Attorney-General (SA) v Tipping - [2019] SASC 133

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v TIPPING
[2019] SASC 133
Judgment of The Honourable Justice Kelly
2 August 2019
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
Application by the Attorney-General for an indefinite detention order pursuant to s 57 of the Sentencing Act 2017 (SA).
Application by the Attorney-General for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (HRO Act) in the alternative.
The respondent concedes the application pursuant to s 7 of the HRO Act.
Held:
1.       The respondent is unwilling to control his sexual instincts.
2.       The respondent’s risk of reoffending does not appear to have been substantially reduced by the extensive treatment he has already received in prison.
3.       The risk to the community posed by the respondent can be adequately addressed by the respondent being subjected to strict home detention and electronic monitoring conditions as part of an extended supervision order.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7; Sentencing Act 2017 (SA) s 57, referred to.
Thomas v Attorney-General (SA) [2019] SASCFC 21, applied.

ATTORNEY-GENERAL (SA) v TIPPING
[2019] SASC 133
Criminal: Application
KELLY J.
Introduction

Two applications are brought by the Attorney-General for the State of South Australia against the respondent, Gary John Tipping. The first is an application pursuant to s 57 of the Sentencing Act 2017 (SA) (“Sentencing Act”) that the respondent be detained in custody indefinitely. The second application, which is brought in the alternative, is an application pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“HRO Act”) that the respondent be subject to an extended supervision order.
In support of the Attorney-General’s primary application for an order of indefinite detention, the applicant submitted that there are four main grounds justifying why such an order should be made in relation to the respondent. The first ground is based on the respondent’s criminal history of sexual offences (against four boys aged between eight and 15) and his prior inability to obey the supervisory conditions of a suspended sentence bond, of parole, and of a paedophile restraining order. The second ground relies on the expert evidence of two psychiatrists, Drs Nambiar and Haeney, who both addressed the issue of the respondent’s inability or unwillingness to control his sexual instincts. The third ground relies on evidence tendered before the Court which, the Attorney‑General submits, demonstrates that in the past the respondent has been deceitful, manipulative and lacking in any insight into the risk he poses to children. The final ground is effectively a submission by the Attorney‑General that, even with strict electronic monitoring and home detention conditions of the type usually involved when extended supervision orders are made under the HRO Act, the respondent will, at least over time, nevertheless have an opportunity to come into contact with children and groom them in order to fulfil his sexual urges. In advancing that submission, the applicant argued that the facts in the recent Full Court decision of Thomas v Attorney‑General (SA)[1] are distinguishable from the facts in this matter.
[1] [2019] SASCFC 21.
Background
Before turning to the issues which arise, it is necessary to set out in some detail the factual and procedural background giving rise to these applications.
Factual background
On 23 February 2006, the respondent was sentenced by a District Court Judge for three sexual offences committed against two young boys. The facts upon which the respondent fell to be sentenced were as follows. The respondent had indecently assaulted the first victim, who was aged 12 at the time, by touching him on the penis behind a shed. The respondent had also indecently assaulted the second victim, aged eight at the time, by rubbing his genitals against the boy. Later that same day, the respondent had also performed an act of fellatio on the second victim, constituting an offence of unlawful sexual intercourse. The respondent was sentenced to four years’ imprisonment, with an 18-month non-parole period, which was suspended on the basis that he enter into a bond to be of good behaviour for three years.
Less than three months after being sentenced, the respondent committed a further sexual act of gross indecency against a 13-year-old boy by masturbating in front of him at the boy’s home. Approximately three months after that incident, the respondent committed an act of unlawful sexual intercourse against the same 13-year-old boy by performing fellatio on him at the respondent’s home. Those two offences constituted a breach of the bond which the respondent had entered into on 23 February 2006. On 17 August 2007, the respondent was sentenced by another District Court Judge to six years’ imprisonment with a non-parole period of three years and six months for that fresh offending. That term of imprisonment was ordered to be served concurrently with the previously suspended term of imprisonment imposed on 23 February 2006. The Judge also imposed a paedophile restraining order, pursuant to s 99AA of the Summary Procedure Act 1921 (SA).[2]
[2] The sentencing remarks of his Honour Judge Wilson refer to s 99AA of the ‘Summary Offences Act’, however paedophile restraining orders at the time were in fact imposed in accordance with s 99AA of the Summary Procedure Act 1921 (SA). The Summary Procedure Act 1921 (SA) became the Criminal Procedure Act 1921 (SA) on 5 March 2018.
