Attorney-General (SA) v Woods-Pierce - [2022] SASC 60

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)

ATTORNEY-GENERAL (SA) v WOODS-PIERCE
[2022] SASC 60
Judgment of the Honourable Justice McDonald
22 June 2022
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
On 3 December 2014, the respondent was convicted in the Youth Court of serious sexual and violent offences. The respondent was sentenced as an adult in the District Court to a term of imprisonment for seven years with a non-parole period of four years, commencing on 17 June 2014. The Attorney-General made an application that the respondent be the subject of an extended supervision order (ESO) upon his release from custody. The application was dismissed on 16 June 2022 and the respondent was released from custody, having served the entirety of his sentence imposed for the index offending. The Attorney-General appealed that decision in the Court of Appeal, and that appeal was ultimately allowed, reviving the original application for an ESO. The respondent has been subject to an interim supervision order (ISO) since 27 October 2021.
The respondent opposed the making of an ESO and contended that, despite satisfying the two necessary preconditions enlivening the Court’s jurisdiction to make an ESO, the Court should exercise its discretion to not make such an order.
Held:
1. the respondent be subject to an extended supervision order for a period of 18 months pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA).
Criminal Law (High Risk Offenders) Act 2015 (SA) s 6(1), s 7(1), s 7(5), s 9, s 10(2); Criminal Law Consolidation Act 1935 (SA) s 24(1), s 39(1)(b), s 48(1); Young Offenders Act 1993 (SA) s 29, referred to.
Attorney-General (SA) v Woods-Pearce [2021] SASC 77; Attorney-General (SA) v Woods-Pierce [2021] SASCA 112, discussed.

ATTORNEY-GENERAL (SA) v WOODS-PIERCE
[2022] SASC 60
Criminal: Application for Extended Supervision Order
McDONALD J.

This is an application by the Attorney-General that the respondent, Mr Aiden Woods-Pierce, be subjected to an extended supervision order (‘ESO’) for two years under the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’).
The respondent opposes the making of the ESO. There is no dispute that the two necessary preconditions enlivening the Court’s jurisdiction to make an ESO under s 7 of the HRO Act are satisfied, namely that:
1.The respondent is a high risk offender so defined under the HRO Act;[1] and;
2.The application was made within 12 months of the relevant expiry date.
[1] Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(1).
Background
On 3 December 2014, the respondent was convicted of the following offences:
1.Aggravated kidnaping contrary to s 39(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’);
2.Aggravated cause harm contrary to s 24(1) of the CLCA; and
3.Rape contrary to s 48(1) of the CLCA.
These charges arose out of an incident in which the respondent held a 21-year-old Case Manager for a youth services organisation hostage at his home over an extended period. During that time, he assaulted, threatened and raped her. He also struck her to the head with a sword causing a large gash and further humiliated and degraded her by compelling her to view child pornography.
The respondent committed these offences on 17 June 2014 when he was aged 17 years old. The respondent was tried in the Youth Court and committed to the District Court for sentence pursuant to s 29 of the Young Offenders Act 1993 (SA). He was sentenced to imprisonment for seven years with a non-parole period of four years to commence from 17 June 2014. The head sentence expired on 16 June 2021.
First extended supervision order application
On 11 May 2021, the Attorney-General made an application for an ESO against the respondent. That application was opposed by the respondent. On 16 June 2021 the matter came before David J for submissions. The issue at the centre of both parties’ submissions was whether the fact that the respondent was a youth at the time that he was convicted of the offences meant that he was not subject to the operation of the HRO Act by virtue of s 6(1).
On 16 June 2021, David J dismissed the application for an ESO, accepting the respondent’s argument that he did not fall under the operation of the HRO Act.[2] Given this was the date of the expiry of the respondent’s non-parole period, the effect of that order was that the respondent was released into the community with no form of supervision or support in place.
[2] Attorney-General (SA) v Woods-Pearce [2021] SASC 77.
