Attorney-General (SA) v RM - [2022] SASC 160

Supreme Court of South Australia
(Criminal: Application)

ATTORNEY-GENERAL (SA) v RM
[2022] SASC 160
Judgment of the Honourable Justice McDonald (ex tempore)
22 December 2022
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER
The Attorney-General made an application for RM to be the subject of an extended supervision order (‘ESO’) pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’). In October 2019, RM was convicted of the aggravated indecent assault of RM’s five-year-old step granddaughter and was sentenced to three years and six months imprisonment with a non-parole period of two years and 10 months. The sentence was backdated to September 2018. RM already had two prior convictions for sexually offending against his daughter, one occurring in 1991 when his daughter was six years old and one in 1997 when she was twelve years old. RM was released on parole in February 2022, at which time he was 73 years old and had been diagnosed with dementia.
An application for an ESO first came before the Court in March 2022, at which time the Attorney-General also made an application for an interim supervision order (‘ISO’). The Court declined to make an order for an ISO in that instance. Since that time, RM has been residing in an aged care facility, where he is unable to leave the facility alone due to fear of getting lost due to his mental condition. The Court did however order expert reports to assist in the determination of whether an ESO should be made.
The matter next came before the Court for submissions on 29 November 2022. At that time a further application was made for an ISO pending the outcome of the determination of the application for the ESO. This application was brought despite RM residing in the aged care facility for over six months without incident. The position of the Attorney-General remained that RM posed an appreciable risk to the safety of the community and as such, an ISO and ESO were a necessary measure for the safety of the community.
The application for an ISO was refused. The accommodation where RM currently resides provides the most suitable environment for RM and also affords the best protection for the community, as RM does not leave the facility unsupervised. That environment, and RM’s accommodation would be placed at risk should RM be subject to a supervision order. This would have the paradoxical effect of removing RM from the environment which afford the best available protection for the community given the personal circumstances of RM.
Held:
1. The application for an ESO is dismissed.
Criminal Law (High Risk Offenders) Act 2015 (SA), referred to.
Attorney-General v Grosser [2016] SASC 49; Attorney-General v Karpany [2020] SASC 219, considered.

ATTORNEY-GENERAL (SA) v RM
[2022] SASC 160
Criminal: Application
McDONALD J: (ex tempore)

This is an application by the Attorney-General for RM to be the subject of an extended supervision order (‘ESO’) for a period of six months pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’). This matter has an unusual history.
On 17 October 2019 RM was sentenced to three years and six months imprisonment with a non-parole period of two years and 10 months. This sentence was backdated to commence on 18 September 2018.
The sentence was imposed for the aggravated indecent assault of RM’s five-year-old step‑granddaughter. At the time of sentence RM was 70 years old. RM already had prior convictions for sexually offending against his daughter. There were in fact two episodes of previous sexual offending, one of which occurred in 1991 when his daughter was six years old and one in 1997 when she was 12 years old.
It is worth observing that whilst this offending was clearly very serious, it all occurred in the context of familial relationships in which RM lived with and/or had ongoing regular access to his victims.
RM was released on parole on 18 February 2022. At that time he was 73 and he had been diagnosed with dementia.
The application for an ESO first came before the Court on 9 March 2022. On that occasion the Attorney-General made an application for an interim supervision order (‘ISO’) pending the outcome of the application for an ESO. RM did not appear at that hearing as he was an inpatient at the Modbury Hospital. He had been taken to hospital because on the day after his release from custody he had been found wandering the streets apparently lost and in a disorientated condition. When the intensive corrections officers attended at his house they discovered that RM had forgotten how to charge his electronic monitoring bracelet and that he had no pillows, blankets, towels, clothes or toiletries and his room was in an unclean and unkempt state. RM advised he had not eaten since he had been released from custody. The intensive corrections officers also located six unfilled prescriptions for medication.
When RM was first admitted to hospital he was still the subject of electronic monitoring as part of his parole conditions. On 15 March 2022 the Parole Board suspended that condition. He has not been the subject of electronic monitoring since that time.
