Attorney-General (SA) v Rankine - [2020] SASC 163

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v RANKINE
[2020] SASC 163
Judgment of The Honourable Justice Lovell
8 September 2020
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS
Application by the Attorney-General (SA) for an extended supervision order in respect of the respondent, pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
Whether the Court's power to make an extended supervision order is enlivened - whether the respondent poses an appreciable risk if not supervised under an extended supervision order - effect of counselling services on risk posed by respondent
Held, per Lovell J:
1. The respondent is a high risk offender.
2. The respondent poses an appreciable risk to the safety of the community if not supervised under an extended supervision order.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 3, s 5, s 7; Criminal Law Consolidation Act 1935 (SA) s 21, s 24, s 83D, referred to.
Attorney-General (SA) v Grosser [2016] SASC 49, considered.

ATTORNEY-GENERAL (SA) v RANKINE
[2020] SASC 163
LOVELL J.
Overview

The respondent has a long history of violent offending. On 26 April 2013, the respondent was sentenced in the District Court of South Australia to a sentence of imprisonment of eight years and six months, for one count of aggravated causing harm with intent to cause harm.
On 18 November 2019, prior to the respondent’s release from custody, the Attorney-General applied for the respondent to be made subject to an extended supervision order (‘ESO’) for a period of five years, pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’). On 13 December 2019, I made an interim supervision order (‘ISO’) in respect of the respondent, which is to remain in place until the application for the ESO is determined.
The respondent was opposed to that order and is opposed to the imposition of an ESO. He appeared without counsel.
Background
It is necessary to set out the background to this application and, in particular, the respondent’s criminal history. The respondent has been convicted of 78 offences, of which 24 relate to the use of violence and weapons. The respondent’s offending commenced in 1982 and includes, two counts of assault occasioning actual harm, common assault, assault police, recklessly causing serious injury and armed robbery.
In 1998, whilst on parole, the respondent committed the offence of wounding with intent to cause grievous bodily harm. The respondent stabbed the victim three times. This offending occurred against the backdrop of significant drug and alcohol abuse. The respondent was sentenced to a term of imprisonment of six years, six months and 21 days, with a non-parole period of two years and three months.
In March 2007, whilst on parole in relation to this offending, the respondent committed two counts of causing harm intending to cause harm against the same victim and one count of aggravated assault. The respondent attacked the victim with a knife and a hammer. For this offending, he was sentenced to a term of imprisonment of two years, 15 months and 17 days.
In 2011, three months following the expiry of his sentence in relation to the two counts of causing harm, the respondent committed the offence of aggravated causing harm with intent to cause harm. This is the offending for which the respondent was last in custody and is the index offending for the purpose of this application.
Power to make an ESO
The discretionary power to make an ESO is enlivened upon the Court’s satisfaction of two jurisdictional facts:[1] first, that the respondent is a high risk offender and secondly, that the respondent poses an appreciable risk to the safety of the community if not supervised under the order. In determining whether to make an ESO, the safety of the community is the paramount consideration.[2] This is consistent with the object of the Act, which is “to provide the means to protect the community from being exposed to an appreciable risk of harm posed by serious sexual offenders and serious violent offenders”.[3] An ESO thus serves a protective, rather than a punitive, purpose.
[1]    Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7(4)(a)-(b).
[2]    Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(5).
[3]    Criminal Law (High Risk Offenders) Act 2015 (SA) s 3.
Material before the Court
I have received and considered the following material:
·Affidavit of Mr O’Flaherty dated 18/11/19;
·Report of Ms Porcelli dated 06/12/19;
·Report from OARS dated 14/11/19;
·Affidavit and Annexures of Mr Rankine (containing reports of actioned counselling and OARS Community Transitions) dated 28/05/20;
·Letter from Mikka Aniulis dated 24/06/20;
·Letter from Dimity Bondarenko dated 29/11/19;
·Report of Dr Jennings dated 25/05/18;
·Affidavit of Mr Rankine received on 22/06/20 (with numerous annexures);
·Report of Dr Raeside dated 20/02/20; and
·Report from OARS Community Transitions by Adnan Beslagic (rehabilitation counsellor) dated 06/03/20.
In addition to that material, Dr Raeside gave evidence before me on the risk posed by the respondent.
