr Tony Shillabeer, regional director of Community Corrections Northern Region Department for Correctional Services (‘DCS’) who supplied a report dated 1 November 2023 and Dr Owen Haeney, consultant forensic psychiatrist from James Nash House who supplied a further report dated 17 September 2023. Both witnesses gave compelling and cogent evidence which I accept.
Mr Shillabeer
Mr Shillabeer’s report and his evidence dealt with the topic as to what, if any, ESO conditions can accommodate the respondent’s circumstances as an initiated Aboriginal man from the APY Lands and cultural needs and requirements. Mr Shillabeer noted that the respondent has three active intervention orders in relation to former partners. All three have connections with the APY Lands. One currently resides in Ernabella, one at Pipalyatjara, the third previously resided on the APY Lands at Indulkana but her current whereabouts are unknown. The DCS Victim Services Unit had concerns with the respondent returning to the APY Lands as he had committed serious offending against partners in the APY Lands. SAPOL were not supportive of his return for similar reasons.
Mr Shillabeer said that people subject to an ESO have a minimum of weekly face to face reporting and regular random drug and alcohol testing. DCS cannot provide this frequency of service within the APY Lands. The nearest Community Correctional Centre to Amata is at Coober Pedy, a distance of some 630 kilometres. There are no offender treatment or rehabilitation services available on the APY Lands. Further, it is not possible to have electronic monitoring on the APY Lands as phone services in the APY communities are unreliable.
The respondent has completed the Cross Borders Program twice. This is a domestic violence program for male perpetrators which is offered either in prison or in the community. It is an informational course rather than a treatment course. The respondent undertook one course in custody and another in the community. He did quite well in both courses. Nonetheless, Mr Shillabeer says that the respondent has outstanding treatment needs for domestic violence, alcohol and other drug counselling together with grief and loss.
Mr Shillabeer said that the respondent’s treatment needs would be addressed under an ESO by the High Intensity Team (‘HIT’). Mr Shillabeer explained the operations of the HIT. It is a pilot program involving a small team of professional staff within Corrections including case managers and clinicians. The intention is to have a greater focus on the individual to allow for intensive rehabilitation. HIT operates in the community, but also has an “in-reach” capacity to maintain contact with offenders who return to custody. Currently, HIT supervises 30 offenders on ESO or ISO. Each participant has access to a case manager and a clinician. The respondent will have an Aboriginal clinician to ensure culturally appropriate delivery of the services. Supervision by HIT would require the respondent to reside in the Adelaide Metropolitan area.
Mr Shillabeer said that DCS has significant concerns if the respondent was permitted to return to the APY Lands at this stage. He has an extremely poor recent history of compliance with community-based orders. In particular, he has a propensity to use illicit drugs and alcohol which, although harder to obtain on the APY Lands, are nonetheless still easily available. There would only be limited DCS supervision and testing for substance abuse. There is a high potential for the respondent to have contact with his victims. Electronic monitoring is not available. A return to the APY Lands at this point presents too great a risk for DCS to manage and poses significant risk to his previous victims and the community in general.
DCS considers that suitable accommodation for the respondent should be sought in Adelaide where he can be supervised by the HIT. If he demonstrates the capacity to remain offence free and comply with the ESO conditions for a reasonable period of time, he could be transitioned to a placement in Port Augusta at Lemongrass Place as a precursor to his return to the APY Lands.
Lemongrass Place is a 20-bed transitional facility outside the Port Augusta prison run by Aboriginal Drug and Alcohol Services. It is a 24-hour supported program set up to enable Aboriginal men to return to live in remote areas. During a placement, supervised visits to the APY Lands would be possible. The ultimate goal would be for the respondent to return to country.
Mr Shillabeer said that transfer to Lemongrass Place could occur within three to six months assuming compliance with the ESO. Compliance means that the respondent obeys his curfew, keeps a mobile phone, charges his monitoring device, stops going to licensed premises, refrains from consuming alcohol and stays away from trouble.
Mr Shillabeer accepted that the longest period of compliance demonstrated by the respondent was 85 days. Mr Shillabeer also accepted that the report of Mr Balfour indicates that the respondent has difficulty with money management, western concepts of time and telling the time. He further accepted that these aspects are significant barriers to the respondent complying with an ESO and that his non-compliance was not simply a question of a lack of motivation. He was asked whether, based on that, it was DCS’ position that the respondent could never return to the APY Lands. Mr Shillabeer said he was more optimistic than that. He said that whilst explaining the terms of the order and what was needed for compliance was difficult because of the respondent’s cultural background and difficulties; HIT would take the time to provide a “careful and considered” explanation to him. Mr Shillabeer noted the involvement of an Aboriginal clinician in this process. Mr Shillabeer said he was further optimistic because of the Lemongrass Place option that the respondent has been lacking in the past. This combination of factors would assist by providing hope, motivation and a clear explanation of what was required to succeed.
