Attorney-General (SA) v Wells - [2018] SASC 153

Supreme Court of South Australia
(Criminal)
ATTORNEY-GENERAL (SA) v WELLS
[2018] SASC 153
Judgment of The Honourable Justice Doyle (ex tempore)
25 September 2018
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
Application by the Attorney-General for an extended supervision order (ESO) pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act).
The respondent was convicted of a series of 12 offences, including aggravated assault causing harm under s 20(4) of the Criminal Law Consolidation Act 1935 (SA). He was sentenced to a combined sentence of 15 months imprisonment, with a non-parole period of 6 months commencing on 13 February 2017. On 9 May 2018, shortly prior to the respondent's release, an interim supervision order was made under s 9 of the Act.
The respondent did not directly challenge that he is a high-risk offender, or that he poses an appreciable risk to the safety of the community if not supervised under an ESO. Rather, he submitted the Court should not exercise its discretion to make the order.
Held (per Doyle J):
1. The respondent is a high risk offender for the purposes of s 7(4)(a) of the Act.
2. In light of his extensive criminal history, significant history of substance abuse and mental health difficulties, the respondent poses an appreciable risk to the safety of the community if not supervised under an ESO for the purpose of s 7(4)(b) of the Act.
3. The paramount consideration is the safety of the community. In the circumstances, it is appropriate that the respondent be subject to an ESO.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 4, 5, 7, 9; Criminal Law Consolidation Act 1935 (SA) ss 20(4), 21, 83D(1), referred to.
Attorney-General (SA) v Wells [ 2017] SASC 149; Attorney-General (SA) v Grosser [2016] SASC 49; Attorney-General (SA) v Grosser (No 3) [2017] SASC 89, considered.

ATTORNEY-GENERAL (SA) v WELLS
[2018] SASC 153
Criminal
DOYLE J (ex tempore):

This is the Attorney-General’s application for an extended supervision order (ESO) in relation to the respondent, pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act).
Background
The respondent is a 41 year old Aboriginal man. He is currently single, but has three daughters from previous relationships. He has led a difficult life, with both of his parents passing away when he was relatively young. He received only a limited education, and began to abuse alcohol and drugs from a young age. He was diagnosed with schizophrenia in his early 20s and has battled mental health issues throughout his adult life.
Unfortunately, and no doubt in large measure by reason of the disadvantage and difficulties he has faced, the respondent has a significant criminal history. Most recently, on 22 June 2017, he was convicted and sentenced for a series of 12 offences, including aggravated assault causing harm under s 20(4) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). It was committed on 8 February 2017, and was aggravated because it involved the use of an offensive weapon.
On that occasion, the respondent was sentenced to a combined sentence of 15 months imprisonment, with a non-parole period of six months imprisonment. This sentence was backdated so as to commence on 13 February 2017.
While the respondent was granted parole, due to breaches of that parole he spent most of his sentence in prison. His sentence was due to expire on 12 May 2018. Shortly prior to this, on 9 May 2018, the Chief Justice made an interim supervision order under s 9 the Act. The respondent was then released on supervision. However, by reason of three breaches of curfew and one breach of his ‘no drugs’ condition, he was returned to prison on 22 May 2018.
The Attorney-General brought an application for a continuing detention order. However, this was dismissed by Vanstone J. There were some difficulties arranging appropriate accommodation for the respondent, and he ultimately ended up spending a period of close to a further four months in prison. The respondent was released on an interim supervision order on 17 August 2018. Since that date, and pursuant to the interim supervision order, the respondent resided at an Integrated Housing Exit Program (IHEP) property at Holden Hill.
The application
Turning to the present application, under s 7(4) of the Act, the Court may order that the respondent be subject to an ESO if satisfied:
a)the respondent is a high risk offender; and
b)the respondent poses an appreciable risk to the safety of the community if not supervised under the order.
In exercising its discretion to order that the respondent be subject to an ESO, s 7(5) of the Act provides that the paramount consideration of the Court must be the safety of the community. The Court must also take into account the various matters identified in s 7(6) (as set out later in these reasons).
The respondent is a high risk offender
There is no dispute that the respondent is a high risk offender.
As mentioned earlier, the offending for which the respondent was convicted and sentenced on 22 June 2017 included an offence of assault causing harm, which was aggravated by the use of an offensive weapon, contrary to s 20(4) of the CLCA (the index offending). This was a minor indictable offence, with the maximum penalty for the aggravated form of the offence being five years imprisonment.
The circumstances of the index offending were not recounted in the sentencing remarks. However, the respondent pleaded guilty and it would appear he was sentenced upon the factual basis set out in the apprehension report.