On 9 March 2022, when the matter first came before the Court Ms Hannaford Gunn appeared for RM. She made submissions about the reasons why RM should not be the subject of an ISO. Those principally related to the fact that he was 73 years old and an inpatient at the Modbury Hospital. At that stage the plan was that he would remain there until such time as his accommodation could be sorted out and he could be moved into a suitable aged care facility. It was put that in those circumstances not only was an ISO unnecessary but RM’s circumstances were such that he would be unable to comply with some of the conditions.
On that basis Stein J declined to make an ISO, however her Honour ordered a report from a neuropsychologist and a psychiatric report addressing whether RM continues to pose a risk of further serious sexual offending. Of note on that occasion her Honour indicated that she was prepared to call the matter on at short notice in the event there was a change to RM’s circumstances such as might give rise to concerns that he posed a risk to the community.
Since that time reports have been received from a neurologist, Dr Emma Fitzgerald, and a psychiatrist, Dr Narain Nambiar, dated 24 August 2022 and 25 August 2022 respectively. Despite the reports being received at that time, the Attorney-General did not seek to have the matter called on prior to the next hearing date of 26 October 2022.
In her report Dr Fitzgerald assessed both the risk of RM committing a further serious sexual offence and his capacity to understand and adhere to the conditions of an ESO. Dr Fitzgerald undertook a neurological assessment of RM. That assessment revealed that his verbal comprehension and perceptual reasoning was intact and in the average range, his working memory was mildly reduced, however he demonstrated a very significant impairment of new learning and memory with an inability to learn new material beyond his immediate memory span.
Dr Fitzgerald opined that RM suffers from a neurological degenerative condition which may be due to a cardiovascular condition but which also bears the characteristics of Alzheimer’s disease. All of this means that RM is unable to live independently.
In her report Dr Fitzgerald expressed a view that RM has the capacity to understand the conditions of the ESO. He was able to read the conditions and put them into his own words, however she said that he is unlikely to be able to adhere to them due to his significantly impaired short-term memory. Dr Fitzgerald suggested that RM would need prompting if there was any chance that he would breach the orders. She suspected that he would be able to abide by most of the conditions by living in an aged care facility although he may need reminding about not having permission to associate with any person under the age of 18. Dr Fitzgerald expressed the view that whilst RM would not intentionally breach any of the conditions, he was at risk of forgetting them.
In order to assess the risks of RM committing a further serious sexual offence, Dr Fitzgerald utilised a commonly used risk assessment instrument – Static 99R. Based on a number of static risk factors such as age, prior offending and convictions and his relationship to his victims, RM was assessed as having an average or moderate risk of reoffending. That of course needs to be factored against Dr Fitzgerald’s clinical opinion that RM would not deliberately breach any condition of the order.
In his report Dr Nambiar considered RM’s ability to comply with the conditions of the order. He observed:
There is ample information provided now that would confirm that if [RM] had an opportunity to comply with any parole conditions, that given his further cognitive deterioration, that his ability to do so would be extremely limited.
Dr Nambiar raised some concerns about RM’s increased disinhibition as his cognitive function deteriorates. He considered that whilst the recent 2018 offending appeared to be a continuation of an offending pattern that had already been established, there may well have been further disinhibition, given the onset of the dementia. Dr Nambiar expressed the view that as RM’s dementia continued to progress and affect his impulse control, judgment and, consequently, behaviour he would pose a high risk for further offending. It follows that in the context of a further deteriorating level of cognitive functioning, that risk may well increase over time.
It is plain from Dr Nambiar’s report that RM’s level of cognitive functioning is such that it would be extremely difficult for him to engage in any meaningful therapy. Dr Nambiar identified that the most important factor for RM would be the level of supervision that could be provided in order to mitigate against any further offending. He expressed the view that the likelihood of RM committing a further serious sexual offence remains high if he is not properly supervised.
Dr Nambiar went on to consider the risks in the context of RM living in an aged care facility and only moving outside of that accommodation accompanied. He expressed the view that such arrangements would mitigate the risk posed by RM and whilst acknowledging that the aged care facility receives children who visit he suspected that if properly supervised the risk of opportunity is very low. Consequently Dr Nambiar concluded that it is therefore highly unlikely that RM will have the opportunity to reoffend unless he is in the proximity of children and left unsupervised.