Both Mr Rankine, and Mr O’Flaherty for the Attorney-General, made submissions. I have considered all of the submissions.
A high risk offender
The definition of “high risk offender” includes, relevantly, “a serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence”.[4] “Serious violent offender” means a person convicted of a serious offence of violence. “Serious offence of violence” has the same meaning as in s 83D(1) of the Criminal Law Consolidation Act 1935 (SA):
serious offence of violence means a serious offence where the conduct constituting the offence involves—
(a)the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person; or
(b)serious damage to property in circumstances involving a risk of the death of, or harm to, a person; or
(c)perverting the course of justice in relation to any conduct that, if proved, would constitute a serious offence of violence as referred to in paragraph (a) or (b).
[4] Criminal Law (High Risk Offenders) Act 2015 (SA) s 5(c).
“Serious harm” includes harm that endangers a person’s life, that consists of, or results in, serious and protracted impairment of a physical or mental function or that consists of, or results in, serious disfigurement.[5] “Serious offence” means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.
[5] Criminal Law Consolidation Act 1935 (SA) s 21.
Following a guilty plea, the respondent was sentenced in 2013 to a term of imprisonment of eight years and six months with a non-parole period of seven years for the offence of aggravated causing harm with intent to cause harm.[6] The offence carries a maximum penalty of 13 years imprisonment. It is clearly a “serious offence”.
[6] Criminal Law Consolidation Act 1935 (SA) s 24(1).
It is thus necessary to determine whether the conduct constituting the offence involved the “death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person”.[7]
[7] Criminal Law Consolidation Act 1935 (SA) s 83D(1)(a).
The victim of the offending was the respondent’s partner. The night before the offending, the respondent became angry with the victim because she fell asleep when he wanted to have sex with her. The respondent was jealous of a suspected relationship between the victim and another man. The respondent had been drinking and using drugs in the days leading up to his offending.
Over a period of several hours, the respondent subjected the victim to a number of assaults. The respondent used a knife to stab the victim’s head. He hit her to the head and face with his fists. He broke a chair, plates and a mirror over her head. He kicked her to the head and the ribs. He used a hammer to hit her head and feet, and stabbed her body with a screwdriver. He eventually restrained the victim and threatened to kill her.
The victim suffered numerous injuries, including lacerations and bruising to the arms and legs, lacerations to the scalp, bruising to the eyes, a fracture to a bone in her left leg and a small haemorrhage to her brain.
The basis of the charge (to which he pleaded guilty) was the act of stabbing the victim to the head with a knife. By his plea, he admitted that he was intending to cause the victim harm and to disfigure her.
Self-evidently the conduct constituting the offence involved serious harm to the victim. The respondent is thus a serious violent offender. As he was sentenced to a term of imprisonment for this offending, the respondent is a high risk offender within the meaning of s 5(c) of the HRO Act. The first jurisdictional fact is established.
An appreciable risk
For the discretion to make an ESO to be enlivened, I must also be satisfied that the respondent poses an appreciable risk to the community if not supervised under the order. The meaning of “appreciable risk” was considered by Stanley J in Attorney-General (SA) v Grosser[8] to mean:[9]
… 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.
[8] [2016] SASC 49.
[9] Attorney-General (SA) v Grosser [2016] SASC 49 at 9 [29].
The “risk” posed by the respondent must be identified with some particularity.
Reports prepared whilst the respondent was in custody
Whilst in custody, the respondent was found to be at a high risk of violent reoffending and was thus deemed suitable for involvement in the Violence Prevention Program (‘VPP’). In 2015, the respondent commenced the VPP. He attended three modules of the program: orientation, distress tolerance and mindfulness. A report on his progress within the VPP noted that he demonstrated motivation to benefit from the program and an appreciation of emotion regulation strategies. His participation in the VPP ceased when he was transferred to a different prison following an incident in which he allegedly held his cellmate hostage. Mr Rankine was charged with aggravated kidnapping. Mr Rankine, without legal representation, successfully contested that charge. Following his removal from the VPP, the respondent engaged in individual treatment with a focus on his responsivity factors.
In 2018, the respondent applied for parole, but his application was refused. In the reasons for refusal, the Parole Board noted a concern that the respondent’s “obvious high risk of violent reoffending remains unaddressed” and that he “requires intervention to address his risk to the safety of the community”. The Parole Board recommended that the respondent receive such intervention as may be available to him to address his risk of violent reoffending.
