Attorney-General (SA) v Sullivan (No 2) - [2018] SASC 74

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v SULLIVAN (No 2)
[2018] SASC 74
Judgment of The Honourable Justice Hinton
22 May 2018
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
On 9 February 2018 this Court made an extended supervision order in respect of Mr Sullivan under s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). On 12 and 14 February 2018 Mr Sullivan breached conditions of that order and was taken back into custody. On 14 March 2018 the Parole Board satisfied itself that Mr Sullivan had breached the supervision order. Under s 17(1)(b)(ii) of the Act the Parole Board directed that Mr Sullivan be detained in custody pending a determination by this Court as to whether a continuing detention order should be made under s 18(2) of the Act.
Three issues had to be considered:
•       Whether the Court was satisfied that Mr Sullivan had breached a condition of the supervision order;
•       Whether Mr Sullivan posed an appreciable risk to the safety of the community if not detained in custody;
•       Whether a continuing detention order should be made until the expiration of the supervision order, or for such lesser period as may be specified by the Court.
Held:
1.       Mr Sullivan breached conditions (d), (e), (m) and (i) of the extended supervision order.
2.       Mr Sullivan poses an appreciable risk to the community if not detained in custody.
3.       Mr Sullivan is to be detained in custody for a period of 12 months commencing 22 May 2018.
Criminal Law (High Risk Offenders) Act 2015 (SA); Child Sex Offenders (Registration) Act 2006 (SA), referred to.
R v Schuster (2016) 125 SASR 388, applied.

ATTORNEY-GENERAL (SA) v SULLIVAN (No 2)
[2018] SASC 74
Criminal
HINTON J.
Introduction

This is an application for a continuing detention order under s 18(2) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act or the Act) in respect of Mr Stephen Sullivan.
On 9 February 2018 this Court made an extended supervision order (the supervision order) in respect of Mr Sullivan under s 7 of the High Risk Offenders Act.[1] On 12 and 14 February 2018 Mr Sullivan breached conditions of that order. On 14 February 2018 the Parole Board issued a warrant for Mr Sullivan’s arrest under s 15 of the High Risk Offenders Act. The warrant was executed that same day and Mr Sullivan was taken into custody. He has remained in custody since that date.
[1] See Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11.
On 14 March 2018 the Parole Board satisfied itself that Mr Sullivan had breached the supervision order. Under s 17(1)(b)(ii) of the High Risk Offenders Act the Board then directed that Mr Sullivan be detained in custody pending attendance before this Court for determination as to whether a continuing detention order should be made. Under s 18(1) of the Act the Parole Board’s direction has the consequence of automatically engaging the jurisdiction of this Court to make a continuing detention order under s 18(2) of the Act.
A continuing detention order can be made for no longer than the period of the extended supervision order to which it relates.[2] In Mr Sullivan’s case the supervision order was made for a period of two and a half years commencing 9 February 2018. The Attorney-General submitted that the Court should make a continuing detention order for a period of twelve months as of the date of the making of such order. I agree and so order. My reasons follow.
[2] High Risk Offenders Act, s 18(2).
Material received
The Court received the following:
·    An affidavit of Katharine Short, sworn 26 March 2018 (Exhibit A1);
·    An affidavit of Colin John Mercer, sworn 27 March 2018 (Exhibit A2);
·    An affidavit of Greg Rattus, affirmed 29 March 2018 (Exhibit A3);
·    An affidavit of Luke Randolph Williams, affirmed 12 April 2018 (Exhibit A4);
·    A second affidavit of Luke Randolph Williams, affirmed 4 May 2018 (Exhibit A5);
·    Three reports prepared by Dr C Raeside dated 25 March 2013, 12 January 2018 and 28 March 2018 (collectively Exhibit A6);
·    An affidavit of Fiona Williams-Mitchell, affirmed 6 September 2017 (Exhibit A7).
Dr Raeside was called to give evidence supplementing his reports. I refer to that evidence below.
In addition to the above material, counsel agreed that the Court should also have regard to the reasons given upon making the supervision order as providing the background to the present proceedings and to the evidence of Dr Raeside.[3]
[3] Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11.
Continuing detention orders
Section 18(2) provides:
(2) The Supreme Court may, if satisfied that the 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.
The power to make a continuing detention order is conditioned on the Court first being satisfied of the existence of the two factual circumstances referred to in s 18(2)(a) and (b). That is, s 18(2)(a) and (b) are in the nature of jurisdictional facts. A finding of the existence of both jurisdictional facts enlivens a discretionary power. In the exercise of the discretion all factors relevant to achieving the purpose of the order are to be taken into account. That begs the question, what is the purpose of a continuing detention order?
In Police v Sullivan; Attorney-General (SA) v Sullivan (Sullivan No 1) I said:[4]
The power to make a continuing detention order is not a power to punish a person for breaching a supervision order. It is a power to be exercised for protective not punitive purposes. The question is whether the drastic step of incarcerating the high risk offender for the duration of the extended supervision order or some lesser period is necessary to protect the community from an appreciable risk to its safety as posed by the high risk offender. That question is to be answered in the knowledge that the alternative is the continuation of the supervision order, possibly varied. Obviously the risk posed by the offender subject of the breached supervision order must be reassessed in the light of the nature and circumstances of the breach.
[4] [2018] SASC 11 at [85].
I remain of this view. The question posed in the passage quoted immediately above reflects the fact that Parliament has said that the paramount consideration in determining whether to make a continuing detention order must be the safety of the community.[5] In R v Schuster the Full Court was required to determine the significance of Parliament making public safety the paramount consideration in determining whether to release a person subject to indeterminate detention on licence.[6] The Court said:[7]
What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility.
More fundamentally, it is in the very nature of a discretion that the level of risk, whatever it is, may nonetheless be sufficiently outweighed by other factors to justify release on licence. For example, an offender with some degree of short term risk of reoffending who has excellent prospects of medium to long-term rehabilitation might be released on licence, when an offender with the same risk profile but poor prospects of rehabilitation would not. The effect of making public safety the paramount consideration is that, speaking generally, relatively smaller degrees of risk will outweigh considerations which, even strongly, support release. The exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety.
[5] High Risk Offenders Act, s 18(3).
[6] (2016) 125 SASR 388.
[7] R v Schuster (2016) 125 SASR 388 at 405-6 [79]-[80].
The same may be said about s 18(2) considered in the light of s 18(3) of the Act.
The Full Court also said:[8]
… it demands a normative judgment which is quite different from traditional judicial discretions. This Court has been entrusted with a mandate to ensure public security by sacrificing, for the remainder of their natural lives if necessary, the right to liberty of persons who are found to be unable or unwilling to control their sexual instincts. There are good reasons to commit this function to the independent judiciary of this State even though it is foreign to the traditional judicial function. However, the discretion having been conferred, it is important for the community to understand that it will be exercised having regard to both the interests of the community and the interests of the person in question, but by according the consideration of public safety paramountcy.
This approach is reflected in the judgment of the Queensland Court of Appeal in relation to applications for indefinite detention under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). In Attorney-General (Qld) v Francis,Keane and Holmes JJA and Dutney J said:
The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.
[footnotes omitted]
[8] R v Schuster (2016) 125 SASR 388 at 406 [82]-[83].
