Attorney-General (SA) v V, ZR
[2019] SASC 1
•11 January 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v V, ZR
[2019] SASC 1
Judgment of The Honourable Justice Hughes
11 January 2019
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
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - PROTECTION OF COMMUNITY
Application by the Attorney-General (SA) for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) in action SCCRM-18-30. Referral of question of a continuing detention order pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) in action SCCRM-18-370. Proceedings in the two actions heard together.
Pending the determination of the application for an extended supervision order, the Court made an interim supervision order in respect of the respondent on 28 February 2018. In October 2018, the Parole Board determined the respondent had breached the terms of his interim supervision order and the question of a continuing detention order was referred to the Court for determination.
Prior to the determination for an extended supervision order, the respondent was charged with a further three offences.
Held:
1. The respondent be subject to an extended supervision order for a period of two years pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
2. The referral for a continuing detention order be dismissed.
3. A continuing detention order endures only during the period of the supervision order in respect of which it is made. Interim and extended supervision orders are separate orders. A continuing detention order issued as a consequence of a breach of an interim supervision order ceases to operate upon the cessation of the interim supervision order, even if the interim supervision order is succeeded by an extended supervision order.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 5, s 7, s 9, s 10, s 12, s 18; Criminal Law (Sentencing) Act 1888 (SA) s 23, s 24, referred to.
R v Kimmins [2016] SASC 176; Attorney-General v Grosser [2016] SASC 49; State of NSW v John Owen Conway [2011] NSWSC 976 (8 September 2011), applied.
R v Schuster [2016] SASCFC 86; (2016) 125 SASR 388, discussed.
State of NSW v Thomas [2010] NSWSC 677 (24 June 2010), considered.
ATTORNEY-GENERAL (SA) v V, ZR
[2019] SASC 1Criminal: Application
HUGHES J: Two matters fall to be considered by the Court. One is an application by the Attorney-General for an extended supervision order in respect of ZRV. The other is the determination on a referral by the Parole Board as to whether the Court should issue a continuing detention order in respect of ZRV. Both matters arise under the Criminal Law (High Risk Offenders) Act 2015 (the ‘HRO Act’).
The Extended Supervision Order application
The extended supervision order application was brought by the Attorney-General pursuant to s 7(1) of the HRO Act.
Offending history
The respondent pleaded guilty to the offences of aggravated inducing a child to expose her body and aggravated possession of child exploitation material. The offences amounted to a course of conduct over several weeks in August 2015. The victim was the respondent’s half-sister. She was 13 years old at the time of the offending. The respondent was nearly 19. The respondent is now 21 years old. The offending involved exchanging messages and photographs with sexual content and the respondent making indecent propositions to the victim. The messaging offending attracted a maximum penalty of 12 years’ imprisonment. The aggravated possession of child exploitation material attracted a maximum penalty of seven years’ imprisonment.
In committing the offences described above, the respondent breached a two year good behaviour bond which he had entered into in 2015. The bond was in place following the suspension of a two month term of imprisonment for an assault. The respondent fought with a fellow passenger in a vehicle over who should sit in the front seat. The respondent twisted the victim’s arm causing two fractures.
After being charged with the offences against his half-sister, but before being sentenced, the respondent breached his conditions of bail by being in the presence of minors on several separate occasions and moving from the address to which he had been bailed to reside.
On 28 September 2016, ZRV was sentenced to imprisonment for one year and nine months for the offences against his half-sister, cumulative upon the two months from the breach of bond. This was backdated to 13 April 2016. He was eligible for parole from 12 December 2016. The expiry date of his sentence was 12 March 2018. On 24 January 2018, the Attorney-General brought an application to the Court for an order that the respondent be subject to an extended supervision order.
The legislative framework
The object of the HRO Act as set out in s 3 is to provide for the protection of the community from exposure to an appreciable risk of harm posed by certain offenders. These include serious sexual offenders. Section 7 provides that the Attorney-General may make an application to this Court for an extended supervision order to be made in respect of a person who is a “high risk offender”.