On 17 December 2010, the respondent was released on parole in relation to the sentence imposed by the District Court Judge on 17 August 2007.
Regrettably, within two months of release the respondent commenced an association with a 15-year-old boy which led to further offences of indecent assault and unlawful sexual intercourse. These offences occurred when the respondent spent the night at the boy’s home and slept in the boy’s bed with him. The sexual offending again involved the respondent fondling the boy’s penis and then performing an act of fellatio on him. In the lead-up to that offending the respondent had communicated with the victim on Facebook, the victim and the respondent had visited each other’s houses regularly, and the respondent had exposed the victim to pornography depicting boys about his age engaged in oral and anal sex.
The respondent was arrested, charged and eventually sentenced for that offending on 13 April 2015 by another District Court Judge. A single sentence of six years and four months with a non‑parole period of four years and six months was imposed, backdated to 20 September 2012 when the respondent’s earlier period on parole had expired.
Whilst in custody, the respondent completed a sexual behaviour clinic program (SBC-me) run by the Rehabilitation Programs Branch of the Department for Correctional Services. That program is an offence-focussed, high-intensity rehabilitation program designed to address sexual offending committed by individuals who have cognitive deficits.
The respondent commenced the SBC-me program on 2 December 2015 and completed it on 16 March 2017. Upon the respondent’s completion of the program, the group facilitators who conducted the program prepared a post-treatment report addressing the respondent’s participation and engagement with the program. That report was the subject of evidence before me and it will be necessary to return to the contents of that report in the course of these reasons. At this stage, I observe that the writers of the report expressed concern about the respondent’s inability to control his sexual instincts in the prison environment, as evidenced by what was described as “grooming behaviour” shown towards a fellow prisoner who was some years younger than the respondent. Of particular concern to the facilitators was that the respondent had lied and exhibited manipulative behaviour during the grooming incident, and had demonstrated an unwillingness to see his behaviour as risky in light of his history.
The writers of the post-treatment report concluded:
Given that Mr Tipping continued to demonstrate offence paralleling behaviour within the prison environment despite treatment, combined with the evidence of Mr Tipping’s repeated history of sexual offending after release from custody, there remains uncertainty regarding his capacity to control his sexual instincts in the community.
Whilst there was no overt evidence that Mr Tipping was incapable of controlling his sexual instincts, he has demonstrated behaviours that indicate that he may be unwilling to control his sexual instincts. Furthermore his risk profile indicated ongoing areas of risk in relation to self-management even following intensive treatment, and his repeated offending of a similar nature suggested a failure to modify his behaviour following multiple legal sanctions.
The respondent’s head sentence for the 2011 offending expired on 19 January 2019.
Procedural history before this Court
On 8 August 2018, the Attorney-General for the State of South Australia filed both the s 57 application for indefinite detention and the s 7 application for an extended supervision order in respect of the respondent.
On 10 January 2019, the Attorney-General made a dual application for both an interim detention order (pursuant to the s 57 application) and an interim supervision order (pursuant to the s 7 application). On 16 January 2019, both interim applications were granted by a Judge of this Court, Kourakis CJ, and the respondent has been detained pursuant to the s 57(5) interim detention order since that date.
Pursuant to orders made on 15 August 2018 by another Judge of this Court, Doyle J, in due course the Court received reports from two psychiatrists, namely Dr Nambiar, dated 5 December 2018, and subsequently from Dr Haeney, dated 2 April 2019.
The primary hearing of both applications occurred on 8 May 2019 before me. For the purpose of the hearing, counsel for the applicant, the Attorney‑General, relied on the following material tendered:
·An affidavit of Victoria Jean Montandon affirmed 7 August 2018 (which exhibited a number of documents, including the SBC-me post-treatment report);
·The report of Dr N Nambiar dated 5 December 2018;
·The report of Dr O Haeney dated 2 April 2019;
·An affidavit of Sarah Janet Sutton affirmed 8 April 2019; and
·An affidavit of Colin John Mercer sworn 9 April 2019.
Both Dr Nambiar and Dr Haeney supplemented their written reports with oral evidence.
At the hearing on 8 May 2019, counsel for the applicant made detailed oral submissions in favour of the s 57 application and brief submissions in respect of the s 7 application in the alternative. I have had regard to those submissions. Counsel for the respondent did not address any of the issues arising on either application in oral submissions on 8 May 2019 but provided written submissions both prior and subsequent to the hearing, to which I have also had regard.