Dr Jennings
Dr Jennings is a psychiatrist. He prepared a report in respect of the respondent’s competence to commit the offence and fitness to stand trial in 2018.[10]
[10] Ex R7.
Dr Jennings noted that the respondent has no history indicative of a major psychiatric disorder. In Dr Jennings’ opinion, the respondent’s principal diagnosis is that of Narcissistic and Antisocial Personality Disorder against the backdrop of extensive and long-standing polysubstance abuse when not incarcerated. This report was prepared over two years ago, in a context different to the current application. However, the diagnosis remains relevant to the risk posed by the respondent.
Dr Raeside
Report of 20 February 2020
Dr Raeside is a psychiatrist. Pursuant to s 7(3)(b) of the HRO Act, Dr Raeside prepared a report, dated 20 February 2020, on the risk posed by the respondent. In his report, Dr Raeside noted elements of paranoia to be evident in the respondent’s presentation. Whilst there is no indication that his paranoia is delusional or unfounded, Dr Raeside remarked that it appears to be “somewhat extreme”. In Dr Raeside’s opinion, the paranoid element increases the respondent’s risk of acting aggressively and violently “quite significantly”, particularly if he feels the need to strike pre-emptively to avoid harm.
Dr Raeside diagnosed the respondent as having a Mixed Personality Disorder with Antisocial and Borderline traits, as well as possible Narcissistic traits. The respondent’s underlying personality disorder, in Dr Raeside’s opinion, has been further aggravated by his long-term substance abuse. This opinion is consistent with that provided by Dr Jennings. Like Dr Jennings, Dr Raeside did not find any evidence of a mental illness, despite his paranoia.
Dr Raeside assessed the respondent as being at a “very high risk of further serious violence” given his extensive history of violent offending. Despite the respondent’s good intentions and resolve, his risk remains high, particularly when he is stressed or using drugs and alcohol (which further disinhibit him and possibly increase his paranoia). He recommended that the respondent be assertively supervised in the community, with practical support and assistance in terms of appropriate accommodation, employment opportunities and regular periodic drug testing.
Evidence before me
Dr Raeside did not deviate from this opinion when giving evidence in court. He summarised the respondent’s condition as follows:
… Mr Rankine has a severe personality disorder, that is, a long-standing pattern of thinking, feeling and behaving that leads to making maladaptive choices. Instead of choosing the things that are of most benefit he picks the opposite bringing adverse consequences to himself and the substance abuse as well.
Mr O’Flaherty, counsel for the Attorney-General, produced to Dr Raeside a copy of two letters prepared since the respondent was released from custody. The first letter was from Mikka Aniulis from the Community Transitions “Don’t Become That Man” Program.[11] The letter stated that the service provides preventative early intervention services to men who are concerned about controlling their behaviour within intimate relationships. The letter stated that the respondent initiated contact with the service and completed an initial assessment over the phone.
[11] Ex R5.
The second letter shown to Dr Raeside was from Dimity Bondarenko of OARS Community Transitions.[12] It stated that the respondent voluntarily attended four one-on-one counselling sessions. The letter noted that the respondent demonstrated a high level of engagement and appeared positive from the outset. He appeared motivated to address his behavioural concerns and the connection between his anger and his prior offending. Dr Raeside noted that the respondent’s engagement with these services demonstrates insight into his behaviour. When asked whether these programs could reduce the respondent’s risk, Dr Raeside noted that while it would reduce his risk in certain situations, his overall risk will remain high due to his static risks factors.
[12] Ex R6.
The respondent tendered a letter by Adnan Beslagic of OARS Community Transitions.[13] Mr Beslagic was the respondent’s Rehabilitation Counsellor. The letter noted that Mr Rankine participated in three counselling sessions. The letter noted that the respondent engaged well in the sessions he attended and that the respondent demonstrated a willingness to learn skills and strategies to support him pursuing a “pro-social lifestyle”.
[13] Ex R10.
Dr Raeside was also shown the Completion of Treatment report prepared by Jennifer Schaffer, an accredited Mental Health Social Worker from Action Counselling.[14] The report noted that the respondent is committed to living a quiet life without conflict. The report recommended that the respondent work with his case worker to identify areas of study to pursue in order to develop his intellect and reach his full potential. In Ms Scaffer’s opinion, the respondent does not need ongoing counselling; she anticipates that his anxiety and depression will resolve once the pending application is finalised.