The same may be said of the task committed to this Court under s 18(2) of the Act (save of course that it is not a matter of whether the respondent is incapable or unwilling to control his or her sexual instincts and the duration of detention cannot exceed the term of the extended supervision order). Although consideration of a continuing detention order is triggered by the breach of an extended supervision order, the measure of the period of detention is not the units of punishment. The respondent is detained to prevent what he or she might never do. This being so, the respondent should not be detained for any longer than is necessary to ensure adequate protection of the community. Accepting this it is self-evidently important to identify with some particularity the risk that a respondent poses before turning to consider whether detention is necessary to adequately protect the community from that risk. In some cases the risk may be immediate and the appropriate response may simply be incapacitation. In other cases it may be less immediate but no less profound and may require detention in order to facilitate different measures of intervention and prevention. Where a continuing detention order of a shorter duration than the period of the extended supervision order is contemplated, that period will be determined by the anticipated effect of detaining the respondent, including all interventions and treatments that may be undertaken whilst in detention, upon the risk posed by the respondent.
Mr Sullivan admits breaching the supervision order
As mentioned in opening this judgment, the supervision order was made in respect of Mr Sullivan on 9 February 2018. He was released that same day. On 14 February 2018 Mr Sullivan was returned to custody. He had barely lasted five days in the community.
The supervision order contained 24 conditions including:
(c)   The respondent is –
(i)to be under the supervision of a Community Corrections Officer;
(ii)to obey the reasonable directions of the Community Corrections Officer; and
(iii)to submit to such tests (including testing without notice) for gunshot residue as the Community Corrections Officer may reasonably require;
(d)   the respondent will wear an electronic monitoring device, to be fitted and maintained as required by his Community Corrections Officer and at the direction of the Parole Board, and must comply with the rules of electronic monitoring;
(e)   the respondent will not leave his residence at any time without the prior approval of his Community Corrections Officer, except for the purpose of urgent medical or dental treatment or to minimise the risk of serious injury or death to himself or to any other person;
…
(i)    the respondent will not consume alcohol;
…
(m) the respondent will present for, and submit to, drug and alcohol testing (including testing without notice) as and where directed by his Community Corrections Officer, or the Parole Board, and will do all things and sign all such forms as may be necessary to enable drug and alcohol testing to be conducted and samples taken analysed and the results of such analysis provided to his Community Corrections Officer and/or the Parole Board;
In a document filed by the Attorney-General it was alleged that:
1On 12 February 2018, the respondent reported for supervision at the Noarlunga Community Correctional Centre. He was directed to provide a urine sample. He did not provide a urine sample within the time available. He appeared to show no motivation to provide a urine sample.
This conduct comprised a breach of condition 2(m).
2.On 14 February 2018, at 2.06 pm, the respondent cut off his electronic monitoring anklet and absconded from his Offenders Aid and Rehabilitation Service (OARS) residence. The respondent did not answer two phone calls to his mobile phone. At 3.02pm, the respondent’s OARS residence manager made contact with the respondent by telephone. The respondent returned to the residence at 4.15pm and was reconnected to electronic monitoring.
This comprised a breach of conditions 2(d) and (e) of the extended supervision order.
3.On 14 February 2018, at 4.15pm, the respondent was administered a blood alcohol test after community corrections officers smelled alcohol on his breath. The blood alcohol test showed an alcohol level of 0.028 mg/dl. The respondent admitted that he had consumed two beers while he was at large.
This conduct comprised a breach of condition 2(i) of the extended supervision order.
On 27 March 2018 Mr Sullivan admitted these breaches through his counsel.
The circumstances of the breaches are set out in the affidavit of Colin Mercer. Mr Mercer works for the Department for Correctional Services and is a senior case manager at the Noarlunga Community Correctional Centre. Mr Mercer was the community corrections officer appointed to supervise Mr Sullivan under condition 2(c) of the supervision order.
On 11 February 2018 at around 4:20pm Mr Mercer made a check of the whereabouts of Mr Sullivan using equipment available to the Department. The equipment indicated that Mr Sullivan had left his residence and was next door. Mr Mercer telephoned Mr Sullivan and advised him that by being next door he was in breach of the home detention condition contained in the extended supervision order. Mr Sullivan indicated that he did not know it was a breach because the property was attached to his. Mr Mercer informed Mr Sullivan that he was required to stay in the zone around his own property. That zone, it was explained, extended to the letterbox at the front of the property, but did not permit Mr Sullivan to enter adjoining properties. Mr Sullivan said that he understood.
On 12 February 2018 Mr Sullivan contacted Mr Mercer seeking a pass out in order that he might go shopping and to Centrelink. Mr Mercer told Mr Sullivan that he could not do so unless accompanied by his OARS support worker, Mr Rattus. Mr Rattus only had time that day to take Mr Sullivan shopping. In view of this Mr Sullivan was permitted to leave his premises at 2:45 pm and travel with Mr Rattus to a nearby shopping centre.
Later that date Mr Sullivan attended the Noarlunga Community Correctional Centre for a supervision session with Mr Mercer. He was with Mr Rattus. During the appointment Mr Sullivan was asked to provide a urine sample. He was allowed 30 minutes in which to do so, but did not. Mr Mercer formed the opinion that Mr Sullivan was making no genuine attempt to provide a sample. Mr Sullivan’s records indicated that in the past he had not experienced difficulty in providing a sample within the time allotted.
During the session Mr Sullivan was provided with two pass outs, one for 15 February 2018 that allowed him to leave his house to travel to Yatala Labour Prison to collect his belongings, the other for 19 February 2018 permitting him to go to the bank with an OARS support worker, then shopping, before attending his next supervision session with Mr Mercer at the Noarlunga Community Correctional Centre. Before the session concluded Mr Mercer went through the conditions contained in the supervision order and explained them to Mr Sullivan. Mr Sullivan then asked about contact with his daughter and was told that it could not occur unless in the presence of a responsible person. Mr Sullivan’s response was to complain that he was not getting things the way he wanted them to be. He said he wanted to live with his partner and her children. The condition in the supervision order regarding contact with children was explained to him a second time and he was told that he would need to complete an intervention program. He was advised that living with his partner and her children was not an option at that time. Mr Mercer added, trust needed to be rebuilt. It was agreed that in three months the possibility of Mr Sullivan moving into independent accommodation would be considered, all going well.
On 13 February 2018 Mr Mercer called Mr Sullivan. Mr Sullivan told him that he was meeting his partner at his OARS residence, but not inside. He said that the OARS residence manager had agreed to this. It was a condition of Mr Sullivan’s accommodation at the OARS residence that he not have visitors. Mr Sullivan was reminded about the importance of staying within the range of the electronic monitoring equipment.
On that same day Mr Sullivan was breath tested. The result was negative.
On 14 February 2018 at around 2pm Mr Sullivan cut off his electronic monitoring anklet and left his OARS residence. His OARS support worker and Corrections Officers made contact with Mr Sullivan. He agreed to return to the OARS residence but was not in a position to do so immediately. The OARS support worker agreed to pick Mr Sullivan up. Mr Sullivan had been drinking at a nearby hotel and playing the pokies. The OARS support worker took Mr Sullivan back to the residence. The police attended soon thereafter and took Mr Sullivan into custody.
In his affidavit Mr Rattus, the OARS support worker, advised that earlier that morning Mr Sullivan had told him that his relationship with his partner had broken down.[9] Mr Sullivan said to Mr Rattus that he was experiencing heightened levels of anxiety over the breakdown. They discussed Mr Sullivan consulting a doctor and obtaining a mental health care plan.