A person is a high risk offender if they come within one of several categories of offender described in s 5 of the HRO Act. It was not disputed that the respondent falls within one such category by virtue of his convictions for the offences that occurred in August 2015.
In relation to a person who is a high risk offender, the Court must satisfy itself that the person poses an appreciable risk to the safety of the community if not supervised under the order: s 7(4). The balancing act has been described by Stanley J as follows:
The Act requires the Court to interfere with the liberty of the subject by making an extended supervision order only if it is satisfied that the respondent is a high risk offender and an order is necessary to ensure the respondent does not pose an appreciable risk to the safety of the community. The discretion to be exercised pursuant to s 7 of the Act, like the discretion conferred pursuant to s 24 of the Sentencing Act, demands a normative judgment which is quite different from traditional judicial discretions. The Court has been entrusted with a mandate to ensure public security by interfering with the right to liberty of a person who is a high risk offender and poses an appreciable risk to the safety of the community if not supervised. The discretion is to be exercised having regard to both the interests of the community and the interests of the respondent, but by according the consideration of public safety paramountcy. Here there are two competing considerations. On the one hand, the respondent to an application by the Attorney-General has completed his or her sentence. There is a common law rule that his personal liberty and freedom of movement will not be infringed absent clear, unambiguous lawful authority. On the other hand, there is the need to protect the community from the risk of him reoffending. In construing a statute which infringes those rights and freedoms the court will do so in a manner which limits the infringement to what is strictly required to effect the purpose of the statute. In this case, given the terms of this legislation, specifically the paramount consideration of public safety, in the exercise of the Court’s discretion relatively smaller degrees of risk will outweigh considerations which, even strongly, would militate against the making of an extended supervision order. (footnotes omitted)[1]
[1] R v Kimmins [2016] SASC 176 at [38].
Section 7 sets out the prerequisites for the making of an extended supervision order. The paramount consideration in determining whether to make an extended supervision order is the safety of the community. The Court of Criminal Appeal in R v Schusterconsidered the meaning of the expression “the safety of the community is paramount” in the context of s 23 and s 24 of the Criminal Law (Sentencing) Act 1988(SA).[2] The Court said:
[2] [2016] SASCFC 86; (2016) 125 SASR 388.
What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to order release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high, would have limited utility.
More fundamentally, it is in the very nature of a discretion that the level of risk, whatever it is, may nonetheless be sufficiently outweighed by other factors to justify release on licence. For example, an offender with some degree of short term risk of re-offending who has excellent prospects of medium to long term rehabilitation might be released on licence, when an offender with the same risk profile but poor prospects of rehabilitation would not. The effect of making public safety the paramount consideration is that, speaking generally, relatively smaller degrees of risk will outweigh considerations which, even strongly, support release. The exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety.[3]
[3] Ibid 405-406.
That analysis is also apt in respect of the expression as it appears in the HRO Act. Pursuant to s 7(4), the Court may order that the respondent be subject to an extended supervision orderif 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. As to what amounts to an appreciable risk, Stanley J said in Attorney-General v Grosser:
I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible. Necessarily, a risk must be anticipatory. An appreciable risk is a risk that is not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in future in a manner that poses a risk to the safety of the community. It is a question of degree. The extent of the appreciable risk is informed by the consideration that in determining whether to make anextended supervision orderthe safety of the community is paramount. I construe that requirement to mean that where a court considers that the question of whether to make an order is finely balanced, the protection of the community would favour making the order rather than declining to do so. I do not suggest that this consideration is exhaustive of the work to be performed by s 7(5) of the Act. The full extent of the operation of this provision falls to be considered on another occasion.[4] (footnote omitted)
[4] [2016] SASC 49 at [29].
