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

1. 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.

2. 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).

3. The Attorney-General submits that the necessary preconditions enlivening the Court’s jurisdiction to make a CDO under s 18(2) of the HRO Act are satisfied. Those preconditions are:

   (i)the respondent has breached a condition of his supervision order;[3] and

   (ii)the respondent poses an appreciable risk to the safety of the community if not detained in custody.[4]

   [3] HRO Act s 18(2)(a).

   [4] HRO Act s 18(2)(b).

4. Once the Court’s jurisdiction is enlivened it is a matter for the Court whether or not to exercise the power to order a CDO until the expiration of the supervision order or for a shorter period specified by the Court that adequately protects the safety of the community.  The power is exercised for protective not punitive purposes.[5]   The central question is whether the appreciable risk to the community posed by the respondent necessitates his detention for the duration of his supervision order , or some shorter period, to address that risk.[6] The risk posed by the respondent must be reassessed in light of the nature and circumstances of the breach.

   [5]    Police v Sullivan; Attorney-General v Sullivan [2018] SASC 11 at [85].

   [6]    Police v Sullivan; Attorney-General v Sullivan [2018] SASC 11 at [85].

5. In this case, the Attorney-General submits that the relevant preconditions for ordering a CDO are met, and the Court should exercise its discretion to grant such an order on the basis that the respondent poses an appreciable risk to the safety of the community if not detained in custody.

6. Appreciable risk has been considered by this Court to include a risk that is capable of being estimated, but is not purely speculative, and is perceptible and sensible.[7]  It must be founded upon evidence providing a substantive basis for apprehension of future risk.[8]  The paramount consideration is the safety of the public and relatively smaller degrees of risk will outweigh considerations which, even strongly, would militate against the making of an extended supervision order (ESO)[9], or in this case, a CDO. 

   [7]    Attorney-General v Grosser [2016] SASC 49 at [29], cited in R v Kimmins [2016] SASC 176 at [36].

   [8]    Attorney-General v Grosser [2016] SASC 49 at [29].

   [9]    R v Kimmins [2016] SASC 176 at [38].

7. 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

8. I rely on the affidavits of Angela Marsh sworn 15 March 2024 and 23 April 2024.[10]

   [10] FDN 8.

9. 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

10. 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. 

11. 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.

12. 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.

13. 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. 

14. The respondent returned to South Australia and was subsequently arrested on a Parole Board warrant on 18 January 2024.  Following an interview on 12 March 2024 the Parole Board was satisfied that the respondent had breached the following conditions of his ISO:

    (i)condition 4 – failed to report to his community corrections officer;

    (ii)condition 6 – failed to reside at an approved residence;

    (iii)condition 7 – leaving the State without permission;

    (iv)condition 8 – breach of the conditions of his curfew; and

    (v)condition 14 – non-contact with Ms Susan Smith, his former domestic partner and a co-accused in relation to a number of prior offences.

15. As a result of the ISO breaches, the Parole Board, pursuant to s18(1) of the HRO Act referred to the Court the question of whether a CDO should be made pursuant to s18(2). The Parole Board did so for the following reasons:

    (i)The respondent has no insight into his criminogenic behaviour.  He has a serious criminal record both in South Australia and interstate.  He has not responded to offers of help.  He remains at high risk of re-offending.

    (ii)The respondent has no strategies or indeed any commitment to change.  He repeated during the Parole Board interview that he would leave the State, as a result of which everything would be “fine”.  He told the Board that he breached the ISO by absconding because he does not care about the conditions of the ISO and just wanted to go home and see his family.

    (iii)During the interview the respondent became aggressive and abusive, and ultimately said: “… I don’t want to be part of [the ESO matter] … I just want to exclude myself … I am going.”  He then left the interview abruptly.

    (iv)In the Board’s view it is not possible to manage the respondent safely in the community.  The Board recommended a CDO be ordered because it is more likely the respondent would comply with intervention if he was in custody rather than in the community. 

16. The Attorney-General submits that there is sufficient evidence that the respondent committed the breaches found by the Parole Board based on the information from DCS[15] and New South Wales police,[16] that the respondent absconded to New South Wales with Ms Smith and was later arrested for alleged offending against her, breaching condition 14 to the ISO.  I am satisfied these allegations are made out for the purposes of this application.  It follows that given the respondent’s absence from South Australia in breach of ISO condition 7, I am satisfied he did not reside at his approved address in South Australia and did not comply with his curfew obligations in breach of conditions 6 and 8 of the ISO.  However, I am not prepared to find that he was in breach of the obligation in condition 4 to report to his community corrections officer.  There is no evidence of such a breach. 

    [15] Exhibit ACM-7 to the affidavit of Angela Marsh sworn 23 April 2024. 

    [16] Exhibit ACM-4 to the affidavit of Angela Marsh sworn 23 April 2024. 

17. The respondent explained that the charge of carrying an offensive weapon from June 2022 was the result of him confiscating the weapons from his ex-partner.  He submitted that he was not charged with a breach of his first ESO in relation to this incident.[17]  However, it is clear that he was charged with the offence of possessing an offensive weapon.[18] 

    [17]  T 10.18-24.

    [18] Exhibit ACM-14 to the affidavit of Angela Marsh sworn 23 April 2024.

18. 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

19. 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.

20. 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).

21. 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.

22. The Attorney-General submits that having regard to all of the circumstances the Court should exercise its discretion to make a CDO given the risk the respondent poses to the community.  He submits that if the Court orders a CDO the respondent could participate in the Domestic and Family Violence Intervention program or the Violence Prevention Program while in custody.  However, the respondent’s inclusion in either program would be contingent on a transfer to Mount Gambier prison where the programs are offered; his consent to participating meaningfully in the program; and him remaining in custody long enough to complete either program.  However, I accept the submission made by the Attorney-General that the availability of further supports while in custody is a relevant consideration in determining whether to exercise the discretion to order a CDO.[24]

    [24] Outline of Argument dated 23 April 2024 at [27].

23. In my view it is not yet appropriate for the respondent to be released from custody on the existing ISO made 15 March 2023.  In 2021 he was assessed as being at a high risk of recidivism should he not receive treatment.  Little has changed to suggest that assessment is no longer valid.  The respondent has failed meaningfully to engage with any rehabilitation services or programs while the subject of the first ESO or the current ISO.  He has not seriously addressed his risk of reoffending or his outstanding criminogenic risk factors. 

24. In addition, given his lengthy criminal history of more than 20 years, his statements to the Court and the Parole Board, his breaches of supervision orders and the paramount consideration to protect the safety of the community, I consider that it is an appropriate to grant the application for a CDO.

25. 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

26. 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.

27. I adjourn the application for an extended supervision order to the HRO list on 9 October 2024.