The Attorney-General subsequently appealed the decision of David J. On 14 October 2021, the Court of Appeal allowed the appeal and remitted the Attorney-General’s application for an ESO for further consideration.[3] The effect of that was that the respondent, who had been granted his unconditional liberty, was once again facing the potential of restrictions to his movements by government authorities.
[3] Attorney-General (SA) v Woods-Pierce [2021] SASCA 112.
The interim supervision order
On 27 October 2021, the matter came before Peek J. On that occasion the Attorney-General sought an interim supervision order (‘ISO’), pursuant to s 9 and s 10 (2) of the HRO Act.
At that hearing, counsel for the respondent took a relatively neutral stance to the imposition of the order. He did however take the opportunity to make the point that the respondent had been in the community without supervision of any form for more than four months and had not committed any further offences. He put to the Court that the respondent was doing well, he was studying and was living with and assisting his grandmother who was recovering from cancer. Counsel for the respondent concluded his submissions by making it plain that regardless of whether the ISO was granted or not, the respondent would oppose the making of an ESO.
At the conclusion of submissions, Peek J made an order that the respondent be the subject of an ISO until such time that the application for an ESO could be finally determined. Peek J also ordered that:
A prescribed health prescribed health professional examine the respondent and report to the Court on the results of the examination, including an assessment of whether there is a likelihood of the respondent committing a further serious offence of violence and / or further serious sexual offence.
Dr Haeney’s report
Dr Owen Haeney was assigned the task of providing the report in relation to the respondent. In order to prepare that report Dr Haeney was provided with a significant number of documents relating to the respondent’s criminal offending, his time in custody and the relevant court proceedings surrounding the applications for an ISO and an ESO.
Dr Haeney also interviewed the respondent on 1 December 2021. In his report of 2 February 2022, Dr Haeney included, in some detail, aspects of his interview with the respondent. I set out the most relevant matters below.
Current situation and attitude to extended supervision order
The respondent told Dr Haeney that he had been released from prison during 2021, having served the entirety of his prison sentence. He said that when he had applied for parole, he was prevented from living with his grandmother and his then 17-year-old brother, who was under the guardianship of the Minister. The respondent advised Dr Haeney that rather than be released with such restrictions, he had opted to serve his full seven-year sentence.
The respondent expressed strong negative sentiments about the prospect of being subjected to an ESO. He complained about various conditions of the ISO. When asked about how he felt about the prospect of being placed on an ESO, the respondent told Dr Haeney: “I feel like if they put the ESO on me I’ll jump off the Westpac building”. When pushed further on that topic, the respondent said that he would “probably tell them to put me back in prison rather than have the illusion of freedom when the government has got its hand up my arse”. He went on, “For seven years I couldn’t take a shit without a screw looking in on me. I’d rather go to prison; it’d be a hell of a lot easier”. The respondent complained to Dr Haeney about the impact that the ISO was having on his employment prospects, having to attend an office of the Department for Correctional Services every week, and having repeated drug tests. The respondent told Dr Haeney:
I did the crimes, I went to prison, I served my time and I’m still being punished. It’s just a joke really. I did everything the state asked me to do. I did the course, I passed it. Why pass me? I’m not a high risk scumbag. I could have done some drugs, bashed everyone and still ended up in the same situation. Why bother? I’ve had a few bad days like everyone has but generally I did the right thing.
Index offence
Dr Haeney reported that the respondent was not keen to discuss his offence in detail but indicated that he agreed with the descriptions given in the court record. When asked, the respondent attributed his offence to “really low self-image and esteem. I’d been so angry through my life, so much pain that I wanted someone else to have that pain I had had my entire life”. The respondent told Dr Haeney that the offence was not planned or rehearsed but “just happened” and the victim was “just unlucky”. When asked about what he had learned in relation to his offending, the respondent told Dr Heaney: “there’s not really much I can do, I can’t change what I did but I can learn from it”. In relation to the impact on the victim the respondent said that he now realises “how damaging it was for her and her family, how much I wish I could take it back, but I can’t”. When Dr Haeney challenged the respondent about the fact that he would have known what he was doing was extremely wrong at the time of his offending, the respondent indicated the difference was that back then “I didn’t give a shit about anyone else. I’m not the same person I was when I went inside”. The respondent told Dr Haeney that he had no urges or thoughts about reoffending, he could not however identify any particular protective factors other than knowing he did not want to offend again. The respondent could not identify any triggers or risk situations.
