Attorney-General (SA) v Wells
[2017] SASC 149
•18 October 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v WELLS
[2017] SASC 149
Judgment of The Honourable Justice Hinton
18 October 2017
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
Application by Attorney-General for the State of South Australia for an extended supervision order pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA).
The respondent pleaded guilty to one count of aggravated causing harm with intent to cause harm contrary to s 24(1)(b) of the Criminal Law Consolidation Act 1935 (SA) and was sentenced to two years and three months imprisonment with a non-parole period of 20 months.
The circumstances of the offending were that the respondent punched a defenceless restrained man once to the head.
The respondent had a considerable history of offending. Much of his offending was associated with his abuse of illicit drugs. A report prepared by a forensic psychiatrist opined that there was a significant likelihood of the respondent committing a violent offence in future.
Held: Application granted.
1. The respondent is a high risk offender for the purposes of s 5 and s 7(4)(a) of the Criminal Law (High Risk Offenders) Act 2015 (SA).
2. The respondent poses an appreciable risk to the safety of the community for the purpose of s 7(4)(b) of the Criminal Law (High Risk Offenders) Act 2015 (SA).
3. The respondent is to be subject to an extended supervision order pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) for two years, subject to conditions.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 5, s 7(4), s 15, s 17, s 18, referred to.
Attorney-General (SA) v Grosser [2017] SASC 49; Attorney-General (SA) v Grosser (No 3) [2017] SASC 89, applied.
ATTORNEY-GENERAL (SA) v WELLS
[2017] SASC 149Criminal: Application
HINTON J.
Introduction
Anthony Wells, the respondent, is well known to the criminal courts of this State. His offender history runs to some seven pages. His first contact with the criminal courts came when he was fifteen years old. He is now 39. At present he is being held in prison on a warrant issued by the Parole Board under s 15 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act). That warrant was issued on 8 May 2017 and executed two days later in consequence of Mr Wells breaching an interim extended supervision order made by this Court on 10 January 2017. That order was made with the consent of Mr Wells pending the hearing of an application made by the Attorney‑General under s 7 of the High Risk Offenders Act. I say something more about Mr Wells’ breach of the interim order and the period that he has been held in custody below.
The Attorney-General’s application is for an extended supervision order of three years duration. For the reasons that follow, I grant the Attorney-General’s application, but for a period of two years.
The High Risk Offenders Act and the history of this matter
The object of the High Risk Offenders Act is set out in s 3. It provides:
The object of this Act is to provide the means to protect the community from being exposed to an appreciable risk of harm posed by serious sexual offenders and serious violent offenders.
Section 7(1) of the High Risk Offenders Act vests power in the Attorney‑General to apply to this Court for an extended supervision order in respect of a person who is a high risk offender. Such application may only be made in relation to an offender who is serving a period of imprisonment or who is already subject to an extended supervision order. With respect to the former, the application can only be made within 12 months of the date on which the term or terms of imprisonment that the offender is serving expire, or, if the offender is serving a sentence of life imprisonment, within 12 months of the date on which the sentence of imprisonment will be taken to have been wholly satisfied.[1] With respect to the latter the application must be made within 12 months of the date on which the extended supervision order expires.
[1] High Risk Offenders Act s 4 and s 7(2) (see definition of “relevant expiry date”).
In this case the Attorney-General’s application, dated 14 December 2016, was made within 12 months of the date upon which a sentence of imprisonment imposed on Mr Wells was due to expire. That sentence, comprised of a head sentence of two years and three months with a non-parole period of 20 months backdated to commence on 19 October 2014, was imposed on 11 May 2016 and due to expire on 18 January 2017.
For the purposes of s 7(1) and s 7(4) a high risk offender is:[2]
[2] High Risk Offenders Act s 5.
5—Meaning of high risk offender
For the purposes of this Act, a high risk offender is—
(a)a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence; or
(b)a person referred to in paragraph (a) who is serving a sentence of imprisonment any part of which is in respect of any of the following offences:
(i) an offence under section 58 or 63A of the Criminal Law Consolidation Act 1935;
(ii) an offence under section 44, 45, 65 or 66N(2) of the Child Sex Offenders Registration Act 2006;
(iii) an offence under section 99I of the Summary Procedure Act 1921;
(iv) an offence prescribed by the regulations for the purposes of this paragraph; or
(c)a serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence; or
(d)a person who is subject to an extended supervision order.
The Attorney-General contends that Mr Wells is a serious violent offender within the meaning of s 5(c). I return to that question below.