The matter first came before me for submissions on 29 November 2022. On that occasion I was provided with an affidavit from Ms H, who is the facility manager at the aged care centre at which RM resides. There were no surprises in that affidavit. Ms H described the setup and regime at the aged care facility, which would be similar to other facilities of its type. Ms H explained that RM is accommodated in a single ensuite room which is at the end of a corridor that is also adjacent to a communal area that is frequented by families, other residents and children.
Staff at the facility are not aware of RM’s antecedent history, nor is there any intention of notifying the staff or other residents. The reasons for this are self-evident.
Ms H described RM as rarely leaving the facility and when he does so he is accompanied by a staff member. RM had told her that he had concerns that if he left unaccompanied he might get lost. Ms H said that although the facility had no power to stop RM leaving the premises, based on her observations and conversations with RM, in her view it is highly unlikely that he will do so.
Finally on the topic of children, Ms H explained that the centre allows children to attend as visitors and they may enter the communal area where residents including RM would sit. Children may also venture inside and outside from time to time. The care facility cannot provide supervision for RM when children are in the building. As well as this she said that on occasions children may attend the facility to provide entertainment and Ms H could not guarantee that if that occurred, RM would not engage with the children.
On this occasion, that is 29 November, counsel for the Attorney-General, Ms Pfitzner, sought an adjournment of the hearing in order to allow time to obtain some further information that was relevant to the determination of the application. The adjournment was not opposed by Mr Greeves who appeared for RM. On that occasion the Attorney-General also made an application for an ISO. This was the first time since the beginning of March that such an application was made, despite RM having resided at the aged care facility without incident since 16 May 2022.
In support of the application for an ISO, counsel for the Attorney-General submitted there was an appreciable risk to the safety of the community in that RM may commit a further serious sexual offence if no order was put in place. That submission did not sit comfortably with me in the context of the approach the Attorney-General has taken in relation to RM over the last 12 months. No application for an ISO was made between March and November of this year in circumstances in which Stein J had made it plain that if any concerns arose the parties were at liberty to have the matter called on to seek the making of such an order.
When asked for an explanation for this change in approach Ms Pfitzner told the Court there is some doubt held by the Crown Solicitor’s Office about whether this Court has jurisdiction to make an ISO after the expiry of the limiting term. With respect, this explanation did not make much sense. If there were concerns about the jurisdiction to make such an order there was no explanation as to why the Attorney-General was now nine months later seeking such an order. I declined to make an ISO on the basis that I was not satisfied that given RM’s current living arrangements he posed a genuine risk to the safety of the community. I did, however, order a s 20 report be prepared by the Department for Correctional Services (‘Corrections’) setting out the means by which they could supervise RM whilst he is residing at an aged care facility.
Since that time I have received the report from Corrections. Without descending into great detail, there are limits to the level of supervision that can be provided to RM in his current circumstances. Corrections would have limited authority to minimise the traffic of children throughout the facility or to prevent RM having indirect access to children. Although it is expected that children remain with their care givers at the facility they are not obliged to do so. Corrections would not have any authority over this and they raised the concern that this would expose RM to continual indirect contact with children. It would be difficult for Corrections to ascertain whether any contact with children was incidental and indirect contact conditions would mean they were frequently breached.
Corrections also expressed concerns surrounding their ability to more generally supervise RM. The aged care staff have indicated that they would not have the capacity to transport RM to appointments with Corrections. It was determined public transport was not suitable given RM’s short-term memory loss and mobility issues and that supervision by the Community Corrections Officer attending at the aged care facility was not an option open for RM.
The author ended the report by raising the question of the utility and function of an ESO in RM’s circumstances:
There are significant concerns of [RM] being in an aged care facility given the frequency of children present and his inability to control his urges towards prepubescent girls. However, given his worsening state the facility is the most appropriate housing placement for him given his self-sufficiency is also declining.
The courts would need to determine the usefulness and function of a minimal term ESO for [RM], given his age and the ability to effectively supervise him.
