Attorney-General (SA) v Williams - [2019] SASC 32

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v WILLIAMS
[2019] SASC 32
Reasons for Decision of The Honourable Justice Kelly
8 March 2019
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
Application for determination as to whether a continuing detention order should be made pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA). Where respondent placed on an interim supervision order from 10 April 2017 and placed on an extended supervision order from 11 September 2017 for a period of three years. Where respondent has breached those orders on sixteen occasions and admitted those breaches – whether respondent poses an appreciable risk to the safety of the community if not detained in custody.
Held, per Kelly J:
1. The respondent is to be detained for a further 15 months under a continuing detention order to enable his participation in rehabilitation.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, 15, 17, 18, referred to.

ATTORNEY-GENERAL (SA) v WILLIAMS
[2019] SASC 32
KELLY J.
Introduction

This a referral from the Parole Board pursuant to s 18(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the Act’) for a determination as to whether a Continuing Detention Order should be made in respect of Shane Robert Williams (the respondent). By force of s 18(5) the Attorney-General is a party to these proceedings. The Parole Board also has a right to appear, however I was informed by counsel for the Attorney-General that on this occasion the Parole Board does not wish to exercise that right.
The matters which this Court must decide in determining this application are set out in ss 18(2) and 18(3) of the Act:
18—Continuing detention orders
…
(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 …
Thus, it can be seen that the issue for determination by this Court is whether the applicant has proved that the respondent has breached a condition of the Extended Supervision Order made earlier in this matter, and whether he poses an appreciable risk to the safety of the community if not detained in custody. In determining the matter, the paramount consideration of the Court must be the safety of the community.
Background
It is necessary to set out the history of the proceedings which gave rise to this referral.
On 11 September 2017, a Judge of this Court made an order (pursuant to s 7 of the Act) that the respondent be subject to an Extended Supervision Order (ESO), for a term of three years.
The original application for the ESO had been filed earlier in 2017 while the respondent was still serving a sentence of imprisonment for aggravated theft using force. That application was based on a specialist assessment report which estimated the respondent, in light of his history and current circumstances, to be at a high risk of violent reoffending.
An Interim Supervision Order was made on 10 April 2017 pending the outcome of the originating application.
The respondent was released pursuant to that Interim Supervision Order on 19 April 2017.
On 7 and 13 June 2017, the respondent breached the Interim Supervision Order by using amphetamine and methamphetamine.
The Parole Board issued a warrant for his arrest pursuant to s 15 of the Act on 16 June 2017. That warrant was executed on 2 July 2017 and the respondent was remanded in custody pending determination of the originating application.
Meanwhile, Dr Craig Raeside provided the first of two psychiatric reports in relation to the respondent’s likelihood of committing a further serious offence of violence if not subject to an Extended Supervision Order.
Significantly, Dr Raeside opined in his report dated 16 June 2017 that:
I would strongly recommend that [Mr Williams] engage in a Violence Prevention Program and drug rehabilitation program such as Making Changes in the community, particularly focusing on developing positive strategies for dealing with stress rather than resorting to his previous pattern of substance abuse and violence at times. Despite Mr Williams’ positive attitude towards the future based on my interview with him it is unlikely that he would voluntarily engage in such programs at this point. However, whether it should be done under an extended supervision order is obviously for the Court to decide.
Finally, in terms of pure risk assessment, Mr Williams’ previous evaluation placed him as a high-risk offender on the basis of both static and dynamic factors.
The respondent remained in custody until he was released onto the Extended Supervision Order (as made on 11 September 2017) on 28 November 2017. Regrettably, within days, on 4 and 5 December 2017 the respondent breached the ESO by using methamphetamine and morphine, by entering the Pastoral Hotel Motel at Port Augusta and remaining there for some time, by not residing at an address approved by the Community Corrections Officer assigned to him and by breaching a curfew not to leave his residence between the hours of 9.00pm and 6.00am. In fact, the address at which the respondent was required to live was in Kilburn and he had travelled to Port Augusta and resided at an address in Port Augusta.
The Parole Board then issued a warrant for his arrest on 5 December 2017 under s 15 of the Act and the warrant was executed that day. The respondent remained in custody until 11 January 2018 when he was again released onto the Extended Supervision Order.
