Attorney-General (SA) v Williams

[2023] SASC 64

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

ATTORNEY-GENERAL (SA) v WILLIAMS

[2023] SASC 64

Judgment of the Honourable Justice McIntyre  

3 May 2023

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS

On 31 August 2022, this Court made an interim supervision order with respect to the respondent pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act).

On 21 March 2023, the Parole Board satisfied itself that the respondent had breached three conditions of his interim supervision order on 2 March 2023. Pursuant to s 17(1)(b)(ii), the Parole Board directed that the respondent be detained in custody pending attendance before the Court for determination as to whether a continuing detention order should be made under s 18(2) of the Act.

The respondent contended that an order for continuing detention should not be made as he is unable to receive appropriate treatment in custody.

Held:

1.      The referral for a continuing detention order be dismissed.

Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 15, 17, 18; Criminal Law Consolidation Act 1935 (SA) s 19(1), referred to.
Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11, considered.

ATTORNEY-GENERAL (SA) v WILLIAMS
[2023] SASC 64

Criminal: Application

McINTYRE J:

1. The respondent, Edward Allan Williams, comes before the Court on a referral from the Parole Board under s 17(1)(b)(ii) of the Criminal Law (High Risk Offenders) Act2015 (SA) (the HRO Act). The question for determination by the Court is whether the respondent should be subject to a Continuing Detention Order (CDO).

   Background

2. In September 2016, the respondent was sentenced to nine months imprisonment for the aggravated offence of possessing child exploitation material. That sentence of imprisonment was suspended when he entered into a bond to be of good behaviour for a period of two years. Whilst he was subject to the suspended sentence bond, the respondent committed further offences, namely communicating with the intention of procuring a child for sexual activity and failing to advise ANCOR of his internet access and social media and internet accounts. On 11 April 2019, the respondent was sentenced to two years, five months and 13 days imprisonment for those offences and the suspension of the previous sentence was revoked leading to a head sentence of three years, two months and 13 days. A non-parole period of two years was imposed. At the conclusion of his sentence, the respondent was determined to be a high risk offender and was placed on an Extended Supervision Order (ESO) under s 7(4) of the HRO Act for the period of 2 September 2020 until 1 September 2022.

3. The respondent breached the terms of the ESO by failing to comply with his reporting obligations under the ESO.  On 12 May 2022, the Parole Board issued a warrant that he be remanded in custody.  He was released on 24 August 2022.  Also in May 2022, the respondent was charged with failing to comply with reporting obligations associated with his ANCOR registration.  Those charges did not proceed. 

4. An application was made for a second ESO by way of originating application dated 29 August 2022. An Interim Supervision Order (ISO) was made in those proceedings on 31 August 2022 pending the determination of the application for a second ESO. On 2 March 2023, the Parole Board issued a warrant for the respondent’s arrest under s 15 of the HRO Act following allegations that the respondent had breached conditions one, two and five of his ISO. The warrant was executed on 3 March 2023 and the respondent was taken into custody. He has remained in custody solely on that warrant since that date.

5. On 21 March 2023, the Parole Board was satisfied that the respondent had breached his conditions as follows:

   ·Condition one (good behaviour) by failing to engage with his treatment program, making death threats to program facilitators and Department for Correctional Services (DCS) staff and threatening to commit suicide as reported on 2 March 2023;

   ·Condition two (not to commit offence) by making death threats towards program facilitators and DCS staff on 2 March 2023; and

   ·Condition five (treatment) by failing to engage in his treatment program on 2 March 2023.

6. The Parole Board directed that the respondent was to remain in custody pending attendance before this Court for determination as to whether a CDO should be made. 

7. The application for continuing detention was filed in this Court on 23 March 2023.

   The legislation

8. The test that the Court must apply is whether the respondent has breached the supervision order and whether he poses an appreciable risk to the safety of the community if not detained in custody.  If those jurisdictional facts are established, the Court must decide whether an order should be made.  The Court is required to give paramount consideration to the safety of the community in exercising its discretion.[1]  The purpose of the order is protective rather than punitive.[2] 

   [1] HRO Act s 18(3).

