Attorney-General (SA) v Rigney Brown (No 2)

[2024] SASC 8

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

ATTORNEY-GENERAL (SA) v RIGNEY BROWN (No 2)

[2024] SASC 8

Judgment of the Honourable Justice McIntyre  

19 January 2024

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS 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 4 October 2023, the Parole Board satisfied itself that the respondent had breached three conditions of his extended supervision order in June, July and August of 2023. Pursuant to s 17(1)(b)(ii), 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.

The applicant seeks a continuing detention order until the end of July 2024 to enable the respondent to complete a Domestic Family Violence Intervention Program (‘DFVIP’) to be held at Mobilong between 19 February 2024 and 19 July 2024. 

Held:

1.      The respondent requires rehabilitation, support and treatment in order to reduce his risk to the      community. 

2.      The DFVIP is appropriate rehabilitation however, the applicant cannot guarantee that the     respondent will be able to attend the DFVIP at Mobilong.  The DFVIP is available to the respondent in the community.

3.      The breaches of the extended supervision order do not indicate a failure of the order to protect      the community.

4.      The application for a continuing detention order is dismissed.

Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 17, 18, referred to.

Attorney-General (SA) v Rigney-Brown [2023] SASC 73., discussed.

Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11; Attorney General (SA) v Drion [2002] SASC 120, considered.

ATTORNEY-GENERAL (SA) v RIGNEY BROWN (No 2)
[2024] SASC 8

Criminal: Application

1. McINTYRE J: 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 has breached the terms of both ESO’s on multiple occasions.  He has been the subject of three previous referrals for consideration of the imposition of a CDO.  The most recent application for continuing detention was filed in this Court on 9 March 2023.  I delivered judgment on 11 May 2023 declining to impose a CDO.[1]  I will not repeat the material set out in that decision.  Ultimately, I found that whilst serious, the breaches which led to the referral were dealt with promptly by the Parole Board and the Police.  The respondent had not been convicted of a further offence of violence.  The ESO was accordingly effective in protecting the community.  Further, the respondent had recently been accepted into the National Disability Insurance Scheme (‘NDIS’) which would likely ameliorate the barriers to rehabilitation and compliance faced by the respondent in the past.

   [1]    Attorney-General (SA) v Rigney-Brown [2023] SASC 73.

5. Following this decision, on 4 October 2023, the Parole Board was satisfied that the respondent had again breached conditions of his second ESO as follows:

6. Condition one (not commit any offence) by allegedly causing harm with intent and resisting police on 11 August 2023;

   ·Condition four (supervision) by failing to report for supervision on 26 July 2023; and

   ·condition eight (drug and alcohol) by testing positive to methamphetamine on 2 June 2023 and 31 July 2023.

7. 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.  The application for continuing detention was filed in this Court on 28 November 2023.

8. As on the previous occasion, there is no dispute that the respondent breached the second ESO as outlined in the findings of the Parole Board on 4 October 2023.  In saying that I note that the offences with which the respondent was charged following an incident on 11 August 2023 have been reduced to minor indictable offences and are contested.  The respondent is now on simple bail for the offences of assault police and hinder police.  He denies these charges but is prepared to plead guilty to resisting.  Plainly the incident was not as serious as the material before the Parole Board suggested but nonetheless resulted in a breach of condition one of the ESO.  Accordingly, the issues for determination are, again, 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

9. A number of affidavits and documents have been tendered by the applicant in this matter as follows:

   ·Affidavits of Emily Oriana Brown made on 27 November 2023 and 13 December 2023 (exhibit A1) and a further affidavit made on 17 January 2024 (exhibit A7);

   ·affidavit of Amanda Kate Pirone made on 19 December 2023 (exhibit A2) and an undated report from Ms Pirone (exhibit A3);

   ·letter from Matthew Pedler, Flinders Wellbeing Centre dated 15 December 2023 (exhibit A4);

   ·affidavit of Rebekah Brand made on 10 January 2024 (exhibit A5); and

   ·affidavit of Jared Shane Frost made on 17 January 2024 (exhibit A6).

10. In addition, Ms Pirone gave evidence on 21 December 2023. 

11. Ms Pirone is employed by the Department for Correctional Services (‘DCS’) as the Acting Clinical Supervisor in the Rehabilitation Programs Branch.  In addition to providing an affidavit and report, she gave evidence concerning the DCS assessment of the respondent’s treatment needs and the rehabilitation options available to him in custody. 

