Attorney-General (SA) v Pearson - [2023] SASC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v PEARSON
[2023] SASC 120
Judgment of the Honourable Justice McIntyre
16 August 2023
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
The applicant seeks a variation to a continuing detention order be granted. The applicant submits that the respondent still poses a high risk to the community due to his non completion of the Aboriginal Men’s Family Violence Program, albeit through no fault of the respondent.
The respondent contends that the applicant has not proven that the community can only be protected from the respondent through his continued detention. The respondent made further submissions that there is no guarantee that, at the completion of the program, the respondent’s risk to the safety of the community will be ameliorated.
Held:
1. Application granted – continuing detention order varied to expiration of extended supervision order on 13 December 2023 as to facilitate necessary rehabilitation.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 5(a), s 7, s 18, s 19; Criminal Law Consolidation Act 1935 (SA) s 56; Sentencing Act 2017 (SA) s 57, referred to.
R v Schuster (2016) 125 SASR 388; Attorney General (SA) v Grosser [2016] SASC 49; Attorney General (SA) v Drion [2020] SASC 120; Attorney-General (SA) v Brandon [2019] SASC 85, considered.

ATTORNEY-GENERAL (SA) v PEARSON
[2023] SASC 120
Criminal: Application
McIntyre J

The respondent, Chris Pearson, was made subject to an Extended Supervision Order (“ESO”) on 14 September 2022 for a period of 15 months. That ESO expires on 13 December 2023.
On 5 April 2023, a Continuing Detention Order (“CDO”) was made under s 19 of the Criminal Law (High-Risk Offender) Act 2015 (“HRO Act”) to expire on 21 July 2023.
By application dated 5 July 2023, the applicant, the Attorney General for South Australia applied to vary the CDO, applying to extend the CDO until the expiration of the extended supervision order on 13 December 2023. The matter was argued before me on 19 July 2023. Owing to the urgency of the matter I delivered a ruling at the conclusion of submissions granting the application and ordering that the CDO made on 5 April 2023 be varied so that the respondent is detained in custody until the expiration of the ESO on 13 December 2023. These are my reasons for that decision.
Background
On 14 July 2021, the respondent was made subject to an ESO for a period of nine months (the first ESO). A second ESO was made on 14 September 2022. That ESO is not due to expire until 13 December 2023. Prior to the making of both the first ESO and the second ESO the respondent was made subject an Interim Supervision Order (“ISO”).
The first ESO was made on the basis that the respondent is a high-risk offender under s 5(a) of the HRO Act, and that he is a serious sexual offender who was sentenced to a period of imprisonment in relation to an indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (the index offending). The Court was satisfied that the respondent posed an appreciable risk to the safety of the community if not supervised under an ESO.
The circumstances of the index offending were that, on 20 June 2018, the respondent walked up to a 16-year-old girl and hugged and kissed her on the neck, collar bone and cheek. He then grabbed her and licked her face. He was sentenced to imprisonment for four months and one week for that and other offending. The sentence was suspended upon his entering into a bond to be of good behaviour for a period of 18 months. He subsequently breached the bond by committing a further series of offences including driving whilst disqualified, serious criminal trespass, theft, breach of bail and stating false personal details. He was required to serve his sentence for the index offending in prison.
The respondent’s compliance with the first and second ISO and the first and second ESO was poor. He was remanded in custody on multiple occasions under Parole Board warrants. A summary of those breaches was attached to the applicant’s outline of argument.[1]
[1] FDN7.
After the second ESO was made on 14 September 2022, the respondent was arrested on a Parole Board warrant on 1 October 2022 for alleged breaches of the second ESO.
On 15 September 2022, the Parole Board interviewed the respondent and found that he had breached several conditions of the ESO.[2] Specifically:
·the “not commit offence condition” by being charged with assault against his wife and failing to report for his post custodial review in breach of his ANCOR obligations on 23 September 2022;
·the “obey reasonable directions of Community Corrections officer condition” by failing to report for supervision on 20 September 2022 and 23 September 2022; and
·the “reside at an address approved by his Community Corrections officer condition” by changing his residence without prior written approval of his Community Corrections officer on 14 September 2022.