[9] Mr Sullivan said the same thing to Dr Raeside; his partner had sent him a text message on Valentine’s Day telling him that she could not help him anymore and that he was not to contact her. She then blocked his number.

I am satisfied that Mr Sullivan breached conditions 2(d), (e), (m) and (i) of the supervision order.
Does Mr Sullivan pose an appreciable risk to the safety of the community if not detained in custody?
The evidence
The circumstances that gave rise to the making of the supervision order against Mr Sullivan, including his prior sex offending, breaches of the requirements under the Child Sex Offenders Registration Act 2006 (SA) (the Sex Offenders Registration Act) and breach of the interim supervision order, are set out in Sullivan No 1.[10] I do not repeat them. Mr Sullivan’s personal circumstances are also set out in Sullivan No 1. Again I do not repeat those circumstances but indicate that I have had regard to them in the present proceedings.
[10] [2018] SASC 11 at [48]-[55]. See also Exhibit A7.
Dr Raeside, a forensic psychiatrist, gave evidence before this Court on the extended supervision order application and again in the present proceedings. Dr Raeside’s opinion in relation to the desirability of an extended supervision order being made in relation to Mr Sullivan is summarised in Sullivan No 1.[11] The reports from Dr Raeside considered in Sullivan No 1 have been received by the Court in the present proceedings (Exhibit A6 includes reports of 25 March 2013 and 12 January 2018). There was no challenge to Dr Raeside’s opinions as expressed in those reports. I have re-read those reports. I do not repeat the opinions expressed by Dr Raeside in his earlier reports save for convenience I quote the doctor’s diagnosis and conclusion in his report of 12 January 2018. He said:
[11] [2018] SASC 11 at [48]-[55].
Diagnosis
Based on the information available to me and from my interview with Mr Sullivan, I believe his primary difficulty is his mild to moderately severe intellectual disability. I do not believe he has any underlying psychiatric illness, with his description of voices more likely a function of his intellectual impairment with loud self-talk, rather than actual hallucinations. At times he has some posttraumatic stress symptoms, but I would not diagnose him as having an ongoing Posttraumatic Stress Disorder. Substance abuse does not appear to have been a particular problem.
Mr Sullivan’s past personal history suggests an underlying Antisocial Personality Disorder. This represents a lifelong history of difficulties with relationships, unlawful behaviour, impulsivity, irritability and anger, failure to sustain consistent work (although his low intellectual ability would affect this), and a childhood history of conduct disorder. This is a personality style that is often associated with a history of childhood abuse and neglect and poor education and social opportunities and attainment. Although his grandmother appears to have been a major support for him in his younger years, he did report abuse from various other sources, including at least one, probably two, episodes of sexual abuse as well.
Application for Extended Supervision Order
In my view, based on the above, I would agree that Mr Sullivan is at least a moderate risk of further offending generally, primarily based on his underlying Antisocial Personality Disorder and low intellectual functioning that makes it difficult for him to cope adequately in the community. However, his impulsivity, irritability, and anger are also significant factors that have caused him difficulty at times, including in the termination of his participation in the more recent SBC-Me program whilst in custody.
I also concur that Mr Sullivan remains at very high risk of sexual reoffending having never received any adequate treatment, notwithstanding recent efforts whilst he was in custody for reasons that are explained in the body of the report. However, in that regard it is difficult to make an accurate assessment as to whether upon completing an appropriate sexual offenders’ program his risk would be significantly reduced. As noted by Mr Balfour previously his involvement with underage females appears to be a function of his intellectual disability rather than a direct result of sexual predatory behaviour, notwithstanding the nature of the more recent offences involving text messaging.
[emphasis in original]
In his most recent report (Exhibit A6; 28 March 2018) Dr Raeside states that Mr Sullivan’s failure to comply with the conditions of the supervision order was indicative of the significant problems he has which place him at significant risk of further offending in the community. Dr Raeside records:
According to Mr Sullivan, he removed his anklet because he was experiencing “a lot of stress and pressure kicked in”. He complained he was not getting any help or support. Given his stress, he decided to go to the local pub where he had two beers to “calm myself down and then I went home”. He smiled and told me that he had “two of the best beers, that cost me $5”. He smiled as he recalled the beer, having not had any beer for a long time given his previous incarceration. He added that alcohol helps him to calm down and he has used this as one of his “coping” mechanisms in the past, notwithstanding the other problems associated with this. He explained that he returned to the OARS house and the anklet was put back on. He claimed that he was told nothing would happen as a result, but “five minutes later the cops turned up”.
Dr Raeside added:
Mr Sullivan clearly felt stressed about being back in correctional custody. He said he wanted to “go back to my family for support in the city”, nominating an aunt and a cousin who had been his “biggest support” previously when he was in custody.
Notwithstanding this stress, Mr Sullivan did not report any features to suggest an underlying psychiatric illness. He was not depressed, just stressed, was sleeping well, his appetite was good, and he had not had any self-harm thoughts. Rather, he said he simply wanted to be released so he could have support around him. Having people support him appeared to be a major issue and one of his complaints about being in the community (notwithstanding it was only a few days) in that he did not think he was getting the support he needed. Further, he was stressed because he “couldn’t go anywhere and I was too scared to ask my community corrections officer for a pass out because he always said no…”
Dr Raeside was of the opinion that:
… Mr Sullivan quickly showed his difficulties functioning in the community, even in a structured environment whilst on home detention at an OARS house, with a community corrections officer and others involved. Whilst there was not time for him to engage in any therapeutic programs, his quick deterioration in response to stress (likely both in terms of his accommodation and the relationship breakdown) led him to breach home detention conditions and quickly turn to alcohol, clearly a worrying feature.
I therefore would support the application for a continuing Detention Order given the high risk that Mr Sullivan poses in the community in terms of offending generally and sexual offending specifically. He requires further treatment and I would concur with the recommendations outlined by Ms Short with respect to prison based individual interventions in order to hopefully prepare him to be able to engage in sexual behaviour clinic involvement. As noted, this initially would require at least one year in custody to determine his responsivity.
…
Depending on what occurs, there might be a possibility of a community based sexual offender program, but I would be cautious about this. It is likely that any sexual behaviour program would stir up difficult emotions for Mr Sullivan placing him under greater stress and he would be at risk of reverting to dysfunctional behaviour in response to that stress. A more secure environment would be better to engage in such stressful programs for Mr Sullivan.
Consequently, it is my opinion that Mr Sullivan continues to pose an appreciable risk to the safety of the community if not detained in custody.
This is consistent with my earlier view in my previous report that he “be considered a high risk offender as he continues to present more than an appreciable risk of offending and affecting the safety of the community”.
[emphasis in original].
In Sullivan No 1 Mr Sullivan did not challenge Dr Raeside’s opinion that he posed an appreciable risk to the safety of the community. In the present proceedings I did not understand his position in this regard to have altered. His position was that whilst the risk he posed warranted the making of an extended supervision order, it did not warrant his detention in custody and did not warrant his detention in custody until the expiration of the supervision order.