   [2]    Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11 at [85].

   The breaching conduct

9. There is little doubt that the respondent breached conditions one and five of his supervision order. In relation to condition two, I note that whilst the respondent made threats to DCS staff and rehabilitation counsellors with OARS Community Transitions, he has not been charged with any offence such as that provided for in s 19(1) of the Criminal Law Consolidation Act 1935 (SA). Presumably there was a reasonable possibility that these threats could be dismissed as “sounding off” rather than establishing threats for the purpose of the relevant offence. Whatever the situation, it is clear from the material before me that the respondent is uncooperative, belligerent and aggressive towards program facilitators and DCS staff and that he has breached conditions one and five of his ISO. The key issue for determination is whether the respondent poses an appreciable risk to the community if he is not detained in custody.

   Medical evidence

10. Prior to making the first ESO, a psychiatric report was obtained under s 7(3)(a) of the HRO Act from Dr Nambiar, clinical director and consultant forensic psychiatrist at Forensic Mental Health Service, dated 15 June 2020. Dr Nambiar considered that the respondent poses a high risk of offending in a sexual manner should he not receive treatment and rehabilitation. The respondent was either in complete denial or minimised his actions by externalising. Dr Nambiar said that the respondent appeared to consider himself a victim of his life circumstances and appeared unwilling to cooperate with any form of treatment, particularly sex offender treatment. Dr Nambiar recommended that the terms of any ESO include a prohibition from accessing the internet through any form of electronic device and referral for sex offender rehabilitation programs, as well as alcohol rehabilitation in order for him to remain abstinent. He also considered that the respondent would benefit from ongoing contact with a psychologist to develop strategies to deal with stress, grief issues, anger issues and suicidal ideation. He may also benefit from time to time from an anti-depressant.

11. Dr Craig Raeside, forensic psychiatrist, provided a report dated 18 January 2023 in relation to the application for a further ESO.  Dr Raeside considered that as the respondent had not received any treatment, his risk remains unchanged; he is at a high risk of further sexual offending.  Dr Raeside therefore supported the application for a further extended supervision order. 

12. Dr Raeside was unable to clearly identify any psychiatric illness.  He considered that the respondent had some depressive symptoms likely to amount to an adjustment disorder with depressed and anxious mood. He also appeared to have had an alcohol use disorder in the past but not currently.  There was also a history of post-traumatic stress symptoms but no indication of a current post-traumatic stress disorder.  The respondent’s history suggested antisocial personality traits if not an antisocial personality disorder.  In relation to the question of treatment and rehabilitation, Dr Raeside commented as follows:

    Nevertheless, the difficulty relates primarily to assisting Mr Williams to engage in appropriate treatment and rehabilitation that would effectively decrease his risk of further sexual offending.  I would suggest a combination of ongoing individual psychological therapy from an appropriate qualified therapist with sexual offenders, as well as further attempts for the Owenia House.  Psychological therapy might assist him in this regard.

    Additionally, psychological therapy might assist him to look at more adaptive ways of dealing with stress to assist him in his interpersonal relationships that are clearly suffering at present and causing a barrier with Community Corrections.

    The submissions

13. The Attorney-General submits that the Court should make a CDO in relation to the respondent in order to protect the community.  It is said that the breaching conduct involves serious threats made to the very people tasked with assisting him.  It is further said that until he addresses the underlying and dynamic risk factors, the respondent remains an unacceptable risk to community safety even under a supervision order as demonstrated by the recent breaches. 