Under s 7(4) of the High Risk Offenders Act this Court may, on the application of the Attorney-General under s 7(1), make an extended supervision order if satisfied that the respondent to the application is a high risk offender within the meaning of s 5, and, that the respondent poses an appreciable risk to the safety of the community if not supervised under the order. That is, the power to make the order is only enlivened if the Court is first satisfied that the respondent is both a high risk offender and, in addition, poses an appreciable risk to the safety of the community if not supervised pursuant to an order. In my view s 7(4) vests both a power and a discretion in this Court. The power may only be exercised if the qualifying criteria contained in s 7(4)(a) and (b) are satisfied, but need not. Ordinarily, once the evaluative judgment required by s 7(4)(a) and (b) is made, and assuming the Court is satisfied of each criterion, the Court would make the order and fashion conditions intended to achieve the object set out in s 3.
Clearly the onus is upon the Attorney-General to adduce evidence capable of satisfying the Court that each of the qualifying criteria are satisfied and that the discretion, if enlivened, ought be exercised.
At this juncture it is important to note that s 7(3) further conditions the power contained in s 7(4). Section 7(3) provides:
7—Proceedings
...
(3)The Supreme Court must, before determining whether to make an extended supervision order, direct that 1 or more legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) examine the respondent and report to the Court on the results of the examination, including—
(a) if the respondent is a serious sexual offender—an assessment of the likelihood of the respondent committing a further serious sexual offence; or
(b) if the respondent is a serious violent offender—an assessment of the likelihood of the respondent committing a further serious offence of violence.
The combined effect of s 7(3) and s 7(6)(b) – which commands the Court to take into account any report ordered under s 7(3) in determining whether to make an order under s 7(4) – is that the power contained in s 7(4) cannot be exercised unless an order has been made under s 7(3) and the relevant report been provided and considered.
In this matter I made an order under s 7(3) on 19 December 2016. The Court did not receive the report until after 17 August 2017. Consideration of the application has been upheld awaiting the report. The delay is lamentable.
Returning to s 7(4), in Attorney-General (SA) v Grosser (Grosser) Stanley J considered what amounts to an appreciable risk for the purposes of s 7(4)(b). He said:[3]
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. …
(footnote omitted.)
[3] Attorney-General (SA) v Grosser [2016] SASC 49 at [29].
Section 7(5) of the High Risk Offenders Act provides that in determining whether to make an order under s 7(4) the paramount consideration for the Court must be the safety of the community. In Grosser Stanley J considered that s 7(5) informed the question of whether a respondent posed an appreciable risk to the community for the purposes of s 7(4)(b). He said:[4]
… 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 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] Attorney-General (SA) v Grosser [2016] SASC 49 at [29].
Section 7(6) prescribes a number of additional factors that the Court is required to take into account in determining whether to make an extended supervision order to the extent that they are relevant in the individual case.
Ultimately, if the Court is satisfied of the qualifying criteria the power contained in s 7(4):[5]
… 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.
(footnote omitted.)
[5] Attorney-General (SA) v Grosser (No 3) [2017] SASC 89 at [12] (Stanley J).
As mentioned above, Mr Wells has been subject to an interim supervision order since January of this year. As also mentioned he has been in prison for the last five months for breaching that order. An interim supervision order may be made under s 9 of the High Risk Offenders Act. It provides:
9—Interim supervision orders
(1)The Supreme Court may make an interim supervision order if an application for an extended supervision order in relation to a high risk offender has been made and the Court is satisfied—
(a) that the relevant expiry date for the respondent is likely to occur before the application is determined; and
(b) that the matters alleged in the material supporting the application would, if proved, justify the making of an extended supervision order.
(2)An interim supervision order takes effect on the making of the order until the application for the extended supervision order is determined.
In addition to the criteria prescribed in s 9(1)(a) and (b) it is implicit that the Court must be satisfied that the offender subject of the application is a high risk offender. As indicated, in January 2017 Mr Wells consented to the making of an interim supervision order. He now contends that he is not a high risk offender. I deal with this question below.
The interim supervision order made on 10 January 2017 included a condition that Mr Wells not possess or take any drug other than as prescribed for him by a legally qualified medical practitioner and then in accordance with the directions given to him by such practitioner and that he submit to drug testing as directed by his Community Corrections Officer.
At this juncture mention should be made of s 15(1) of the High Risk Offenders Act. It provides:
15—Arrest and detention of person subject to supervision order on warrant
(1)If the presiding member or deputy presiding member of the Parole Board suspects on reasonable grounds that a person subject to a supervision order may have breached a condition of the order, the presiding member or deputy presiding member may—
(a) summon the person to attend before the Board; or
(b) for the purpose of bringing the person before the Board, issue a warrant for the arrest of the person.
On 19 January 2017 Mr Wells submitted to a drug test which revealed the presence of buprenorphine in his system. Ultimately, due to the fact that Mr Wells had accessed the buprenorphine whilst in prison, it was not considered that he had breached the interim supervision order.
On 15 February 2017 Mr Wells again submitted to a drug test. This time the test returned a positive result for the presence of amphetamines. The Parole Board was advised and on 23 February 2017 resolved to summons Mr Wells to attend before the Board.