The object of the High Risk Offenders Act is to provide the means to protect the community from being exposed to an appreciable risk of harm posed, relevantly, by serious sexual offenders. Mr Sullivan is a serious sexual offender. He poses a risk to underage teenage females. He suffers from secondary paedophilia in that whilst his primary sexual interest is adult women, he gravitates to underage teenage females because he feels less threatened in sexual relationships with females of a similar intellectual age rather than in adult relationships. In this way his offending is the product of his intellectual capacity. He is ill-equipped to deal with complex relationships. To the extent that he has in recent times had relationships with mature age women, they are often older than him and involve an aspect of him being “mothered”. It is also to be observed that in two instances the women involved had teenage daughters. That is not to suggest a deliberate plan on Mr Sullivan’s part, but a concern expressed by Dr Raeside was that in such circumstances, given the opportunity, Mr Sullivan may develop a relationship with the child that will become an inappropriate sexual relationship. Of course, it cannot be overlooked that his sexual offending did not always follow this pattern. In evidence Dr Raeside said:
QAre you able to express an opinion as to whether if Mr Sullivan were placed in that position where he had an opportunity to offend in a manner consistent with his prior offending so, for example, communicating inappropriately and electronically with a child, whether Mr Sullivan would be willing to control his sexual instincts and refrain from taking that opportunity.
AI think from, again, the history and the recent history and the recent types of offending, I think there is, in my view, concern that, if he found himself in such a situation that he would not exercise sufficient control. I just hedge that a little bit as I’m aware of the legal ramifications of that opinion, but I think it’s, again, a step-wise thing; he’s likely to fail to control himself getting into a situation where the offending might occur. In other words, rather than stop at the first couple of steps because that could lead on to something else he’s likely to continue on in that situation and choose not to exercise control or be unwilling to control at that point when the situation arose.
HIS HONOUR
QIs that largely because he would naturally gravitate towards people with similar intellectual capacity or standing or level of development, if you like.
AThat’s correct; I think that, in Mr Sullivan’s case, similar to other people, is he feels more comfortable with female children of a similar intellectual chronological age to him. He also, although he associates with older women, it’s more in terms of support, more in a motherly way, so then his sexual disorder in those social situations with the younger children then comes to play in that sense. So my view is he probably does not start with thinking ‘What child can I engage with sexually’, it’s more the friendship, relationship, then becomes sexual in an inappropriate way, much as an adult relationship would, starting with a friendship and a relationship, but in his sense obviously inappropriate given the age group, but, given Mr Sullivan’s intellectual capacity, somewhat more of a peer-related relationship.
It is important to an understanding of Dr Raeside’s opinion to appreciate not only Mr Sullivan’s prior offending, personal circumstances, antisocial personality disorder and intellectual capacity, but his failure to complete the Sexial Behaviour Clinic – Me program (SBC-Me program), the reasons for that failure, and the effect upon Mr Sullivan of his participation until removed. In this latter regard I refer to the personal trauma and emotions in Mr Sullivan that his partial participation elicited resulting in the program being detrimental to his own wellbeing.[12] I also refer to Mr Sullivan’s dynamic risk factors as identified by the Department for Correctional Services Sentence Management Unit in 2015. They are set out in Sullivan No 1.[13] For the sake of convenience I repeat them:
On the basis of an actuarial risk assessment, Mr Sullivan was estimated to be at VERY HIGH risk of sexual re-offending should he not receive treatment. The dynamic risk factors identified as areas of concern in relation to Mr Sullivan’s risk of re-offending included a lack of pro-social influences, unstable relationships, emotional identification with children, poor attitudes towards women, minimal victim awareness, difficulties with impulse control, poor problem solving skills, self-victimisation and negative emotionality, heightened sexual drive and deviant sexual interests, and poor compliance with community supervision.
[Emphasis in original]
[12] [2018] SASC 11 at [28].
[13] [2018] SASC 11 at [24].
In his evidence Dr Raeside pointed out that in the five or so days that Mr Sullivan was in the community Mr Sullivan did nothing that increased the very high risk of sexual reoffending that he already posed to the community.
Dr Raeside was asked whether in arriving at the opinion articulated in his recent report he had regard to the capacity of conditions imposed upon Mr Sullivan and his movement in the community to ameliorate the risk Mr Sullivan posed. He answered:
Yes… if he was in the community with various restrictions, supervision requirements, then effectively what real life risk would he pose to the community, and that’s where I looked at what happened when he got released as being informative in making that sort of consideration. The second thing that I factored in there was whether what he did, allegedly did when he was out, was going to lead to him sexually re-offending because he didn’t actually do anything but, whether that – if he’d been out, whether that would have then led to further sexual offending and I think there was a risk of that if certain things had taken place. For example, wanting to be back in the home situation where children were present, so I took that into consideration as well. And then the third aspect was one about treatment. In my first report I looked at the recommendation or the condition that if he was to receive treatment in the community, such as Owenia House, whether that would be sufficient and significantly reduce his real life risk of further offending. So, therefore, I took into consideration the comments of Katharine Short with respect to treatment as well as my previous report, knowing the problems he had even with sexual behaviour treatment in prison and those types of issues were likely – would continue in a community treatment program as well.
The Katharine Short to whom Dr Raeside refers in the passage quoted above is the Manager of the Department for Correctional Services, Rehabilitation Programs Branch. The Rehabilitation Programs Branch employs a multidisciplinary team of clinicians who are responsible for facilitating group-based programs for, amongst others, sexual offenders including the Sexual Behaviour Clinic (SBC program) and the SBC-Me program. Decisions and processes related to the provision of rehabilitation programs in the custodial environment and admission to such programs are made within the Rehabilitation Programs Branch and are ultimately overseen by the Director of Offender Rehabilitation Services to whom Ms Short answers.
As mentioned above, the Court received an affidavit from Ms Short. In her affidavit Ms Short, who had been involved in delivering the SBC-Me program that Mr Sullivan failed to complete, refers to “responsivity barriers” preventing Mr Sullivan’s engagement in the program as including his own past abuse, his irritability, anger and impulsivity. Ms Short indicates that in the event that a continuing detention order is made, resources would be devoted to addressing Mr Sullivan’s responsivity barriers (including his nightmares and traumatic memories associated with the causes of his own post-traumatic stress) before inviting him to undertake and complete the SBC-Me program. It appears that until those responsivity barriers are addressed Mr Sullivan will be considered ineligible for participation in the SBC-Me program. Further, it is generally considered, including by Dr Raeside, that Mr Sullivan’s risk may only be ameliorated by his successfully undertaking intensive sexual offender treatment such as offered by the SBC-Me program.
The SBC-Me program is a psychotherapeutic rehabilitation intervention program conducted both in the prison system and in the community for convicted sex offenders. The program is specifically designed for adult male sexual offenders with a mild to borderline level of intellectual functioning. The aim of the program is to reduce reoffending rates by teaching offenders to understand and recognise their offending patterns and behaviours, and teaching skills to assist in ceasing offending behaviour in the future. The program seeks to address the risk factors of sexual offenders undergoing the treatment program. It is delivered by a combination of group and individual sessions encompassing approximately 250 hours of treatment time.
As mentioned in Sullivan No 1,[14] because the SBC-Me program involves group work and work in pairs, it is only offered when there are a sufficient number of participants for it to be viable. Further, participants are screened with a view to ensuring that a sufficient number have a level of cognitive capacity that enables them to contribute meaningfully to group work. The normal minimum number of participants is eight.
[14] [2018] SASC 11 at [101].
Here it may be noted that in all his years of contact with the criminal justice system and correctional services, Mr Sullivan has not successfully completed a program of sexual offender treatment.
