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 ESO the Court must be satisfied that:
·The respondent is a High-Risk Offender as defined in s 5 of the HRO Act; and that
·The respondent poses an appreciable risk to the safety of the community if not supervised under an ESO.
Once those jurisdictional facts are established, the making of an ESO is discretionary. In exercising that discretion, the paramount consideration is the safety of the community.[1] The Court must take into account the matters listed in s 7(6) of the HRO Act.
[1] HRO Act s 7(5).
The hearing
The Court received written evidence in the form of affidavits from Lucy Hodge dated 29 August 2022 (FDN 3),[2] Diana Kim dated 11 July 2023 (FDN 27),[3] Jeremy Rowlands dated 11 July 2023 (FDN 26)[4] and Carolyn Gilham dated 3 July 2023 (FDN25).[5] In addition, the Court received a report from Dr Craig Raeside, a forensic psychiatrist, dated 18 January 2023[6] and heard oral evidence from Ms Gilham, Dr Raeside and the respondent.
[2]    Exhibit A3.
[3]    Exhibit A4.
[4]    Exhibit A5.
[5]    Exhibit A2.
[6]    Exhibit A1.
Medical evidence
I summarised the written medical evidence in my previous decision. In summary, Dr Nambiar considered that the respondent poses a high risk of offending in a sexual manner should he not receive treatment and rehabilitation. Dr Nambiar supported the making of the first ESO. Dr Raeside supports the application for a further ESO on the basis that, as the respondent has not received the treatment and rehabilitation for further sexual offending as contemplated by Dr Nambiar, his risk to the community remains unchanged.
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.
Mr Williams says that he has resumed psychology sessions with Mr Tindaro Fallo. So far, he has had three or four sessions. Those sessions were presently dealing with “a few other issues”. They will then turn to preparing Mr Williams for group therapy sessions. Mr Williams was not able to provide an estimate of the likely timeframe in which he would be ready for group therapy sessions such as the Owenia House Sexual Behaviour Clinic program (“SBC”) recommended by Dr Raeside and Dr Nambiar.
Should a further ESO be made?
It is uncontroversial that the respondent is a High-Risk Offender within the meaning of s 5 of the HRO Act. He is a serious sexual offender who was sentenced to a period of imprisonment in respect of a serious sexual offence. He has also been subject to a previous ESO.
The applicant’s submissions
The applicant submits that the respondent continues to pose an appreciable risk to the safety of the community if not under supervision, relying upon the reports of Dr Nambiar and Dr Raeside, together with Dr Raeside’s evidence. Dr Raeside recommends a combination of ongoing individual therapy from an appropriately qualified therapist as well as further attempts to engage with group SBC programs through Owenia House. The applicant acknowledges that the respondent has taken steps to engage with a private therapist, Mr Fallo, as recommended by Dr Raeside. The applicant submits that, although this is a positive first step, it does not mean that the respondent no longer poses a risk to the safety of the community. Rather, it is contended that the respondent needs to show sustained and meaningful engagement in order to address the risk factors identified by Dr Nambiar and Dr Raeside.
The applicant notes that the Court was satisfied that the respondent posed an appreciable risk to the safety of the community in the context of the Continuous Detention Order (“CDO”) application. Although the statutory test differs slightly, the applicant submits that there is no reason why the same conclusion ought not be reached in the context of the ESO application.
The applicant further submits that the Court ought to exercise its discretion to make a second ESO due to:
·The nature and history of the respondent’s offending;
·The opinions of Dr Nambiar and Dr Raeside that, absent proper treatment and rehabilitation, the respondent is likely to commit a further sexual offence;
·The respondent’s failure to engage in recommended services including the SBC program;
·The respondent’s breaches of obligations under the first ESO and the ISO; and
·The respondent’s history of hostility toward DCS case managers.
The respondent’s submissions
The respondent contends that a further ESO is not required. The respondent has not offended in any serious or substantive way, in particular he has not committed any further offences of a sexual nature. He responded positively for two years under supervision in the community until the breakdown in his relationship with his DCS case manager. He has successfully established employment which will provide him with financial security and a degree of control of his life. Dr Raeside agrees that if the respondent is gainfully employed and feeling that his life is going well, his risk to the community would be decreased. It is contended that the respondent has therefore shown that his risk of reoffending in a substantive way and, accordingly his risk to the safety of the community, has decreased to the point where he no longer requires supervision in the community. It is further contended that there are problems inherent in relying solely upon prescribed health professionals’ determination of risk.[9]
[9] Respondent’s written submissions (FDN32) paragraphs 20 – 22.