On 22 February 2017 Mr Wells again tested positive for the presence of amphetamines in his system. Again the Parole Board was advised. On 28 February 2017 the Board resolved to withdraw the summons issued on 23 February 2017 and to issue a warrant for Mr Wells’ arrest instead. Mr Wells was taken into custody on a warrant issued by the Board the next day.
On 21 March 2017 Mr Wells was interviewed by the Parole Board. The breaches of the interim supervision order constituted by the positive tests results for illicit drugs returned on 15 and 22 February 2017 were found proved. There was also a further breach of the condition addressing Mr Wells’ consumption of alcohol found proved. Despite these breaches the Board resolved to release Mr Wells under s 17(1)(b)(i) of the High Risk Offenders Act.
Subsequently Mr Wells breached the interim supervision order on a number of occasions by returning positive test results for the presence of illicit substances in his system.[6] He was taken into custody on 10 May 2017 on a warrant issued by the Parole Board under s 15.
[6] On 29 March 2107, 5 April 2017 and 12 April 2017.
The Parole Board’s records state:[7]
On 17/07/2017 the Parole Board noted submissions and resolved:
a)The interim supervision order made on 10/01/2017 apparently continues until further order – a return date is yet to be fixed by the court;
b)Further defer pending a copy of Dr Lim Pei’s (sic) report to the Court.
[7] Report of Parole Board dated 11 July 2017.
Section 17 of the High Risk Offenders Act governs what is to occur where a warrant is issued under s 15. It provides:
17—Proceedings before Parole Board under this Part
(1)The following provisions apply in relation to proceedings relating to an alleged breach of a supervision order before the Parole Board under this Part:
(a) the person subject to the order and the Attorney‑General must be afforded a reasonable opportunity to make submissions to the Board on the matter;
(b) if the Board is satisfied that the person has breached a condition of the order, the Board may vary or revoke a condition of the order imposed by the Board under this Act or impose further conditions on the order and, if the person is in custody—
(i)direct that the person be released from custody; or
(ii)direct that the person be detained in custody pending attendance before the Supreme Court for determination as to whether a continuing detention order should be made in respect of the person.
(2)The Parole Board must, on imposing a condition or further condition on, or on varying or revoking a condition of, the order—
(a) provide the person the subject of the order with a copy of the order as varied by the Board; and
(b) take all reasonable steps to explain to the person the subject of the order the terms and conditions of the order and, in particular—
(i)the person’s obligations under the order; and
(ii)the consequences that may follow from a failure to comply with the order; and
(c)forward a copy of the order as varied by the Board under this section to the Supreme Court and the Commissioner of Police.
(3)Subject to any order made by the Supreme Court, an order directing that a person be detained in custody under this section authorises the detention of the person in custody pending determination of the Supreme Court proceedings relating to the continuing detention order.
On the hearing of the substantive application in this matter, and after a brief adjournment to allow counsel for the Attorney-General the opportunity to speak to the Parole Board, I was told that the Parole Board has not as yet taken action under s 17(1).
Section 18 of the High Risk Offenders Act provides:
18—Continuing detention orders
(1)If the Parole Board directs that a person subject to a supervision order be detained in custody pending attendance before the Supreme Court for determination as to whether a continuing detention order should be made in respect of the person, the matter is referred to the Court by force of this subsection.
(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.
(3)The paramount consideration of the Supreme Court in determining whether to make a continuing detention order must be the safety of the community.
(4)The Supreme Court may, if the Court thinks fit, order that a person the subject of proceedings under this section be detained in custody pending the determination of the proceedings.
(5)The Attorney-General and the person the subject of proceedings under this section are parties to the proceedings, and the Parole Board has a right to appear and be heard in the proceedings.
(6)As soon as is reasonably practicable after making a continuing detention order or an order under subsection (4) in respect of a person subject to a supervision order, the Supreme Court must issue a warrant committing the person to a correctional institution for the period specified in the order.
(7)To avoid doubt—
(a) if a person is detained in custody under this section until the expiration of his or her supervision order, the supervision order expires on the person’s release from custody (but nothing in this paragraph prevents the Supreme Court, on application by the Attorney-General, from making a second or subsequent supervision order against the person); and
(b) if a person is detained in custody under this section for a lesser period, the person continues to be subject to the supervision order on release from custody for the balance of the duration of the order (and the date of expiry of the supervision order under section 12 is not affected by the fact that the obligations of the person under the order were suspended during the period that the person was in custody).
The legislative consequence referred to in s 18(1) and the power vested in this Court by s 18(2) are triggered by the exercise of the power contained in s.17(1)(b)(ii). As I have said, that power has not been exercised. If it had the Parole Board would have advised the Court. Neither has the power contained in s 17(1)(b)(i) been exercised. This is unsatisfactory. Mr Wells has been held in custody for over 5 months for the breach of an order made by this Court about which this Court cannot, it seems, take action pending a decision of the Parole Board under s 17(1), or at least that was the view taken by counsel.