In the event that a continuing detention order is made it is proposed that Mr Sullivan address his responsivity barriers by a course of individual work with a clinician from the Rehabilitation Programs Branch tailored to his needs and conducted over a six month period. More particularly this would involve treatment sessions once or twice a week that addressed Mr Sullivan’s distress tolerance, impulsivity, mood disturbance and interpersonal issues. At the conclusion of the six month period Mr Sullivan’s response would be reviewed. All going well the individual sessions would continue for a further six months at the conclusion of which Mr Sullivan would be assessed to determine if he was ready to take part in the SBC-Me program. Thus the aim of the individual program would be to increase Mr Sullivan’s ability and willingness to successfully participate in the group-based SBC-Me program whether in custody or the community.
Dr Raeside was of the opinion that Mr Sullivan had the capacity to learn how to identify and avoid situations in which he was at risk of reoffending. This was one of the aims of the SBC-Me program. Dr Raeside was supportive of Ms Short’s approach to Mr Sullivan’s treatment. It was likely that his exclusion from the program in the past was the result of Mr Sullivan feeling uncomfortable with the content of the program undertaken in the group environment. Individual therapy would hopefully overcome this.

As mentioned the SBC-Me program is available in the community. As to Mr Sullivan being able to successfully undertake that program in the community Dr Raeside said:
Originally, in my first report I supported the recommendations that he receive community-based sexual offender treatment. The concern is that he’s still going to find that anxiety-provoking as well and he would need some individualised support both from Owenia House but probably more generally as well. So my view has changed slightly on what’s happened once he was released, which showed he didn’t cope very well with the circumstances that were occurring and again acted out, in this case not sexually but there was some breach of some of his conditions very quickly. So I think it would be difficult for him to engage in Owenia House without the associated problems that might occur. There may be just general things, that he might again breach some of his conditions, such as drinking alcohol, which he says is one of his main coping mechanisms, but the other might be the risk of actually acting out sexually inappropriately in response to stress which, again, is probably maladaptive coping mechanisms as well in which he seeks support and the comfort of a relationship.
Dr Raeside was of the opinion that if Mr Sullivan did get the level of treatment proposed by Ms Short in custody it would be beneficial, particularly if it included assisting him with containing his emotional distress and taught him appropriate coping mechanisms. However, he expressed some disquiet at the time frames involved (12 months individual therapy followed by undertaking the SBC-Me program) as carrying with it the risk that Mr Sullivan might become institutionalised and further de-skilled in social situations and day-to-day living.
Dr Raeside said:
HIS HONOUR
QIn your opinion what ideally should be done to assist Mr Sullivan and in what time frames, bearing in mind that he’s not in there to be punished, he’s in there to protect the community and should only be in there for so long as he can get, and be given, whatever assistance is necessary such that the community is safe.
…
AIf I can go back a step, if prior to producing my first report, if the question was about whether he needed ongoing detention I probably would have supported it at that point. The question was only about the extended supervision order, and I was concerned as indicated, I thought he was still a very high risk of further offending so, at that point if I had been asked I would have thought in terms of the protection of the community, he probably needed what we’re discussing now, that is to stay in custody, individual treatment and another attempt at the SBC-Me program. I think the key issue in all this is he has not completed a sexual behaviour program in custody, or at least not successfully, he was removed from the program. So therefore his risk is still at least as high as it was when he first went into custody for his offences so he needs some treatment and, given his difficulty engaging previously, given the likelihood that he would become decompensated emotionally, with either individual therapy focusing on his past trauma as well as his offending and then the SBC-Me program, I certainly think that that type of treatment is best done at the moment in custody. Katharine Short is in a better position to offer the opinion of how long that needs to take. My concern was that seemed like a long time of 12 months before he could even be considered to go back into the SBC-Me program. That may be a realistic time frame but it’s balancing his liberty and community protection; we’re looking at another two years when, effectively, he is having difficulty in engaging in that type of treatment. It’s the balance that is obviously up to you to consider.
Importantly, the individual treatment proposed by Ms Short in the Rehabilitation Programs Branch is intended as preparation for the SBC-Me program and it is the latter which, if completed successfully, is likely to provide adequate protection to the community from the risk posed by Mr Sullivan.
It was acknowledged that Mr Sullivan could seek the support of psychologists and others in the community. The latter may be inappropriate support. The former is provided by Medicare and consists of a mental health care plan formulated with a general practitioner and 10 sessions with a psychologist which, assuming Ms Short’s plan provides the optimum, may not be enough. By contrast in the custodial environment the risk of inappropriate support is controlled and there is the targeted delivery of psychological assistance. There are, however, other responsivity barriers in custody to be overcome such as a prisoner not wanting to appear to other prisoners to be emotional or weak. That is to say there are “competing interests between being able to cope in the prison environment and also being able to deal with strong emotions.” Dr Raeside said:
In a general sense if you were doing that … in a community-based setting you can go home, watch TV and shut the front door and deal with things, or have family, friends, others who are supportive of you. In Mr Sullivan’s case , he’s disadvantaged socially in many of those respects and unfortunately his risk of re-offending is often in a setting of seeking support in circumstances where it then proves difficult.
In the assessment of risk corrections and the forensic mental health community tend to distinguish between an offender’s static and dynamic risk factors. Mr Sullivan’s dynamic risk factors are those identified by the Sentence Management Unit as quoted above and as articulated in Dr Raeside’s reports, particularly in his 12 January 2018 report. They include social isolation, loneliness and engaging in appropriate age-related relationships. It is those dynamic factors that the Rehabilitation Programs Branch and sexual offender treatment generally focus upon. Mr Sullivan’s static factors, as the label suggests, remain constant. They consist primarily of the conclusions drawn from his past conduct as to his potential conduct.
Cross-examination of Dr Raeside opened by addressing the capacity of treatment regimes focused upon dynamic factors to truly influence an assessment of the risk posed by a high risk sexual offender. Dr Raeside expressed the opinion that offenders can learn to deploy strategies that reduce or minimise their risk of reoffending. He considered that Mr Sullivan was capable of learning such strategies despite his intellectual capacity.
As to the immediate risk Mr Sullivan posed in the community, Dr Raeside said:
QIs it the case that his intellectual disability and when he becomes isolated and lonely, he seeks out relationships to make him feel better, first of all; is that fair to say.
AYes.
QAnd in the past those relationships have led him to developing friendships with persons who are teenage girls, effectively.
AI think the step in between is often it’s adult women who have children. I think in some respect that he feels threatened emotionally, psychologically by an age – an adult woman, either the same age or slightly older, and from what I can discern, that the types of relationships he’s tended to have are with more caring, maternal type of relationships, then the children are part of that, and then he feels very comfortable engaging with the younger children who are similar – I wouldn’t say similar cognitive ability, you know what I mean in terms of development, that he feels more comfortable unless threatened by the younger children.
QWhen he’s with an immature group of children, he’s happier because they fit in better with his cognitive abilities, his sensibilities; yes.
AYes. Maturity is probably the word I was looking for.
QBut this takes time to develop, doesn’t it, it isn’t something which occurs in a day, surely.
ASorry, time to develop what, the relationships?
QThe relationships and the risk of re-offending.
AYes, and if we take the recent events, it’s noteworthy that he didn’t cut his bracelet off and then go out somewhere and re-offend sexually, what he did was engage in his coping mechanisms, because he was distressed, but that’s sort of the first steps, and then things would then follow on and it would be likely that he would then, being lonely in the community, seek out some relationships and it will develop over time, but that time might be relatively short, in terms of – for example, in my first report I commented on how he spoke – the quality of the relationship he was in at the time, how he spoke about his partner in terms that you would think they had been together for at least a couple of years, and they had only been together for a few weeks. So he very quickly settles into that type of relationship.