12. The respondent was placed on the Aboriginal Men’s Family Violence Program (‘AMFVP’) whilst in custody in February 2023.  This program terminated for “unforeseen operational issues” unconnected to the respondent after he had completed nine group sessions.  Accordingly, it was proposed that the respondent attend the general Domestic Family Violence Intervention Program (‘DFVIP’).  Ms Pirone explained that the programs are the same in terms of structure, format and content.  The difference is that the AMFVP is conducted by an Aboriginal clinician and has more flexibility for cultural adaptations to suit the needs of the men in the program. 

13. The respondent was enrolled in the DFVIP in the community in May 2023 following the decision not to impose a CDO.  He was offered a range of supports to facilitate his completion of the DFVIP and, in addition, had external support through the NDIS.  Unfortunately, the respondent attended only three sessions and was subsequently terminated due to non-attendance.

14. Ms Pirone indicated that there is no AMFVP offered in the community.  The DFVIP is offered in the community on a rolling basis.  The respondent could be offered a place in the program within 11 to 12 weeks.  In the custodial setting, DCS will offer both AMFVP and the DFVIP.  The DFVIP will be offered in Mobilong in February 2024 and the AMFVP will be offered at Cadell in March 2024.  Ms Pirone was not able to guarantee that the respondent could be accommodated in those programs as there are a number of factors to be considered, including whether the respondent is deemed suitable to be relocated to those institutions. 

15. Ms Pirone was not able to give evidence about other matters relating to the respondent’s rehabilitation in particular what, if any steps, had been taken or were proposed to address the recommendations of Mr Balfour referred to in the previous decision.[2]  Accordingly, the matter was adjourned, and additional affidavit material was filed by the applicant.

    [2] Ibid at [14]

16. The further affidavits address the recommendations made by Mr Balfour.  In her affidavit, Ms Brand,[3] a social worker in the offender development unit, sets out the assistance that the respondent has received whilst in custody from the Aboriginal Legal Rights Movement (‘ALRM’) prisoner care program, the Flinders wellbeing psychologist Mr Pedler, Aboriginal Sobriety Group for alcohol and other drug counselling and assistance from the NDIS specialist support coordinator.  In addition, Ms Brand confirmed that the respondent was currently employed in prison industries working mostly in metal work.  He is also currently enrolled in education classes twice a week.  I was informed in submissions that this equalled to one hour twice per week relating to computing.

    [3]    Exhibit A5.

17. In his affidavit, Mr Frost,[4] an occupational therapist within the offenders services NDIS team of DCS, confirmed that the respondent has a NDIS plan.  This started on 4 May 2003 and is to be reviewed on 11 November 2024.  Mr Frost outlined support provided and that plan.  However, there has been a recent occupational therapy assessment of the respondent which indicates that he needs further supports.  In particular the assessment recommends approximately 119 support hours per week relating to personal care tasks, activities of daily living, support for community access and recreational activities, employment support, therapeutic support including behaviour supports, support coordination and mentoring.  An application has been made for that increased support but has yet to be determined. 

    [4]    Exhibit A6.

18. Mr Frost’s affidavit and the submissions in relation to that affidavit, confirm that the respondent has a care worker through NDIS who has arranged for suitable, alternative accommodation for the respondent if he is to be released on his ESO, that he is linked with an indigenous NDIS provider and the plan will be tailored to his cultural needs.  The respondent can get some NDIS support in custody however he will be eligible for considerably more support if the review recommendations are accepted by NDIS. 

19. The further affidavit from Ms Brown[5] annexes various documents from the prison health services.  These confirm that the respondent’s neurological condition is being investigated as recommended by Mr Balfour; that he has been referred for psychiatric and psychological assistance and that he was offered the opportunity to see an Aboriginal healer.  The material also indicates that the respondent self-referred to Drug and Alcohol Services SA (‘DASSA’) whist in the community.  He was admitted on 11 July 2023 for methamphetamine withdrawal.  It appears he was uncooperative, and self-discharged on 17 July 2023.  Finally, the material attached to Ms Brown’s affidavit deals with the recommendations Mr Balfour made in relation to obtaining a SACAT guardianship order and access to other programs.  I am satisfied that steps have been taken to address Mr Balfour’s recommendations.

    [5]    Exhibit A7.

    Submissions

20. The applicant seeks a CDO until the end of July.  It is said this would enable him to complete the DFVIP and then have a period in the community under the conditions of the ESO. 

21. 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, during his 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.  These breaches are said to demonstrate that the respondent poses a risk to the community which is not being effectively managed by a supervision order. 