It is not clear to me why there has been a delay in the Board taking action under s 17(1). Absent the exercise of that power a very real question arises as to the authority pursuant to which Mr Wells has been held in custody. I have not had the benefit of argument on this question, but on one view, the Parole Board is required to act under s 17(1) as soon as reasonably practicable after the execution of the warrant. Thereafter an offender may only be detained in custody if the power contained in s 17(1)(b)(ii) is exercised with the question of the continuation of detention passing to this Court under s 18. As events have unfolded in this case, the Executive has indeterminately detained Mr Wells and, counsel for the Attorney-General suggests that it can continue to do so until such time as it chooses to exercise the power contained in s 17(1). I repeat, I have not heard full argument on this question and do not decide it. I am content with the observation that I find it unsatisfactory that the Parole Board is yet to act under s 17(1).
The evidence tendered in support of the Attorney-General’s application
On the hearing of the application the Attorney-General tendered the following:
(i)Affidavit of Fiona Yumi Williams-Mitchell, sworn 14 December 2016;
(ii)Second Affidavit of Fiona Yumi Williams-Mitchell, sworn 16 December 2016;
(iii)Affidavit of Sean Thomas O’Flaherty, affirmed 14 February 2017;
(iv)Affidavit of Sean Thomas O’Flaherty, affirmed 28 April 2017; and
(v)Report of Dr Pei Lim, dated 17 August 2017.
Mr Wells did not object to the tender of any of the above evidential material. He declined to adduce any evidential material himself and elected not to give evidence.
I have had regard to all of the material tendered.
Following the hearing, counsel for the respondent provided a letter to the Court dated 16 October 2017 from Mr Glenn Marrin, Housing Coordinator at the Department for Correctional Services, regarding an assessment of Mr Wells for the Integrated Housing Exit Program and the Integrated Housing Exit Alternative Accommodation Service (IHEAAS). The Attorney-General did not object to my receiving the letter. I have had regard to it.
Is the respondent a high risk offender?
As mentioned the Attorney-General contends that Mr Wells is a high risk offender within the meaning of s 5 because he is a serious violent offender who was sentenced to a period of imprisonment in respect of a serious offence of violence. Section 4 of the High Risk Offenders Act defines a “serious violent offender” as meaning a person convicted of a serious offence of violence. Section 4 defines a “serious offence of violence” by picking up the definition of that phrase in s 83D(1) of the Criminal Law Consolidation Act 1935 (SA). The definition of a serious offence of violence contained in s 83D(1) includes, relevantly, a serious offence where the conduct constituting the offence involves a risk of serious harm to a person. A “serious offence” is also defined in s 83D(1) as is “serious harm”. The former is an indictable offence punishable by imprisonment for life or a term of 5 years or more whilst the latter picks up the definition contained in Part 3 Division 7A of the Criminal Law Consolidation Act 1935 which provides that:
serious harm means –
(a) harm that endangers a person’s life; or
(b) harm that consists of, or results in, serious and protracted impairment of a physical or mental function; or
(c) harm that consists of, or results in, serious disfigurement.
The term “harm” is also defined in Part 3 Division 7A to mean physical or mental harm (whether temporary or permanent).
On 11 May 2016 Mr Wells received the sentence to which I have already referred after pleading guilty to the offence of aggravated causing harm with intent to cause harm committed contrary to s 24(1)(b) of the Criminal Law Consolidation Act 1935. The maximum penalty for that offence was imprisonment for 13 years. It follows that he has committed a serious offence for the purpose of the High Risk Offenders Act.
In Attorney-General (SA) v Wikaire Nicholson J said of the nature of the enquiry into whether a serious offence is a serious offence of violence:[8]
In my view, the focus of the inquiry is not to be confined to the consequences of the offending conduct but extends to the nature or character of the offending conduct itself. The definition of “serious offence of violence” requires the finding of a “serious offence” but one “where the conduct constituting the offence” is of a particular character. A major purpose underpinning the power conferred on the Court to make an extended supervision order is to assist in the protection of the public from being exposed to an appreciable risk of harm. Section 3 of the Act sets out the “Object of [the] Act”:
The object of this Act is to provide the means to protect the community from being exposed to an appreciable risk of harm posed by serious sexual offenders and serious violent offenders.
Whether or not an offender has, in fact, caused serious harm (physical or mental) is an important consideration but whether or not such a person poses the risk of causing such serious harm is no less important a consideration.
[8] (2017) 127 SASR 565 at [14]-[15].
Respectfully, I agree.