The matter came back before me on 21 December 2022 for further submissions. On this occasion Ms Kleinig appeared for the Attorney-General. At the outset of submissions she tendered an email which set out the response of the chief executive officer of the aged care facility to a number of questions posed by the Attorney-General. The combined effect of a number of responses was that whilst children attend at the nursing home, there are generally other people in the general vicinity and that whilst there have on occasions been children’s performances, none had occurred in the last year. There were none planned for 2023, although there were no guarantees that would not occur.
The chief executive officer was also asked ‘In the event that an extended supervision order was ordered would this affect RM’s residency at [the facility]?’. The response was: ‘Yes, the facility will be unable to provide the directions given under the ESO and this will affect his residency at the facility. The facility accepted [RM] with the knowledge that there was no further requirements of his release and this was taken into consideration prior to accepting [RM]’.
This answer is of particular concern in that it appears that all of those involved in this matter are in agreement that the safest and most appropriate accommodation for RM is in the aged care facility. In the event that he was to lose this accommodation, it is unclear as to where he could reside. That outcome would clearly not be in the best interests of RM or the community.
Ms Kleinig maintained on behalf of the Attorney-General that an order should be made for an ISO of six months duration. Ms Kleinig acknowledged at the outset of her submissions:
[T]his is a difficult and complicated matter that falls out of the usual run of such matters that come before the Court and there are a number of reasons for that but principally, it is complicated because of [RM’s] current living circumstances and because of the nature of the risk, which the Attorney-General says that he presents to the safety of the community. And thirdly, because of [RM’s] cognitive limitations and what is perceived to be the likely trajectory in relation to them on the expert evidence.
At the outset I should say that the risks that [RM] would present to the safety of the community were he to be living in private accommodation have been appreciably ameliorated by his current living circumstances.
Ms Kleinig submitted that whilst the risks were ameliorated by RM’s current living situation, it was still open for him to change his mind and leave the care facility particularly in circumstances in which RM’s executive functioning is changing and there has been a further deterioration in his cognitive function. Having made that submission Ms Kleinig accepted that it was highly unlikely that RM would make the decision to leave the care facility.
Ms Kleinig put to the Court that although reduced there remains a risk to children who were visiting at the facility. On that basis the Attorney-General persisted with the application.
Ms Kleinig explained that the reason for seeking an order of such a short duration was because of the level of flux in RM’s cognitive and physical condition. At the end of the six months it is anticipated that another risk assessment will be made and that will take into account whether or not a guardianship and administration order had been made in the interim.

Ms Kleinig directly addressed the observations by Livesey J as he then was in Attorney-General v Karpany[1] when his Honour said:
The use of the phrase “if not supervised under the order” in s 7(4)(b) is important. It indicates that, even if a high risk offender poses an appreciable risk, the s 7(4)(b) jurisdictional fact will not be made out if an extended supervision order will not protect the public against the manifestation of an appreciable risk. For example, the risk of harm may be so great that an extended supervision order cannot protect the community from exposure to that risk. That is not to say that offenders who present these risks will be left to roam freely in the community. Rather, other, perhaps more intrusive, mechanisms may need to be called upon to ensure the community’s safety. For example, in relation to a serious sexual offender, the Court may order that he or she be detained in custody until the further order of this Court under s 57(7) of the Sentencing Act (2017) SA.
Nonetheless, if some other mechanism is available that presents a less intrusive imposition on personal liberty, and which will protect the community from the appreciable risk that the high risk offender poses, then again, the requirement “if not supervised under the order”, will not be satisfied. This accords with the general principle that ‘the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.
[1] [2020] SASC 219 at [18]-[19].
Ms Kleinig submitted:
that in this case it’s acknowledged that the degree to which an extended supervision order is able to impact upon the risk that [RM] currently presents to the safety of the community, exists within a relatively small compass and certainly a much smaller compass than the vast majority of matters that would come before your Honour. I would suggest to your Honour that this statement of his Honour, Livesey J, should not be taken so highly as there needing to be a complete eradication of risk by the imposition of the extended supervision order. But rather that the operation of the extended supervision order must intelligibly or meaningfully have some prospect of impacting upon that risk.
I accept the force of Ms Kleinig’s submission.