22. 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.  He was unsuccessful in doing so in the community.  If detained on a CDO, the respondent could commence the course on 19 February 2024 and complete it on 19 July 2024.  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.

23. The respondent on the other hand opposes the CDO.  The respondent has been in custody since 11 August 2023.  He has had limited rehabilitation.  The DFVIP does not address all of the issues faced by the respondent.  It does not assist his education, improve his prospects of employment, to disassociate himself with drug use or to re-socialise him.  There is no guarantee that the respondent will be able to undertake the DFVIP given it requires approval of a transfer from Yatala Labour Prison to Mobilong Prison.  It may be that this is not approved. 

24. On the other hand, the respondent now has a good relationship with his NDIS worker.  His NDIS provider is an indigenous organisation which will provide culturally appropriate support.  The applicant has accommodation available to him in the community and the support offered by the NDIS program in addition to the support that will be provided under the ESO.  He is engaging with drug and alcohol counselling through Aboriginal Sobriety Group and he has been speaking to the Flinders wellbeing psychologist.  The ALRM prisoner care program will provide him with case management support in the community.  He has significant NDIS funding which will provide him with support on his release.  He may well receive further NDIS support if the recent application is successful.  He has shown a willingness to engage with rehabilitation if provided with support.  He has demonstrated no behavioural problems in custody since he was arrested in August.  On any view, the support structure available to him this year is significantly better than last year.  Finally, it was put that he has already sustained a substantial penalty for his breaches of failing to attend on one occasion, two positive drug tests and some alleged minor offending on 11 August 2023 and accordingly he is aware of the consequences should he not comply with the ESO. 

    Consideration

25. 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.  The pattern under the second ESO has been the same.  I am 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. 

26. The question is then whether he ought to be detained in custody. 

27. The letter from the Parole Board dated 13 November 2023[6] details the shortcomings in the respondent’s compliance with the second ESO.  Whilst there are a number of factors that affect his ability to comply with the orders as outlined in the May 2023 decision, he has shown no commitment to rehabilitation in the community.  He has been resistant to supervision.  The Parole Board has formed the view that he cannot be managed in the community and recommends a CDO because it provides, at least, a possibility that he can be engaged at some level with intervention. 

    [6]    EOB 3 of Exhibit A1 Affidavit of Emily Oriana Brown made on 27 November 2023.

28. This is a finely balanced decision.  This is the respondent’s fourth referral for a CDO.  The referral was made on appropriate grounds.  Whilst I accept that the respondent has significant barriers to rehabilitation as outlined in Mr Balfour’s report he has failed to recognise, and take advantage of, support that has been offered to him.  It is challenging to determine how much of his non-compliance with the ESOs is the result of his disabilities and how much is due to a lack of motivation.  On the other hand, the applicant asks the Court to impose an ESO which will see the respondent in custody for almost 12 months.  The stated purpose is to enable the respondent to participate in the DFVIP, however there is no guarantee that he will in fact be able to do this.  Whilst he has a guaranteed position in the DFVIP I cannot be assured that he will be permitted to transfer to Mobilong for the purpose of attending that program.  This is unacceptable in circumstances where completion of that program is the main reason for the application. . 

29. The purpose of a CDO is protective rather than punitive.[7]  It is an exceptional step to constrain the liberty of a respondent who has served a sentence of imprisonment.  A respondent should not be detained any longer than is necessary to ensure the adequate protection of the community.[8]  The community is protected whilst the respondent remains in detention.  He cannot, however, be detained indefinitely.  He requires appropriate support and rehabilitation.  It is unfortunate that the applicant is unable to guarantee that the rehabilitation that has been identified as appropriate for the respondent, the DFVIP, will in fact be available to him.  Given that I cannot be satisfied that the respondent will in fact receive the intervention and treatment proposed by the applicant in detention, I cannot be satisfied that his risk to the safety of the community will be ameliorated by the imposition of a CDO.  As on the last occasion, I am not satisfied that the nature of the breaches in this matter indicate a failure of the ESO to safeguard the community.  The provision of suitable NDIS funded accommodation, the support offered by his current NDIS plan and NDIS support worker, combined with the terms of the ESO are in my view sufficient to protect the community.  The prospect of additional NDIS funding is also encouraging.  In these circumstances, I am not satisfied that the risk posed by the respondent requires him to be detained and I dismiss the application. 

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

    [8]    Attorney General (SA) v Drion [2002] SASC 120.