[14] Ex A4.
The report did not alter Dr Raeside’s view. Dr Raeside accepted that Mr Rankine had performed well since his release on the ISO and that he had engaged positively in his rehabilitation. He stated that while the reports offer positive comments about Mr Rankine’s engagement, they supported his opinion that the respondent requires ongoing assertive supervision. Dr Raeside described “assertive supervision” to mean supervision which enables intervention before a problem occurs.
Should the order be made?
Mr O’Flaherty, on behalf of the Attorney-General, submitted that, in light of the respondent’s past offending and the opinion offered by Dr Raeside, the respondent poses an appreciable risk to the community if not supervised under an ESO. The Attorney-General seeks conditions identical to the conditions of the respondent’s ISO for a term of five years. In the applicant’s submission, the five‑year term is necessary to protect the safety of the community and to allow for the “very assertive supervision” recommended by Dr Raeside.
The respondent is opposed to the order. Mr Rankine presents as an intelligent and articulate person. His submissions, while a little discursive, were directed towards demonstrating that he at last has “learnt his lesson” and that he does not want to return to gaol. I consider that since his release, and indeed for a period before his release, he has clearly engaged well in his rehabilitation. Mr Rankine accepts the seriousness of his past offending but submitted that through his participation in various programs, he has been able to address his “criminogenic factors”.
I have no doubt that Mr Rankine sincerely believes that he has addressed his “criminogenic factors”. However, as Dr Raeside observed, objectively he still remains at a high risk of relapse. His performance to date can be seen to have occurred against the background of strict supervision.
As mentioned, the power to make an ESO is discretionary. The discretion to is to be exercised with the object of the HRO Act, namely, the protection of the community, in mind. The fact that Mr Rankine has not breached his ISO in the seven months since his release is promising. It indicates that he is committed to complying with the conditions of his release in the community. I acknowledge that Mr Rankine has taken steps to reintegrate into society and has been proactive in making use of the counselling services available to him.
However, I accept that the respondent’s risk to the community remains high due to his prior offending and other static factors. Without meaning to diminish the respondent’s efforts, I note Dr Raeside’s comment regarding the effect of these programs on the risk posed by the respondent:
Well, it would reduce his risk of reoffending in certain situations, but his overall risk is going to remain higher because of his past history. In saying that there is the usual thing that we come across. He's still going to remain at very high risk because of his static unchanging factors. But these issues will reduce his dynamic risk, that is, he may look at more adaptive ways of dealing with stress rather than resorting to his previous behaviours. So although his overall risk remains an immediate risk, it may decrease. I should add, I think Mr Rankine is an intelligent man who has an intellectual understanding of these matters in his past. He sees that his past offending is not appropriate, however it’s that next level down that he needs to be able to learn the skills, particularly now he’s more motivated to help him to do that. So he may want to do the right thing but needs some extra help to have the tools to be able to do that.
(Emphasis added)

I have no reason to reject Dr Raeside’s assessment or his recommendation that the respondent be supervised assertively within the community. When giving evidence before me, Dr Raeside made the following remark:
… Really he's at the critical stage now, having been released from custody recently, that he is having to integrate into the community in a positive way despite difficulties, particularly where he is located with his accommodation, and the highest risk is in the earlier stages in that he does deal with things in a positive way, doesn't resort to substance abuse and offending then within a couple of years things should show that he has actually changed and adapted but in the meantime he's at risk still.
(Emphasis added)
I accept Dr Raeside’s opinion that the respondent is at a critical stage in his life. The respondent will benefit from supervision during the early stage of his release, when the risk posed by him is at its highest. For those reasons, it is necessary to order that the respondent be subject to an ESO on the conditions sought by the applicant.
However, I am not satisfied that the respondent should be subject to supervision for the five-year term (as sought by the applicant). Given the opinion of Dr Raeside and the respondent’s compliance with the ISO, a term of two years and six months is appropriate as it will enable the respondent to be supervised when he is most at risk of resorting to past behaviours.
Order
1The respondent is to be subject to an ESO for a period of two years and six months, commencing from the date of this judgment.