At the conclusion of the submissions I raised with Ms Kleinig the reference in the email responses from the chief executive officer about RM’s ability to continue to live at the care facility being impacted upon if an ESO is made. Ms Kleinig indicated that she had read the response to mean something different. On her reading of it, the chief executive officer said no more than the facility would not be in a position to ensure that RM abided by the terms of the ESO. In the event that she was wrong about that, Ms Kleinig put to the Court that it would be a matter for Corrections to liaise with the facility to find a way for RM to be safely accommodated there and if not there somewhere else that is appropriate.
Mr Greeves appeared for RM and advised the Court that RM opposed the imposition of the ESO on two separate grounds. The first was that one of the two conditions precedent in s 7(4) of the HRO Act could not be satisfied; that is, that I could not be satisfied that RM posed an appreciable risk to the community if not supervised under an ESO.
The second argument made in the alternative was that it was inappropriate to exercise the Court’s power to impose an ESO against RM by reference to the objects of the HRO Act, namely the protection of the community. It was submitted that an ESO would not protect the community from any risk posed by RM.
In my view there is force to both of these arguments.
Pursuant to s 7(4), the Supreme Court may only make an ESO if satisfied that the respondent is a high risk offender who poses an appreciable risk to the safety of the community if not supervised under the order. What amounts to an appreciable risk has received significant judicial consideration.
In the Attorney-General v Grosser[2] Stanley J summarised the position in the following terms:
I consider than 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. It is a question of degree. The extent of the appreciable risk is informed by the consideration that in determining whether to make an extended supervision order the safety of the community is paramount. I construe that requirement to mean that where a court considers the question of whether to make an order is finely balanced, the protection of the community would favour making the order rather than declining to do so.
[2] [2016] SASC 49 at [29].
In considering all the materials before me I have arrived at the view that there is no perceptible, substantial or real risk posed by RM in his current circumstances. The risk that has been put forward falls within the realms of being speculative almost to the point of being hypothetical.
When confronted with an application such as this it is important that the Court adopts a realistic and pragmatic approach to the circumstances of the individual under consideration. Whilst the objects of the Act make the protection of the public the paramount consideration, that does not lead to the making of orders that will be almost impossible to monitor and aimed at a risk that is at best remote.
The reality of RM’s current situation is this. He is now 74 years old with mobility issues that require the use of a walking frame. He has been diagnosed with dementia which has resulted in significant cognitive impairment particularly to his short-term memory. When released from custody and left to his own devices RM was found roaming the streets lost and confused. His level of function is such that he is unable to feed and care for himself. He has now lived in a residential care facility for over six months without incident despite there being no court orders in place.[3] RM has expressed no desire to leave the facility and, in fact, has no other accommodation options available to him. He does not leave the facility unless in the company of one of the staff such are his concerns about getting lost.
[3] The duration of the order sought is less than the time that RM has already been in the community.
The nature of the accommodation in itself provides a level of protection to the community. Whilst, as might be the expected, the care facility is not prepared to or in a position to fully supervise RM when children are visiting, it is again important to be realistic about the situation. It is a care facility which of itself means that there are staff on hand to look after and out for the residents and their wellbeing. There are other residents and visitors commonly in the communal areas. Whilst there is nothing to stop a child roaming the facility, the practical reality is that children attend in the company of parents or family members to visit a particular friend or relative. It is highly unlikely that a child of a vulnerable age will be left to just wander in and out of the rooms of other elderly residents.
In all the circumstances, it has not been established that RM poses an appreciable risk to the safety of the community if not supervised under an order. It follows that the Court does not have jurisdiction to make an ESO and that is the end of the matter.
However, I make the observation that there is also force to Mr Greeves alternative argument; that is, that even if an order was made it would provide negligible protection to the community. The report provided by Corrections says as much. The effect of that report was that whilst living at the aged-care facility is the best and most suitable accommodation open to RM, as a consequence of him residing there, there is little that they can do by way of supervision. Further, based on the recent information provided by the chief executive of the facility it would seem that there is a real risk if such an order was made it would impact on RM’s ability to continue to reside at that facility. This would have the paradoxical effect of removing RM from the environment that affords the best protection available for the community at the moment given RM’s personal circumstances.
For the reasons I have provided, I decline to make an ESO.