Attorney-General (SA) v Topia - [2024] SASC 76

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v TOPIA
[2024] SASC 76
Reasons for Decision of the Honourable Justice Stanley
11 June 2024
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS – HIGH RISK OFFENDER - SERIOUS VIOLENT OFFENDER
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS – ORDERS RELATING TO SERIOUS VIOLENT OFFENDERS – CONTINUING DETENTION ORDERS
This is an application for a Continuing Detention Order (CDO) pursuant to s18(2) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (HRO Act). This application was heard together with the related application for an Extended Supervision Order (ESO) (SCCRM-23-008796).
On 15 March 2023, upon application by the Attorney-General of South Australia, the Court imposed an interim supervision order (ISO) upon the Respondent pending the ultimate determination of the Attorney’s application for a second ESO.
Shortly after being released from custody on the ISO the respondent absconded from South Australia. The respondent returned to South Australia in January 2024 and, upon his return, was taken into custody and held on a Parole Board warrant for suspected breaches of his ISO.
Following an interview on 12 March 2024, the Parole Board was satisfied the responded had breached a number of conditions of his ISO and, pursuant to s18(1) of the HRO Act referred to the Court the question of whether a CDO should be made.
The Respondent has repeatedly refused to participate in a medical assessment that would enable the preparation of a report in satisfaction of s7(3) of the HRO Act. The Court is unable to determine the application for an ESO without this report.
Held:
1. The Respondent be detained at a Correctional Services or training centre pursuant to s18(2) of the Criminal Law (High Risk Offenders) Act 2015 (SA) until 15 October 2024.
2. The Application for an Extended Supervision Order is adjourned to the HRO List on 9 October 2024 at 9:15am.
Criminal Law (High Risk Offenders) Act 2015 ss 7(3), 18(1) 18(2)(a), 18(2)(b), 18(3)., referred to.
Police v Sullivan; Attorney-General v Sullivan [2018] SASC 11; Attorney-General v Grosser [2016] SASC 49; R v Kimmins [2016] SASC 176; Attorney-General (SA) v V, ZR [2019] SASC 1, applied.

ATTORNEY-GENERAL (SA) v TOPIA
[2024] SASC 76
Criminal
STANLEY J:
Introduction

On 7 May 2024 I granted a continuing detention order (CDO) under s18(2) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (HRO Act) in relation to Jerome Topia (the respondent). These are my reasons for doing so.
The respondent is subject to an interim supervision order (ISO), pending the determination of the application brought by the Attorney-General for an extended supervision order (ESO).[1] The two applications were heard together. Section 18(2) of the HRO Act confers a discretionary power on the Supreme Court to make a CDO. In determining whether to exercise the discretion the paramount consideration of the Court is the safety of the community.[2]
[1] SCCRM-23-008796.
[2] HRO Act s 18(3).
The Attorney-General submits that the…

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 76
Case: [2024] SASC 76
Decision Date: 11 June 2024

CaseChat Overview and Summary

In the matter of the Attorney-General (SA) versus Topia, the South Australian Supreme Court was tasked with determining whether the respondent, who had breached multiple post-custodial orders and demonstrated a propensity for serious violent offending, should be subject to a continuing detention order (CDO). The respondent had been previously sentenced to imprisonment for aggravated serious criminal trespass and causing serious harm with intent, and had breached the conditions of his extended supervision orders (ESO) on several occasions. The Attorney-General argued that there was an appreciable risk to the community if the respondent was not detained, based on his past behaviour and recent breaches of his interim supervision order (ISO).

The legal issue before the court was whether a CDO or an ESO should be imposed on the respondent, given his history of breaching post-custodial orders and his refusal to participate in the psychological assessment required for an ESO. The court noted that an ESO could not be made until the respondent submitted to the required assessment, but the respondent had indicated he would not participate in any such assessment. This left the court with the sole option of imposing a CDO for the protection of the community.

