Attorney-General (SA) v Pennington - [2019] SASC 180

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v PENNINGTON
[2019] SASC 180
Reasons for Decision of The Honourable Justice Kelly
25 October 2019
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
Application by the Attorney-General (SA) for an extended supervision order (ESO) pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the HRO Act) in respect of the respondent for a term of three years.
The respondent was found guilty at trial of aggravated recklessly causing serious harm and was ultimately sentenced to imprisonment for five years. He has been subject to an interim supervision order since his release from custody on 18 September 2018.
The respondent concedes that he is a high risk offender pursuant s 5 of the HRO Act and does not oppose the making of an ESO provided that the terms of the order permit him to depart from South Australia and not be subject to the effect of the ESO unless he returns to the state of South Australia during the period of the ESO.
The applicant contends that the terms of the ESO as proposed by the respondent are outside the scope of the Court’s jurisdiction, would render effective supervision of the respondent impossible when he is absent from South Australia, and would not effectively protect the safety of the community.
Held:
1. The application for an extended supervision order is granted for a term of 12 months.
2. The respondent is a high risk offender who poses an appreciable risk to the safety of the community if not supervised under the order.
3. To make an ESO in the terms requested by the respondent would be outside the scope of the Court’s jurisdiction and would render effective supervision of the respondent impossible when he is absent from South Australia.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, s 5, s 9, s 10, referred to.

ATTORNEY-GENERAL (SA) v PENNINGTON
[2019] SASC 180
Criminal: Application
KELLY J.

The Attorney-General for the State of South Australia has applied for an extended supervision order in respect of the respondent, Jason Pennington.
The application is brought pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the HRO Act).
The applicant seeks an extended supervision order (ESO) for a period of three years on the basis that the respondent is a high risk offender who poses an appreciable risk to the safety of the community if not supervised under such an order. The respondent conceded that some form of an ESO should be made, however the main issue in contention between the parties is as to the nature of the terms and conditions of the ESO, with particular reference to the conditions which relate to whether or not the respondent is restrained from leaving the state of South Australia without permission.
In order to understand the issue, it is necessary to set out the respondent’s background and history.
Factual background and history
On 24 November 2014, the respondent was found guilty of aggravated recklessly causing serious harm. That offence, committed on 2 August 2013, constitutes the index offending to which the ESO application relates (the index offending). On 23 December 2014, he was sentenced to eight years’ imprisonment with a non‑parole period of five years for the index offending. Eventually, after an appeal to the Court of Criminal Appeal, he was resentenced to five years’ imprisonment with a three-year non-parole period, backdated to 19 September 2013, when he was initially taken into custody.
The respondent has a history of serious criminal offending, particularly violent offending against women, the majority of which has occurred in Western Australia. In 2001, he was sentenced in respect of three offences of sexual penetration without consent and an offence of robbery whilst armed to a total term of imprisonment of 10 years.
In 2005, he was convicted of the offence of aggravated unlawful wounding and offences of possessing a weapon with intent to cause injury and possessing a weapon with intent to cause fear and was sentenced to a total term of imprisonment for six months.
Between 2007 and 2011, the respondent’s offending primarily related to the use of a motor vehicle and included offences of dangerous driving occasioning grievous bodily harm and driving under the influence of alcohol.
In December 2012, he was convicted of the offence of unlawful assault causing bodily harm in circumstances of aggravation and breaching protective bail conditions. The victim of that offending was the respondent’s domestic partner at that time, who was also later the victim of the index offending in 2013. The respondent was sentenced to a total term of imprisonment of eight months which was suspended.
It was against this background, and while subject to the suspended sentence imposed for the December 2012 conviction, that the respondent was sentenced for the index offending, which comprised a physical assault against his then partner on 2 August 2013. The circumstances of that offending were that the respondent and his then partner had been drinking during the day. At some stage in the evening, they both arrived at the home of a mutual friend where they continued drinking and began arguing loudly. The respondent took out a steak knife from a drawer and stabbed the victim in the back as she sat on a couch in the lounge room. He then fled the house without rendering any assistance to the victim. The victim suffered serious physical harm in the form of a penetrated chest cavity and a punctured lung. The extent of the injuries was such that had she not been airlifted to Adelaide and received medical intervention, she may have died within hours.