According to the apprehension report, on 8 February 2017, the respondent was engaged in a heated argument with a staff member of the Aboriginal Prisoners and Offenders Support Services (APOSS) in the APOSS car park. The victim, who was the CEO of APOSS, approached the respondent and the staff member and asked the respondent to leave. The respondent left via a roller door. The victim then heard a loud bang on the other side of the door and thought the respondent was kicking the front door to the premises. The victim went to the door, and saw the respondent in the middle of the road yelling obscenities at APOSS. The victim walked outside and towards the respondent. The respondent said to the victim “I’ll kill you too”. The victim told the respondent to leave and said that the police were on the way, and that he would be arrested. The respondent then struck the victim to the left side of his face with an unknown black object. The object was an offensive weapon. The assault caused the victim to have temporary vision impairment and resulted in a laceration to the side of his face and eye socket.
Under s 5(c) of the Act, a ‘high risk offender’ includes a ‘serious violent offender’ who was sentenced to a period of imprisonment in respect of the serious offence of violence. Section 4(1) of the Act provides that ‘serious offence of violence’ has the same meaning as in s 83D(1) of the CLCA. Under that subsection, ‘serious offence of violence’ includes a ‘serious offence’ where the conduct constituting the offence involves ‘the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person’.
A ‘serious offence’ pursuant to s 83D(1) is an indictable offence that is punishable by imprisonment for life or for a term of five or more years. As mentioned, the offence of assault occasioning harm, aggravated by the use of an offensive weapon, is punishable by a maximum term of five years imprisonment, and hence is a ‘serious offence’.
Under s 21 of the CLCA, ‘serious harm’ is defined to mean harm that (a) endangers a person’s life; (b) consists of, or results in, serious and protracted impairment of a physical or mental function; or (c) consists of, or results in, serious disfigurement. ‘Harm’ may be physical or mental harm (whether temporary or permanent).
Here, the Attorney-General does not contend that the offending caused actual serious harm, but rather contends that it caused ‘a risk … of serious harm’.
The Chief Justice made a finding to this effect for the purposes of making the interim supervision order in these proceedings. And, as mentioned, for the purposes of the present application, the respondent does not dispute that his offending conduct caused a risk of serious harm. In my view, this was a proper concession given that the offending involved a blow to the victim’s head with an object, and with sufficient force to cause the victim to suffer temporary impairment of his vision, and a laceration to the side of his face and eye socket. There is some analogy with the circumstances and conclusion in Attorney-General (SA) v Wells,[1] a case involving an extended supervision order in respect of a different Mr Wells.
[1] Attorney-General (SA) v Wells [2017] SASC 149 at [44].
Appreciable risk to the safety of the community
There is an overlap in the considerations relevant to determining whether the respondent poses an appreciable risk to the safety of the community if not supervised, and the other matters relevant to the exercise of the discretion to make an ESO.
In terms of the matters relevant to the exercise of the discretion, I have mentioned the paramountcy of the safety of the community under s 7(5). There are also a series of matters that s 7(6) requires be taken into account:
(6)The Supreme Court must also take the following matters into consideration in determining whether to make an extended supervision order in respect of the respondent:
(a)     the likelihood of the respondent—
(i)     committing a further serious sexual offence; or
(ii)    committing a further serious offence of violence; or
(iii)committing a terrorist offence, or otherwise being involved in a terrorist act, or committing a 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.
Focussing on whether the respondent poses an appreciable risk to the safety of the community if not supervised, as Stanley J explained in Attorney-General (SA) v Grosser,[2] an appreciable risk is one that is capable of being estimated, and is perceptible and sensible. The assessment of risk must be anticipatory, but an appreciable risk is one that is not purely speculative. It must be 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. The extent of the risk required is informed by the consideration that in determining whether to make an ESO, the safety of the community is paramount.
[2] Attorney-General (SA) v Grosser [2016] SASC 49 at [29]; as applied, for example, in Attorney-General (SA) v Wells [2017] SASC 149 at [13]-[14].
Here, there are a number of considerations which in my view combine to provide a solid foundation for concluding that the respondent poses an appreciable risk to the safety of the community.
First, there is the respondent’s extensive criminal history. There is, of course, the index offending, and the other 11 offences for which the respondent was sentenced at the time (which included offending involving assaulting a police officer and kicking an apparently pregnant woman). However, in addition to this, the respondent has convictions for almost 70 offences as an adult and a further 30 as a juvenile. His adult history of offending includes serious offending such as numerous counts of serious criminal trespass, aggravated assaults (with and without weapons), common assault and one count of robbery. I have had regard to the material tendered at this hearing as to the nature and circumstances of various of the offences committed by the respondent. In summary, he has a criminal history consisting of a longstanding pattern of behaviour that includes multiple and recent instances of violent offending.