In sentencing Mr Wells the sentencing Judge said:
In the early hours of 26 August 2014 police observed a gold Holden utility driving along Commercial Road, Seaford. They stopped the vehicle and in the tray of the vehicle discovered a bloodied injured person tied with rope and wrapped with a sheet. Understandably, police investigations ensued and you and others were charge with a number of offences. …
…
You pleaded guilty on the basis of agreed facts resolved between counsel. A document reflecting these facts was formally agreed and tendered before me. They are as follows: The victim located in the tray of the ute was one [victim] ... On 25 August others organised to lure [the victim] to a location off States Road in Morphett Vale, whereupon he was pulled from the ute previously mentioned, threatened and tied up. He was driven to a nearby house where another offender was picked up who assaulted [the victim] in the car by striking him one or more times while he was restrained. Those two offenders drove [the victim] to your house at … Seaford Rise. He was pulled into the dining room of your house, still tied up. There you assaulted the victim by punching him to the head, constituting the offence to which you pleaded guilty. The other two offenders assaulted him there as well.
As discussed with your counsel, the court could not accept your counsel’s initial submission that you walked into the room punched the victim out of frustration at finding him there already being assaulted by others, as that was simply illogical, without hearing evidence in support of that proposition. No evidence was called and hence it is simply unclear and the court does not know why you committed the offence.
…
He [the victim] suffered injuries as follows: a small haemorrhage in the anterior temporal lobe, in other words, bleeding on the brain; nasal bone and spine factures, minimally displaced; that is an injury to the nose; superficial lacerations and grazes to the face and lip; bruising and grazes over the left knee.
Importantly, the assault for which Mr Wells was sentenced consisted of one punch only, delivered to the head of the victim whilst the victim was restrained and could neither defend himself nor in any way cushion the blow.[9] Further, bearing in mind the assaults upon the victim perpetrated before and after Mr Wells delivered the one punch by those who brought the victim to Mr Wells’ house, the injuries sustained by the victim to his face, whilst likely contributed to by Mr Wells, could not be attributed exclusively to Mr Wells’ punch.
[9] Transcript, 26 April 2016, pp 12-13, 32-33.
Mr Wells contends that he is not a high risk offender within the meaning of the High Risk Offenders Act because the injuries suffered by his victim at his hands could not be proven to amount to serious harm. Accepting that this submission had some force, counsel for the Attorney-General made plain that the application was advanced on the basis of the conduct constituting the offence involving a risk of serious harm.
In my view the delivery of a blow to the head of an individual who is restrained, such that the head must absorb the full impact of the blow, carries with it a risk of serious harm. I feel fortified in my conclusion by recent experience here and interstate regarding the serious injuries and sometimes death that may be caused by one punch of even moderate force delivered to the unsuspecting, unprepared victim. I have had the benefit of seeing Mr Wells in the dock. Dr O’Brien described him as burly. That description is apt. It is apparent from his size and stature that any punch that he despatched would carry quite some force.
Accordingly, I am satisfied that the circumstances of Mr Wells’ offending were such that his conduct created a risk of serious harm to his victim. It follows that I am satisfied that Mr Wells is a high risk offender within the meaning of the High Risk Offenders Act.
Does the respondent pose an appreciable risk to the community?
In the event that the Court determined that he was a high risk offender, Mr Wells made no submission on the question of whether he posed an appreciable risk to the safety of the community if not supervised. Rather, he focused his attention on the Attorney-General’s submission that any order made should be for a period of three years and involve home detention and electronic monitoring. Doubtless Mr Wells’ approach was adopted in the acknowledgement of the opinion expressed by Dr Lim in her report of 17 August 2017. That report was tendered without objection and Dr Lim was not required by either party to give evidence.
Dr Lim is a forensic psychiatrist of almost 15 years’ experience. She considered Mr Wells to have an anti-social personality disorder and a significant substance use disorder. She opined:
Mr Wells’ history and presentation is consistent with an Antisocial Personality Disorder characterised by: a pervasive pattern of disregard for and the violation of the rights of others; repeated conflicts with the criminal justice system from an early age; impulsivity and reckless disregard for others; repeated aggression; lack of remorse and tendency to externalise blame.
Mr Wells has a significant substance use disorder (particularly amphetamines) from an early age. This is only in partial remission in prison due to his self-disclosed abuse of buprenorphine (used for opioid dependence) the day before my assessment.
In arriving at a conclusion as to whether Mr Wells posed an appreciable risk of committing a violent offence in the future, Dr Lim started by observing that he had a number of historical risk factors for violence being, antisocial behaviour from his juvenile years; past gang association; recent association with antisocial peers as a “mediator” for conflicts; relationship instability; lack of daytime structure and poor employment record; substance misuse associated with offending; antisocial personality disorder and prior supervision failure. She noted that individuals with an antisocial personality disorder are often impulsive, dismissive of authority and experience difficulty in adhering to rules. The doctor listed Mr Wells’ dynamic risk factors as:
(i) Limited insight into his own risk factors;
(ii) Limited understanding of psychological factors behind drug use;
(iii)Attitudes condoning violence (minimisation, justification, blaming others, poor victim empathy);
(iv) Poor supervision response;
(v) Unstable living arrangements and lack of daytime structure;
(vi) Association with anti-social peers, and
(vii) Limited coping strategies for stress and interpersonal conflicts.