Regrettably, once again within days of release, the respondent further breached the ESO on 14 January 2018, 16 January 2018, 3 February 2018 and 7 February 2018 by again using amphetamine, methamphetamine, morphine, possessing cannabis and by failing to respond to a direction by his Intensive Compliance Unit officer to undertake a saliva extraction within a reasonable time.
Once again, the Parole Board issued a warrant for the respondent’s arrest and that warrant was executed on 7 February 2018 when the respondent was taken into custody. On 17 April 2018, the Parole Board satisfied itself that the respondent had breached the Supervision Order and, pursuant to s 17(1)(b)(ii) of the Act, the Board then directed that the respondent be detained in custody pending appearance before this Court for determination as to whether a Continuing Detention Order should be made.
The matter was heard before another Judge of this Court who, on 4 May 2018, declined to make a Continuing Detention Order.
On that date, therefore, the respondent was released on the ESO.
Regrettably, yet again, within two weeks of his release, the respondent again breached the conditions of the ESO on 17 May 2018 by using drugs, namely methamphetamine and buprenorphine.
Again, the respondent was arrested pursuant to a Parole Board warrant on 22 May 2018 and again was detained pursuant to s 17(1)(b)(ii) of the Act. The matter was again referred to this Court for determination as to whether a Continuing Detention Order should be made.
On 27 June 2018, a Judge of this Court again declined to make a Continuing Detention Order, however, the respondent remained in custody as he was then on remand for pending criminal charges.
On 15 August 2018 those criminal charges were withdrawn and the respondent was released on the ESO on that day.
The very next day on 16 August 2018, the respondent again breached the ESO by using amphetamines, methamphetamine and codeine/morphine.
On 24 August 2018, the respondent again breached the ESO by breaching a curfew, by using amphetamine and methamphetamine and by being found in possession of an offensive weapon, namely a large silver knife. He was eventually convicted of that offence on 4 December 2018. The respondent has remained in custody pending determination of this latest application for determination of whether a Continuing Detention Order should be made.
Discussion
For the purpose of determining this application, I was provided with an extensive history in relation to the respondent which includes a summary of his criminal antecedents, records of proceedings in this Court and determinations of the Parole Board together with extensive reports and notes made by respective Correctional Services officers assigned to supervise the respondent. In addition, I have had the benefit of affidavits filed on behalf of the Attorney-General. These materials are summarised and described in Appendix A of these reasons.
The respondent tendered affidavits from the respondent’s grandparents, Mr Anthony Westwood and Mrs Jean Westwood, together with an affidavit from the respondent’s solicitor, Patrick Deegan. The respondent opposes the making of a Continuing Detention Order.
The respondent submits that, notwithstanding the history of breaches of the ESO since it was first made in 2017, he is now in the most favourable position to comply with the terms of the order if he is released again into the community. In addition, he has a great deal of family support in the form of his grandparents, Mr and Mrs Westwood, who are willing to take him into their home in Whyalla and assist him in any way they can. Counsel for the respondent submitted that the most significant factor which militates towards a successful rehabilitation is the fact that shortly after being taken into custody again in August 2018, the respondent was placed on the methadone program at the prison and is currently doing quite well.
Notwithstanding the fact that the Parole Board do not deem the residence of the respondent’s grandparents to be a suitable place to accommodate the respondent, the respondent chose to call his grandfather to give evidence in support of his application that he should be released into the community and into their care.
I should make it clear at the outset that I do not doubt the honesty, integrity and genuine concern which Mr and Mrs Westwood have for their grandson. The fact is however that they are an elderly couple. Mr Westwood is a man of 80 who has already had a minor stroke and Mrs Westwood suffers from a serious terminal condition. Neither of these people should be subjected to any stress or worry, quite apart from the fact that they are ill equipped at this stage of their lives to supervise a recidivist drug addict, even if he is their grandson.
The issue before me is not where the respondent should live but whether I am satisfied that he has breached a condition of his Supervision Order and whether he poses an appreciable risk to the safety of the community if not detained in custody.
I have set out at length the recent history of the respondent’s breaches of the Supervision Order, both interim and extended, which was made in April and September of 2017 against the background of his previous criminal history. The respondent, through his counsel, admitted the sixteen alleged breaches.
It is plain that he has a long history of offending since a very young age. Much, but perhaps not all, of his offending relates to his ongoing illicit drug use.