Section 7(6) provides:
(6) The Supreme Court must also take the following matters into consideration in determining whether to make an extended supervision orderin respect of the respondent:
(a) the likelihood of the respondent committing a further serious sexual offence or serious offence of violence (as the case may be) if not supervised under the order;
(b) the reports of any medical practitioner (as directed and nominated under subsection (3)) furnished to the Court;
(c) any report prepared by the Parole Board under section 64(5) of the Correctional Services Act 1982;
(d) any report required by the Court under section 20 (including the results of any statistical or other assessment furnished to the Court as to the likelihood of persons with histories and characteristics similar to those of the respondent committing a further relevant offence);
(e) any relevant evidence or representations that the respondent may desire to put to the Court;
(f) any treatment or rehabilitation program in which the respondent has had an opportunity to participate, including his or her willingness to so participate and the extent of such participation;
(g) in the case of a respondent released on parole—the extent to which he or she has complied with the conditions of his or her release on parole;
(h) in the case of a respondent subject to an existing extended supervision order—the extent to which he or she has complied with the terms of the order;
(i) in the case of a respondent who is a registrable offender (within the meaning of the Child Sex Offenders Registration Act 2006)—the extent to which he or she has complied with any obligations under that Act;
(j) the circumstances and seriousness of any offence in respect of which the respondent has been found guilty according to his or her criminal history, and any pattern of offending behaviour disclosed by that history;
(k) any remarks made by the sentencing court in passing sentence;
(l) any other matter that the Court thinks relevant.
Interim supervision order
The Attorney-General’s application for an extended supervision order, having been made on 24 January 2018, was made within 12 months of the “relevant expiry date” for the respondent, namely the date on which the term of imprisonment of the respondent was due to expire. In the case of this respondent the expiry date was 12 March 2018.
In accordance with s 7(3), the Court is unable to make an order without having received at least one report of a legally qualified medical practitioner providing an assessment of the risk that the respondent will commit a further serious offence of the relevant type. Such a report was ordered. Because the application was not made in such time as enabled such a report to be received to enable a final determination to be made before the relevant expiry date, the Attorney-General applied to the Court for an interim supervision order pursuant to s 9 of the Act.
On 28 February 2018, the Court found that ZRV was a high risk offender for the purposes of the HRO Act and imposed an interim supervision order. Under that order, he was subject to various conditions upon his release from prison on 12 March 2018.
Whether the respondent poses an appreciable risk to the safety of the community if not supervised
The evidence relied upon by the Attorney-General was:
·Affidavits of Alyona Andreevna Haines affirmed on 23 January 2018, 6 February 2018, 23 February 2018 and 22 August 2018;
·Reports of Dr Haeney dated 16 June 2018, 9 July 2018 and 21 October 2018;
·Oral evidence of Dr Haeney to the Court on 16 November 2018.
In respect of the risk said to be posed by ZRV, the Attorney-General submitted that the Court could rely upon ZRV’s past conduct, and the expert evidence of Dr Haeney (Consultant Forensic Psychiatrist, James Nash House). It is convenient to address the expert evidence first.
In his report of 16 June 2018, Dr Haeney stated:
4.17Considering all of these items together, there are several themes which run through and which are considered relevant to [ZRV]’s future risk. While he does not appear to have any distinct paraphilias and has a history of sexual offending limited to the recent charges, he has significant deficits particularly in the domains of psychological and social adjustment. As other reports have indicated, it appears that [ZRV] has difficulties with recognising and reciprocating the social and emotional needs of others, leading to a lack of empathy. He has a lack of awareness of, or disregard for, appropriate social behaviour. He shows affective and behavioural impulsivity and acts either without consideration of consequences, or with disregard for them. There is an element of him seeking to impress or confound others by discussing violence or sexual matters frankly, but later in our interview he appeared more reflective and self-aware. He shows limited engagement with services and disregarded previous bail conditions; he is currently more mindful of the potential consequences of further breaches. Given his deficits in self-awareness, he may be more reliant on external strategies to avoid reoffending, rather than internal ones.