Dr Haeney
Dr Haeney said that his assessment of the respondent’s risk, outlined in his report dated 10 September 2021 has not significantly altered over the intervening two years. Whilst the respondent had not been convicted of any further offences, he had numerous breaches of the ESO through use of alcohol, cannabis, methylamphetamine, breaches of curfew and monitoring requirements. Dr Haeney noted in his report dated 17 September 2023 that there were allegations that the respondent had assaulted a partner on 12 December 2021 and 19 January 2022. Charges arising out of those allegations were subsequently withdrawn. Even disregarding those allegations, Dr Haeney said that his assessment of risk remained unchanged. Dr Haeney considers that the respondent remains at a moderate to high risk of further violence offending and certainly an appreciable risk. Dr Haeney considers that the respondent’s primary risk factors for future offending are his history of prior offending, drug and alcohol use.

Dr Haeney accepted that the first ESO has not resulted in any change to the respondent’s behaviour but added that he did not know what would have happened if the respondent had not been on the ESO. There has certainly been a continuation of concerning behaviour. Dr Haeney said that if there was no change in the conditions of the ESO and the location of the respondent, he would expect the same issues arise on any further order.
Dr Haeney did not profess to have specific expertise in indigenous matters but accepted that preventing the respondent from returning home to the APY Lands causes distress in a way that is unique to indigenous people. The respondent would undoubtedly be happier if he were able to return home. Dr Haeney further agreed that completing sorry business, connecting with his kinship group, culture and obtaining work may assist the respondent to improve his behaviour. However, Dr Haeney said that it is difficult to know what effect this would have upon the risk of breaching behaviour or further offending. If alcohol is available to the respondent, he is currently likely to misuse it no matter where he is located.
Dr Haeney said that if the respondent is released somewhere other than the APY Lands he notionally has greater access to services and can be more easily monitored so that breaches such as substance misuse can be detected earlier preventing or limiting escalation of risk. On the other hand, if he were returned to the APY Lands he may be happier and alcohol would be more difficult to obtain but he would be more difficult to monitor, breaches would be harder to detect and escalating criminogenic factors or actual violence could be left unchecked. As Dr Haeney said in his second report:
The decision is an unenviable one and there is little information about which course of action is the safest. Breaches seem almost certain if he is forced to remain living away from the Lands in places where alcohol and other drugs are easy to obtain. However, Mr Pan’s risk stems mainly from interactions with partners, which could occur anywhere, and if in conflict with Police or others.
Applicant’s submissions
The HRO Act requires that the paramount consideration for the Court in determining whether or not to impose an ESO and the terms upon which it should be imposed is the safety of the community. The applicant submits that an ESO is necessary to protect the safety of the community. The applicant says that the respondent’s offending is very serious and very concerning. His offending is violent and largely involves different domestic partners. The respondent’s tendency to access drugs and alcohol is one of his primary criminogenic risk factors and aggravates his risk of further offending, in particular further violent offending. The applicant contends that the respondent is likely to abuse substances wherever available, whether that be in metropolitan Adelaide or the APY Lands and that, accordingly, he remains a risk to the community whether in Adelaide or the APY Lands.
Whilst the respondent has exhibited poor compliance on the ESO, the close supervision to which he is subject has served as a significant protective factor and has prevented him from further serious violent offending. It is said that the respondent’s history strongly suggests that the respondent would not refrain from offending if no ESO was imposed. The program proposed by DCS for the second ESO, if granted, is different to the original program as outlined in the evidence of Mr Shillabeer. It is designed to deal with the respondent’s risk factors in a culturally appropriate way and to assist in his return to the APY Lands.
The applicant contends that it is premature for the respondent to return to the APY Lands particularly in view of the limited ability to supervise and support him on an ESO in that location. There is no evidence that the respondent would be less likely to offend on the APY Lands. A change in location merely shifts the risk to the community of the APY Lands.
The applicant submits that the appropriate course is for the Court to impose an ESO to preserve the safety of the community and equip the respondent with sufficient supports to assist with a successful transition to the APY Lands.
Respondent’s submissions
The respondent submits that an ESO that requires the respondent to reside in metropolitan Adelaide will increase his risk to the community as he will have greater access to alcohol and drugs than he would if permitted to live on the APY Lands. It is said that the frequent breaches of the ESO demonstrate that the ESO regime has “failed” and that it would be counterproductive to impose a further ESO. The respondent being under supervision has not reduced his propensity to breach the conditions of his ESO, nor reduce his risk of reoffending.