I pause here to the note the speed with which Mr Sullivan entered into the relationship with Ms Jarvis. He was released from custody on 15 September 2017 and commenced in the relationship with Ms Jarvis by 27 November 2017.
Dr Raeside advised the Court that any treatment plan for Mr Sullivan had to include time in the community. It is only in the community that strategies learned in therapy and after undertaking programs in custody can be put into practise, reviewed and improved.
The supervision order contained 24 conditions. The number of conditions coupled with Mr Sullivan’s obligations under the Sex Offenders Registration Act would have operated to cause him stress. In relation to this Dr Raeside said that in the past Mr Sullivan’s response when matters become overwhelming has been to block those matters out and make no attempt to make sense of them. Simple conditions would not be problematic (e.g. you are not allowed out of the house after a certain time). Difficulty would arise where the relevance of the condition to Mr Sullivan’s circumstances was not apparent to Mr Sullivan. Into this mix had to be thrown Mr Sullivan’s personality style, one where he tended to disregard things he did not like. Mr Sullivan does not sit and reflect on the combined purpose of conditions in an order to determine what the order is intended to achieve. All this said, Dr Raeside was of the view that Mr Sullivan would have known that he should not cut off his anklet and leave his OARS residence but would struggle to understand that doing so was wrong. Dr Raeside said:
QIs that because of his cognitive style, including the antisocial personality disorder you’ve identified?
AYes, so he’s limited in his ability to consider through his options, he’s impulsive, he’s concrete in his thinking and so he’s goal directed in the sense that he sees an immediate need and he immediately seeks to satisfy that need, without consideration of the other issues. His antisocial personality disorder then has him hold authority figures in low regard, that he doesn’t see that they should therefore be imposing conditions or restricting him, and particularly then he minimises and justifies his past offending, for example, his comments that he doesn’t see himself as a predator and, therefore, he thinks it’s unfair that some of these conditions treat him as if he was one, so that mixes in together with that.
In cross-examination Dr Raeside was asked whether it should be expected, bearing in mind Mr Sullivan’s intellectual capacity, that he will breach the supervision order. Dr Raeside considered that it would be difficult to expect Mr Sullivan to comply with an order of 24 conditions all of the time because of his intellectual ability and personality style. However it was also the case that Mr Sullivan was weak in his capacity to plan and organise himself and was prone to impulsivity. Whilst he would not sit and plan something, he would not delay gratification of his immediate wants nor consider alternatives. It is with this in mind that Dr Raeside has long recommended that Mr Sullivan have the benefit of “assertive” supervision.
… So he needs assertive, that is, a Community Corrections officer calling him, checking on him, ‘How did you go today?’, and my experience has been that one, for whatever reason, they tend not to be assertive; the second is that they have a philosophical view that a person should accept responsibility for themselves and comply on their own volition without needing that assertive intervention, which is why a number of people fail in the conditions in the community.
Home detention is an intensive condition but not necessarily assertive. It can be viewed as a harsh regime in that liberty is controlled by a Community Corrections Officer. Dr Raeside was of the view that Mr Sullivan does not respond well to such an approach. Mr Sullivan’s world view, he said, was one where he demanded support to do what he wanted, but shifted responsibility to external factors when things did not go to plan.
Counsel for Mr Sullivan asked Dr Raeside a series of questions about the availability to Mr Sullivan of therapy such as that contemplated by Ms Short in the community. In particular counsel asked if Mr Sullivan was more likely to get the assistance he required in the community. Dr Raeside said:
AI think it’s more likely in the custodial environment notwithstanding the difficulties, because in the community he will probably be told ‘Go see your general practitioner, get a mental health care plan to go see a psychologist and then arrange to see that psychologist for whatever number of sessions, and all those issues are difficult for Mr Sullivan to do. He would want and need someone to do that for him and that’s where the problem comes in the community.
QBut if he’s under some sort of structured and assertive supervision, would he be likely to obtain that counselling?
ACertainly he can obtain it but the assertive factor would be he would virtually need someone to walk him through that whole process and for that person to call up and make appointments and things. I think Mr Sullivan would struggle to do that on his own.
QBut those services are available, aren’t they.
AYes, in general, but most of them rely on his motivation and his engagement at least with them.
Dr Raeside was then asked how Mr Sullivan’s breach of the supervision order had affected his opinion. He repeated that it did not change his view of the risk posed by Mr Sullivan, but the speed with which Mr Sullivan acted in breach of the order reinforced his opinion that Mr Sullivan needed considerably assertive input to support him. He added that if the aim is the protection of the community then in his view the required input at this time was best provided in the prison environment. Dr Raeside was then asked:
QWhat if the view is limited to treatment, the best treatment regime; best for him to be treated in the community or in the custodial environment?
AI think if he had adequate supports, then it would be better if he could do it in the community because of that issue of in real life experiences and helping him with that. My only concern is that he failed the prison based program and he’s likely to struggle with the community program as well without the other preparation that’s been talked about and he’s not likely to get that initial bit in the community.
QWould you agree that, in a sense, treatment in custody better satisfies your idea of assertive intervention than treatment in the community might just because of the obligations that are imposed upon the State?
AYes, your Honour. I think if one thing was different here, the whole situation would be different. If he had completed, successfully, the SBC-Me program during his previous incarceration, then I think it would be very much supporting, from a treatment point of view, that that occur in the community as the next step. The fact that he failed to complete the program for other reasons, not offending, not sexual offending reasons, significantly decreases the likelihood that the next step, being a community based program, is likely to be successful.
Whilst it was possible for Mr Sullivan to learn new strategies and to learn from his mistakes, simply releasing him in the hope that he learned from his mistakes provided no comfort that he understood that what he did was wrong. In his view, he has not reoffended. It is one thing to learn not to do something, but the protection of the community is greater assured if in learning not to do something the offender also understands why. That is to say, insight better facilitates behavioural change. Dr Raeside said:
A.… He doesn’t consider himself to be an offender in various aspects. So what he considers to be an offence is different than what the Court would consider to be an offence. So he needs to have an understanding of why some of the behaviours that he’s in trouble for are actually problems, because they lead to other things as well.
The first step, however, is to get Mr Sullivan to control his impulses so that he might willingly comply with an extended supervision order. To do this he needs assistance.
At present the Rehabilitation Programs Branch intends to next run the SBC-Me program in custody starting October 2019. It takes a participant 15 months to complete the program.
Owenia House intends to run the SBC-Me program in the community commencing July 2018. Acceptance into that program, as with acceptance into the equivalent run in custody, only occurs after an offender has undergone a responsivity assessment and been determined suitable to participate in the program.
Lastly, it is likely that Mr Sullivan would be considered eligible for assistance under the National Disability Insurance Scheme. That might entitle him to funding for more than 10 sessions with a psychologist in the community as is currently provided by Medicare. Unfortunately the most that can be said is that such assistance might be available. To date the National Disability Insurance Agency have not received an application from Mr Sullivan. I understand Disability SA to be in the process of assisting him in this regard with the input and assistance of the Department for Correctional Services.