[2] Affidavit of Angus Michael Santostefano sworn on 2 February 2023 (Exhibit AMS-2).
As a result of these breaches the Parole Board referred the respondent to the Supreme Court for consideration of a CDO. On 5 April 2023, McDonald J made a CDO expiring on 21 July 2023.[3] The respondent did not oppose the making of the CDO. The CDO was made on the basis that McDonald J was satisfied that the respondent had breached conditions of the second ESO and that, given his history, he posed an appreciable risk to the safety of the community if not detained in custody until 21 July 2023.
[3] Affidavit of Chol Garang Pager sworn on 23 June 2023 (FDN3) (Exhibit CGP-1).
The respondent was participating in the Aboriginal Men’s Family Violence program (“AMFVP”). The expiry date for the CDO was set to allow enough time for the respondent to complete the AMFVP on the basis that his participation in, and completion of, the program would reduce the risk he posed to the community.
Shortly after the CDO was made the AMFVP was cancelled due to the program facilitator having to take urgent unplanned leave. As a result, the respondent was unable to complete the AMFVP.[4] The respondent then commenced participation in the Domestic Violence and Family Violence Intervention program (“DVFVIP”) which is scheduled to conclude in November 2023. The program is co-facilitated by an Aboriginal facilitator to offer a more culturally informed program.[5]
[4] Affidavit of Angus Michael Santostefano sworn on 18 July 2023 (FDN5) Exhibit AMS-35.
[5] Affidavit of AMS Exhibit AMS-35.
The applicant applied for a variation to the expiry date of the CDO on the basis that it would facilitate the respondent’s completion of the DVFVIP which would, in turn, reduce the risk the respondent poses to the community. The respondent opposes the variation on the basis that failing to complete a treatment or education program does not, of itself, suggest that the respondent continues to pose the same risk to the community that warranted the making of the order.
Discussion
The powers of the Court to make, vary or revoke a CDO are contained in s 18 and 19 of the HRO Act. Section 18 sets out the jurisdictional facts that enliven the discretionary power. Section 19(1) of the HRO Act provides that the Court may, on application made by the Attorney General, the Parole Board, or a person subject to a CDO vary or revoke a CDO.
There is no specific test or other criteria set out in the HRO Act that the Court must consider before exercising its discretion to vary or revoke a CDO upon application by the Attorney General. This is in contrast to a variation application made by a person subject to a CDO which is governed by section 19(2) and (3). It is my view that the appropriate course is to consider the same factors that are relevant to imposing a CDO. In practical terms, given that the breaching conduct was established at the time the original CDO was made, this requires the court to consider whether the respondent continues to pose an appreciable risk to the safety of the community if not detained in custody.
In Attorney General (SA) v Grosser[6] Justice Stanley explained “appreciable risk” in the context of s 7 of the HRO Act as follows
I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible. Necessarily a risk must be anticipatory. An appreciable risk is a risk that is not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in future in a manner that poses a risk to the safety of the community. It is a question of degree.
[6] [2016] SASC 49.
Justice Stanley went on to state that, as the safety of the community is the paramount consideration, where a Court considers the matter is finely balanced, the protection of the community favours the making of the order.
In R v Schuster[7] the Court of Criminal Appeal held that the effect of making public safety the paramount consideration in the context of the Criminal Law (Sentencing) Act 1988 meant that generally, relatively smaller degrees of risk will outweigh considerations which, even strongly, support release.[8]
[7] (2016) 125 SASR 388.
[8] At [405] to [406].