Dr Lim considered that some of these risk factors could be addressed by suitable intervention or participation in suitable programs, provided Mr Wells was sufficiently motivated to participate.
At this point mention needs be made of Mr Wells’ offender history. Consistent with Dr Lim’s diagnosis of Mr Wells as having an antisocial personality disorder, Mr Wells’ antecedents disclose a long criminal history. As I have mentioned, Mr Wells first came before the courts in 1993 when he was 15 years of age, for, inter alia, property offences. As a minor, he was convicted of a number of drug and alcohol related offences. His first term of imprisonment was in 1996 for larceny. He was sentenced to a term of imprisonment of six months in 1997 which was suspended upon him entering a bond which he subsequently breached. On 7 April 2000, he was sentenced to two years imprisonment for breach of bond and nine other offences, including assault occasioning actual bodily harm and assault police.
On 4 June 2001, while on parole, he committed armed robbery, two counts of assault with intent to resist arrest, resist arrest and three other offences. He was sentenced on 12 April 2002 to a term of imprisonment which was extended on 6 September 2004 to five years and four months by further convictions for common assault.
Between 2004 and 2013, Mr Wells was convicted for a number of minor driving offences and breaches of bail but committed no serious violent offences. In 2013, he was again sentenced to a term of imprisonment for offences relating to a serious criminal trespass and contravention of an intervention order. I do not have evidence before me as to the terms of that intervention order or the reasons for its making. Since his release from prison in 2014, until the offence for which the present application is made, Mr Wells has committed minor drug and alcohol and property and driving related offences.
A contributing factor to much of this history has been Mr Wells’ drug abuse. Dr Lim reported:
Mr Wells started using illicit substances from his early teenage years, commencing with marijuana and progressing to polysubstance use. By the time he was 16, he was using intravenous methamphetamines and speed regularly. He has also tried cocaine and heroin. His main drug of choice is methamphetamines and he used several grams a day. He has started to use “Fantasy” or GHB from 2013 onwards.
He told me that he did not have to pay for illicit drugs because “I mediate for people, they come to me with issues that they can’t sort out”.
…
He claimed that he was abstinent from drugs between 2007 to 2011 because he had a more structured life when he was helping to raise his daughter.
Mr Wells used to drink heavily, up to a carton a day, for several years. He said that he has not used alcohol excessively since 2011 and nowadays he only has a few drinks once a week. He noticed that alcohol use often triggered his drug use, hence he wanted to abstain from alcohol. When asked what strategies he would utilise, he simply said “Just don’t do it”.
On the hearing of the application Mr Wells accepted that his drug abuse was a significant contributor to his offending. In fact when taken into custody in May of this year his arresting officers had to take him to hospital where he was admitted having accidentally overdosed on GHB.
With respect to Mr Wells’ drug abuse Dr Lim observed:
Although Mr Wells acknowledged the association between drugs and his offending, he has resumed drug use within weeks of release from prison. He blamed others for his drug use and conflicts in his life. He has unrealistic expectations that his drug use and stress will cease when these individuals are absent from his life. He has a limited understanding of the psychological factors and personality vulnerabilities which predispose him to substance use.
She added:
During the interview, Mr Wells justified his recent drug use by pointing out that he has not re-offended. He failed to appreciate that the prompt breaches by the parole board might have prevented new offending. However, towards the end of my interview, Mr Wells conceded that an extended supervision order might motivate him to remain abstinent as he was not fully confident of his own ability.
Ultimately Dr Lim concluded:
… I believe there is a significant likelihood of Mr Wells committing a violent offence in future. The seriousness of the violent offence is dependent on the interplay between the above risk factors, particularly the extent of his drug use. Mr Wells does not currently demonstrate the ability to manage his own risk factors without external supervision. If he was not subjected to the monitoring and supports from an extended supervision order, his drug use is likely to go unchecked, thereby increasing the likelihood of future serious violent offences.