4.18In Attorney-General v Grosser, Justice Stanley held that an ‘appreciable risk’ is “one that is capable of being estimated, perceptible and sensible. Necessarily, a risk must be anticipatory. An appreciable risk is a risk that is not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in future in a manner that poses a risk to the safety of the community. It is a question of degree. The extent of the appreciable risk is informed by the consideration that in determining whether to make an extended supervision order the safety of the community is paramount. I construe that requirement to mean that where a court considers the question of whether to make an order is finely balanced, the protection of the community would favour making the order rather than declining to do so”. Clinically, a difficulty arises; if someone has already committed a specific offence, in this case sexual, then it would be near impossible to say that the risk of a further offence is ‘purely speculative’ given that one of the strongest predictors of future behaviour is past behaviour. While his risk assessment identifies that some risk markers are not present, there are significant residual risk factors that are not straightforward to address, given that many are innate to [ZRV]. I therefore cannot conclude that there is no appreciable risk of further violence given the pattern to date and would suspect that external strategies underpinned by an extended supervision order may be helpful in his ongoing management. However, imposition of an ESO is a matter for the Court. (emphasis added).
Dr Haeney supported the draft conditions to which the respondent had been made subject as terms of the interim supervision order made by the Court on 28 February 2018.
A further question was put to Dr Haeney. He was asked to specifically address the likelihood of ZRV committing a further serious sexual offence. In a clarifying letter dated 9 July 2018, he advised that his earlier report had contained an error and substituted the sentence emphasised in the above paragraph with the following:
I therefore cannot conclude that there is no appreciable risk of further sexual violence given the pattern to date and would expect that external strategies underpinned by an extended supervision order may be helpful in his ongoing management.
Dr Haeney went on to reinterpret the above paragraph as:
I therefore cannot conclude that there is no appreciable risk of further serious sexual offending given the pattern to date and would expect that external strategies underpinned by an extended supervision order may be helpful in his ongoing management.
An addendum report dated 21 October 2018 addressed the respondent’s tendencies to violence not limited to sexual violence. To prepare his report, Dr Haeney applied a different risk assessment tool to the existing evidence and history. The addendum report states:
3.5In summary, many of the same themes as outlined in the Risk for Sexual Violence Protocol assessment (in my report of 16th June 2018) are present in this violence risk assessment. This is felt to be due to the fact that his risk of violence and risk of sexual offending stem from the same areas rather than separate specific pathologies. He has difficulties with social reciprocity, with emotional regulation and with executive functions such as planning and consideration of consequences. He makes impulsive decisions, often to the detriment of himself and others. He has a lack of ability to adhere to social boundaries or supervision requirements. There is affective instability, leading to him quickly becoming aroused or angry. He has a lack of appropriate social supports or norming influences. He misuses substances with [sic] serves to further disinhibit him.
3.6Therefore, in my opinion [ZRV] has a number of significant and unresolved risk factors for further violence. These have not yet been addressed and will remain difficult to ameliorate, even with significant support and supervision. Therefore, it is difficult to conclude anything other than that [ZRV] remains an appreciable risk of further violence. (emphasis added)
Dr Haeney expressed the view that, “given his history of previous violence, his continued violent ideation, his lack of response to supervision, his impulsivity and substance misuse, together with all the other relevant factors above, I would conclude that there is an appreciable risk of further violence”. (emphasis added)
As to the degree of that risk, Dr Haeney stated:
Exact quantification of the risk posed by an individual is not feasible … In [ZRV]’s case, I would surmise that he is at moderate or elevated risk, as he has a number of outstanding risk factors that require additional management efforts.
Dr Haeney commented further in response to a specific question about the manner in which he had expressed his views in the reports of 16 June and 9 July as to there being an appreciable risk, that
… my conclusion can be read as meaning I do believe there is an appreciable risk of further offending, for both sexual and violent offences.
Dr Heaney then supplemented that with oral evidence at the hearing as follows:
Q. And so do you assert that there was an appreciable risk that [ZRV] will commit a serious offence of violence as I’ve described?
A. That was my conclusion yes.
Q. And not just an offence of violence that might not involve serious harm to a person?
A. Yes that’s correct.
In addition to the medical evidence, the conduct on which the Attorney‑General sought to rely was:
·The index offending
·The five breaches of bail on 19 November 2015, 20 November 2015, 13 April 2016 and 17 October 2017 (x 2)
·Charges for offences contained in an information laid on 1 November 2018
·Non-compliance with the interim supervision order on 1 August 2018
·Statements made by ZRV to Dr Haeney during Dr Haeney’s examination of him
·Various statements made by ZRV to or in the presence of DCS staff.