I have taken into account Dr Raeside’s two reports, the first dated 16 June 2017 and the most recent dated 16 January 2019. I am particularly influenced by Dr Raeside’s view that just because the respondent is now on the methadone program the risk of further offending is not necessarily reduced. In his second report, Dr Raeside said:
However, whilst methadone might reduce his craving for opiates, there are obviously other factors related to drug use than simple physical dependence, not the least associating with negative peers and lacking social supports. Even if he was on a regular methadone regime in the community, there would remain other risk factors in terms of further offending. Indeed, as Mr Williams himself said, his armed robbery was not related to drug use.
Further, opiates are not the only drug problem that Mr Williams has experienced and many of his breaches related to use of methamphetamine, which would not be ameliorated by being on methadone given the different nature of the drug (particularly its stimulants effects). Indeed, it is not uncommon for drug users to use both opiates and amphetamines, albeit often not simultaneously, but one to pick them up and the other to calm them down.
Therefore, for Mr Williams to successfully [sic] in the community with reduced risk of further offending, he would need a comprehensive program of drug management (including methadone), social supports (including stable accommodation) and prosocial activities to assist him to avoid associating with negative (drug using) peers. His history over recent years, not just in recent months, has shown that he has little capacity to do that.
In addition to the drug issues, Mr Williams has a significant history of violent offending and he has not yet undertaken a Violence Prevention Program. Whilst there are some programs available in the community, it would be important that Mr Williams engage in the Violence Prevention Program that is offered in custody.
Therefore, taking all of this into account, I would support a Continuing Detention Order to enable Mr Williams to remain in custody, participate in the next available Violence Prevention Program (which I believe is in the middle of 2019), and that he also participate in a further Making Changes Program in custody to address his ongoing drug use.
The respondent was subject to quite stringent conditions when he was first released on an Extended Supervision Order. His capacity to live in the community without breaching that order has proved to be woefully inadequate. None of the onerous conditions that have been or could again be imposed upon him, including intensive electronic monitoring and home detention, appear to have deterred the respondent from continuing to associate with a negative peer group, accessing drugs and, disturbingly on a more recent occasion, obtaining access to weapons such as knives.
It is regrettable, that for one reason or another, the respondent did not attend the Violence Prevention Program whilst in custody. I accept that this is partly due to the lack of resources and the fact that he was not given the opportunity to be placed into that program until well towards the end of his sentence. At that time, the respondent mistakenly believed that he was in a better position to obtain parole than to stay in custody and complete the course. As events have transpired that was a very poor decision.
Dr Raeside has consistently recommended that the respondent undertake that program. It is a matter of real regret that the resources of the State appear to be insufficient, such that offenders like this respondent are often unable to access programs which will reduce their risk of reoffending until just prior to, or, indeed in recent times, after, the expiration of their sentences of imprisonment. It is no small irony that the program for which he has been deemed most suitable is a program which is only available to those prisoners who are in custody serving a sentence or in respect of whom a Continuing Detention Order has been made. Unfortunate though it is, I consider that the respondent does pose an appreciable risk to the community if he is not now detained in custody, at least until he has had the opportunity to complete the Violence Prevention Program for which he has been deemed suitable and which I understand will commence in June 2019.
It is for these reasons that I will accede to the application by the Attorney- General that the respondent be detained for a further 15 months under a Continuing Detention Order to ensure that he completes the Violence Prevention Program before any further decisions are made about his future.
Appendix A
1Affidavit of Sean Thomas O’Flaherty dated 17 March 2017 (and attached Exhibits STO-1 – STO-8)
2Psychiatric Report of Dr Craig Raeside dated 16 June 2017
3Affidavit of Michelle Louise Sutcliffe dated 27 April 2018 (and attached Exhibits MLS1 – MLS2)
4Affidavit of Michelle Louise Sutcliffe dated 25 June 2018 (and attached Exhibits MLS1 – MLS6)
5Affidavit of Catherine Mary Nolan dated 20 November 2018 (and attached Exhibit CN-1)
6Second Affidavit of Catherine Mary Nolan dated 22 November 2018 (and attached Exhibit CN-1)
7Psychiatric Report of Dr Craig Raeside dated 16 January 2019
8Statement of Alleged Breaches dated 1 March 2019
9Affidavit of Anthony Shillabeer dated 26 February 2019
10Affidavit of Katherine Short (and attached Exhibit KS-1)
11Affidavit of Emma Jayne Gorman (and attached Exhibits EJG1 – EJG4)