14. The respondent submits that an order is not necessary and that the Court should release him subject to the ISO.  The respondent has been subject to an ESO since September 2020 and initially there were no breaches.  It is said that difficulties arose because the respondent obtained work which required interstate travel.  His ESO had a condition that he was not allowed to leave the state without the permission of the Parole Board.  That process would take several weeks if not months which meant he was not able to take those employment opportunities.  He therefore applied to the Supreme Court to vary his ESO.  The variation was made to allow the respondent to apply to his Community Corrections Officer rather than the Parole Board to get a timelier response in order to enable him to accept work interstate.  The respondent says that since the order was made on 15 December 2021, none of his applications to leave the State were granted and that this was the commencement of the breakdown of his relationship with Community Corrections. 

15. The respondent was referred to Owenia House for an assessment for his inclusion in the Sexual Behaviours Clinic (SBC).  During that assessment, it was identified that he would be unable to engage in the SBC due to heightened anxiety manifesting as anger towards other people.[3]  He was then referred to a forensic psychologist, Tindaro Fallo.  Mr Fallo advised that the respondent required a significant amount of therapy before they could work on his trauma to get him ready for the SBC.  Whilst unclear from the material before me, it appears that this treatment commenced with Mr Fallo but was not completed for reasons that are not apparent to me.  

    [3]    Affidavit of Lucy Hodge dated 29 August 2022 exhibit LMH6.

16. The respondent says he is willing to undergo appropriate treatment.  He is prepared to participate in the SBC but only in a situation which will not aggravate his anxiety.  The respondent submits that a continued insistence on him engaging in group therapy without appropriate psychological treatment will be counterproductive. 

17. The respondent submits that the risk he poses to the community has not changed significantly since the ESO was first imposed in September 2020.  The respondent has not been convicted of any further offences nor has he relapsed into alcohol abuse.  It is contended that release on an ISO, possibly with modified conditions, will enable him to participate in appropriate rehabilitation and will reduce the risk to the community. 

    Rehabilitation options

18. The Court requested that the applicant provide information relating to the availability of treatment and rehabilitation for the respondent both in custody and in the community.  Two affidavits were filed from Ms Hawkshaw, an employee of DCS, dated 20 April 2023 and 27 April 2023.[4]

    [4]    FDN 11; FDN 14.

19. It is apparent from those affidavits that the respondent was offered a position in two planned SBC programs scheduled to commence on 26 April 2023 at Mount Gambier Prison.  The programs were scheduled to run until February 2024.  The respondent refused to consent to participate in those programs.  The reasons for his lack of cooperation relate to the group nature of the programs and his anxiety about that.  Whilst this is regrettable, it is not unexpected in light of the opinions of Dr Raeside and Owenia House. 

20. There are currently no available spaces in the April programs.  The next planned SBC programs will commence in late 2023 and early 2024 at Mount Gambier and Port Lincoln Prisons.  The programs are group programs, but individual support can be provided to the respondent to assist him to manage issues related to his PTSD and distress tolerance.  This assistance is not available to people who are not participating in the programs.  The individual sessions are contemporaneous with the SBC programs and therefore will not commence until the commencement of the next SBC programs. 

21. The individual custodial treatment options available to the respondent are very limited.  Ms Hawkshaw’s affidavit dated 27 April 2023 sets these out as follows:

    Individual work to help an individual to get motivated and ready to commence a program has previously been offered by the Rehabilitation Programs Branch, however this is not standard practice and can only be offered if resources and time permits.  This work would be limited only to a few sessions and is focused on motivational interviewing techniques and the introduction of skills and strategies for the individual to utilise when getting ready to attend the program.  The individual sessions would not be suitable to manage more complex mental health needs such as PTSD.

    There are currently no other individual custodial treatment options available for Mr Williams.  The Rehabilitation Programs Branch only offer individual intervention in exceptional circumstances for men who are unable to participate in their core programs.  The Rehabilitation Programs Branch recognises the benefits for men being included in group-based programs, and individual intervention is not provided to men who refuse to participate in group-based programs. 

