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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] SASC 74
Decision Date: 22 May 2018

CaseChat Overview and Summary

In the case of Attorney-General (SA) v Sullivan (No 2), the defendant, Mr Sullivan, faced sentencing in the Supreme Court of South Australia. The dispute centered around the appropriate post-custodial orders, specifically the implementation of a treatment program aimed at addressing Mr Sullivan's intellectual disability and mitigating his risk of reoffending. The court was tasked with determining the most suitable post-custodial measures to ensure public safety and facilitate Mr Sullivan's rehabilitation.

The legal issues before the court included assessing the appropriate sentence for Mr Sullivan's crimes, considering his intellectual disability and history of sex offending, and determining the necessity and specifics of a post-custodial supervision order. The court had to weigh the need for public protection against the potential for rehabilitation and reintegration into society. The court also had to consider the resources available within the prison system to support the proposed treatment plan.

The court, in its decision, ordered that Mr Sullivan be detained in custody for 12 months, starting from 22 May 2018. It further mandated that the Manager of the Rehabilitation Programs Branch report to the court by 22 November 2018 on the treatment provided to Mr Sullivan, his response and progress, and any further treatment he may need. The court's decision was informed by Dr Raeside's forensic psychiatry reports, which indicated Mr Sullivan's moderate risk of reoffending, primarily due to his Antisocial Personality Disorder and intellectual disability. Despite this, the court acknowledged recent efforts made by Mr Sullivan while in custody, and it hoped that the proposed treatment would be realised, pending available resources.

The final orders of the court included the 12-month detention sentence for Mr Sullivan and the requirement for a progress report on his treatment and rehabilitation efforts. This decision aimed to balance the need for public safety with the potential for Mr Sullivan's rehabilitation and reintegration into society.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HINTON J

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.

Ratio Decidendi

Legal Principle Established

Established by: HINTON J

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].DiagnosisBased 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 OrderIn 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]