This criminal history is in addition to a particularly poor history of compliance with previous attempts at supervision. He has had his parole cancelled on various occasions, and has breached bonds numerous times.
The second matter of significance in assessing the risk that the respondent presents is the significant history he has of substance abuse and, in particular, his use of cannabis, methamphetamines, heroin and alcohol. These are undoubtedly significant risk factors relevant to his propensity to commit a further serious offence of violence. The material suggests that he is at a high risk of relapse into illicit drug use.
The third matter of significance is the psychiatric or mental health difficulties that the respondent has had to confront. The respondent has chronic schizophrenia. He also has a history of an antisocial personality disorder, and possibly some frontal lobe brain impairment. These diagnoses were confirmed in the 18 July 2018 report of Dr Raeside about which he gave oral evidence this morning. Whilst the existence of these conditions is of course unfortunate, they nevertheless, when coupled with the respondent’s substance abuse, have resulted in impaired insight and difficulties with treatment, and have generally contributed to the respondent's poor prognosis and the risk that he represents to the safety of the community.
The respondent has been subjected to a series of risk assessments in relatively recent times. I refer in this respect to the two reports of Ms Kiley-Watkins to which I was taken during the course of submissions. In a July 2017 report, Ms Kiley-Watkins assessed the respondent as presenting a medium risk of recidivism. However, Ms Kiley-Watkins also carried out a risk assessment specifically directed towards the risk of violent re-offending and the respondent was assessed as presenting a high risk of violent re-offending.
Significantly in this respect, I have also had the benefit of the report prepared for the purposes of these proceedings by Dr Raeside. His independent medical assessment is to the effect that the respondent poses a high risk of serious violent re-offending, and represents more than an appreciable risk of harm to the community generally and in particular to service providers (including police, Corrections and health providers). In his report, Dr Raeside indicated that he considered the risk to be sufficiently significant that he would not only support an ESO but, if asked, would have supported a continuing detention order.
As I have already said, it is my view that the combination of the above provides a solid foundation for concluding, as I do, that the respondent presents an appreciable risk to the safety of the community if not supervised under an ESO.
I do not understand the respondent to directly challenge a conclusion to the above effect. To the extent he does, I reject that challenge for the reasons set out above.
Exercise of the discretion
However, the respondent put several submissions in opposition to an order being made, in effect inviting me not to exercise my discretion to make an order.
The first is a submission to the effect that the Court should not make an ESO unless satisfied that to do so would reduce the risk of reoffending. While the submission was said to be founded in the terms of s 7(4)(b), I do not think that is quite what the section provides. That subsection requires satisfaction that the respondent poses the relevant risk “if not supervised under the order”. While the silent premise of the scheme of the legislation is that the imposition of supervision will go some way to address or mitigate the risk to the safety of the community, and the terms of any such order should certainly be crafted with a view to attempting to ensure that this is achieved, I do not consider that a finding to this effect is a precondition to an order being made. In any event, for the reasons explained below, I am satisfied that the imposition of an ESO would go some way to mitigate the risk that the respondent in this case presents to the safety of the community.
The respondent also makes the related submission that the imposition of an ESO in this case may well be counterproductive in that there is a significant risk that he will not be able to comply with the terms of the ESO, and hence a significant risk that he will ultimately be the subject of a continuing detention order. It is submitted that this will involve a significant risk of the respondent becoming institutionalised, particularly in light of his diagnoses of chronic schizophrenia, antisocial personality disorder and frontal lobe brain impairment.
It is submitted that the above would be an undesirable and unfortunate outcome in circumstances where any imprisonment under an extended detention order would be a consequence of non-compliance with an ESO rather than fresh offending independently warranting a sentence of imprisonment.
The respondent submits that the above considerations should be weighed against the fact that the respondent has not refused or declined to participate in courses or treatment while in prison. Rather, during his term of imprisonment for the index offending he was assessed as suitable for a violence prevention program, but was, somewhat paradoxically, not eligible to participate because his term of imprisonment was too short and due to expire before the course would be completed; and the course is not available to him in the community.
The respondent also submits that the above considerations should be weighed against the relatively modest seriousness of the index offending, and the respondent’s violent offending more generally.
While the above considerations are relevant, I do not consider that they represent a sound or sufficient basis for declining to make an ESO in this case.

I accept that the respondent’s past violent offending has generally been of a relatively modest, albeit still serious, nature. However, his submissions tend to overlook the significance of the number, nature and regularity of his offending. There is a real risk of him reoffending in a way that would threaten the safety of the community.