The court found that a CDO was necessary to protect the community and to provide the respondent with an opportunity to complete the Domestic and Family Violence Intervention Program (DFVIP) and undergo the required assessment. The court ordered the respondent to be detained at a correctional services institution or training centre until 15 October 2024, and adjourned the application for an ESO to 9 October 2024. The court emphasised the importance of the respondent recognising the need for intervention and completing the DFVIP.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Attorney-General submits that there is an appreciable risk to the safety of the community if the respondent is not detained. He puts this submission on the basis of the respondent’s behaviour while subject to an ESO and more recently an ISO. Evidence I rely on the affidavits of Angela Marsh sworn 15 March 2024 and 23 April 2024.[10] [10] FDN 8. The nature of the respondent’s supervision order breaches and further offending are relevant to determining if an appreciable risk to the community exists if he is not subject to a CDO. The most recent ISO breaches indicate a disregard for Court-based orders and the underlying purpose of the Court’s power to order an ESO. First ESO The respondent was made subject to an ESO by this Court on 17 March 2021 for a period of two years. [11][11] The related index offences were aggravated serious criminal trespass, causing serious harm with intent (and another count of assault cause harm), for which the respondent was sentenced to four years, six month imprisonment. The circumstances of the offending involved the respondent and a co-defendant attending a residential premises. Victim 1 told the defendants to leave and brandished weapons towards the co-defendant. The co-defendant disarmed Victim 1 and struck him multiple times with a pole. The respondent assaulted Victim 2 with a piece of wood, fracturing his arm. The respondent was intoxicated at the time. During the period of the first ISO and ESO the respondent breached conditions of his supervision orders. In January of 2021 the respondent breached the condition requiring him to be subject to electronic monitoring and breached the curfew condition. In June 2022 the respondent breached conditions of his ESO by consuming alcohol which is a contributing factor to his criminal behaviour; by failing to maintain a telephone service; and, by further offending. The further offending involved the charge of carrying an offensive weapon, namely, an axe and a kitchen knife, and at about the same time in company with Ms Susan Smith, mark graffiti. The respondent also breached his bail conditions by being in company with Ms Smith.[12] I note that the respondent submitted these last offences were dealt with by the Magistrates Court recently without imposition of further penalty, though a conviction was recorded.[13]Application for second ESO[12] Ms Smith is the former domestic partner and a co-accused in relation to a number of prior offences.[13] T 10.14-16. On 15 March 2023, upon application by the Attorney-General, the Court granted an interim supervision order (ISO) which is still in force pending determination of a second application for an ESO in relation to the respondent. On or about 26 March 2023 the respondent absconded to New South Wales and was later arrested for offending against his domestic partner, Ms Smith. On 29 June 2023 the resulting charges were withdrawn and dismissed.[14] [14] The New South Wales offences were use offensive weapon to commit indictable offence, reckless wounding, assault occasioning actual bodily harm, stalking / intimidating and contravene apprehended violence order. The offences were alleged to have occurred against Ms Smith on 27 March 2023 whilst she was 14 weeks’ pregnant.

Decision

Reasons for decision

While the CDO will only remain in force while the respondent is subject to the ISO[25], I am satisfied that a CDO would not only protect the community but will provide the respondent with an opportunity to participate in, and complete the Domestic and Family Violence Intervention Program (DFVIP) and undergo the s 7 assessment which is a pre-condition for the making of an ESO and for his release into the community under this ESO. It is important that the respondent recognises this reality. The first step will be for him to participate in the s 7 assessment. That s 7 report will not be available until around September 2024. Accordingly, I will make an order for a CDO for a limited period. That period should allow the respondent to complete the DFVIP. The DFVIP runs from mid-May 2024 to mid-October 2024. In the circumstances, I also would adjourn the application for an ESO to early October 2024.[25] Attorney-General (SA) v V, ZR [2019] SASC 1 at [43].Conclusion I order that the respondent be detained at a Correctional Services institution or training centre pursuant to s 18 (2) of the Criminal Law (High Risk Offenders) Act 2015 (SA) until 15 October 2024. I adjourn the application for an extended supervision order to the HRO list on 9 October 2024.

Ratio Decidendi

Legal Principle Established

The respondent made submissions addressing what occurred before the Parole Board. He claimed he was in the parole office getting an appointment before the Parole Board when he made some comments in relation to having to travel around to find his child in the event that child welfare was to take custody of his child. He claimed that Francis Nelson KC, the Chair of the Parole Board, informed him that welfare would remove his child to which he responded that he would “have to travel around to get them”.[19] He denied that he had any intention of breaching any further ESO or that anything he said should have been understood as indicating he had such an intention. I do not accept the respondent’s explanation. It is contrary to the terms of the report of the Parole Board of 5 April 2024.[20] It is apparent that the respondent gave the Board the same intimation he gave me, namely, that he was not prepared to participate in any form of medical assessment, and he wanted the matter ended, so he would be released and travel where he wished. As he told the Parole Board on 12 March 2024, he absconded to New South Wales in breach of his ISO because, “I don’t care about it, I just want to go home and see my family”. He said the Court could do nothing, “because it’s expired and I’m not under it anymore”.[21] [19] T 10.30-36.[20] Exhibit ACM-9 to the affidavit of Angela Marsh sworn 23 April 2024.[21] Exhibit ACM-9 to the affidavit of Angela Marsh sworn 23 April 2024.Consideration I am satisfied that the Court’s jurisdiction pursuant to s 18(2) has been invoked. The respondent has breached multiple conditions of his interim supervision order and poses an appreciable risk to the safety of the community if not detained in custody. The respondent opposes the making of a CDO. However, he is prepared to submit to an ESO. Accordingly, the real issue is whether the Court should make a CDO or an ESO. An ESO cannot be made until a report pursuant to s 7(3) of the HRO Act is received from a prescribed health professional, in this instance Dr Jaywant. However, a catch-22 situation has developed. The respondent has told the Court he will not participate in any psychological assessment although he seemed to think that the assessment was for the purposes of a CDO rather than an ESO. So long as the respondent refuses to participate in the assessment process with Dr Jaywant or another prescribed health professional, the Court will not be in a position to make an ESO.[22] That leaves the Court in a position where the only option available to it for the protection of the community is to order a CDO. Even if the respondent submitted to an assessment interview with Dr Jaywant, which was scheduled for Wednesday, 8 May 2024, a s 7(3) report is unlikely to be received until September. [22] HRO Act s 7(3). The respondent told the Court what he had told the Parole Board, that he is doing everything to stay out of trouble; he has secured accommodation; he has his own business; that he would like to access drug and alcohol counselling in the community; and that he is studying for an MBA.[23] He told me that he wants to stay out of gaol and has not committed any further offence since he returned to South Australia. However, he continues to threaten to abscond again and he refuses to participate in programs to address his violent offending.[23] T 12.27-32.