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.
Whilst I accept the respondent’s submission that his risk of reoffending is never likely to be reduced to low given his static risk factors, I am concerned, due to a combination of factors, the respondent has received limited treatment and rehabilitation to address his dynamic risk factors. Dr Raeside says, and I accept, that addressing those factors will reduce the respondent’s relative risk.[14]
[14] T13 and T22.
SBC has been identified by DCS and the Parole Board as an appropriate form of rehabilitation and treatment to address the respondent’s risk of sexual reoffending. Dr Nambiar and Dr Raeside agree. The respondent has shown an unwillingness to undertake that program. I accept that his unwillingness is, at least in part, due to the effects of past trauma and the fact that the SBC includes a requirement to participate in group sessions. I do not accept that this precludes the respondent from meaningful participation in the SBC. Dr Raeside identified the need for the respondent to access professional assistance to deal with his anxiety in order participate in group therapy of the type included in the SBC. He is now attending private therapy sessions with Mr Fallo although the evidence is not clear as to the content of those sessions. The evidence suggests however that such therapy is capable of assisting and encouraging the respondent’s participation in the SBC. Further, once in the SBC, the respondent will receive one on one counselling in addition to group sessions[15].
[15] Attorney-General (SA) v Williams [2023] SASC 64.
I do not accept the respondent’s submission that the benefits of participating in the SBC are general in nature and could be provided by other intervention programs. The SBC is directed to addressing sexual offending such as that perpetrated by the respondent; it is a long established and well-regarded program. Further, whilst I note the reference to “other intervention programs” none have been identified by the respondent. The respondent further submits that participation in the SBC is not helpful because it will not address static risk factors. Whilst this may be so, it is clear from the evidence of Dr Raeside that the program will address the respondent’s dynamic risk factors such as the minimisation of his offending behaviour, his maladaptive behaviours, and his mode of thinking. I am satisfied that SBC is an appropriate program for the respondent to undertake once he has received appropriate assistance to enable him to engage with the program. In my view, it is important that efforts be made to address any impediments to the respondent’s participation in the SBC as soon as possible noting that the SBC runs for 12 to 15 months.
I am satisfied that the respondent poses 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. I am further satisfied that it is appropriate to order that the respondent be subject to a further ESO in particular given the lack of progress made under the first ESO towards providing treatment and rehabilitation to reduce his risk of reoffending.
What conditions should be imposed?
The court is empowered to make any condition it thinks fit in making an ESO[16]. The applicant has provided draft ESO conditions that they say is appropriate to protect the community. The respondent does not disagree with most of the proposed conditions (whilst contesting the need to make an ESO) but disputes the necessity for restrictions on his ability to attend licensed premises, access the internet access and to leave the state.
[16] Section 10(1)(e) of the HRO Act.
I was referred to the judgment in Attorney-General (SA) v Grosser(No 3)[17] where Stanley J considered the exercise of the discretion in relation to the conditions of an extended supervision order. Justice Stanley noted the competing considerations. On the one hand, the requirement for unambiguous lawful authority to infringe upon a person’s liberty and freedom of movement and, on the other hand, the need to protect the community from the risk of that person reoffending. His Honour went on to say:[18]
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.
(citations omitted)
[17] [2017] SASC 89.
[18] At [12].

Bearing these principles in mind, and the factors leading to my exercise of the discretion to impose a further ESO I will deal with each disputed condition in turn.
Condition 9
Proposed condition 9 provides;
The respondent must not enter or remain on the premises of any licenced hotel, club room or entertainment venue without the prior approval of the Community Corrections officer.
The applicant has proposed this condition due to the involvement of alcohol in the respondent’s past offending. The applicant further says that whilst the respondent has not made any recent requests to DCS for approval to attend licenced premises the evidence before the Court is that any reasonable request will be considered.
The respondent on the other hand says that he has not consumed alcohol since being taken in custody to serve his original sentence in May 2017 and that there is therefore no logical reason to prevent him from attending a wide variety of locations or venues that are licensed. It is further contended that the fact that the respondent may be able to gain approval does not ameliorate the condition in the sense that it prevents him from having control of his life and such that spontaneous desires to attend movies or football matches cannot be satisfied.