Submissions
Counsel for the Attorney-General submitted that a continuing detention order for a period of 12 months commencing as of the date of the order should be made. In that 12 months, it is hoped, Mr Sullivan will satisfactorily deal with his responsivity issues as planned by Ms Short and be ready and eligible to undertake the SBC-Me program in the community. Assisting Mr Sullivan in dealing with his responsivity issues will simultaneously equip him to better deal with release under the supervision order. In this way the intended program in custody over 12 months addresses both rehabilitation and protection of the community. The intended program, if successful, will reduce the risk that Mr Sullivan is overwhelmed by the requirements of the supervision order in addition to his obligations under the Sex Offenders Registration Act. In support of this submission counsel referred to Dr Raeside’s evidence that had he been asked at the time of the making of the supervision order whether it was preferable to detain and treat Mr Sullivan in custody he would have responded in the affirmative. Here rehabilitation and protection of the community point in the same direction: towards the sort of intensive treatment in custody as set out by Ms Short.
Counsel conceded, as he must, that Mr Sullivan’s liberty where he had done no wrong was an important consideration, but it was important to observe, it was submitted, that what Mr Sullivan stood to lose was the difference between incarceration and home detention under the terms of the supervision order. The question then was whether, bearing in mind the breach of the supervision order and the appreciable risk Mr Sullivan posed to the safety of the community, that loss in liberty, being the difference between home detention and incarceration, outweighed the paramountcy to be afforded to the safety of the community. At present the Court can have no comfort that the conditions of the supervision order are adequate to protect the community. A breach is likely and, as already seen, Mr Sullivan can be expected to quickly revert to his past ways and commence on the path to reoffending. Here counsel also referred to Dr Raeside’s opinion that presented with an opportunity Mr Sullivan would most probably reoffend.

Counsel next submitted that the supervision regime implemented by the supervision order coupled with the OARS residence requirements and the assistance of an OARS support worker could not, in effect, be considered a totally passive regime. Rules were externally enforced. In the five day period in which Mr Sullivan was at liberty, to the extent he accessed a service, he was accompanied and assisted by his support worker. Despite this regime, Mr Sullivan quickly breached the supervision order. The significance of the breach is not, it was submitted, the outcome, but the manifest lack of insight on the part of Mr Sullivan. Mr Sullivan cut off his anklet and until he responded to his OARS support worker no-one knew where he was nor what he was doing.
It was submitted that for Mr Sullivan to undertake the program planned for him by the Rehabilitation Programs Branch would provide him with the best opportunity to develop the resilience necessary to undertake the SBC-Me program in the community. Absent assistance with his responsivity issues Mr Sullivan can be expected, at best, to be back before this Court for consideration of a further continuing detention order in a relatively short period, at worst, to reoffend. In either instance Mr Sullivan’s rehabilitation is impeded and there is set in train a course that impedes the protection of the community from the risk he poses.
Counsel for Mr Sullivan commenced by submitting that 12 months in custody is an excessively long time to take advantage of counselling that is available in the community. It is not good enough, it was submitted, to say that Mr Sullivan could only get what he needs in custody. The necessary service should be provided in the community where Mr Sullivan needs to learn to survive without offending. In this latter regard it was said that upon his release Mr Sullivan did not have the opportunity to benefit from assertive case management. He was hardly settled when his relationship ended, sending him out of control. Importantly, the order worked and the community was protected. No greater intervention is required.
Next counsel pointed to there being an element of unfairness arising in that it was the SBC-Me program that elicited emotions that have contributed to Mr Sullivan’s responsivity issues and now it is contended that he must be incarcerated in order that his responsivity issues be addressed and the community protected. He did not avoid undertaking the SBC-Me program. Issues and emotions were elicited that were beyond his ability to compartmentalise and process and which caused him to act as he did. It is not a case of him being unwilling to undertake treatment or to learn.
Counsel then submitted that whether or not Mr Sullivan got help with his responsivity issues was not guaranteed. Whether treatment was provided depended upon Corrections. Since being taken into custody Mr Sullivan had been moved to Mt Gambier bringing to a swift end his initial involvement with the Rehabilitation Programs Branch where he had commenced work on his responsivity issues. This, it was suggested, is indicative of Corrections’ attitude toward Mr Sullivan and a person held on a continuing detention order. It called into question the likelihood of Ms Short’s plan being implemented. Counsel referred to Mr Sullivan posing a high risk regardless of any treatment he undertakes because of his static factors. His dynamic factors could be treated in the community. If that were to occur there would be ample opportunity to intervene should he breach the supervision order again. In this regard Mr Sullivan’s history of offending did not suggest that he was the type of sexual offender who acted on the spur of the moment. Rather his offending occurred in the main in the context of a relationship. That meant there was time to detect his offending. The absence of any immediate need to protect the public then meant that treatment in the community was a viable option without risking the safety of the community. The terms of the supervision order are all that is required to afford the community adequate protection. The order should be permitted to run and the protective measures it contains be given the opportunity to work. He can do the SBC-Me program at Owenia House.
Consideration
Dr Raeside’s opinion that Mr Sullivan posed a very high risk of sexual reoffending was not challenged. As mentioned, Mr Sullivan’s position is that the risk he poses does not warrant his detention in order that the community be adequately protected.
No reason arises to reject Dr Raeside’s opinion as to the risk Mr Sullivan poses. I accept it. I have articulated the risk that Mr Sullivan poses above. That risk is an appreciable one grounded in the evidence of Mr Sullivan’s prior offending, his intellectual capacity, his personality style, his own post-traumatic stress, and the fact that he has not as yet completed a course of sexual offender treatment. As at today that risk is no different to the risk Mr Sullivan posed when released into the community on 9 February 2018. What is different, however, is that since being released Mr Sullivan has breached the supervision order and has done so within five days.
Mr Sullivan’s breach of the supervision order must be viewed in the context of his progress or lack thereof in the community since being released on parole on 15 September 2017. Within four days he had breached the conditions of his release on parole by loitering at places frequented by children. He was thereafter subject to an intensive supervision regime. On 4 October 2017 a police officer explained to Mr Sullivan his obligations under the Sex Offenders Registration Act. That was not the first time this had occurred. Between his release into the community on 15 September 2017 and 27 November 2017 he had commenced a relationship with a woman who had five children, three of them, including a daughter, under the age of 18 years of age. On 20 November 2017 an interim supervision order was made in relation to Mr Sullivan. Approximately seven days later Mr Sullivan first contravened the Sex Offenders Registration Act and the interim supervision order. He did so by staying over at his new partner’s house when her children were also present in the house. On 12 December 2017 Mr Sullivan was taken back into custody. On 9 February 2018 he was released after being sentenced for his breaches of the Sex Offenders Registration Act. He had spent around two months in custody. At that time the Court declined to make a continuing detention order, releasing Mr Sullivan instead on the supervision order. As mentioned, within five days he breached the supervision order as outlined above.
In the two months Mr Sullivan spent in the community (15 September 2017 – 12 December 2017) he had input into his conduct from the Parole Board, the Department for Correctional Services, the police and this Court. None of it appears to have made any difference. Neither did around two months in custody, further intervention by this Court, the assistance of a Community Corrections Officer and of an OARS support worker.
I accept Dr Raeside’s opinion that Mr Sullivan’s recent history in the community is indicative of his significant problems. That history also indicates the speed with which Mr Sullivan can find himself in circumstances that place him at great risk of reoffending, and how he can do so despite intensive supervision. Here too it is important to recall Dr Raeside’s opinion that confronted by the opportunity to enter a relationship with an underage female it is likely he would not exercise control and desist. The risk he poses is very real.
