Attorney General (SA) v Williams (No 2) - [2023] SASC 119

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY GENERAL (SA) v WILLIAMS (No 2)
[2023] SASC 119
Judgment of the Honourable Justice McIntyre
22 August 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 - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - REGISTRATION, REPORTING AND LIKE MATTERS
The applicant seeks a second extended supervision order be granted substantially in the same terms as the interim supervision order currently in place. The applicant submits that the respondent still poses a high risk to the community, and has been largely uncooperative with Department for Correctional Services staff throughout the period of his first supervision order.
The respondent contends that a further supervision order is not required, as he has not offended in any serious or substantive way during his previous supervision order. The respondent further submits that the imposition of some of the conditions sought in the supervision order impede on his ability to contribute to the community by means of gainful employment.
Held:
1. Application granted – extended supervision order will be made, but on varied conditions.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(6), 10(1)(e); Sentencing Act 2017 (SA) s 57, referred to.
R v Wichens [2022] SASC 158.; Attorney-General (SA) v Grosser (No 3) [2017] SASC 89., considered.

ATTORNEY GENERAL (SA) v WILLIAMS (No 2)
[2023] SASC 119
Criminal: Application
McIntyre J:

The applicant, the Attorney General for the State of South Australia, applies for a second Extended Supervision Order (“ESO”) in respect of the respondent Edward Allen Williams under section 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“HRO Act”).
The background to this matter is set out in my reasons for decision in Attorney General (SA) v Williams [2023] SASC 64. Since that decision, the respondent has been released into the community. He is currently subject to an Interim Supervision Order (“ISO”) made on 31 August 2022. The applicant seeks an ESO in substantially the same terms as the ISO. The respondent opposes the making of a further ESO but, if unsuccessful in relation to that, he opposes certain conditions proposed by the applicant.
For the reasons that follow I consider that it is appropriate to order that the respondent be subject to a further ESO. I have ruled on the contentious conditions. I invite further submissions as to the wording of condition 14 and as to the term of the second ESO.
Legislative Scheme
The powers of this Court to make, vary or revoke an ESO are set out in Part 2 of the HRO Act. The Court may order that a person be placed under an ESO for a period of up to five years or such lesser period as may be determined by the Court. Before making an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] SASC 119
Decision Date

CaseChat Overview and Summary

In the case of Attorney General (SA) v Williams (No 2), the central dispute was whether the respondent, Mr Williams, posed a significant risk to the community and required the extension of his existing extended supervision order (ESO). The Supreme Court of South Australia was tasked with deciding this issue. The primary legal issues that the court had to address were whether the respondent's risk of reoffending was sufficiently high to justify the continuation of the ESO and whether participation in the State Behaviour Change program (SBC) could mitigate his risk.

The court thoroughly examined the evidence provided by Dr Nambiar and Dr Raeside, who were both prescribed health professionals. Dr Raeside's evidence distinguished between static and dynamic risk factors, explaining that while static factors could not be changed, dynamic factors could be addressed through rehabilitation programs. Despite this, Dr Raeside conceded that due to Mr Williams' static risk factors, he would always remain a risk to the community. The court also considered the Department for Correctional Services (DCS) reports, which highlighted Mr Williams' failure to comply with reporting obligations, his belligerent and abusive behaviour towards program facilitators and DCS staff, and his lack of engagement in recommended rehabilitation.