I also accept that there is a real risk of the respondent having difficulty in complying with the contemplated ESO, and hence potentially facing further time in custody. However, I am not satisfied that ordering an ESO would be counterproductive. In my view, such an order would not only provide some protection to the community in the short term; but also represents the best chance of the respondent taking steps to rehabilitate himself in the long term interests of him and the community.
This is consistent with the oral evidence given today by Dr Raeside. While he did not accept that the imposition of an ESO would be counterproductive, he did accept that it would involve something of a double-edged sword, given the risk of breaches and the respondent being returned to prison. Insofar as this was said to create a risk of institutionalisation, Dr Raeside said that there were unfortunately already signs of this present so far as the respondent was concerned. But Dr Raeside also made the point that the risk of breaches would most likely arise from instances of substance abuse, which is the very type of behaviour that would exacerbate the risk of violent reoffending that the respondent represents, and hence the risk to the safety of the public. So, in that context, Dr Raeside was satisfied that it would be appropriate to embark upon a period of supervision. He considered that the conditions of the ESO that were proposed were appropriately drafted towards dissuading and monitoring substance abuse, and ensuring that the respondent remained medicated and in a stable residence. As such, the conditions would mitigate the risk of him reoffending and hence offer some level of protection to the community.
In this respect, the most recent affidavit of Ms Porcelli provides a basis for some cautious optimism as to how an ESO might assist the respondent. Ms Porcelli is a psychologist, employed as a specialist clinician at the sentence management unit at Yatala Labour Prison. That unit has some responsibility for identifying and referring offenders to the Attorney-General for consideration of an application for an ESO. She explained that in the case of the respondent, the Department for Correctional Services has arranged a IHEP property at Holden Hill for the respondent to live in. It is envisaged that if the Court makes an ESO, then he would continue to live at that property, and be subject to a 9pm to 6am curfew. While living at this property, the respondent would receive case management support, provided by Offender Aid and Rehabilitation Services.
Ms Porcelli explained that the respondent is currently being supervised by a social worker, Ms Dobson. To date, the respondent has reported on a weekly basis as required. While he has been warned as a result of testing positive for cannabis, he has otherwise been compliant. He has observed his curfew, has arrived at his appointments on time, and has engaged appropriately, including with the North Eastern Mental Health Service. Ms Dobson reports that her supervision of the respondent has focussed, and will continue to focus, primarily upon encouraging and attempting to maintain the respondent’s abstinence from alcohol and illicit drugs, and encouraging and attempting to ensure that he continues to engage with professionals in relation to his mental health and to take his medication. Ms Dobson considers that two years supervision would be an appropriate and sufficient period for her to attempt to address the respondent’s substance abuse issues and his criminal attitudes more generally.
I conclude by acknowledging and reminding myself of the significant imposition upon the respondent’s liberty inherent in an ESO. However, this needs to be seen through the prism of the legislative scheme that places the safety of the community as the paramount consideration. In this respect, I bear in mind the observations of Stanley J in Attorney-General (SA) v Grosser (No 3) to the effect that the discretion:[3]
… 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 the 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. Given the terms of the Act, specifically the paramount consideration of public safety, in the exercise of this Court’s discretion relatively smaller degrees of risk will outweigh considerations which, even strongly, would militate against the making of an extended supervision order. The same principles inform consideration of what are appropriate conditions to impose in making an extended supervision order and in determining the length of that order. The efficacy of the order is determined by the conditions it imposes. That warrants the same consideration applying to the conditions imposed as to the making of the order per se.
[3] Attorney-General (SA) v Grosser (No 3) [2017] SASC 89 at [12] (citations omitted), quoted in Attorney-General (SA) v Wells [2017] SASC 149 at [16].
Thus, while the imposition upon the liberty of the respondent is a relevant consideration, I come back to the statutory directive that the paramount consideration is the safety of the community. In circumstances where I am satisfied that the respondent represents a real risk to the safety of the community, and having regard to the other considerations to which s 7(6) requires attention, I am satisfied that it is appropriate to order that the respondent be subject to an ESO.
In my view, an ESO represents the best opportunity for the respondent to successfully rehabilitate himself – which is of course not only in his interests but also in the interest of the community.
I consider that two years is an appropriate length of supervision. This is consistent with the views of both Ms Dobson and Dr Raeside. The latter in particular, in his oral evidence, emphasised that given the chronic nature of the respondent’s risk factors, a significant period will be required to address them. While he suggested that a case could be made for a longer period, he regarded two years as a sufficient period within which to form a reasonable assessment as to the utility of the proposed ESO.
It is for these reasons that I propose to make an order broadly in the terms sought by the Attorney-General, but I will give the parties an opportunity to be heard as to the precise detail of those terms.