I do not accept the submission that the supervision order worked. An extended supervision order does not work where it is breached so quickly and so profoundly. Until he chose to contact his OARS support worker, the authorities did not know where Mr Sullivan was, nor whom he was with.
At present Mr Sullivan is not equipped to deal with stressors that operate upon him in the community. It is those stressors that in the short term lead him to breach orders and supervision requirements and, ultimately, set him on the road to seeking a relationship with a person of an intellectual maturity with which he is comfortable. Having not completed sexual offender treatment he has not developed protective measures to assist him in avoiding such relationships and avoiding reoffending. He needs and is reliant on external assistance. As is evident from Mr Sullivan’s recent failure to respond, to date that assistance has been unsuccessful in preventing him from reverting to his own coping mechanisms, coping mechanisms that are conducive to him offending.
Dr Raeside said that had he been asked earlier this year whether the protection of the community warranted Mr Sullivan’s detention he would have supported a continuing detention order. He was of the opinion that until Mr Sullivan successfully completed a course of sexual offender treatment the protection of the community warranted Mr Sullivan’s detention.
Mr Sullivan contended that he could obtain the necessary treatment in the community and that, bearing in mind that he has committed no crime, he should be permitted the opportunity to do so. One obstacle to accepting this submission is Mr Sullivan’s responsivity issues and the seeming lack of resources in the community to allow him to effectively deal with these in time to undertake the SBC-Me program at Owenia House. On Medicare Mr Sullivan is only entitled to 10 sessions with a psychologist. True, he may qualify for additional assistance under the NDIS, but at the moment whether he will and exactly what may be provided is unknown. By contrast the Rehabilitation Programs Branch has committed itself to fortnightly sessions at a minimum for six months, thereafter to be reviewed. In those sessions the intention is to address Mr Sullivan’s responsivity issues, ideally, making him ready for the SBC-Me program. I also think that the expertise and experience possessed by the Rehabilitation Programs Branch should not be overlooked nor the coordination between therapy addressing Mr Sullivan’s responsivity issues and his preparation to undertake the SBC-Me program that may be expected. In this latter regard it is also to be remembered that the Rehabilitation Programs Branch has experience in dealing with Mr Sullivan and is particularly aware of his responsivity issues and the barriers to effective treatment that they pose.
A second obstacle is that in the community the onus will largely be upon Mr Sullivan to seek out the assistance he needs. Whilst Dr Raeside has recommended that he be subject to “assertive supervision”, there is no obligation upon the Department of Correctional Services to do so. I do not think it can be expected that Mr Sullivan will obtain assistance without him first being in receipt of assistance to do so and then, bearing in mind his personality style, it cannot be expected that he will routinely meet the requirements of therapy and a therapist. In custody his responsibility for, and measure of control over, the process is very much reduced. Thus the prospects of Mr Sullivan’s responsivity issues being successfully addressed in custody are greater than in the community.
What I have written so far is predicated on accepting Dr Raeside’s opinion that the key to protecting the community against the high risk of Mr Sullivan sexually reoffending is him successfully undertaking a program of sexual offender treatment. It has not been suggested that the risk Mr Sullivan poses, which I have found to be an appreciable risk, can be satisfactorily ameliorated within the short to medium term in any other way. This translates to Mr Sullivan completing the SBC-Me program. That, in turn, can only occur if he is accepted as eligible to undertake the program, something that will likely not occur whether Mr Sullivan is in custody or in the community if he does not adequately address his responsivity issues such that he can meaningfully participate in the program and without detracting from the benefits it is intended to provide to other participants. As I have already indicated, the prospects of Mr Sullivan’s responsivity issues being successfully addressed in custody are greater than in the community. To this may be added the incentive to address his responsivity issues that being in custody may be taken to provide Mr Sullivan.
Mr Sullivan’s past offending does not suggest that the risk he poses is immediate in the sense that he might snatch a young teenage girl off the street and sexually abuse her. As a secondary paedophile the risk he poses is more removed. That raises the question of whether the regime contemplated by the supervision order, coupled with the operative effect of the Sex Offenders Registration Act, is adequate to protect the community in that, bearing in mind the nature of the risk posed, there will likely be time to detect any breach of the order and prevent reoffending. Whilst the risk Mr Sullivan poses is not immediate, absent treatment it may be considered almost inevitable. That inevitability is not lessened by the supervision order regime. As has been demonstrated, Mr Sullivan can quickly enter a relationship giving him access to children despite supervision, can quickly become stressed despite and because of supervision, and can quickly revert to coping mechanisms consistent with his personality style which supervision cannot prevent. In these circumstances it is understandable that Dr Raeside would support his detention in order that the community is adequately protected against the risk Mr Sullivan poses.
Absent treatment the risk of Mr Sullivan offending may not be said to be immediate but I consider it likely that he will reoffend in a relatively short space of time. In my view this tendency is evident in his prior offending and flows from his intellectual capacity and personality style.
In my view Mr Sullivan poses an appreciable risk to the safety of the community if not detained.
Should a continuing detention order be made?
Protection of the community from the risk that Mr Sullivan poses is linked to Mr Sullivan responding to treatment. In this sense I accept the submission that protection and rehabilitation point in the same direction – treatment. I also accept that at present it is best that Mr Sullivan receive treatment in the custodial environment for the reasons given by Dr Raeside.
The Rehabilitation Programs Branch intends to address Mr Sullivan’s responsivity issues and prepare him to undertake the SBC-Me program. In doing so it should also arm him with the skills to deal with the stressors he may be expected to confront in the community including the emotions his own abuse elicits.
I am satisfied that a continuing detention order should be made. I accept that the order should not be for the term of the supervision order but a lesser period. In my view that lesser period should be bounded by the time taken for Mr Sullivan to address his responsivity issues. Ms Short suggests a program of 12 months is necessary for a therapist to assist Mr Sullivan with his responsivity issues. Thereafter, assuming he engages and progresses it is hoped he will then be admitted to the SBC-Me program. I am satisfied that a continuing detention order of 12 months’ duration should be made.
I add that in arriving at this conclusion I agree with the submission that a continuing detention order of 12 months’ duration is a measured approach. Whilst it does not allow time for Mr Sullivan to undertake the SBC-Me program in custody, should his responsivity issues be successfully addressed he will be equipped to better withstand the stressors that act upon him in the community and better equipped to realise the benefits and assistance he may obtain under an extended supervision order. If this eventuates, then, in my view, the community will likely be adequately protected by an extended supervision order that allows for Mr Sullivan to undertake the SBC-Me program in the community and Mr Sullivan’s continuing detention would not be required. Accordingly, at this stage I am satisfied that the community would be adequately protected from the risk posed by Mr Sullivan by his detention in custody for a period of 12 months during which time he is expected to receive the treatment outlined by the Rehabilitation Programs Branch.
I note that whether Mr Sullivan gets the assistance proposed by Ms Short is dependent upon the availability of resources in the prison system. Hopefully present intentions are realised. In any event I consider it important that the Manager of the Rehabilitation Programs Branch report to the Court on Mr Sullivan’s progress at the conclusion of the first six month period of treatment.
Conclusion
I order:
1.That Mr Sullivan be detained in custody for 12 months commencing 22 May 2018;
2.That the Manager, Department for Correctional Services, Rehabilitation Programs Branch, report to the Court on or about 22 November 2018 on the treatment provided to Mr Sullivan, Mr Sullivan’s response and progress, and any further treatment he may need.