It was not suggested that the Court should reject Dr Lim’s opinion. However, returning to Mr Wells’ offender history momentarily, with the exception of the offence upon which this application is based, the last occasion upon which Mr Wells committed an offence of violence was 2004 when he was convicted of three counts of common assault upon a family member. In these circumstances it was contended that, if the Court considered Mr Wells a high risk offender, bearing in mind the 10 years that has passed between offences of violence committed by him, it could not be said that he posed an appreciable risk of committing a serious offence of violence. There are two responses that may be made to this submission. First, s 7(4)(b) is framed in terms of the risk posed to the safety of the community generally and is not limited to the risk that a high risk offender who is a serious violent offender will commit a serious violent offence in the future. Second, and despite the observation just made and the absence of convictions for violent offending in the 10 years between 2004 and 2014 there are two things that lead me to think that Mr Wells nonetheless presents as an appreciable risk of engaging in violent conduct even without having regard to Dr Lim’s opinion. First, there is his admission made to Dr Lim that he has no need to pay for illicit drugs because he “mediates” disputes between persons involved in the illicit drug trade. That strikes me as a sinister admission. The Court’s experience is that disputes in the illicit drug trade generally revolve around the failure to pay for drugs advanced on credit and that such disputes are resolved, if payment is not made in some way, all too often violently. It is in that context that Mr Wells’ services are retained. Judging by his habit, they are not retained infrequently. I think it more likely than not that his success as a “mediator” is derived in part from a willingness to engage in violence. Second, in her report Dr Lim reveals:
Mr Wells denied being involved in altercations or fights during his period of imprisonment. When I pointed out collateral information which contradicted this, he said he was moved to G Division because cigarettes were banned in the Adelaide Remand Centre. When I pointed out that he had been in the G Division for four months, a relatively lengthy period for G Division, he said it was because he refused to return to the Adelaide Remand Centre “because they kicked me out for no reason”. He eventually admitted that he had had a couple of fights in prison but was unable to recall the circumstances. …
My understanding is that this occurred during Mr Wells’ imprisonment on the sentence imposed in 2016.
Dr Lim then added:
A degree of impression management was noted. He had a tendency to minimise his violence, omit or gloss over information which would present him in an unfavourable light.
That added comment is not materially different to the observation made by Mr Lloyd, a senior psychologist with the Department for Correctional Services, in 2002 who considered:
I did not use formal psychological testing as, in view of his history and his presentation at interview, I was not convinced that I would get a valid response. It was my impression from the interview and casenotes that Mr Wells is quite self-focused. I suspect he is able to make a favourable impression, or to present as hostile, whichever will best serve to achieve his objectives, but will avoid, rather than take on board, critical discussion of his behaviour. He seems likely to attribute his situation and actions to external events or influences rather than himself, and to be largely focused on his present circumstances rather than the future. The casenotes indicate that he appears to see the system as fair game in terms of honesty, and if he can manipulate information in order to achieve his objectives then he is likely to do so with little anxiety. I gained the impression that he is unlikely to readily consider the impact of his actions on others, and particularly those he sees as antagonists. …
I am satisfied that Mr Wells’ risk of engaging in a future act of violence is not reflected by the period of time that has lapsed between the common assaults in 2004 and the aggravated causing harm in 2014.
I also bear in mind the link between Mr Wells’ drug taking and his offending. He admitted as much to Dr Lim. In fact he admitted the same to Dr O’Brien in 2002. For Mr Wells the lure of illicit drugs is strong. So strong that he breached the interim supervision order made by this Court in January this year on no less than five occasions in testing positive to the presence of illicit drugs in his system and, of those, three occurred after he was first arrested on a Parole Board warrant and had been re-released after appearing before the Parole Board.
I accept Dr Lim’s opinion. That opinion is supported by a report prepared on 19 December 2016 by Dr Stacey McCallum, a Clinical Psychology Registrar with Sentence Management Unit. Dr McCallum assessed Mr Wells as at high risk of violent re-offending.
Having regard to Stanley J’s observations in Grosser as to the nature of an appreciable risk for the purposes of s 7(4)(b), I am satisfied that Mr Wells poses an appreciable risk to the safety of the community if not supervised.
The Extended Supervision Order
I am satisfied that an extended supervision order should be granted. In so concluding I accept Dr Lim’s opinion that Mr Wells does not currently demonstrate the ability to manage his own risk factors without external supervision and that, if he was not subjected to an extended supervision order, his drug use will likely continue and with it will escalate the risk of his engaging in violent activity. As I have said, I consider such risk an appreciable risk to the safety of the community. Accordingly, in my view, the extended supervision order should be particularly focused on assisting Mr Wells in developing the necessary skills and coping strategies to manage his own risk factors. Supervision for two years should be sufficient for these purposes, at least initially. In fashioning the terms of the order I bear in mind that Mr Wells has had the benefit of undertaking courses on anger management, victim awareness and drug and alcohol relapse prevention in the past, and, in some instances on more than one occasion.
A positive in Mr Wells having been incarcerated for the last five months is the necessary break it has meant with the illicit drug trade and illicit drugs.
Section 10 of the High Risk Offenders Act deals with the terms of a supervision order. Section 10(1) 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 2015) 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.
As is plain the conditions subject of s 10(1)(a)-(d) are mandatory.
