Attorney-General (SA) v Rigney-Brown

[2023] SASC 73

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

ATTORNEY-GENERAL (SA) v RIGNEY-BROWN

[2023] SASC 73

Judgment of the Honourable Justice McIntyre  

11 May 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

On 31 October 2022, this Court made an extended supervision order with respect to the respondent pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act).

On 21 February 2023, the Parole Board satisfied itself that the respondent had breached three conditions of his extended supervision order on 10 November 2022. 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 Court for determination as to whether a continuing detention order should be made under s 18(2) of the Act.

Held:

1.      The referral for a continuing detention order be dismissed.

Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 15, 17, 18, referred to.
Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11, considered.

ATTORNEY-GENERAL (SA) v RIGNEY-BROWN
[2023] SASC 73

Criminal: Application

McINTYRE J:

1. The respondent, David George Rigney-Brown, comes before the Court on a referral from the Parole Board under s 17(1)(b)(ii) of the Criminal Law (High Risk Offenders) Act2015 (SA) (the HRO Act). The question for determination by the Court is whether the respondent should be subject to a Continuing Detention Order (CDO) pursuant to s 18(2) of the HRO Act.

   Background

2. On 10 August 2020, the respondent was determined to be a high risk offender and was placed on an Extended Supervision Order (ESO) under s 7(4) of the HRO Act for a period of two years. On 31 October 2022, the Court made a second ESO for a further period of two years. The second ESO is due to expire on 30 October 2024.

3. The ESOs were made on the basis that the respondent is a serious violent offender as a result of convictions for aggravated commit theft using force, aggravated attempted commit theft using force, assault, and aggravated assault.

4. The respondent breached the terms of the first ESO on a number of occasions resulting in him being remanded in custody on multiple occasions.  The breaches found proven by the Parole Board are set out in attachment one of the written submissions of the applicant.  He was convicted of eight criminal offences during the same period, none of which involved violence.  These are set out in attachment two of the applicant’s written submissions.  The respondent was referred to the Supreme Court on two occasions for consideration of a CDO during the term of the first ESO.  On each occasion, the Court declined to make a CDO.  On the second occasion this was due to the imminent expiry of the first ESO. 

5. By report dated 1 September 2022, Dr Raeside, consultant forensic psychiatrist, considered the respondent to be at high risk of further violent offending noting that he has a clear diagnosis of antisocial personality disorder and that his failure to comply with the conditions of the first ESO prevented him from engaging in any meaningful programs. Accordingly there was no decrease in his risk factors.  Dr Raeside considered that the primary focus of rehabilitation should be to address the respondent’s substance misuse, engagement in pro-social activities, stable accommodation, and assistance to avoid contact with antisocial peers. 

6. The second ESO was granted on 31 October 2022. On 10 November 2022, the Parole Board issued a warrant for the respondent’s arrest under s 15 of the HRO Act following allegations that the respondent had breached the second ESO. The warrant was executed on 16 November 2022 and the respondent was taken into custody. He has remained in custody solely on that warrant since that date.

7. On 21 February 2023, the Parole Board was satisfied that the respondent had breached conditions of his second ESO as follows:

   ·Condition four (supervision) by failing to report for supervision on 10 November 2022;

   ·Condition five (place of residence) by failing to return to his approved place of residence on 5 November 2022; and

   ·Condition six (curfew) by failing to be at his residence between 9 pm and 6 am on 22 November 2022.

8. The Parole Board directed that the respondent was to remain in custody pending attendance before this Court for determination as to whether a CDO should be made. 

9. The application for continuing detention was filed in this Court on 9 March 2023.

   The legislation

10. The test that the Court must apply is whether the respondent has breached the supervision order and whether he poses an appreciable risk to the safety of the community if not detained in custody.  If those jurisdictional facts are established, the Court must decide whether an order should be made.  The Court is required to give paramount consideration to the safety of the community in exercising its discretion.[1]  The purpose of the order is protective rather than punitive.[2] 

    [1] HRO Act s 18(3).

    [2]    Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11 at [85].

11. There is no question that the respondent breached the second ESO as outlined in the findings of the Parole Board on 21 February 2023.  It is concerning that this occurred only 10 days after his release from custody on the second ESO.  The more difficult issues are whether he poses a risk to the safety of the community if not detained in custody and, if he does, whether he ought to be detained.

    Evidence

12. A number of affidavits have been filed by the applicant in this matter as follows:

    ·affidavits of Irene Angela Nikoloudakis dated 8 March 2023, 31 March 2023 and 5 May 2023;

    ·affidavit of Amanda Kate Pirone made on 21 April 2023;

    ·affidavit of Dr Thomas Edwin Turnbull made on 5 May 2023; and

    ·affidavit of Tara-Lee Liddy made on 8 May 2023.