After my decision was reserved, the Crown Solicitor informed the Court that ZRV had recently been charged with further offences. Those offences were:
1. Unlawful sexual intercourse with a person under 17 years, contrary to section 49(3) of the Criminal Law Consolidation Act 1935 (CLCA) (2 counts);
2.Indecent assault, contrary to section 56(1) of the CLCA;
3.Fail to comply with reporting obligations, contrary to s 44(1a) of the Child Sex Offenders Registration Act 2006 (2 counts)
ZRV had not been granted bail as at 4 December 2018. For the reasons that follow, this has had no bearing on the outcome of the application.
I do not accept that each of the categories of conduct listed above is available for the task of determining whether the respondent should be subject to an extended supervision order. Those which are not amenable to be considered are those which behaviour is not proven or admitted, and which is proposed to be evaluated by the Court directly. The index offending and the breaches of bail are relevant. They describe conduct that has been established through a court process. Section 7(6)(j) refers to offences in respect of which the respondent has been found guilty according to his or her criminal history and any pattern of offending behaviour disclosed by that history. “That history” in this provision refers to “criminal history” and should be understood as referring to matters in respect of which the respondent has been found guilty.[5]
[5] State of NSW v John Owen Conway [2011] NSWSC 976 (8 September 2011) at [35].
The non-compliance on 1 August 2018 with the interim supervision order may be taken into account. That conduct was found by the Parole Board to have occurred following a process of interview.
However, in respect of assertions of conduct that have not been admitted or proven, such as the charges contained in the information laid on 1 November 2018, it is difficult to see how the Court can find such conduct to be established to any degree sufficient to then incorporate the proposition into an assessment of the risk posed by the respondent.
I accept that Dr Haeney may incorporate allegations that have not been proven in his process of assessing risk.[6] That is a different process using expert psychological tools.
[6] See, for example, State of NSW v Thomas [2010] NSWSC 677 (24 June 2010) at [39] per Buddin J.
Even if the legislative scheme intends that unadmitted allegations that have not been the subject of a testing process such as a trial may be taken into account, it would be imprudent to do so in a matter such as this. The mixing of established facts and unproven allegations contaminates the pool of material upon which the Court reaches its decision. If the allegations are subsequently found not proven, the extent of the reliance on the contaminated material may not be evident.
The statements made by the respondent to Dr Haeney are relevant to risk. These include statements such as “I’ve got to the point I want to stab someone or torture them first” and “it might be worthwhile going back [to jail] for something fun, something I’ve wanted”. However their value to the Court is primarily as foundational to Dr Haeney’s assessment of the risk that Dr Haeney concluded the respondent presents. That risk exists, in Dr Haeney’s view, notwithstanding his agreement with the suggestion by counsel for the respondent that ZRV is boastful and has not acted on such threats. Similarly, Dr Haeney’s observations about the respondent are relevant to the assessment of risk but the individual statements do not constitute additional material for the Court’s assessment of risk; they are the foundations of the conclusion reached by Dr Haeney.
On or about 18 October 2018, the Parole Board found that the respondent had breached the conditions of his interim supervision order. That finding is relevant to the assessment of risk.
On the basis of the respondent’s established conduct and the views of Dr Haeney, I am satisfied that the respondent does pose a risk to the safety of the community if not supervised. However, given the breaches of the interim supervision order, it also falls to be considered whether the risk is such that a continuing detention order is required to procure the safety of the community.
Continuing detention order
On 18 October 2018, the Parole Board resolved that the respondent had breached a condition of his interim supervision order on 1 August 2018.
The breaches found proven by the Parole Board were of the condition 2.17 of the Interim Supervision Order that the respondent have no contact with a person under the age of 18 years. The Board found that on 1 August 2018 the respondent had had contact with a 16 year old female at a friend’s house in Renmark, and that he had had contact with a person under the age of 16 years by text messages and/or social media. On 13 August 2018 the Board issued a warrant and he returned to custody. On 3 September 2018 he was convicted by a Magistrate of two counts of failing to comply with reporting obligations and failing to inform of a registrable offender charge (the last of which offending occurred approximately a year ago in October 2017). For those offences he was imprisoned for 2 months and 14 days.