Applicable statutory tests
The test for whether an order for indefinite detention should be made pursuant to s 57 of the Sentencing Act is whether the Court is satisfied that the order is appropriate. The relevant subsections of s 57, outlining the matters which I must take into account before I can be satisfied of whether such an order is appropriate, are set out below:
…
(3)If a person has been convicted of a relevant offence, the Attorney-General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section.
…
(6)The Supreme Court must, before determining whether to make an order that a person to whom this section applies be detained in custody until further order, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of a person to whom this section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person’s sexual instincts.
(7)The Supreme Court may order that a person to whom this section applies be detained in custody until further order if satisfied that the order is appropriate.
(8)The paramount consideration of the Supreme Court in determining whether to make an order that a person to whom this section applies be detained in custody until further order must be to protect the safety of the community (whether as individuals or in general).
(9)The Supreme Court must also take the following matters into consideration in determining whether to make an order that a person to whom this section applies be detained in custody until further order:
(a)     the reports of the medical practitioners (as directed and nominated under subsection (6)) provided to the Court;
(b)     any relevant evidence or representations that the person may desire to put to the Court;
(c)     any report required by the Court under section 61;
(d)     any other matter that the Court thinks relevant.
…
In the alternative to the s 57 order, the applicant seeks an extended supervision order. Pursuant to s 7 of the HRO Act, I may order that the respondent be subject to an extended supervision order if I am satisfied that the respondent is a high risk offender and poses an appreciable risk to the safety of the community if not supervised under the order. Counsel for the applicant submitted that if I am satisfied that the respondent is either incapable of or unwilling to control his sexual instincts, then it will follow that the threshold in the s 7 test, that the respondent poses an ‘appreciable risk’ to the safety of the community, is met. I agree with that submission. In any event, it is conceded by the respondent that he is a high risk offender for the purposes of the section and that he poses an appreciable risk to the safety of the community. The respondent is agreeable to the making of an extended supervision order.
The only issue for me to determine, therefore, is whether the application for indefinite detention should be granted.
The application for indefinite detention
Two issues arise for my consideration in respect of the application for indefinite detention. The first is whether the respondent is incapable of controlling or unwilling to control his sexual instincts. For the purposes of s 57, a person will be regarded as unwilling to control their sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of their sexual instincts. The preponderance of all of the material before me points to that question being answered in the affirmative, at least in respect of the question of willingness.
Therefore, the critical issue on the determination of this application is whether it is appropriate to detain the respondent in custody until further order. As outlined above, the paramount consideration of the Court in determining that issue must be to protect the safety of the community.
At this stage, it is necessary to consider the psychiatric evidence before me as well as the history of all post-offending treatment undertaken by the respondent while in custody.
I have been greatly assisted by the reports of Dr Haeney and Dr Nambiar as well as the post-treatment report from the Department for Correctional Services Rehabilitation Programs Branch as to the respondent’s participation in the SBC-me program between November 2015 and March 2017.
Report of Dr Haeney
The report of Dr Haeney, dated 2 April 2019, comprehensively addressed the relevant history of the respondent. In addition, Dr Haeney carefully analysed the issues arising from that history before expressing his opinion as to the risk posed by the respondent’s release into the community.
In addressing the likelihood of the respondent committing a further serious sexual offence and the question of whether the respondent is incapable of or unwilling to control his sexual instincts, Dr Haeney assessed the respondent using the Risk for Sexual Violence Protocol, which identifies 22 risk factors for sexual offending clustered over five ‘domains’. Significantly, Dr Haeney was of the opinion that the respondent poses a number of concerns within the assessment domain of ‘psychological adjustment’. Factors within that domain that Dr Haeney identifies as areas of concern for the respondent include the extreme minimisation or denial of sexual violence, problems with self-awareness, problems with stress or coping, and problems resulting from child abuse. Of particular concern was the respondent’s denial of virtually any sexual interest while simultaneously saying that he wants to commence anti-libidinal medication. Dr Haeney noted that this was a decision that the respondent has reached at almost the exact same time as the current applications began to be considered by this Court.
Dr Haeney reported that the respondent has a primary attraction to pubertal or pre-pubertal males consistent with a diagnosis of paedophilia. This is a risk factor strongly associated with sexual recidivism.