I accept the respondent’s submissions. I do not consider that it is necessary to limit the respondent’s access to premises which serve alcohol in the absence of any evidence that the respondent has ongoing difficulties with alcohol abuse. There is no evidence of a risk that the respondent will consume alcohol at licensed entertainment venues such as a football match, market or theatre requiring that he be prohibited from attending those venues without prior permission. The ESO will contain a prohibition on consuming alcohol and the respondent can be tested for alcohol consumption under the terms of the order.
Condition 14
Proposed condition 14 provides;
The respondent must not access the internet except for the purposes of banking, navigation, accessing electronic mail, employment, medical emergencies or accessing Commonwealth or State Government services or for another purpose approved beforehand by the Community Corrections officer.
The applicant contends that this condition is appropriate due to the respondent’s use of the internet in his prior offending. The respondent was given access to YouTube by his previous case manager, however this access was revoked by Ms Gillham. It is said that the respondent was then provided with approval by DCS to use the Spotify application to listen to music on his telephone, however this was later revoked too.[19] The reasons for these decisions are not clear. The respondent has not otherwise made any request to use the internet for any other specified purpose. It is said that the evidence demonstrates that any reasonable request will be considered, and approval provided if the respondent’s DCS manager considers the request safe and appropriate.
[19] Affidavit of Ms Gilham at [22].
The respondent contends that the proposed condition does not provide certainty for the respondent in understanding what he may or may not do on the internet. It is said that the criminal law provides for activities that are precluded which provides a large degree of certainty. It is suggested that if the applicant has concerns about the respondent’s use of the internet such as accessing social media and conversing with people online, specific conditions addressing those concerns would be more appropriate. The applicant opposes such an amendment saying that, if this condition is amended to specify activities that the respondent cannot do rather than those he can do, this creates significant administrative difficulties for his DCS officer to monitor compliance.
It is my view that, given the nature of the respondent’s offending behaviour it is appropriate to place some limits on his online activities. However, I accept the respondent’s contention as to the scope of such a condition. It is necessary to limit the infringement of the respondent’s rights to what is strictly required to advance the purpose of the legislation by crafting a condition that addresses the specific concern. I do not accept that monitoring compliance with a condition prohibiting the respondent from doing certain things would be more difficult than policing the condition proposed by the applicant.
I also note the evidence of Ms Gilham that DCS policy is that case managers are not allowed to check compliance with internet restrictions due to the potentially traumatising effect if illicit material is located on the device. Her evidence suggests that it is necessary to include a specific power for DCS to engage appropriately qualified police officers to undertake monitoring of compliance with such conditions.
I invite the parties’ further submissions as to the appropriate wording of any condition imposed in relation to online activities and the monitoring of such a condition.
Condition 17
Proposed condition 17 provides:
The respondent must not leave or attempt to leave South Australia for any reason without obtaining the prior written approval of the Community Corrections officer and upon return to South Australia, he must inform his Community Corrections officer of his return within 24 hours. The respondent must obey the directions of the Community Corrections officer about the information he is required to provide for the purpose of obtaining prior written approval to travel interstate.
The first ESO originally required the respondent to obtain prior written approval from the Parole Board, however this proved unwieldy. In December 2021 Blue J amended that condition to enable permission to be obtained from the respondent’s DCS officer. In making that amendment Blue J said:
On the other hand, to vary the condition merely to substitute his Community Corrections officer for the Parole Board is in my view consistent with the original purpose and intent of the condition; that is, that he be subject to a requirement to obtain permission from a responsible body before he leaves the state. It is then up to that responsible body whether or not permission is granted. I accept Ms Gardner’s evidence that if it is changed to his Community Corrections officer, she could make a decision within 48 hours and possibly within 24 hours of the request.[20]
[20] Reasons for Decision of Blue J dated 15 December 2021 at [15].
I am of the same view as Blue J. Mr Williams’ evidence was that he had trouble in obtaining work interstate owing to the intransigence of his DCS officers in relation to providing approvals. However, I accept the evidence from DCS that the reason for any lack of approval was the respondent’s failure to provide appropriate information to enable them to properly assess the request. It further seems clear that the respondent formed a view that approval would not be forthcoming and so ceased making requests for approval at least by the time Ms Gilham became his case manager in August 2022. The respondent has now been advised of the way any such request ought to be made. The evidence is clear that if the relevant information is provided any reasonable request will be approved provided that the DCS case manager considers the request safe and appropriate. In those circumstances I consider it appropriate to include this condition in the ESO.