Summary and opinions
In his report, Dr Haeney set out in some detail the results he obtained using the frameworks of two structured professional judgment tools, one for violence and one for sexual violence. These were the HCR20 (Version 3) and the Risk for Sexual Violence Protocol (RSVP). He explained that these tools are widely considered the gold standard in forensic mental health and allow consideration of evidence-based risk factors with a discretion to consider which are relevant and how these factors interact.
Utilising the results of those two tools, Dr Haeney expressed the following view:
… it is clear that Mr Woods-Pearce [sic] has a significant history of violence, from an early age, escalating to his most recent offences. Other antisocial behaviour is clearly evident, as are previous problems with supervision and treatment. The clinical items of concern include his lack of insight into his potential risk, his affective instability and ongoing opposition to treatment and supervision (although it should be noted that he has complied with the conditions of the Interim Supervision Order).
In considering future risk items, there remains concern about his engagement with professional services and plans, since he sees no need for involvement and actively opposes what he perceives as government interference. If subject to an ESO to mandate engagement, he threatens suicide or ‘opting’ to serve out the additional period of supervision in prison. He has limited prosocial support and is likely to face ongoing problems with stress.
In summary, Mr Woods-Pearce [sic] has a long history of previous violence and antisocial behaviour starting in childhood. … There has been limited understanding of his offences, with shame contributing to an unwillingness or inability to discuss it beyond the superficial. The role of any sexual deviance and use of child exploitation material is poorly understood. He remains opposed to treatment, support or supervision, adamant that he poses no future risk. There are some positives which must also be recognised. Mr Woods-Pearce [sic] reports maturation during his period of imprisonment and a strong desire never to return to custody. He is adhering to the ISO conditions and has not reoffended since release, even prior to initiation of the ISO. He is not using illicit drugs (but does use alcohol, which has a disinhibiting effect).
I have considered all of the information at hand, including the conclusions and formulation of the Sexual Behaviour Clinic, which asserted that he remained high risk of reoffending. I concur that Mr Woods-Pearce [sic] remains at significant risk of a further serious sexual offence and a serious offence of violence.
(Emphasis added)
Dr Haeney’s evidence
On the application of counsel for the respondent, Dr Haeney was called to give evidence. In examination-in-chief, Dr Haeney confirmed the view that he had expressed in his report; that the respondent remained at significant risk of further serious violence or serious sexual offending. Dr Haeney explained that central to this was his concern about the respondent’s inability to engage in a discussion about why he committed the index offences. He said:[4]
… for whatever reason, he’s never really been able to engage in discussion of his motivation for that offence, what was going through his mind at the time, what he wanted to achieve, why the offence occurred. Really, that’s crucial for trying to implement management plans to address risk of re-offending. If there’s not an understanding of why the offence occurred, it becomes very difficult to put in place feasible plans to prevent recurrence of recidivism.
He later went on to elaborate:[5]
… one of the concerns that came through with Mr Woods-Pearce [sic] and statements that the offence cannot, will not happen again, it was a one-off without ever being able to understand why the offence really occurred or why he could be so confident that it would never happen again and that ongoing anger and frustration and resentment towards authority was another factor ongoing that was of concern.
[4] T5-6.
[5] T16.
Dr Haeney gave evidence that a further overlapping concern was the respondent’s “very negative attitude towards being instructed to undertake therapies or groups or working with authority services”.[6] In summary, it was Dr Haeney’s evidence that whilst the respondent had received some benefits from the Sexual Behaviour Clinic program that he had undertaken whilst in custody, that moving forwards it was important that the respondent engaged in further therapy, ideally establishing a good and trusting relationship with his therapist.[7] He explained that this would not be a short term piece of work given that the respondent had been in custody for seven years. He said it would be naive to expect a new therapist with a new treatment route to have a rapid effect.[8]
[6]    T7.