Of particular concern to me in my consideration of these applications were the following paragraphs in Dr Haeney’s report:
The final domain is manageability, incorporating problems with planning, with treatment and with supervision. Mr Tipping has displayed significant concerns in all areas. He has previously described problems with impulsivity and planning, failing to consider consequences. His plans are somewhat vague. He has experienced problems with previous treatment, most notably continuing to engage in behaviour that parallels his offences even while engaged in the Sexual Behaviour Clinic in jail. While he now purports to be keen on anti-libidinal medication this appears to relate to a desire to look motivated and engaged in an effort to stave off the current applications, rather than being due to any particular intrinsic motivation. Notably, after completing the SBC-Me course he was regarded as remaining at very high risk of reoffending, having achieved limited gains. He has a significant previous history of supervision failures, reoffending while on a bond and later while on parole, both times within a relatively short period of release from custody. His paralleling behaviours in custody also suggest that he has limited ability to refrain from offending even when under the closest supervision available, i.e. ongoing institutionalisation.
…
His exaggeration of his illnesses, his repeated protestations that he is being entirely open and honest, his outright denial of any remaining libido all suggest attempt at impression management which is perhaps understandable in the face of the current applications. Nonetheless, his ongoing minimisation of his offences, the serious discrepancy between his account of offences and the facts outlined in Judge Millsteed’s sentencing remarks, his limited gains in the Sexual Behaviour Clinic and particularly his concealment and denial of parallel behaviour in befriending a young male within prison, all corroborate the SBC post-treatment report conclusion that he remains at very high risk of sexual reoffending.

Critically, Dr Haeney concluded that there remains a significant risk of further offending by the respondent due to the number of outstanding risk factors, despite the treatments the respondent has been subjected to and the sentences he has served to date. Dr Haeney further concluded:
I believe that Mr Tipping’s conduct historically demonstrates a failure to control his sexual instincts even when subject to bonds or parole, leading to recidivism within a short period following release from custody. This conclusion is further underpinned by his conduct within prison, engaging in behaviour that was said to parallel his offending history even when in custody and engaged in a Sexual Behaviour Clinic program. In my opinion the only conclusion is that Mr Tipping could be regarded as being unwilling to control his sexual instincts despite his protestations that such sexual instincts have diminished to the point of no longer existing.
Report of Dr Nambiar
The report of Dr Nambiar, dated 5 December 2018, reflected similar concerns as to the respondent’s behaviour and risk factors. With respect to the question of the respondent’s incapability or unwillingness to control his sexual instincts, Dr Nambiar concluded:
With regards to unwillingness to control his sexual instincts, in my opinion, Mr Tipping’s history of offending, which appears to have increased in complexity and severity over a period of seven years during which time he committed offences shortly after he was released on parole, would suggest to me that he poses a significant risk to the community. Despite participation in the SBC-me program, which appears to be variable in terms of engagement and understanding, Mr Tipping’s conduct during the program including parallel offending behaviours whilst in custody, all suggest that he remains high risk.
In my opinion, there is a significant risk that Mr Tipping would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts.
With respect to the application for an extended supervision order, Dr Nambiar concluded his report with the following observation:
It is noted that his Intellectual Impairment is mild and that therefore his ability to learn basic and concrete concepts remain intact. Despite this, he appears to continue to engage in grooming and other para-offending type behaviours that would suggest that if released into the community, there is a very high likelihood of Mr Tipping committing a further serious sexual offence. On that basis, it is my opinion that Mr Tipping poses an appreciable risk to the safety of the community if not supervised under an order.
SBC-me post-treatment report
The respondent’s situation is complicated by the fact that IQ tests consistently place him within an extremely low range (64-72). For this reason, he was placed in the SBC-me program which is specifically tailored to sexual offenders with lower cognitive capacities.
The facilitators’ post-treatment report indicates that, whilst the respondent did attend the majority of sessions during the SBC-me program over a 14-month period, aspects of the respondent’s behaviour during that time were particularly concerning.
One notable example of such behaviour was provided in the post-treatment report as follows. In February 2016, the respondent was relocated to Yatala Labour Prison. Whilst at Yatala, he reported to SBC-me facilitators that he had befriended a 20-year-old man (who facilitators observed to have the appearance of a much younger person) at that facility. The respondent was later returned to Mount Gambier Prison. Towards the end of the SBC-me program in February 2017, it came to the attention of facilitators that this same young man had also been transferred to the Mount Gambier Prison and that the respondent had organised for the young man to move into the respondent’s cell with him. When facilitators confronted the respondent about this situation and about his lack of openness regarding his motivation in relation to the 20-year-old, the respondent denied any sexual interest in him, claiming he was “like my brother”.