The breaches and the decision of the Parole Board to detain ZRV in custody led to the question of his continued detention being referred to this Court pursuant to s 18(1) of the HRO Act. When a person is so referred, there is no applicant for the order but each of the respondent and the Attorney-General are parties to the proceedings and the Parole Board has a right to appear and be heard (s 18(5)).
Pursuant to s 18, the Court may make a CDO if satisfied
·that there has been a breach of a condition of a supervision order; and
·that the person poses an appreciable risk to the safety of the community if not detained in custody.
The paramount consideration is the safety of the community (s 18(3)).
Just prior to the expiry of the respondent’s sentence, I considered the matter and on 23 October 2018 the Court made an order pursuant to s 18(4) which provides that a person may be detained pending the determination of the proceedings. “The proceedings” in that context are those which dispose of the referred issue of whether the respondent should be subject to a continuing detention order until the expiration of the supervision order or such lesser period specified by the Court.
Interaction of ESO and the referral
Before considering whether a continuing detention order is required to ameliorate the risk to the community posed by ZRV, it is necessary to address the Attorney-General’s submission concerning the interaction of the provisions regarding extended supervision orders and continuing detention orders.
The parties agreed that the Court might rely upon the evidence and submissions before the Court in the application for the extended supervision order to determine both applications.
For the reasons that follow, in making an extended supervision order, the Court’s power to issue a continuing detention order is by that act, extinguished. Further, if I were to impose a continuing detention order before determination of the extended supervision order, the continuing detention order could only endure during the life of the interim supervision order, though it could be made for a specified period within the life of the interim supervision order. The legislative scheme does not envisage that a continuing detention order issued as a consequence of a breach of an interim supervision order will operate on an extended supervision order that succeeds that interim supervision order.
That a continuing detention order, when made following a breach of an interim supervision order, endures only for the duration of the interim supervision order or some lesser period, is evident from the words of s 18(2):
The Supreme Court may, if satisfied that the person –
(a)has breached a condition of the supervision order; and
(b) poses an appreciable risk to the safety of the community if not detained in custody;
order that the person be detained in custody (a continuing detention order) until the expiration of the supervision order, or for such lesser period as may be specified by the Court.
It is plain that the second occurrence of the phrase “the supervision order” is a reference to the order that has been breached. It is also evident from s 9 that an interim supervision order is an order in its own right and that it continues until the application for the extended supervision order is determined. At that point in time, if the extended supervision order is made, such order replaces the interim supervision order. If the Court determines that an extended supervision order should not be made, the interim order has no further effect. Although the interim supervision order is defined by reference to a subsequent event, namely the making or refusal of an extended supervision order, it is not accurate to characterise the interim order as part of, or synonymous with, an extended supervision order that may or may not be made. The scheme of the Act makes it clear that the two orders are distinct. The interim order has all of the capacity of an extended supervision order. The fact that it requires an application for an extended supervision order to be on foot for it to be made does not mean that the interim supervision order becomes the extended supervision order.
The Attorney-General argued for a construction of s 18 that would allow for a continuing detention order, imposed during the life of an interim supervision order as a result of a breach of that interim order, to survive beyond the end of the interim order where an extended supervision order followed immediately thereafter. To reach such a conclusion would achieve, in the Attorney-General’s submission, an outcome consistent with the objects of the scheme. The alternative view, namely that a continuing detention order expires with the interim supervision order the breach of which authorised its issue, defeats or limits the objects of the scheme, namely the safety of the community, in the submission of the Attorney-General.