In Attorney General (SA) v Drion[9] Justice Livesey referred to several authorities and set out various considerations relevant to the decision to make a continuing detention order as follows:
1 The purpose of detention is not punitive but protective;
2.When assessing the risk posed by a respondent, it is relevant to re-assess the risk given the nature and circumstances of any breach;
3.It is necessary to identify with some particularity the risk that the respondent poses to the community, before turning to consider whether detention is necessary to adequately protect the community from that risk;
4.In some cases the risk to the community may be immediate and the appropriate response may need to be detention. However, in other cases the risk may be less immediate, but no less profound, and may require detention so as to facilitate different measures associated with intervention and prevention; and
5.The respondent should not be detained for any longer than is necessary to ensure adequate protection of the community.
As mentioned earlier in these reasons, the critical question is whether Mr Drion poses an appreciable risk to the community and whether, in light of that risk, a continuing detention order should be made.[10] Whilst it was submitted to me that whether or not Mr Drion stands a better prospect of recovering if he is incarcerated (or otherwise) is not the test posed by the legislation, that seems to me to be a relevant consideration.
[9] [2020] SASC 120.
[10] Attorney-General (SA) v Brandon [2019] SASC 85, [12] (Hughes J).
The respondent submits that the Attorney General has not proven that, despite breaching conditions of the second ESO, the respondent’s risk to the safety of the community has changed such that the community can only be protected by the continuing detention of the respondent. As detention is a response of last resort to any breaches of a supervision order it should not lightly be imposed or, as in this case, extended to allow a respondent to participate in rehabilitation programs in custody. It is said that the reports obtained in this matter demonstrate potential problems with the appropriateness of various rehabilitation programs for the respondent. It is further contended that there is a no guarantee that the respondent will successfully complete the DVFVIP and that, even upon completion of that program, there is no guarantee that the respondent’s risk to the safety of the community will be ameliorated.
It is my view that the previous findings that the respondent poses an appreciable risk to the safety of the community were soundly based. He was assessed as being at high risk of recidivism. Both Dr Nambiar, a forensic psychiatrist, and Mr Luke Williams, a forensic psychologist, stated that the respondent remains at risk of committing another serious, violent or sexual offence and will continue to pose an appreciable risk to community safety unless, inter alia, his unmet treatment needs related to the use of alcohol and domestic violence were addressed. Mr Williams recommended that, amongst other things, the respondent be referred to a culturally appropriate program such as the AMFVP to address his use of domestic violence.[11] It is unfortunate that the AMFVP was cancelled before the respondent was able to complete it. This was due to no fault of the respondent however it does result in the risk that he poses to the community remaining unaddressed.
[11] 2^nd Affidavit at AMS 21.
The medical evidence is that the completion of a culturally appropriate domestic violence program will ameliorate the respondent’s risk to the community. I accept that evidence. It is also clear from the medical evidence, and the respondent’s antecedents, that he would benefit from alcohol rehabilitation. The respondent has not completed any rehabilitative or treatment programs in the community since being subject to the first ISO. He has failed to engage with appropriate rehabilitation organisations in the community despite encouragement and direction to do so. The breaches of the second ESO included the respondent being charged with assaulting his wife. In the circumstances, I consider that the respondent continues to pose an appreciable risk to the safety of the community.
Given his past difficulties it is highly unlikely that the respondent will complete suitable rehabilitation programs in the community. The DVFVIP is a custodial program run in a controlled environment where the respondent is less likely to be impacted by alcohol misuse or other factors within the community. It is culturally appropriate to the extent that it is co-facilitated by an Aboriginal facilitator. The respondent has started the program. He will be able to complete it by late November or early December 2023. In addition, he has been added to the waitlist for the Smart Recovery Program which will provide individual and group sessions aimed at recovery from addiction including alcohol addiction. I am hopeful that he will be accepted into that program before his release. In view of his outstanding treatment needs, his limited engagement with programs in the community, participating in the DVFVIP and possibly alcohol counselling in custody will assist him to address the risk he poses to the community.
The extension of the CDO is required to facilitate the necessary rehabilitation to reduce the respondent’s risk to the community. The risk cannot be addressed in any other way. For that reason, it was my view that it is appropriate that his CDO should be extended until the expiry of his ESO on 13 December 2023.