When the younger man was moved away the respondent became upset and was somewhat hostile in the SBC-me group. However, at a later stage, the respondent did admit to having a sexual interest in the younger man and that he had been asked by the younger man to live in Port Pirie, which is where he, the younger man, was going upon release.
The facilitators’ report expresses concern that the respondent has continued to lie, be evasive and hide information from facilitators even after completing 13 to 14 months in therapy.
This episode with the younger fellow inmate during the SBC-me program was the subject of cross‑examination of both psychiatrists upon the hearing. Both Dr Haeney and Dr Nambiar expressed serious concern about the offence paralleling behaviour demonstrated within the prison environment as reported by the facilitators.
In his written outline of argument, the respondent’s counsel described this episode whilst in custody as a “single anecdote” which had been overstated by the facilitators. In the respondent’s submission, this overstatement of what might have been an innocent relationship has coloured the analysis and reasoning of both psychiatrists in the preparation of their reports, and coloured the reasons of the Parole Board in refusing to grant parole to the respondent in May 2017.
For the reasons articulated by both Drs Haeney and Nambiar in their oral evidence before me, I cannot accept the respondent’s submission as to the significance, or rather, the insignificance of that episode.
I must therefore exercise the discretion under s 57(7) of the Sentencing Act on the basis that the respondent is unwilling to control his sexual instincts and that despite extensive treatment over the past several years he does continue to maintain a perverse and deviant interest in young males, particularly under the age of consent.
Discussion
Both the psychiatrists and the Parole Board have expressed concern that, should the respondent be released into the community, he is likely to continue to engage in grooming and other para-offending type behaviours giving rise to a very high likelihood that he will commit further serious sexual offences.
Given that the paramount concern in the exercise of the discretion must be the safety of the community, the next issue which arises is whether, in light of the unanimous expert opinion as to the respondent’s proclivities, the community can be adequately protected by the imposition of an extended supervision order.
During their oral evidence, both psychiatrists were asked about the risk factors associated with a home detention style order. In cross-examination, Dr Nambiar was asked:
QIf my client was subject to a home detention and have other conditions put in place under extended supervision I would suggest the risk to the community would be less because of his management.
AProviding that he can be very closely surveilled, yes.
QIt’s a question of adequately ensuring protection of the community. If it’s enough to ensure adequate protection that would address the risk to the community, wouldn’t it.
AI’m assuming that there is a definition of what ‘adequate protection’ is but if that’s the case, yes.
QSo we are considering a home detention regime is being pursued plus provisions of ANCOR and similar supervisory regimes, that would seem to be appropriate to address risk, wouldn’t it.
AI don’t think we have a very detailed outline of what that would entail but, if that was the case, yes.
Dr Haeney was also asked about this issue:
QIf my client were to be subject to home detention, have other conditions put in place under extended supervision, the risk to the community would be lessened because of the management, wouldn’t it.
AIt would less than if he was not under that supervision.
QIf that supervision included electronic monitoring and provisions of an ankle or a similar regime, that would work to reduce risks, wouldn’t it.
AAgain, it would reduce risks compared to not having those supervision requirements, yes.
It is uncontentious that the respondent has previously continued to offend whilst on parole and whilst subject to a bond. However, it was not in dispute that the respondent has never been placed on an extended supervision order and that, while he has been subject to other kinds of supervisory conditions in the past, he had never been subject to electronic monitoring.
In Thomas v Attorney-General (SA), the Chief Justice made the following observations in relation to the Court’s consideration in that matter as to the adequacy of an extended supervision order with electronic monitoring to ameliorate risk. He said:[3]
Electronic GPS monitoring is a very powerful tool. There is no reason why Mr Thomas could not, as a term of that electronic monitoring, be required to reside at a particular address and be precluded from moving out of a defined radius from that address. Within that closely circumscribed location, exclusion zones could be imposed with respect to places at which Mr Thomas is more likely to have an opportunity to meet children.
[3] [2019] SASCFC 21, [86].
Kourakis CJ went on to note that the Judge at first instance was satisfied only that Thomas presented a high risk of further sexual offending involving sexual conduct “where the circumstances are propitious”. Kourakis CJ then observed that the very point of careful electronic monitoring is that it reduces the scope for, in that case, Thomas, to place himself in those ‘propitious’ circumstances.
Counsel for the Attorney-General sought to distinguish the facts and circumstances of Thomas from the respondent’s circumstances, arguing that even with strict electronic monitoring the respondent will continue to come into contact with children. The applicant submitted that the risk of such contact occurring is simply too great.