It is said that there is little benefit in imposing further ESO and that the respondent’s criminogenic risk factors would be better addressed by allowing him to reside on the APY Lands. The respondent cannot be assisted whilst he remains away from the APY Lands as he cannot stay out of custody long enough to obtain treatment, counselling or programs. Whilst the applicant might say that the respondent could get permission to visit the APY Lands this requires him to go longer than he has previously without breaching his ESO. Dr Haeney’s analysis is that this will not happen. Dr Haeney said that further orders would mean the respondent would face the same issues as before.
HIT supervision has already been in place and has not worked. Lemongrass Place is supposed to be transitional accommodation. If the respondent is able to attend, which is problematic, it is contended that no indication has been given as to how any skills and links the respondent would obtain at Lemongrass Place would translate to the APY Lands.
As nothing has been suggested that would reduce the risk to the community, it cannot be said that an ESO must be made to reduce the risk to the community. An ESO would prevent the respondent from being assisted to reduce the risk by preventing him from returning home to the APY Lands. The objection to the respondent returning to the APY Lands is a matter of resources. It is contended that the respondent should not be punished for the failure of Government to fund programs or provide resources on the lands. Finally, it is said that the first ESO did not achieve its goals by any objective measure and the respondent should not be further punished by having an unworkable system imposed upon him.
Discussion
It is not in dispute that the respondent is a High-Risk Offender within the meaning of ss 5(c) and 5(d) of the HRO Act. The evidence establishes that the respondent poses an appreciable risk to the safety of the community if not supervised under an ESO. The evidence of Dr Haeney is unequivocal that the respondent has a moderate to high risk of further violent offending. This clearly satisfies the statutory test. Accordingly, the Court’s discretion to impose an ESO is enlivened.
In determining whether to make an ESO, the paramount consideration is the safety of the community. The respondent’s offending is very serious, violent and is not limited to one victim or set of victims. The existing intervention orders have limited utility in protecting victims and will not protect unknown victims. The respondent’s lack of compliance and tendency to access drugs and alcohol adds to his risk of further violent offending. I accept the respondent’s submission that the previous ESO did not assist the respondent to deal with his primary criminogenic risk factor of substance misuse. His repeated breaches have meant that he has spent significant time in custody and has had limited access to treatment for his substance misuse. I also accept the submission that the breaches are not solely the result of a lack of motivation. I accept that it is more difficult for the respondent to understand and comply with orders owing to cultural issues. However, I do not accept the submission that a further order would be counterproductive.
I note Dr Haeney’s reservations concerning the respondent’s ability to comply with the requirements of an ESO if there was no change in the conditions or location of the respondent. However, the applicant is proposing substantial changes to the situation that applied under the first ESO.
I accept the evidence of Mr Shillabeer concerning the plan that DCS intends to implement to assist the respondent with his compliance with the ESO and transition to the APY Lands. It is clear from Mr Shillabeer’s evidence that DCS is now acutely aware of the need for the respondent to have the assistance of an Aboriginal clinician to explain relevant concepts in a culturally appropriate and sensitive manner. The involvement of HIT and the Aboriginal clinician should assist the respondent to understand any orders, the DCS plan and the time considerations applicable to that plan.
It will be critical for DCS to explain the plan to accommodate the respondent at Lemongrass Place following a period of compliance and to support him to achieve compliance. Lemongrass Place is specifically designed to facilitate transition to the APY Lands. The proposed ESO contains new conditions[4] which facilitate the respondent to engage in short visits and stays on the APY Lands. It is of limited duration; 12 months. The plan proposed by DCS provides a path forward for the respondent with the aim of his residing on the APY Lands within 12 months should he engage with support services and demonstrate compliance with the ESO.
[4] Conditions 6 and 7.
It is regrettable that the resources on the APY Lands are so limited. Ideally the respondent would be able to be supervised and supported on country in a way that also protected the community. I have no doubt that the respondent would be more receptive to rehabilitation if he was not distressed by his absence from his home and kinship group. However, the fact remains that the resources are not available. Further, much of the respondent’s offending took place whilst he was living on the APY Lands in the context of substance misuse. Returning him to that environment with no or limited rehabilitation and support would be to invite similar behaviour.
It is my view that the appropriate course is for the Court to impose this ESO to preserve the safety of the community and to equip the respondent with sufficient supports to assist with a successful transition to the APY Lands.