13. In addition, Dr Turnbull and Ms Pirone gave evidence.  I accept the evidence tendered by the applicant.

14. The affidavit of Ms Nikoloudakis made on 8 March 2023 annexed, amongst other documents, a psychological report from Mr Richard Balfour dated 5 December 2022.  Mr Balfour’s detailed report made a number of recommendations concerning the respondent’s rehabilitation.  Mr Balfour agreed with Dr Raeside that the respondent has an antisocial personality disorder.  He also considered that he had several risk factors for an acquired brain injury and recommended that this be assessed by a neurologist.  Mr Balfour further suggested that the respondent be referred to a psychiatrist to assess his suitability for pharmacotherapy.  Mr Balfour considered that the respondent has a severe language specific disability.  His presentation and psychological test results were consistent with him suffering from a central auditory processing disorder (CAPD).  He considered that the combination of the respondent’s CAPD and associated severe psychosocial deficits would make him eligible for an NDIS funded community rehabilitation package. 

15. Ms Pirone is employed by the Department for Correctional Services (DCS) as an Acting Clinical Supervisor in the Rehabilitation Programs Branch.  She gave evidence concerning the DCS assessment of the respondent’s treatment needs and the rehabilitation options available to him in custody.  On 16 January 2023, an assessment was administered by a DCS clinician which estimated the risk of domestic violence recidivism over a five-year period.  The respondent’s score placed him in the highest range and rendered him eligible for participation in the Domestic and Family Violence Intervention Program (DFVIP).  The respondent has not been convicted of any domestic violence offence.  It is unclear on the evidence why these courses are thought appropriate to address the types of violent offending for which the respondent has been convicted.  No issue was taken with this during submissions, and I note that the respondent indicated a willingness to attend these programs.  Accordingly, I proceed on the basis that the courses are appropriate forms of rehabilitation for the respondent.

16. Initially, the respondent was placed on the Aboriginal Men’s Family Violence Program (AMFVP).  This program terminated for “unforeseen operational issues” unconnected to the respondent after he had completed nine group sessions.  The program is not due to resume.  The balance of Ms Pirone’s affidavit and evidence related to the content and timing of the general DFVIP courses.  Ms Pirone had not been made aware of Mr Balfour’s report and could not comment upon the recommendations in it. 

17. Ms Liddy is employed by DCS as the manager of the Aboriginal Offender Management and Rehabilitation Services.  Her affidavit, made on 8 May 2023, deals with the various options for rehabilitation available to the respondent in the community.  She has not had any personal involvement with the respondent but, based on her perusal of multiple DCS reports, she considers his most significant criminogenic factors to be his substance misuse, attitude and cognitions towards offending, impulsivity, and problematic associates.  She further noted that on 14 April 2023 the respondent was granted an NDIS support package which is currently being coordinated by a DCS occupational therapist who would continue to coordinate that package if the respondent is released from custody subject to an ESO.  Ms Liddy recommended that the respondent be supported to develop independent living skills through one of two Aboriginal NDIS providers if he was placed in the community.  

18. Dr Turnbull is the medical director of the South Australian Prison Health Service (SAPHS).  He has not had any personal involvement with the respondent but had reviewed his medical records.  He had not received a copy of the report of Mr Balfour until shortly before he swore his affidavit.  There is no explanation as to why this report was not provided to SAPHS.  Whilst the report was not addressed to DCS, it is apparent from the affidavit of Ms Nikoloudakis dated 8 March 2023 that the report was in the hands of the Parole Board at the time of its referral dated 7 March 2023 and that it was in the hands of the Crown Solicitor’s Office from the time of that referral.  It also appears that DCS NDIS Offender Services had the report around February/March 2023 for the purpose of assisting the applicant with the NDIS application.[3]  Given the further medical investigations recommended by Mr Balfour and the concerns he raises about possible impediments to the respondent’s successful participation in rehabilitation, it is surprising to say the least that the report was not provided to either SAPHS or indeed to Ms Pirone and her colleagues in the Rehabilitation Program Branch. 

    [3]    Affidavit of Irene Nikoloudaikis made on 5 May 2023

19. Dr Turnbull’s evidence established that, having become aware of the report, he had taken steps to arrange a GP appointment for the respondent with a view to making the referrals recommended by Mr Balfour.  As the referrals for the neurological review and MRI brain scan will take place in the public health system, the time frames for these referrals are similar to those which would apply in the community.  Whilst not dismissing Mr Balfour’s opinion, Dr Turnbull indicated that the diagnosis of CAPD is a controversial one. 