Against that background, the applicant filed an application for an ESO under the terms of the HRO Act on 30 August 2018.
An interim supervision order was made by this Court pursuant to s 9 of the HRO Act pending the determination of the application for an ESO. That order was enlivened upon the respondent’s release from imprisonment on 18 September 2018.
On 4 March 2019, Dr Raeside, a forensic psychiatrist, provided a detailed psychiatric report pursuant to s 7(3) of the HRO Act. On 10 May 2019, Dr Raeside supplemented that report with oral evidence.
The respondent’s position
The respondent accepts that he is a high risk offender within the definition provided by s 5 of the HRO Act. The respondent does not oppose the making of an ESO provided that the order includes the following conditions:
1.The respondent may depart from the State of South Australia with the intention of living in another state; if this occurs the respondent will not be subject to the effect of the Supervision order unless he returns to the state of South Australia during the period of the order;
2.Should the Respondent return to the State of South Australia the Order will take effect.
The respondent is now 40 years old and was born in Tjuntjuntjara in Western Australia. His father’s family came from the Aṉangu Pitjantjatjara Yankunytjatjara Lands (APY Lands). The respondent now wishes to return to Tjuntjuntjara which is a dry community situated some 550 kilometres east of Kalgoorlie in Western Australia. The respondent’s elderly father lives in that community along with the respondent’s daughter and the respondent’s grandson. His elderly father has dementia and a number of other health issues and is dependent on his family to look after him.
The respondent proposes that he move between the Tjuntjuntjara community and Kurrawang, a medium sized Aboriginal community located 12 kilometres south-west of Kalgoorlie where he has other relatives. He has also expressed an intention, depending on the situation in which he finds himself, to live in Esperance. He asserts that if he is permitted to go to Western Australia he will look for work in Kurrawang as there is not much work in Tjuntjuntjara.
The respondent submits that, as Tjuntjuntjara is a dry community and because he has family support and access to traditional healers, he can participate in men’s business and will be in a better position to avoid reoffending.
The respondent submits that an ESO in the terms currently proposed by the applicant would require him to stay in South Australia and would make it difficult to visit the APY Lands.
The respondent submits that if he is prevented from living on or near his traditional lands, both on the APY Lands and in Western Australia, this will have adverse consequences for him and he is more likely to reoffend if he cannot play a meaningful role in his culture and lore.
For the purpose of making this decision, I was assisted by information provided by a several people. Ms Fiona Pemberton, who is employed by the Paupiyala Tjarutja Aboriginal Corporation (PTAC), has had extensive experience in the community to which the respondent hopes to return. She affirmed that the Tjuntjuntjara community has historically been a dry community. She has known the respondent for 22 years. She also knows his elderly father, who resides in Tjuntjuntjara and is not expected to live for many more years. Ms Pemberton realistically acknowledged that although Tjuntjuntjara prohibits the bringing in and consumption of liquor, this is difficult to police as the closest police station is in Kalgoorlie which is 660 kilometres from Tjuntjuntjara by dirt road.
Nevertheless, the Tjuntjuntjara community is a relatively stable and safe community, being one of the remotest communities in Australia.
The PTAC manages a range of services in the area, including a health service. The PTAC Board met and approved the return of the respondent to the community to reside with and care for his elderly father. Ms Pemberton affirmed that the respondent will be welcomed home by the community.
Ms Pemberton acknowledged that although the respondent’s ex-partner (the victim of the index offending) and her current partner do not reside in the Tjuntjuntjara community, they may visit from time to time to visit family, and to attend funerals and cultural lore business.
I also heard from Mr Matthew Pedler who is a clinical psychologist currently treating the respondent. On 13 September 2019, he reported with reference to the respondent as follows:
Jason has engaged well in his appointments and normally seeks me out for a conversation each week. Since my previous letter in April 2019 our appointments have taken on a supportive maintenance approach given his reasonable mental health and lack of mental illness for some time now. Jason continues to report that his mood is stable, that his self-esteem has improved, that he has remained abstinent from alcohol use, that he does not experience any temptation for alcohol use, that he holds no ill will toward his former partner or her current partner, and of reformation in terms of his previous poor coping behaviours (violence and alcohol abuse) with improved emotional regulation skills. Jason continues to engage well with the programs on offer at [Lakalinjeri Tumbetin Waal rehabilitation facility] …
… The focus of future support is likely to continue [to] be on maintenance of his improvements thus far and regarding distress related to living with his indefinite legal restraints inherent in his current ESO order.
Mr Andrew Collett AM, an experienced barrister who visits the Tjuntjuntjara community regularly, provided the following information about that community:
…
From my own knowledge and experience Tjuntjunjtara is a very strong traditional Western Desert community run by an indigenous local council. It is one of the strongest traditional communities in the Western Desert.
The community has a clear and effective prohibition on the service, sale and possession of alcohol[.] It is very isolated and has a single general store and a community centre and the traditional elders and the indigenous Council, Paupiyala Tjarutja, are resolute in their prohibition of alcohol.
The residents of Tjuntjuntjara still observe and practice their traditional law and custom. One indication of this is that the Spinifex people were the first traditional community in Western Australia to be granted native title by Consent Determination. As a consequence, if Jason Pennington was resident in Tjuntjutjara he would be subject to strong and regular traditional discipline and mentoring and would have access to traditional healers and elders who could assist him with any emotional or spiritual problems he might have.
I know of Jason Pennington’s father: Lawrence Pennington[.] I acted for his grandmother Myrtle Pennington during and after the 1984 Royal Commission into British Nuclear Tests in Australia as she was one of the Spinifex people who was removed from her traditional lands by Australian Range Patrol Officers during the nuclear tests. …
…
From my own knowledge and experience, I know that the ability to participate in traditional business in the Western Desert Cultural Bloc (of which Tjuntjara and Maralinga are part) is very important to the religious and secular life of traditional people. The Tjuntjuntjara community would understand that Jason cannot take part in traditional business while in custody. However, if a traditional person is not in jail there is a strong social and cultural expectation that they participate in the traditional life of the community – including the frequent religious rituals and ceremonies.
There seems to be no doubt that it is in the respondent’s best interests, and in the interests of his long-term rehabilitation, that he eventually be permitted to return to his homeland.
However, it is not that simple. The relevant provisions of the HRO Act provide as follows (my emphasis):
7—Proceedings
…
(4)The Supreme Court may, on application under this section, order that the respondent is to be subject to an extended supervision order if satisfied that—
(a)     the respondent is a high risk offender; and
(b)     the respondent poses an appreciable risk to the safety of the community if not supervised under the order.
(5)The paramount consideration of the Supreme Court in determining whether to make an extended supervision order must be the safety of the community.
(6)The Supreme Court must also take the following matters into consideration in determining whether to make an extended supervision order in respect of the respondent:
(a)     the likelihood of the respondent—
(i)committing a further serious sexual offence; or
(ii)committing a further serious offence of violence; or
(iii)committing a terrorist offence, or otherwise being involved in a terrorist act, or committing a serious offence of violence,
(as the case may be) if not supervised under the order;
(b)     the reports of any prescribed health professional (as directed under subsection (3)) furnished to the Court;
(c) any report prepared by the Parole Board under section 64(5) of the Correctional Services Act 1982;
(d)     any report required by the Court under section 20 (including the results of any statistical or other assessment furnished to the Court as to the likelihood of persons with histories and characteristics similar to those of the respondent committing a further relevant offence);
(e)     any relevant evidence or representations that the respondent may desire to put to the Court;
(f)    any treatment or rehabilitation program in which the respondent has had an opportunity to participate, including his or her willingness to so participate and the extent of such participation;
(g)     in the case of a respondent released on parole—the extent to which he or she has complied with the conditions of his or her release on parole;
(h)     in the case of a respondent subject to an existing extended supervision order—the extent to which he or she has complied with the terms of the order;
(i)    in the case of a respondent who is a registrable offender (within the meaning of the Child Sex Offenders Registration Act 2006)—the extent to which he or she has complied with any obligations under that Act;
(j)    the circumstances and seriousness of any offence in respect of which the respondent has been found guilty according to his or her criminal history, and any pattern of offending behaviour disclosed by that history;
(k)     any remarks made by the sentencing court in passing sentence;
(l)    any other matter that the Court thinks relevant.
In the event that the Court decides to make an ESO there are a number of mandatory provisions required to be included in the order pursuant to s 10 of the HRO Act:
10—Supervision orders—terms and conditions
(1)The following conditions apply in relation to an extended supervision order:
(a)     a condition that the person subject to the order not commit any offence;
(b)     a condition that the person subject to the order is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 2015) or any part of a firearm;
(c)     a condition prohibiting the person subject to the order from possessing an offensive weapon unless the Supreme Court permits the person to possess such a weapon and the person complies with the terms and conditions of the permission;
(d)     a condition that the person subject to the order—
(i)be under the supervision of a community corrections officer; and
(ii)obey the reasonable directions of the community corrections officer; and
(iii)submit to such tests (including testing without notice) for gunshot residue as the community corrections officer may reasonably require;
(e)     any other condition that the Court thinks fit and specifies in the order;
(f)    any condition imposed by the Parole Board under section 11.
The applicant submits that the terms of the ESO proposed by the respondent are outside the scope of the Court’s jurisdiction, would render effective supervision of the respondent impossible when he is absent from South Australia, and would not effectively protect the safety of the community.
While a person subject to an ESO is bound to comply with its terms and conditions regardless of where they are located, the relevant supervisory agencies, that is, the supervising Community Corrections Officer and the Parole Board, have no jurisdiction to enforce the ESO while that person is outside of South Australia.
Furthermore, there exists no reciprocal arrangement between the relevant South Australian agencies and other interstate agencies in Australia whereby the supervisory requirements of an ESO may be transferred to an equivalent agency within another state. Any supervision undertaken by authorities outside the jurisdiction would be reliant on the willingness of those agencies to informally assist the Department for Correctional Services and/or the Parole Board.
An ESO granted by this Court, therefore, is not binding on any interstate authorities so as to require them to act in any supervisory or enforcement capacity outside of the jurisdiction.
In summary, neither the Department for Correctional Services or the Parole Board, which are charged with the duty to supervise and enforce compliance with an ESO, are empowered to do that while the respondent is outside of South Australia. Therefore, I accept the applicant’s submission that to make an ESO in the terms requested by the respondent would be outside the scope of this Court’s jurisdiction and would render effective supervision of the respondent impossible when he is absent from South Australia.

I move to consider the risk that the respondent poses to the community.
The evidence of Dr Raeside was of great assistance to me in the determination of this matter.
The effect of his opinion expressed in his report dated 4 March 2019, and supplemented by the oral evidence he gave, is that the respondent continues to be at high risk of further violent offending, due to the respondent’s significant history of violent offending and sexual offending, his limited (and only very recent) insight into that behaviour, and due to his tendencies to minimise his behaviour and blame circumstances and victims for his past behaviour.
Dr Raeside is of the opinion that the respondent also has an elevated risk of sexual offending due to issues with his childhood abuse, together with his increased risk of violence at times.
Dr Raeside described both the respondent’s risk of violent recidivism and risk of sexual recidivism as “real and significant risks”.
His traumatic experience in his developmental years left him with a personality disturbance in which he maladaptively used alcohol and violence as a way of addressing issues of low self-esteem and other fundamental identity issues.
Dr Raeside expressed the opinion that the respondent does not require psychiatric treatment but would benefit from ongoing individual psychological therapy aimed at increasing his ability to deal with day to day challenges, find adaptive coping mechanisms and improve his motivation to remain abstinent from alcohol and drugs.
Dr Raeside suggested that psychological therapy would reduce the respondent’s risk of reoffending however he would still be at high risk of reoffending due to his significant history of violent and sexual offending, together with only a very moderate, recent and far from comprehensive increase in insight and understanding of his past behaviour.
The respondent requires ongoing close assertive supervision in the community to assist him to reintegrate, participate in community based programs and restrict him from engaging in situations and circumstances that would increase his risk of reoffending.
Furthermore, he is at a greatly heightened risk of reoffending should he return to his traditional lands in South Australia due to potential personal conflicts with others in the community, particularly considering the difficulties in accessing adequate supervision and assistance in remote areas. There is also a real risk of the respondent resuming alcohol abuse without adequate supervision and therapy.
The respondent’s personality type requires therapy aimed at helping him to look at adaptive rather than maladaptive choices, to recognise that he is making maladaptive choices, and to provide different strategies to deal with it. Such therapy needs to be administered by someone with expertise in the area, which is to be distinguished from the expertise and therapeutic techniques a traditional healer might offer. The type of therapy the respondent requires involves use of various psychological techniques including cognitive behaviour therapy and motivational therapy to help him to be motivated to avoid alcohol and to follow through with adaptive choices.
Traditional western psychological therapy is better equipped than therapy from traditional healers to address some of the respondent’s specific issues that might lead to reoffending such as control of aggression, anger and avoiding alcohol.
The respondent would benefit from a combination of traditional western psychological therapy and support provided by traditional healers. The latter would specifically focus on issues relating to the respondent’s traditional background and community issues.
The further the respondent geographically travels from Adelaide the harder it will be for him to access the appropriate therapy that he requires. If he is required to stay in Adelaide, or in its close vicinity, that will provide easier access to some of the therapies he needs.
Furthermore, Dr Raeside expressed concern about the respondent’s desire to return to his traditional lands to fulfil his cultural obligations and identified some of the risk factors involved if the respondent were to return to his traditional lands. He expressed some concern about the respondent’s ability to handle interpersonal conflicts in less aggressive ways in order to not reoffend and the potential for him to use alcohol in those communities.
I am mindful in this respect of the fact that most of the respondent’s offending, including the subject offence which gave rise to these proceedings, took place when the respondent was living on his traditional lands and in the context of the respondent being under the influence of alcohol.
It is apparent from the information before me that, notwithstanding the fact that Tjuntjuntjara is a dry community, other communities in which the respondent has expressed a desire to visit and/or reside are not. In any event, it is apparent from the candid remark of Ms Pemberton that if the respondent wishes to obtain alcohol he will do it one way or another wherever he is living.
The evidence before the Court demonstrates that the traditional lands of the Tjuntjuntjara community include Maralinga in the west of South Australia and the Great Victoria Desert in Western Australia adjoining the border with South Australia, north of the Nullarbor Plain. The respondent has reported to his therapist, Mr Pedler, that his lore obligations span across north and western South Australia, southern Northern Territory and south-west and middle of Western Australia.
The evidence before the Court has established that, under the terms and conditions proposed by the respondent, even if the respondent were permitted to leave South Australia, the South Australian supervisory authorities have no practical way of determining if the respondent was to re-enter the APY Lands in South Australia unless the respondent self-reported.
Accordingly, under the terms of the order as proposed by the respondent, there is no practical way for this Court to be satisfied that either the general community, or the specific community which includes his former partner, is protected should the respondent choose to visit or reside in South Australia.
The applicant has sought an ESO for a period of three years. I am mindful of the fact that an interim supervision order was made on 14 September 2018 and came into effect on 18 September 2018 when the respondent was released from custody. It appears that within that timeframe the respondent has engaged positively with his therapist and has refrained both from breaching the interim supervision order and from reoffending.
In these circumstances, I am satisfied that an ESO for a further period of 12 months will be adequate to protect the community and enable the respondent to continue with the rehabilitation and therapy he needs.
It will be up to the Attorney-General within the next 12 months to make a determination as to whether any further ESO application should be made at the expiration of the ESO I make today. It will be up to the respondent to demonstrate within that time that he is capable of leading a law-abiding life and complying with the terms of the ESO.
For these reasons, I accede to the applicant’s application that an ESO in the terms proposed by the applicant be made for a period of 12 months from today.