The difficulty with that submission is that there is no empirical evidence to show one way or another whether an extended supervision order with strict electronic monitoring conditions of the kind contemplated by the Court in Thomas will operate so as to effectively reduce the risk of reoffending to a minimum. As the Court in Thomas pointed out, the draconian consequences of an indefinite detention order emphasise the importance of carefully weighing the public policy considerations relevant to the making of such an order.
The respondent is a 33 year old man. He has an extensive history to date of serious sexual offending. His risk of reoffending does not appear to have been substantially reduced by the extensive treatment he has already received in prison.
Once again, however, the observations of the Court in Thomas, are relevant to the consideration of this aspect. Kourakis CJ said:[4]
The long experience of this Court in making indefinite detention orders and releasing defendants on licence, and monitoring those licences, and the expert evidence taken in those cases clearly establishes two things. First, treatment in prison alone is unlikely to effectively reverse an incapacity or unwillingness to control sexual urges. Secondly, an opinion that a person is both capable and willing to control his or her sexual instincts can rarely, if ever, be given on the basis of a person’s behaviour in the artificial environment of a prison, especially when previous offending remains a static factor in evaluating future risk of reoffending. The most probable result of an indefinite detention order now is that a person so detained will only be released when, by reason of advanced age or infirmity, he or she is physically incapable of committing an offence.
[4] [2019] SASCFC 21, [48].
The Chief Justice went on to make the following critical statement at [73]:
As has been seen, between the making of the indefinite detention order and the hearing of this appeal, s 57 of the Sentencing Act 2017 has radically changed the nature of an indefinite detention order. For the future, when determining whether an ESO should be made pursuant to the HRO Act, or an order for indefinite detention pursuant to s 57 of the Sentencing Act 2017, even though the paramount consideration remains the protection of the public, the draconian transformation of the nature of an indefinite detention order will be an important consideration. If it is shown that a defendant is likely to spend all, or almost all, of his or her life in detention, but that close supervision under an ESO will expose the public to a very small risk of serious harm, a court will naturally hesitate before making an indefinite detention order. In pausing before making an indefinite detention order, the arbitrariness of that order, in the sense used in Article 9 of the ICCPR, when considered against the defendant’s particular circumstances, will be a weighty consideration. The evaluation is consistent with the common law’s protection of personal liberty.
I consider that these observations of the Court in Thomas are of particular relevance to the decision I have to make in this case. During the hearing of this matter, I invited both counsel to provide supplementary written submissions as to whether there is any information available which might shed light on the issue as to whether the risk posed to the community can be adequately addressed by home detention conditions of the kind which are often made in the context of extended supervision orders under the HRO Act.
The applicant has submitted that without the availability of detailed expert opinion to compare the individual circumstances of other cases, any positive findings based on experience with other matters would be unreliable. Counsel for the applicant has urged me to focus solely on the evidence which was led in relation to this respondent.
On the other hand, counsel for the respondent submitted that the information available concerning other matters does not support a finding that the risk posed by the respondent to the community cannot be adequately addressed by home detention‑type conditions as part of an extended supervision order.
In the end, I have not been greatly assisted one way or another by the absence of empirical evidence concerning whether offenders in this category can be adequately contained and the risk ameliorated by home detention‑type orders.
I have taken into account the same concerns expressed by the Court in Thomas, particularly in relation to the effect of treatment in prison alone and the limitations of assessment about a person’s behaviour in the artificial environment of a prison. Without the respondent having previously had the opportunity to comply with such strict conditions, I am not persuaded at this stage that the risk to the community posed by the respondent cannot be adequately addressed by the respondent being subjected to strict home detention and electronic monitoring conditions as part of an extended supervision order under the HRO Act.
Conclusion
At the hearing on 8 May 2019, counsel for the applicant made the submission that, if it was decided that the application for indefinite detention ought to be refused and that the respondent should instead be released on an extended supervision order, I should not formally determine the matter in that manner without first foreshadowing to the parties my intention to do so. This is because the respondent is currently detained on an interim detention order pursuant to s 57(5), which will immediately cease upon the final determination of the s 57 application. Postponing the final determination of each application, counsel for the applicant submitted, will enable the appropriate practical matters to be put in place to facilitate the respondent’s release from custody. These practical matters include the finalisation of the terms of an extended supervision order and the need to make arrangements for appropriate accommodation for the respondent.
Therefore, for the reasons I have outlined above, I foreshadow my intention to decline to make an order for continuing detention in relation to the respondent. I will hear the parties as to appropriate conditions of an extended supervision order.