22. Ms Hawkshaw says that, in terms of rehabilitation in the community, the respondent is currently on the SBC program waitlist at Owenia House.  They have a group scheduled to commence in October 2023.  The program will run for 12 to 15 months.  Once the respondent commences the SBC program, individual sessions with a psychologist would be available as part of the program.  Once the respondent is able to show progress, alternative treatment and program referrals may be considered in addition to the SBC program.  Ms Hawkshaw says that DCS received a recommendation from Owenia House on 24 January 2023 that the respondent engage in private psychological support in preparation for joining the community-based SBC program.  Ms Hawkshaw contacted Mr Fallo’s rooms who indicated that there is a waitlist of two to three weeks to see Mr Fallo. 

    Consideration

23. I am satisfied that the respondent presents an appreciable risk to the community based upon his history, the reports of Dr Nambiar and Dr Raeside, and the material from the Parole Board and DCS.  However, I must also be satisfied that detention is required to address that risk for the safety of the community.

24. The community is protected whilst the respondent remains in detention.  He cannot, however, be detained indefinitely.  It is clear from the reports of Dr Nambiar and Dr Raeside that, without appropriate rehabilitation, the risk to the community remains unchanged. 

25. The only rehabilitation available to the respondent in prison is the group SBC programs and associated individual sessions.  At present there is no definite start date for the SBC programs.  At the earliest, they will start in late 2023 but may not start until early 2024.  The SBC program lasts for 12 to 15 months.  This means that, if detained, the respondent will spend at least 21 months in custody in order to complete the SBC program.  Further, whilst he is detained, the respondent will receive no individual treatment, as recommended by Dr Raeside and Owenia House, to prepare him to participate in the SBC program.  The likelihood is that the respondent’s anxiety about participating will manifest as aggression, lack of cooperation and belligerence as it has in the past. 

26. Accordingly, there will be no steps taken to lower the respondent’s risk whilst he remains in detention until, at the earliest, late 2023.  Moreover, it is unlikely that, without appropriate preparation, the respondent will greatly benefit from the SBC program, if at all.  There is more flexibility and a greater likelihood of appropriate rehabilitation in the community. 

27. It is highly regrettable that the rehabilitation options available to the respondent in custody are so constrained.  If a person who has served a sentence is required to be detained for the safety of the community, then the least that can be expected is that all appropriate steps will be taken in a timely matter to lower that person’s risk of reoffending. 

28. I am not satisfied that the risk posed by the respondent requires him to be detained.  He has been resistant to supervision to put it mildly but, whilst he has breached the ISO and the ESO, he has not been convicted of any further offending since 2 September 2020.  In particular, he has not committed any further acts of sexual offending.  Whilst the threats by the respondent towards DCS and other rehabilitation providers are unacceptable and inappropriate, they have not resulted in charges.  This suggests, consistent with the assessments referred to above, that the threats were viewed in the context of the respondent’s psychological condition to be “sounding off” rather than serious threats to kill or self-harm.  There is no suggestion that the respondent’s conduct went beyond the making of threats.  There is further no suggestion that he has been abusing alcohol which Dr Nambiar considered to be a factor in his offending. 

29. The terms of the ISO enable the Community Corrections Officer to direct the respondent to attend, amongst other things, psychological and psychiatric treatment, counselling, and therapy programs.  It is therefore open to the respondent’s Corrections Officers to direct him to attend psychological counselling of the type recommended and subsequently to direct him to attend a program such as the Owenia House program.  If the respondent is so directed and does not participate, it is likely that he will find himself the subject of a further referral by the Parole Board.  Having been in custody since 3 March 2023 for his failure to comply with the conditions of his ISO, the respondent can be under no illusion as to the consequences of non-compliance. 

30. Accordingly, I decline to make an order for continuing detention.  I will hear the parties as to whether it is appropriate to consider the variation of any of the terms of the ISO or the addition of other terms.