Attorney-General (SA) v Topia - [2024] SASC 128

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v TOPIA
[2024] SASC 128
Judgment of the Honourable Justice McDonald
7 November 2024

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
This is an application to vary a continuing detention order (CDO) pursuant to s 19(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (HRO Act) (SCCRM-24-040887).
The respondent is currently the subject of a CDO which was imposed by the Court on 7 May 2024, pursuant to s 18(2) of the HRO Act, and due to expire on 15 October 2024 (SCCRM-24-009882). The imposition of that CDO was made upon application by the Attorney-General (SA) and heard together with the related application for an extended supervision order (ESO) (SCCRM-23-008796).
Prior to the imposition of the CDO, the respondent was subject to an ESO which expired on 16 March 2023. On 15 March 2023, upon application by the Attorney-General (SA), the respondent was made subject to a second interim supervision order (ISO), pending the determination of an ESO (SCCRM-23-008796). On 26 March 2023, the respondent breached conditions of that ISO by absconding to New South Wales and was arrested on a Parole Board warrant on 18 January 2024.
The Attorney-General (SA) brings this application to vary and extend the CDO for approximately six months to allow the respondent the opportunity to complete the Domestic and Family Violence Intervention Program, due to commence in the Mount Gambier Prison on 13 November 2024, with a completion time of approximately five months. In the alternative, the Attorney-General (SA) brings an application for the respondent to be made the subject of an ESO for the duration of two years.
Held:

1.The respondent is to be subject to a continuing detention order, pursuant to s 18(2) of the HRO Act, until 13 May 2025.

2.The Application for an extended supervision order is adjourned to the High Risk Offenders List on Wednesday, 7 May 2025 at 9.15am.

Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, s 17(1)(b)(i), s 18 , s 18(2), s 19, s 19(1), referred to.
Attorney-General (SA) v Topia [2024] SASC 76 ; Attorney-General (SA) v Moyle (No 2) [2019] 134 SASR 257, discussed.

ATTORNEY-GENERAL (SA) v TOPIA
[2024] SASC 128
Criminal: Application
McDONALD J:

Jerome Kiritopa Topia is currently the subject of a continuing detention order (‘CDO’) pursuant to s 18(2) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’). That order was made by Stanley J on 7 May 2024 and was due to expire on 15 October 2024. The Attorney-General (‘the applicant’) seeks a variation of the CDO pursuant to s 19(1) of the HRO Act, to extend the order for approximately six months. The reason that the variation is sought is to allow Mr Topia the opportunity to complete the Domestic and…

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.

Continue reading Attorney-General (SA) v Topia

Details

AGLC: Attorney-General (SA) v Topia [2024] SASC 128
Case: [2024] SASC 128
Decision Date: 7 November 2024

CaseChat Overview and Summary

The Supreme Court of South Australia considered an application for a variation of a Community Detention Order (CDO) made under the Dangerous and Violent Offenders (Detention) Act 2014 (SA). The applicant, Mr Topia, was subject to a CDO due to his high risk of committing serious violent offences. The application sought an extension of the CDO to allow Mr Topia to complete the Dangerous and Violent Individuals Program (DFVIP) in Mount Gambier Prison. The primary legal issue was whether the variation was warranted due to Mr Topia's deteriorating mental health, institutional behaviour, and his unwillingness to engage with authorities voluntarily. The court also needed to assess if the extension would be conducive to the therapeutic process and if it was necessary to ensure the safety of the community.

The court considered the recommendations of the South Australian Mental Health Commission (SAMHC), the views of the South Metropolitan Unit (SMU), and Dr Jayawant’s report, which indicated that Mr Topia remained at high risk of committing further serious violent offences. The SMU highlighted that module B of the DFVIP, which is conducted in the community, is the most beneficial for participants due to its focus on individual therapy. The court acknowledged the disruption that changing from a custody-based program to a community program might cause for Mr Topia, given his lack of rapport with new facilitators and group members. Additionally, the court noted that Mr Topia had shown no intention to comply with court-imposed orders absent compulsion, which increased his risk to the community.

In light of the evidence, the court found it appropriate to grant the application for a variation to extend the CDO until 13 May 2025, allowing Mr Topia to complete the DFVIP in Mount Gambier Prison. The court was particularly influenced by the need for no delay in commencing the program, the finite duration of the order, and Mr Topia’s demonstrated lack of willingness to engage with authorities voluntarily. The court also adjourned the application for an Extended Supervision Order to the High Risk Offenders List for further consideration.

The court made the following orders: Mr Topia is subject to a CDO until 13 May 2025, and the application for an ESO is adjourned to the High Risk Offenders List on 7 May 2025 at 9.15am.

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

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Ratio Decidendi

Legal Principle Established

Module A of the DFVIP will commence on 13 November 2024 in Mount Gambier Prison and is due to conclude on 7 February 2025. The next module B to be conducted in the community is to commence on 2 May 2025 (i.e. a gap of about three months). Usually there is little or no break between modules. The SMU make the observation that module B is the module during which they generally see the most progress in participants because the greatest focus is on them as individuals. Changing from a custody-based program into a community program will result in Mr Topia engaging with new facilitators, with whom he would not have built up any rapport, and new group members. The SMU expressed the view that this was likely to be disruptive to the therapeutic process and considered less than ideal for Mr Topia. Consideration In my view, based on all of the material available to me, in particular Dr Jayawant’s report, and the information from the Parole Board, Mr Topia remains at high risk of committing a further serious violent offence. It follows that he continues to pose an appreciable risk to the safety of the community if not detained in custody. In imposing the original CDO, it was the intention of Stanley J to fix a period of time sufficient for Mr Topia to complete the DFVIP. Unfortunately, due to Mr Topia’s deteriorating mental health and institutional behaviour that did not occur. In those circumstances it is appropriate to grant the application for a variation to extend the CDO such that it will now expire on 13 May 2025. That will afford sufficient time for Mr Topia to undertake the DFVIP in the Mount Gambier Prison. In making this determination I have also been particularly influenced by three further considerations. These are that there need be no delay in Mr Topia commencing the DFVIP. I am advised that it will commence as soon as his transfer to the Mount Gambier Prison can be arranged. Further, the order is for a finite duration, sufficient to enable Mr Topia to complete both modules of the program. The final matter is that since his arrest in January 2024, Mr Topia has made it plain through his conduct and responses in various interviews that, absent being compelled, he has no intention to engage with the relevant authorities or abide by the conditions of any Court imposed orders. This results in Mr Topia posing a particularly high risk to the safety of the community. I make the following orders:1.Mr Topia be subject to a CDO until 13 May 2025.2.The application for an ESO is adjourned to the High Risk Offenders List on Wednesday, 7 May 2025 at 9.15am.