Issuing a continuing detention order on the breach of an interim supervision order means that the detention may be short-lived. It will cease at the time at which the Court has the required information before it and can make or refuse the extended supervision order. However, there is nothing inherently absurd in this outcome. An interim supervision order is required only where proceedings determining the application of an extended supervision order cannot be completed before a respondent’s sentence expires. It might reasonably be assumed that this would not occur in the majority of cases. A continuing detention order can only be made in respect of a breach of a supervision order. Parliament may not have foreshadowed the need for continuing detention orders in respect of interim supervision orders. That much is borne out by the Parliamentary Debates which refer only to continuing detention orders in the context of extended supervision orders.
In any event, there is no need to go beyond a plain reading of the words of s 18(2). As Stanley J stated in R v Kimmins in respect of the proper construction of s 7 of the HRO Act:
The meaning of the statutory formula is to be derived from a consideration of its text, context and purpose. It is not to be determined by some form of a priori reasoning predicated on legislative intention. Legislative intention is to be ascertained from a consideration of the language of the provision and its statutory purpose, not from the court imputing to the legislature its own idea of a desirable policy.[7] (footnote omitted)
[7] R v Kimmins [2016] SASC 176 at 34.
On the Attorney-General’s approach to the interaction of the application for an extended supervision order and the referral of the consideration of the continuing detention order, the Court was invited to make an extended supervision order for five years and make a continuing detention order until approximately April 2019.
Having reached the conclusion that such orders could not be made, but that the grounds for an extended supervision order have been established, I also find that the grounds for a continuing detention order have not been established. I am not satisfied that it is necessary to detain the respondent to ensure the safety of the community. I am satisfied that the risks posed by ZRV can be adequately addressed through supervision. I reach this view on a consideration of the extent and nature of the risk and the proposed manner of treating that risk through the terms of supervision proposed.
In so concluding, it is evident that the risk derives from various aspects of ZRV’s poorly-developed problem-solving and social skills and his impulsivity rather than a paedophilic tendency or planned offending. This is significant when the tailoring of conditions is undertaken. Conditions can be protective by curbing the opportunity for offending, or by requiring a respondent to undertake programs aimed at modifying the respondent’s behaviour by equipping the respondent with the means to deal with situations differently.
Terms of the extended supervision order
The duration of the extended supervision order should be determined by reference to the time needed to achieve the protection of the community. Counsel for the Attorney-General, Mr Keane, referred the Court to s 12(1) which provides:
(1)An extended supervision order-
(a) Takes effect –
(i) On the making of the order; or
(ii) On the relevant expiry date for the person subject to the order,
Whichever is the later; and
(b) Remains in force for a period of 5 years or such lesser period as is determined by the Supreme Court and specified in the order.
The Attorney-General’s position is that the order should be made for a period of five years, which is the maximum available. In the alternative, the order should be made for a minimum of three years, which is the period of time within which it might be expected that the respondent might have completed a program at Owenia House and be monitored thereafter.
Counsel for ZRV, Mr Gaite, submitted that, as a 22 year-old, a five year supervision sentence is unnecessary and a shorter order would be appropriate. He directed the Court to s 12(3) which provides:
(3) Nothing in this section prevents the Court, on application by the Attorney-General, from making a second or subsequent extended supervision order against a person.
Clearly, the purpose of an extended supervision order is protective and is determined by reference to a different set of criteria than a sentence. However, some relationship of proportionality is appropriate. In this case, the respondent was sentenced to a period of imprisonment for one year and nine months for the index offending and convicted without further penalty for the breaches. Whilst the Act contains provisions that allow an order to be extended, or revoked, if the circumstances demand, the Court must identify the appropriate duration based on the evidence before it. In this case, the period is two years. During that time the respondent might be expected to have undertaken a course at Owenia House, or some other course that the State makes available to the respondent, to provide the psychological equipment that will reduce the risk he presents to the community.
The terms of a supervision order are prescribed by s 10(1) of the Act. It provides:
(1) The following conditions apply in relation to an extended supervision order:
(a) a condition that the person subject to the order not commit any offence;
(b) a condition that the person subject to the order is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 1977) or any part of a firearm;
(c) a condition prohibiting the person subject to the order from possessing an offensive weapon unless the Supreme Court permits the person to possess such a weapon and the person complies with the terms and conditions of the permission;
(d) a condition that the person subject to the order—
(i)be under the supervision of a community corrections officer; and
(ii)obey the reasonable directions of the community corrections officer; and
(iii)submit to such tests (including testing without notice) for gunshot residue as the community corrections officer may reasonably require;
(e) any other condition that the Court thinks fit and specifies in the order;
(f) any condition imposed by the Parole Board under section 11.