20. The most recent affidavit of Ms Nikoloudakis annexed correspondence confirming that the respondent’s NDIS access request was successful and that he became eligible to be a participant on 13 April 2023.  She further annexed a file note that indicated that a DCS social worker met with the respondent, after this, to assist him with his NDIS planning meeting.

    Submissions

21. The applicant seeks a CDO until 6 December 2023 following which the respondent would be released on the conditions in the second ESO. 

22. The applicant submits that the respondent poses an appreciable risk to the safety of the community if not detained in custody.  The applicant contends that, in his brief period of time in the community since being made subject to the second ESO, the respondent did not demonstrate any commitment to complying with his conditions nor addressing his criminogenic risk factors.  It is said that his recent breaches must be considered in the context of a significant pattern of non-compliance with supervision orders.  Whilst the respondent has not been found to have committed any offences of violence since the completion of his head sentence for the index offence of aggravated robbery, the respondent has committed a number of other offences.  It is said that this demonstrates that he poses a risk to the community which is not being effectively managed by a supervision order. 

23. The applicant submits that a strong factor in favour of making a CDO is that the respondent’s engagement with rehabilitative and supportive services in the community has been very limited.  Completing the DFVIP would be of benefit to him.  The DFVIP is a men’s behavioural change program which is facilitated both in custody and community settings by two facilitators.  It takes approximately 20 weeks to complete.  If detained on a CDO, the respondent could commence the course before the end of June and finish it at the end of November 2023.  The applicant submits that the custodial setting will provide the respondent with assistance and encouragement to complete the program in circumstances where the respondent has demonstrated a lack of motivation and commitment to rehabilitation in the community.

24. The respondent on the other hand opposes the CDO.  He has been in custody since 16 November 2022.  By the time the DFVIP commences he will have spent well over seven months in custody and by the time it completes he will have been in custody for just over one year.  This is half the duration of the second ESO.  Apart from his willing participation in the AMFVP which prematurely concluded through no fault of the respondent, he has been offered no rehabilitation nor have the serious issues identified by Mr Balfour in his report dated 5 December 2022 been addressed.  It is said that the minimalist approach to his rehabilitation whilst he has been in custody is unacceptable. 

25. It is submitted that whilst the respondent committed other offences during the first ESO, he has not committed any violent offence since he was sentenced in 2016.  The convictions set out in the attachment to the applicant’s written submissions are minor matters not involving violence.  Accordingly, it is said that there is no evidence over the last six years of his life to bear out the assertion that he poses a continuing risk of violence to the community.  It is contended that the evidence demonstrates that there are greater opportunities for rehabilitation in the community and that, unlike on previous occasions, the respondent will now have the assistance of an NDIS provider in relation to the various challenges he faces as identified by Mr Balfour.  Finally, it was contended that the conditions of the ESO provide protection to the community in the sense that any breach of those conditions will see the respondent again arrested on a Parole Board warrant.

    Consideration

26. The respondent’s risk of violent offending was assessed as “high” at the time the first ESO was made.  Due to his continual breaches of that ESO, nothing had occurred to reduce that risk by the time of the second ESO.  I am therefore satisfied that the respondent presents an appreciable risk to the community based upon his history, the reports of Dr Raeside and Mr Balfour, and the material from the Parole Board and DCS.  However, I am not satisfied that detention is required to address that risk. 

27. The breaches that led to this application do not suggest any deterioration in his behaviour since the making of the second ESO.  The breaches, whilst undoubtedly serious, did not involve offending against members of the community and were moreover dealt with promptly by the Parole Board and the Police.  The respondent has not been convicted of any further violent offending since 2016.  The matters for which he has been convicted since then could generally be described as property offences.  He has not been convicted of any offences following the second ESO.  The conditions of the first and second ESO have therefore been effective in protecting the community. 

28. I accept the applicant’s submission that the respondent’s compliance with the first and second ESO was very poor.  He has shown no commitment to rehabilitation in the community and he has been resistant to supervision.  However, Mr Balfour’s report provides some explanation for this.  The evidence before me suggests cause for optimism that the respondent will respond more appropriately if released.  Some of the barriers to rehabilitation and compliance with the conditions of the ESO identified by Mr Balfour will be ameliorated by the respondent’s acceptance onto the NDIS.  This is likely to be enhanced if he is able to receive the culturally appropriate assistance outlined in Ms Liddy’s affidavit. 

29. The respondent will remain subject to the stringent conditions of the ESO.  If the respondent continues to breach his conditions or fails to cooperate with rehabilitation, it is likely that he will find himself the subject of a further referral by the Parole Board.  Having been in custody since 16 November 2022 for the current breaches, the respondent is well aware of the consequences of non-compliance. 

30. Accordingly, I decline to make an order for continuing detention.