I note that once this Court makes an extended supervision order the Parole Board is empowered under s 11 to impose further conditions. Relevant to this case the Parole Board may order that Mr Wells reside at a specific address, be electronically monitored, and be prohibited from associating or communicating with specified persons or being present at particular premises or places. I have not been appraised of any conditions the Parole Board intends to make. These sorts of condition could be most important in assisting Mr Wells in dealing with people from whom he might be tempted to source drugs or who might seek his “mediation” services.
As part of his application the Attorney-General sought that the following conditions be included in this Court’s order:
2.4 that the respondent will wear an electronic monitoring device, to be fitted at the time of his release and maintained as required by his Community Corrections Officer and at the direction of the Parole Board, and will comply with the rules of electronic monitoring;
2.5 that upon his release and the fitting of an electronic monitoring device, the respondent will reside at an address nominated or approved by his Community Corrections Officer, and will not change his place of residence without the period written approval of his Community Corrections Officer;
2.6 that the respondent will not leave his residence at any time without the prior written approval of his Community Corrections Officer, 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 his Community Corrections Officer.
I propose to include such conditions. However, I limit their duration to a period of eight months on condition that the Parole Board may, in the event of any breach or there being a failure on Mr Wells’ part to satisfactorily engage with his supervisor, extend the period of monitoring. My intention is that such condition is a first step in assisting Mr Wells to re-establish himself in the community unhindered by the temptation to associate with those in the illicit drug culture with whom he has in the past associated, whilst presenting as an obstacle to him sourcing drugs. During the same period I expect the supervisory relationship to be established and cemented. Further, I expect that Mr Wells will have begun working with a psychologist and/or psychiatrist, hopefully found employment, and commenced attending any course intended to assist him as directed by his Community Corrections Officer. Lastly, whilst limiting electronic monitoring to eight months initially is intended to galvanise the support intended to be provided to Mr Wells, it also provides him with incentive to engage with his supervisor and to do so meaningfully.
At the conclusion of the eight month period it may be that, depending upon his response, electronic monitoring can be replaced by a regime that permits a greater level of freedom, perhaps, coupled with a curfew, but I leave that to the Parole Board.
For these reasons I order that Mr Wells be subject to an extended supervision order for a period of two years from the date of this order pursuant to ss 7(4) and 12(1) of the High Risk Offenders Act.
That order is subject to the following conditions:
1. the respondent will not commit any offence;
2.the respondent is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 2015) or any part of a firearm;
3.the respondent is prohibited from possessing an offensive weapon;
4. the respondent is to:
a. be under the supervision of a Community Corrections Officer;
b. obey the directions of the Community Corrections Officer including, but not limited to, directions as to:
i.any course he may be advised to undertake;
ii. persons with whom he may associate, and
iii premises he may attend;
and
c. submit to such tests (including testing without notice) for gunshot residue as the Community Corrections Officer may reasonably require;
5.the respondent will report to his Community Corrections Officer on such regular basis as his Community Corrections Officer directs;
6.the respondent will not travel outside of the State without obtaining the written approval of the Parole Board at least 7 days prior to travel;
7.for a period of 8 months commencing on the making of this order the respondent will wear an electronic monitoring device, to be fitted at the time of his release and maintained as required by his Community Corrections Officer and at the direction of the Parole Board, and will comply with the rules of electronic monitoring;
8.in the event that the respondent acts in breach of this order or fails to engage with his supervisor to the satisfaction of the Parole Board, order 7 may be extended by the Parole Board should extension be considered necessary to achieve the purposes of this order and the objects of the High Risk Offenders Act but such extension may be for a period no greater than six months and if the respondent breaches this order on more than one occasion for a period in aggregate of no greater than nine months;
9.upon his release and the fitting of an electronic monitoring device, the respondent will reside at an address nominated or approved by his Community Corrections Officer, and will not change his place of residence without the prior written approval of his Community Corrections Officer;
10.during the eight-month period that he is subject to electronic monitoring and any extension of that period, the respondent will not leave his place of residence at any time without the prior written approval of his Community Corrections Officer, 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 his Community Corrections Officer;
11.the respondent will maintain a telephone service for the duration of this order and provide his community corrections officer with the phone number of that service;
12.the respondent will take part in such psychiatric and/or psychological assessments to be conducted by the Forensic Mental Health Service (SA Health) as directed by his Community Corrections Officer provided that his Community Corrections Officer consults with the Forensic Mental Health Service (SA Health) before issuing such a direction;
13.the respondent will engage in such psychiatric and/or psychological treatment as recommended by the Forensic Mental Health Service (SA Health);
14.the respondent will take any medication prescribed to him by his treating doctor(s) and will advise his Community Corrections Officer of any medication prescribed to him by his treating doctor(s) within 7 days of that prescription being issued;
15.the respondent will not, other than in strict accordance with the directions given to him by his treating doctor(s), use, possess or administer any drug;
16.the respondent will submit to such tests (including testing without notice) for drug use as directed by his Community Corrections Officer.
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