The other terms that are proposed for this order are:
2.7 the respondent will reside at the premises approved by his Community Corrections Officer upon his release from custody and the respondent will not change his place of residence without prior written permission of his Community Corrections Officer;
2.8 the respondent will not depart from or attempt to depart from the State of South Australia without obtaining the written approval of his Community Correctional Officer at least seven (7) days prior to travel;
2.9 the respondent will maintain a telephone service for the duration of this order and provide his Community Corrections Officer with the phone number(s);
2.10 the respondent will not consume any alcohol;
2.11 the respondent will not enter or remain upon any licensed premises, as defined in the Liquor Licencing Act 1997, without the prior approval of his Community Corrections Officer;
2.12 the respondent will not use, possess or administer any illegal or prescription drug except in accordance with the directions of a legally qualified medical practitioner;
2.13 the respondent will advise his Community Corrections Officer of any drug that has been prescribed to him by a legally qualified medical practitioner;
2.14 the respondent will submit to drug and alcohol testing (including testing without notice) as and when directed by his Community Corrections Officer and will do all things and sign all forms as may be necessary to enable drug and alcohol testing to be conducted and analysed and the results of such analysis provided to his Community Corrections Officer;
2.15 the respondent will attend and undertake counselling for substance abuse and any other substance abuse assessments, programs and interventions at the direction of his Community Corrections Officer;
2.16 the respondent will attend and undertake counselling and/or treatment for sexual offending as directed by his Community Corrections Officer;
2.17 the respondent will not contact, attempt to contact in any way, whether directly or indirectly, or associate, other than by mere presence in a place of public recreation with any person under the age of 18 years, unless supervised by his Community Corrections Officer or a person nominated or approved by that Officer;
2.18 the respondent will not undertake any remunerated or voluntary work with persons under the age of 18 years or participate in any organisation which provides recreational, social, educational or other activities or facilities for persons under the age of 18 years;
2.19 the respondent will declare to his Community Corrections Officer any tablet, computer, mobile phone, photographic equipment or other electronic equipment that he purchases, loans or which otherwise comes into his possession within 48 hours of it coming into his possession;
2.20in relation to any tablet, computer, mobile phone, photographic equipment or other electronic equipment that the respondent purchases, loans or which otherwise comes into his possession, the respondent will produce the equipment to his Community Corrections Officer upon being directed to do so and provide any relevant passwords, for the purpose of inspection and/or analysis to ensure that it is not being used by the respondent to associate or communicate with persons under the age of 18 years and/or to produce, possess or view child exploitation material;
2.21 the respondent will permit and enable his Community Corrections Officer or a police officer to enter any premises in which he is residing at any time in order to inspect any computer or device capable of storing electronic data, for the purpose of inspecting the computer or device to determine whether there is any evidence to suggest that the respondent may have contravened his supervision order or committed any criminal offence;
2.22 the respondent will not contact, attempt to contact or associate in any way, whether directly or indirectly, with [the victim];
2.23 the respondent will wear an electronic monitoring device, to be fitted and maintained as required by his Community Corrections Officer and at the direction of the Parole Board and comply with the rules of electronic monitoring;
2.24 subject to the direction of the Parole Board, the respondent will be subject to intensive supervision and will not leave his residence at any time except for the purpose of remunerated employment, urgent medical or dental treatment, to minimise the risk of serious injury or death to himself or to any other person, or any purpose approved or directed by a Community Corrections Officer.
I am satisfied that the terms as proposed are appropriate to address the risk that has been identified.
Conclusion
The respondent is liable to an order for extended supervision pursuant to s 7 of the HRO act, in the terms outlined in these reasons. The order endures for a period of two years from its commencement. No order for continuing detention arising from the referral under s 18(1) is made.
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