[7]    T7.
[8]    T8.
Counsel for the respondent focussed his cross-examination on the interplay between the respondent’s static and non-static risk factors, and the two risk assessment tools used by Dr Haeney to attempt to quantify or measure the risk the respondent posed.
In cross-examination Dr Haeney was asked about whether the two assessment tools that he used were capable of factoring in non-static factors, such as the passage of time. He responded that they did factor in such matters and that was why these assessment tools were particularly useful. It followed that any period of time during which the respondent is in the community without reoffending is a matter that can be factored into any future risk assessment. When asked by counsel for the respondent whether there were things that the respondent could do in the community that would reduce his risk in a subsequent assessment, Dr Haeney responded:[9]
Over time, yes. I think that would be very difficult for him to have done in the nine months since his release from custody. But I think there are things he can do moving forward. I think part of that is a demonstration of stability in the community, stability of employment, of housing and accommodation, stability of his life more generally, continued abstinence from illicit drugs would be important…
[9] T15-16.
In summary, it was Dr Haeney’s evidence that whilst the respondent currently remains a significant risk to the community, there have been some positive developments. With appropriate therapy and stability in his life, the respondent’s risk of re-offending in all likelihood would reduce in the future, albeit it may take some time.
The respondent’s evidence
At the conclusion of Dr Haeney’s evidence the respondent elected to give some brief evidence. At the outset of his evidence the respondent provided some details about his lifestyle and personal circumstances. He said that he had spent the first five months after his release from custody attempting to get his life in order. He said:[10]
… I was released from prison with no bank account, no identification, no Centrelink set up. They gave me a piece of paper with my photo on it and said this will do as ID which got rejected everywhere, so I was basically spending the first five months just trying to get my life back on track.
[10] T20.
The respondent gave evidence that learning of the imposition of the ISO made him feel anxious. He also said that being on an ISO is preventing him from obtaining employment. I pause to note that perhaps more significantly than the ISO, the respondent has spent the vast majority of his adult life in custody and has no work experience at all. That of itself is likely to be a significant impediment to him obtaining employment. It was the respondent’s evidence that such was the stress and anxiety caused by the ISO and the prospect of an ESO that it had caused him to withdraw from obtaining his Certificate 2 in Warehousing that he had been previously in the process of obtaining.
The respondent was asked about his reluctance to discuss his sexual offending with the experts. The respondent replied that the reason for his failure to engage was because the experts were complete strangers to him. At the end of his evidence the respondent’s counsel put to him: “You’re pretty adamant in everything you say that it is not going to happen again”,[11] to which the respondent agreed. When asked why he said it will not happen again given that it has already happened once, the respondent gave the following response:[12]
Because when I was 17 I was a very selfish, arrogant, damaged teenager, and I feel like I just wanted to put somebody else through the pain that I’d been through, and I don’t want to do that again.
[11] T25.
[12] T25-26.
In cross-examination counsel for the applicant focussed on the respondent’s reluctance to engage in therapy. In response to a question about whether the respondent accepted that it may be of benefit for him to engage in therapy with a psychologist, the respondent said:[13]
I’m not denying that it couldn’t have benefits, but I’ve had to deal with shady psychologists, like child psychologists when I was 10 and 11 and 12, and it’s just put a foul taste in my mouth towards those sorts of people.
He later elaborated:[14]
I feel like if I am forced to do it, under somebody else’s will, I’m going to be less likely to engage properly in something. Generally people don’t want to change unless they want to change, now I feel like I have changed enough over the past seven and a half years to not carry on the way I used to when I was an angry teenager, I’m an adult now, I know how to behaviour [sic] like an adult. So, I feel like forcing me to do any sort of psychiatry/psychology against my will is going to be detrimental to me.
[13] T27.
[14] T27-28.

When asked whether he maintained that view, even having regard to the evidence of Dr Haeney, that it would be productive for him to undertake that work, the respondent answered “yes”.[15]
[15] T28.