The court ultimately decided that Mr Williams' risk of reoffending remained high, as supported by the opinions of the prescribed health professionals and the DCS reports. While acknowledging the respondent's commendable commitment to self-employment and abstinence from alcohol, the court found that these positive factors did not outweigh the significant risks posed by his history and behaviour. The court placed considerable weight on the health professionals' opinions but noted that the ultimate decision rested with the judge, who had to make an evaluative judgment based on the evidence and judicial experience. The court concluded that Mr Williams remained a large risk to the community without treatment and rehabilitation, justifying the extension of his ESO.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Dr Raeside gave evidence expanding upon the matters set out in his report. He drew a distinction between static risk factors such as age, gender, past offending history, personal history and dynamic risk factors. Dr Raeside said that whilst it is not possible to alter the respondent’s static risk factors, participation in rehabilitation programs would aim to address dynamic risk factors such as the respondent’s mode of thinking and maladaptive behaviours. Dr Raeside conceded that, due to his static risk factors, the respondent was always going to remain a risk to the safety to the community given his history stating:In practical terms, it’s very difficult for someone with Mr Williams’ history probably to ever satisfy that his risk is low.[7][7] T12.Other evidence Ms Gilham was Mr Williams’ Department for Correctional Services (“DCS”) case manager from 12 August 2022 to 8 May 2023. She gave evidence that the respondent presented in an abusive, belligerent and argumentative manner in all his dealings with her and was unwilling to engage with her in a constructive manner. She accepted that the difficulty in her relationship with the respondent was in part driven by his financial situation and his desire to travel interstate for work. She gave evidence that the respondent had never made a request to her to travel interstate which provided sufficient information to make an assessment. Likewise, Ms Gilham indicated that the respondent had never asked for permission to enter licensed premises or to use the internet for particular purposes. Ms Gilham said that she was willing to consider any reasonable requests if these were made in the appropriate channels with sufficient detail to assess whether they were safe and appropriate. Mr Rowlands is the respondent’s current DCS case manager. He has established a positive relationship with the respondent. Mr Rowlands explained the process of requesting travel approval to the respondent and confirmed that, if the appropriate information is provided, DCS is willing to consider the request. Mr Rowlands has not received any requests for permission to travel interstate, to visit licensed premises or to access the internet. Mr Williams, the respondent, gave evidence. He referred to a request that he made for permission to travel to Cobar and Dubbo for work. It appears that this request was made to his DCS case manager prior to Ms Gilham. He was unable to provide his DCS case manager with dates of travel due to the nature of his work through tender contracts. He said initially that he also made “multiple” requests to Ms Gilham to travel interstate. He then conceded that he had not made any formal requests to Ms Gilham because “it was clear to me she wasn’t going to give permission.”[8] [8] T74. Mr Williams says that he has a better relationship with DCS since changing his case manager in May 2023. He accepted that DCS requirements for a request to travel have been clearly explained to him. He has not made any request of his new case manager to travel interstate. Mr Williams also said that he did not make any request to Ms Gilham or his subsequent case managers for permission to enter a licensed hotel, club room or entertainment venue or to access specific internet services.

Decision

Reasons for decision

The respondent contended that participation in the SBC is not going to decrease the static factors that primarily determined his risk of offending as assessed by prescribed health professionals. It is said that the benefits of participating in the SBC based on the evidence provided by Dr Raeside are general in nature and could be provided by other programs. Dr Raeside’s evidence made it plain that no matter what the respondent does he will always pose a risk to the community. Furthermore, the evidence establishes that the past trauma suffered by the respondent means that he will have difficulty actively and meaningfully participating in group therapy.Conclusion Dr Nambiar’s opinion is that without appropriate treatment and rehabilitation the respondent’s risk to the community is high. Dr Raeside concurs and says that the respondent’s risk remains unchanged from the time the original ESO was imposed on 2 September 2020. I accept the respondent’s submission there are problems inherent in relying solely on a prescribed health professional’s determination of risk for the reasons set out in the respondent’s submission. The respondent refers to the decision in R v Wichens[10] concerning the qualified medical practitioners’ determination of risk under s 57 of the Sentencing Act 2017 where Kourakis CJ stated that:I doubt that there is any accepted area of expertise in predicting the likelihood that a particular offender in particular circumstances will reoffend. I accept of course that epidemiologically there are clearly identified risk factors and relatively well refined psychological tools for risk assessments generally.[11][10] [2022] SASC 158.[11] At [68]. Under s 7(6) of the HRO Act the Court is required to take the report of any prescribed health professional furnished to the Court into consideration when determining whether to make an ESO. I place considerable weight upon the opinions Dr Nambiar and Dr Raeside, but their opinions and concerns are but one factor that the Court must take into account. As Kourakis CJ said in Wichens: … the ultimate decision rests with the judge hearing the application who must make an evaluative judgment based on the evidence and institutional and personal judicial experience.[12][12] At [71]. The reports of the Parole Board and the material from DCS indicate that the respondent failed to comply with reporting obligations under his ESO and those associated with his ANCOR registration, he was belligerent and abusive towards program facilitators and DCS staff and has not engaged in recommended rehabilitation for the reasons outlined in my previous decision. DCS considers that the respondent remains “a large risk” to the community in the absence of treatment and rehabilitation.[13] [13] Affidavit of Lucy Hodge 29 August 2022 (FDN 3) I accept that the respondent has not offended in any significant way since the imposition of the first ESO. I also accept that the respondent did not breach either his parole conditions or his ESO from the date of his release, 13 May 2020, until 12 May 2022 when, due to the breakdown in his relationship with his DCS case manager, he failed to report for supervision. Further, the respondent’s commitment to self-employment is commendable as is the fact that he has abstained from alcohol since he was taken into custody in May 2017. These are very positive factors pointing towards a reduction in the respondent’s level of risk.

Ratio Decidendi

Legal Principle Established

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