Attorney-General (SA) v Pickering - [2023] SASC 110

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v PICKERING
[2023] SASC 110
Reasons for Decision of the Honourable Justice Kimber
26 July 2023
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
Referral pursuant to s 18(1) of the Criminal Law (High Risk Offenders) Act 2015 from the Parole Board and an application by the Attorney-General for an extended supervision order pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015.
The extended supervision order application was made in November of 2022 and an interim supervision order was imposed in December of that year. In April of 2023, the Parole Board directed that the respondent be detained in custody as a result of breaches of the interim supervision order pending his attendance before this Court for the determination of whether or not a continuing detention order should be made.
The applicant submitted that a continuing detention order should be made until about the middle of 2024 to enable the respondent to complete the violence prevention program. The respondent did not dispute he had breached conditions of his interim supervision order. The respondent submitted that there is no certainty the violence prevention program will be made available in detention and submitted the discretion should not be exercised to grant a continuing detention order.
Held:
1.The application for a continuing detention order should be dealt with first with the application for an extended supervision order to be dealt with at a later time.
2.The respondent is a high risk offender and poses an appreciable risk to the safety of the community if not detained in custody.
3.The discretion should be exercised to order that the respondent be detained under a continuing detention order until 2 August 2023.

Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 9, 17, 18 and 19, referred to.
Attorney-General (SA) v Drion [2020] SASC 120; Attorney-General v Coaby [2019] SASC 137, applied.

ATTORNEY-GENERAL (SA) v PICKERING
[2023] SASC 110
Criminal: Application
KIMBER J:

On 31 May 2023, Mr Luke Pickering (the respondent) was the subject of two applications. First, a referral pursuant to s 18(1) of the Criminal Law (High Risk Offenders) Act 2015 (the Act) from the Parole Board (the application for a continuing detention order). Second, an application by the Attorney‑General for an extended supervision order pursuant to s 7(4) of the Act (the application for an extended supervision order).
I accepted the submission of the Attorney‑General that the application for a continuing detention order should be dealt with first. On 31 May 2023, I ordered the respondent be detained in custody for nine weeks. On the same day, I ordered the application for the extended supervision order be adjourned for eight weeks. These are my reasons.
Background
At the time of the hearing, the respondent did not dispute any of the following matters.
On 27 April 2017, the respondent committed the offence of Aggravated Causing Harm with Intention to Cause Harm. Because of that offence, the respondent is a high risk offender as defined in the Act. That offence breached a bond and was committed in the following way. The respondent was living with his stepbrother, Mr Young. The respondent came home grossly intoxicated and after the respondent returned home, the respondent and Mr Young argued. The respondent came to be holding a large kitchen knife. The argument continued outside the front of the house. The respondent and Mr Young fought and the respondent stabbed Mr Young five times to his left shoulder and armpit. The blade penetrated the shoulder of Mr Young and resulted in him sustaining a neck wound and laceration to his trachea. The attack only concluded when another person intervened by striking the respondent with a golf club which enabled Mr Young to get away from the respondent. Mr Young was taken to the hospital where he required surgery for his injuries including an air leak from his neck wound. Mr Young remained in hospital for a few days. After his discharge, he continued to experience pain and stiffness in his arm relating to the wound. When arrested for the offence relating to Mr Young, the respondent resisted police violently.
The respondent entered an early guilty plea. On 9 April 2018, the respondent was sentenced in the District Court to a head sentence of two years, eight months and 12 days. After sentences were imposed for the offending the subject of the bond, the total head was three years. A non‑parole period of one year seven months was imposed.
The offences committed on 27 April 2017 are not the only occasions on which the respondent has been violent:
1.On 31 May 2014, the respondent was convicted of two counts of Aggravated Assault (no weapon) against a child or spouse committed on 1 November 2013 and 25 March 2014 and Assault Police committed on 8 January 2014. Those offences breached a bond;
2.On 26 September 2012, the respondent was convicted of Aggravated Assault (no weapon) against a child or spouse committed on 1 June 2010;
3.On 9 September 2002, the respondent was found guilty of three counts of Assault Police committed on 4 May 2002 when the respondent was a youth. No conviction was recorded;
4.On 28 August 2001, the respondent, as a youth, agreed in a family conference that he had committed a Common Assault on a person other than a family member and had assaulted police on 19 July 2001; and
5.On 1 November 2000, the respondent, as a youth, agreed in a family conference that he had committed Assault Occasioning Actual Bodily Harm on 28 August 2000.
The respondent also did not dispute that he had also been subject to an intervention order taken out by a former partner and that it has been alleged that he has engaged in domestic violence against both of his previous long-term partners.
The first extended supervision order
On 9 December 2020, the respondent was made the subject of an extended supervision order for a period of two years pursuant to s 7(4) of the Act (the first extended supervision order).[1]
[1] First affidavit at [4] and Exhibit MIP-1 to the first affidavit.
The respondent breached the conditions of his first extended supervision order and was returned to custody on three occasions pursuant to Parole Board warrants. The breaches found proven by the Parole Board were:
1.Seven breaches of the no drugs condition 2.4.13;
2.A breach of the curfew condition 2.4.9;
3.A breach of the no alcohol condition 2.4.11;
4.A breach of the not commit offence condition 2.1;
5.A breach of the reporting condition 2.4.4;
6.A breach of the maintain telephone service condition 2.4.10; and
7.A breach of the substance abuse counselling condition 2.4.16.[2]
[2] First affidavit at [5]–[7] and Exhibits MIP-3–7 to the first affidavit.
The second extended supervision order and current interim supervision order
On 30 November 2022, the application for a second extended supervision order was made. On 8 December 2022, an interim supervision order pursuant to s 9(1) of the Act was imposed. The interim supervision order will remain in force until the application for the second extended supervision order is determined.[3]
[3] Section 9(2) of the Act.
The interim supervision order having been imposed, the respondent was in the community and subject to the interim supervision order for just under a month. On 7 January 2023, the Parole Board issued a warrant for the respondent’s arrest for alleged breaches of his interim supervision order. The respondent was arrested on the following day. On 21 February 2023, the Parole Board interviewed the respondent and found the following breaches:
1.Two breaches of the no drugs condition (condition 12(b)). The respondent admitted to drug use on 12 December 2022 and to testing positive to amphetamine/methamphetamine on 21 December 2022;
2.Two breaches of the electronic monitoring (condition 7). The respondent failed to fully charge his electronic monitoring device on seven occasions; and
3.One breach of the condition with respect to programs (condition 11). The respondent failed to engage with his OARS[4] worker, causing appointments to be rescheduled due to reporting being ‘sick’.
[4] OARS is the Offenders Aid and Rehabilitation Service, a non-government crime prevention agency providing support to prisoners and their families (
Notwithstanding the breaches, the respondent was released from custody on 22 February 2023. The Parole Board did not make any changes to the conditions of the interim supervision order.
The respondent remained in the community and subject to the interim supervision order for just over two weeks. On 10 March 2023, the Parole Board issued a warrant for the arrest of the respondent for further alleged breaches of the interim supervision order. The warrant was executed on the same day, but the respondent was already in prison having been arrested for alleged offending on 9 March 2023. On 4 April 2023, the Parole Board interviewed the respondent and found the following breaches:
1.A breach of the no alcohol condition (condition 12(a)). The respondent had purchased alcohol on 26 February 2023;
2.A breach of the condition not to commit an offence (condition 1). The respondent stole a credit card on 26 February 2022 and used stolen credit cards at several petrol stations on 10 March 2023;
3.A breach of the condition to obey his tenancy agreement (condition 10). On 20 March 2023, the respondent resided with another person at his accommodation; and
4.A breach of the condition not to attend licensed premises (condition 16). The respondent attended at the Hendon Hotel on at least 6 occasions between 22 February 2023 and 9 March 2023.
Pursuant to s 17(1)(b)(ii) of the Act, the Parole Board directed that the respondent be detained in custody pending attendance before the Supreme Court for determination as to whether a continuing detention order should be made. In a letter dated 18 April 2023, the Presiding Member of the Parole Board expressed the opinion that the respondent had not made a genuine effort to deal with his problems with alcohol and other drugs. The Presiding Member strongly recommended a continuing detention order ‘which would enable [the respondent] to undertake work whilst in custody but might reduce his likelihood of recidivism’.
The respondent has since pleaded guilty to offences relating to use of the credit card. The sentence imposed has been served.
The legislative scheme
The powers of the Court to make, vary or revoke a continuing detention order are contained in s 18 and s 19 of the Act.
Section 18(2) empowers the Court to make an order that a person be detained in custody until the expiration of the supervision order or a lesser period. Section 18(2) provides that the Court may, if satisfied a 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 discretion to impose a continuing detention order.
Section 18(3) provides the paramount consideration in determining whether to make a continuing detention order must be the safety of the community.
In Attorney-General (SA) v Drion,[5] Livesey J (as he then was) held that the considerations which are relevant to the determination that a Court must make under s 18(2) where a continuing detention order is sought include:
1.The purpose of detention is not punitive but rather protective;
2.When assessing the risk posed by a respondent for the purpose of whether a continuing detention order is required, as opposed to the risk assessment which gave rise to the making of the extended supervision order, it is relevant to re-assess that initial assessment taking into account 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 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.
[5] [2020] SASC 120, [68].
In the Attorney-General v Coaby,[6] Hughes J held that if the circumstances or nature of the breach do 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/varied conditions, then a continuing detention order should not be made.
[6] [2019] SASC 137, [19].
A brief summary of the submissions
I will not detail every aspect of the submissions of the respondent.
The respondent does not dispute he has breached conditions of his interim supervision order. The jurisdictional fact in s 18(2)(a) is established.
The respondent made no concession that he posed an appreciable risk to the safety of the community if not detained in custody. The respondent submitted that even if I was satisfied of the jurisdictional fact in s 18(2)(b), the discretion should not be exercised. The submissions included that appropriate programs and supports are available in the community; he has expressed some motivation to engage in a program(s) and that there is no certainty that a program which might be particularly suitable for the respondent will be made available to him in custody (i.e. – the Violence Prevention Program (VPP)). With respect to the VPP, the respondent also submits that even if the VPP is made available to him, it is unlikely that he will commence that program before the later part of this year. This means that it would not be completed until about the middle of next year.
The submissions of the respondent with respect to the VPP are consistent with the affidavits of Ms Cotton of the Department for Correctional Services tendered by the Attorney-General. The VPP is not available in the community. The VPP consists of group and individual sessions two days a week. It runs for about nine or 10 months. It is a program for men who have been sentenced for violent offences and have been assessed to be at a high risk of violent recidivism; it is designed to assist participants with their issues and to live without resorting to violence or other offending.
It is appropriate to assume that the VPP is a program suitable for the respondent. The evidence is that while serving the sentence imposed on 9 April 2018, the respondent was scheduled to commence the VPP at Mt Gambier Prison but was transferred to the Yatala Labour Prison (YLP). There was then insufficient time remaining on the sentence for the respondent to be placed in the VPP while in custody. There is no evidence, and the Attorney-General did not submit, that the transfer to YLP or the failure to complete the VPP while serving his sentence was in any way the fault of the respondent.
Nonetheless, emphasising, among other things, that since his release after serving the sentence imposed on 9 April 2018, the respondent has breached orders made pursuant to the Act on many occasions and the opinions of the Presiding Member of the Parole Board, the Attorney‑General submits that a continuing detention order should be made until about the middle of 2024. The Attorney‑General submits that a continuing detention order of that duration will allow the respondent to complete the VPP. On the evidence, the Attorney-General accepts that acceptance into, and an opportunity to complete, the VPP cannot be guaranteed. The Attorney‑General submits that if the respondent is not accepted into the VPP, or if his participation in that program once accepted is frustrated in some way, an application may be made to vary or revoke the continuing detention order pursuant to s 19 of the Act.
The second jurisdictional fact — s 18(2)(b) — discussion
I was satisfied that the respondent posed an appreciable risk to the safety of the community if not detained in custody. That risk is that he will access alcohol and other drugs which I was satisfied gave rise to an increased risk of the respondent engaging in violent conduct.
The respondent has a problem with alcohol and drugs. On 27 April 2017, the sentencing Judge described the respondent as ‘grossly intoxicated’. Having reviewed the history of the respondent, the sentencing judge observed that the ‘biggest challenge’ for the respondent would be alcohol.
Dr Raeside provided a report dated 13 February 2023 for the application for the extended supervision order. Dr Raeside reported that the respondent appears to have genuine motivation to address both his substance abuse and underlying violence risk. Nonetheless, I was satisfied that the respondent was yet to demonstrate a meaningful commitment to abstain from alcohol and other drug use. So much is obvious from the breaches of orders under the Act, including breaches involving alcohol and at least one other drug.
The respondent reported to Dr Raeside a long history of excessive drinking as a coping mechanism for his anxiety and depression. I accepted the opinion of Dr Raeside that methamphetamine is a significant risk factor for the respondent and that the respondent appeared to have an ‘ongoing and entrenched pattern of behaviour relating to violence, offensive behaviour and noncompliance with court ordered and community-based orders’. I also accepted the opinion of Dr Raeside that the respondent was at significant risk of further violent reoffending as well as general reoffending and that the respondent would benefit from participation in a program to address his substance misuse.
While in custody prior to the hearing on 31 May 2023, the respondent had commenced drug and alcohol counselling (the Smart Recovery Program) and had been referred for drug and alcohol counselling by telephone with Life Without Barriers (LWB). Both programs are available in prison and in the community. The respondent commenced the Smart Recovery Program on 12 May 2023. He had attended two sessions as at the date of the hearing. That program involves eight sessions which are ordinarily conducted weekly. This meant that the respondent should have completed the Smart Recovery Program within approximately six or seven weeks. The respondent was on a waiting list for the LWB program.
The discretion — consideration
I was satisfied the discretion to make a continuing detention order should be exercised.

I was not satisfied the period of the continuing detention order should have been until the VPP was completed by the respondent. If that order was made, a continuing detention order until approximately the middle of 2024 would have needed to be imposed. Notwithstanding the VPP may assist the respondent; can be assumed to be within the programs recommended as appropriate for the respondent by Dr Raeside; may reduce the respondent’s risk of offending and protect the community; and is a program only available in custody, there was no certainty the respondent would be accepted into the VPP. This is not to overlook if a continuing detention order was made with the duration being linked to completion of the VPP, an application pursuant to s 19 could be made if the respondent was not accepted into, or could not complete, the VPP. Nonetheless, I was not satisfied, for this respondent, at that time, that an order of such a duration should be made without greater certainty of acceptance into the VPP.
I was satisfied the period of the continuing detention should be for a time that would enable the respondent to complete the Smart Recovery Program and allow for some additional period of time in the event that any weekly session was missed. That had already occurred. The respondent appeared to have missed the most recent session due to attendance at court.
In reaching that view, I had not overlooked that the respondent submitted the Smart Recovery Program could be completed in the community; the signs of a possible increase in motivation; the availability of new accommodation; nor the balance of the submissions of the respondent. I had considered everything put by the respondent. However, the respondent has a poor history of failing to comply with orders pursuant to the Act. I was not satisfied that if released immediately the respondent would complete the Smart Recovery Program in the community.
I was satisfied that the respondent should be subject to a continuing detention order for nine weeks commencing 31 May 2023. That period should allow him to complete the Smart Recovery Program.
Notwithstanding I accepted the respondent is at risk of further offending, including violent offending; the poor compliance of the respondent with orders pursuant to the Act; his problems with alcohol and other drugs and the likelihood that the VPP is a program suitable for the respondent and that it is not available in the community; I was not satisfied a longer period of detention was appropriate. I was not satisfied that was appropriate in the absence of greater certainty about the availability of the VPP for the respondent.
On 31 May 2023, I adjourned the application for an extended supervision order for eight weeks. The respondent has indicated that he will consent to the application for an extended supervision order. On that date, there can be further submissions about the appropriate terms of the extended supervision order bearing in mind the respondent does not oppose the making of that order but may wish to make submissions with respect to the appropriate conditions.
Orders
1. Pursuant to s 18 of the Act, I make a continuing detention order until 2 August 2023;
2. The application for an extended supervision order is adjourned to 26 July 2023 at 9.15am for further submissions.