Interim/Extended Supervision Order Progress Report
I also received an Interim/Extended Supervision Order (ISO/ESO) Progress Report prepared by the respondent’s Community Corrections Case Manager, Chantelle Mitchell. The observations made in the report were consistent with those made by Dr Haeney. In essence, Ms Mitchell reported that whilst there had been some progress, there continued to be some resistance from the respondent to receiving some of the supports put in place for him.
Ms Mitchell described the respondent as a reliable reporter who had attended all supervision sessions on time and as required. She said that during the early stages of the ISO the respondent had appeared hesitant in engaging in the supervision process. He was vocal in his disagreement in being the subject of the order and indicated an unwillingness to engage in further intervention. Ms Mitchell reported that whilst rapport was not developed in a timely manner, it had been developed over time with the respondent now engaging in conversations regarding his offending history, post release plans and further outstanding intervention.
As to counselling and treatment, Ms Mitchell said that the respondent was directed to undertake substance abuse counselling through the Offenders Aid and Rehabilitation Services. It had been reported back to Ms Mitchell that the respondent had been receiving one on one counselling over the telephone and, although initially resistant, he had come to better engage in later sessions.
It was recommended by Ms Mitchell that a condition be added to the ESO that the respondent undertake and complete a psychological assessment at the direction of his Community Corrections Officer and that he undertakes and cooperates with such treatment as recommended. Whilst Ms Mitchell described the respondent continuing to appear resistant to engaging in intervention surrounding his risk, she said he appears more open to the idea of completing a Mental Health Care Plan. Upon completion of that plan the respondent would be referred to a community-based psychologist for further engagement.
Ms Mitchell concluded her report by observing that the respondent:
… is yet to address his violent offending history. Since commencement of the Interim Supervision Order [the respondent] has presented with resistance to his Order and the Department in general along with an anti-authoritarian disposition.
Determination
The applicant maintains that an order should be made that the respondent be subject to an ESO on the basis that he continues to pose a significant risk of both violent and sexual reoffending. It was put to me that whilst I have a discretion as to whether to make such an order, s 7(5) of the HRO Act makes it plain that the paramount consideration for this Court in determining whether to make an order is the safety of the community. It was submitted that the uncontested evidence of Dr Haeney is that without such an order the respondent is a significant risk to the community.
Counsel for the respondent submitted that whilst the discretion to make an ESO is enlivened in relation to the respondent, I should exercise my discretion to not make such an order. He summarised the respondent’s position in the following terms:[16]
The highest I can put it is, he has been in custody for a long time. He has changed, he hasn’t reoffended, he’s been through hell and high water, with respect, to an appeal against the original decision - he thought he is home free. I ask your Honour - all the conditions are satisfied, I accept that, but your Honour has the ability not to impose the order if satisfied that Mr Woods is on the right track and not likely to cause a risk to the community. It’s my submission that living in an environment where he is where he’s got security and support, the best thing he could do is get a job and learn to fend for himself. Unfortunately, this extended supervision order is inhibiting that at some stage.
[16] T32.
Having taken all matters put to me into account, in my view it is appropriate to make an ESO. Whilst it is unfortunate that the respondent was released from custody with the expectation of not being the subject of such an order, that consideration must give way for the need to protect the community. The clear opinion of Dr Haeney is that the respondent is a risk and will remain such a risk until he is able to engage in some form of counselling or therapy to address his motivation in committing the index offences.
It is of concern that the respondent engaged in such an extreme wanton form of violent and sexual offending at a young age and has yet to address the cause of that behaviour. It is equally of concern that in the face of the expert opinions, the respondent clearly believes that he requires no assistance to avoid recidivism. The respondent has spent almost the entirety of his adult life in custody, yet he appears to maintain that he possesses the life skills and maturity to avoid further reoffending.
In my view the imposition of an ESO will hopefully provide the respondent with the assistance that he does not yet see that he requires to avoid any further serious offending in the future. I do however propose to reduce the duration of the order from two years to 18 months to reflect the extended period of time that the respondent has been subjected to an ISO.
Order
The respondent be subject to an extended supervision order for a period of 18 months pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA).