Attorney-General (SA) v ZRV - [2023] SASC 67

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v ZRV
[2023] SASC 67
Reasons for Decision of the Honourable Justice Kimber
10 May 2023
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
Application pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act) by the Attorney-General for an extended supervision order.
Between August 2015 and June 2016, the respondent committed offences of Aggravated Inducing a Child to Expose her Body and Aggravated Possession of Child Exploitation Material. For those two offences, the respondent was sentenced to imprisonment for one year and nine months. That sentence was made cumulative upon a sentence of two months for an offence of Assault Causing Harm committed in June 2015. With respect to the effective total head sentence of one year and 11 months, a non-of parole period of eight months was fixed.
Before the application the subject of this judgment, the respondent was subject to two previous extended supervision orders. Those orders were breached more than once.
The Attorney-General’s application is made on the grounds that the respondent is a high risk offender as defined in the Act and poses an appreciable risk to the community if not supervised under the order sought. The respondent opposes the application on grounds which include his absence of violent or sexual offending since 2015.
Held:
1.      The respondent is a high risk offender and poses an appreciable risk to the safety of the community if not supervised under an extended supervision order.
2.      The discretion to order the respondent be subject to an extended supervision order is enlivened and should be exercised.
3.      The period of the extended supervision order should be 12 months.

Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7 and 10, referred to.

ATTORNEY-GENERAL (SA) v ZRV
[2023] SASC 67
Criminal: Application
KIMBER J:

This is an application for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). The respondent opposed the making of that order. On 17 April 2023, I imposed an extended supervision order for 12 months. These are my reasons.
Material received
On the hearing of the application, I received the following material:
1.Affidavit of Ms Foran dated 30 September 2022;
2.Affidavits of Ms Redden dated 17 December 2020, 12 January 2021 and 22 December 2022;
3.Report of Dr Raeside dated 17 February 2023;
4.Supplementary report of Dr Raeside dated 20 March 2023;
5.Community Corrections Officer report dated 28 March 2023; and
6.Report of Mr Holas (Owenia House) dated 2 March 2023.
In addition, Dr Raeside gave oral evidence.
The legislative scheme
Section 7(1) of the Act provides the Attorney‑General may make an application to the Supreme Court for an extended supervision order to be made in respect of a person who is a high risk offender. Section 7(4) provides:
(4)The Supreme Court may, on application under this section, order that the respondent is to be subject to an extended supervision order if satisfied that—
(a) the respondent is a high risk offender; and
(b) the respondent poses an appreciable risk to the safety of the community if not supervised under the order.
Section 7(5) provides the paramount consideration in determining whether to make an extended supervision order must be the safety of the community.
Section 7(6) sets out the matters which must be taken into consideration in determining whether to make an extended supervision order. Section 7(6) provides:
(6)The Supreme Court must also take the following matters into consideration in determining whether to make an extended supervision order in respect of the respondent:
(a)     the likelihood of the respondent—
(i)committing a further serious sexual offence; or
(ii)committing a further serious offence of violence; or
(iii)committing a terrorist offence, or otherwise being involved in a terrorist act, or committing a serious offence of violence,
(as the case may be) if not supervised under the order;
(b)     the reports of any prescribed health professional (as directed under subsection (3)) furnished to the Court;
(c) any report prepared by the Parole Board under section 64(5) of the Correctional Services Act 1982;
(d)     any report required by the Court under section 20 (including the results of any statistical or other assessment furnished to the Court as to the likelihood of persons with histories and characteristics similar to those of the respondent committing a further relevant offence);
(e)     any relevant evidence or representations that the respondent may desire to put to the Court;
(f)     any treatment or rehabilitation program in which the respondent has had an opportunity to participate, including his or her willingness to so participate and the extent of such participation;
(g)     in the case of a respondent released on parole—the extent to which he or she has complied with the conditions of his or her release on parole;
(h)     in the case of a respondent subject to an existing extended supervision order—the extent to which he or she has complied with the terms of the order;
(i)in the case of a respondent who is a registrable offender (within the meaning of the Child Sex Offenders Registration Act 2006)—the extent to which he or she has complied with any obligations under that Act;
(j)    the circumstances and seriousness of any offence in respect of which the respondent has been found guilty according to his or her criminal history, and any pattern of offending behaviour disclosed by that history;
(k)     any remarks made by the sentencing court in passing sentence;
(l)    any other matter that the Court thinks relevant.
The issues
Before the discretion to grant an extended supervision order is enlivened, the Court must be satisfied of the two jurisdictional facts set out in s 7(4)(a) and (b) respectively. There was no dispute the respondent is a high risk offender. In the application before me, the real issues were: whether the respondent posed an appreciable risk to the safety of the community if not supervised under the order; if so, whether the discretion to impose an extended supervision order should be exercised; and, if so, the duration of that order.
The respondent submitted he did not pose the relevant appreciable risk. The respondent further submitted that even if he did, the discretion should not be exercised.
Background
The respondent is 26 years of age. He was raised in the country and lived mainly with his mother and stepfather. The respondent continues to enjoy the support of his mother, father, and friends. The respondent attended several schools. He was suspended more than once and changed schools in order to see if that assisted with his behaviour. He was expelled from one school in year 12 after choking and threatening another pupil.
Since leaving school, the respondent has had different employment. The respondent has a history of heavy alcohol use. He commenced using alcohol at 13 years of age and drank heavily until he was about 18 years of age. He has used cannabis in the past but not for the last 5 years. He used methylamphetamine at least once in May 2020.
Criminal history
The respondent has committed several offences.
In June 2015, the respondent was sentenced for Assault Causing Harm, an offence he committed in December 2014. The respondent engaged in an altercation with the victim after the victim sat in the front seat of a car in which they were travelling. The respondent believed that he and not the victim was entitled to sit in the front seat. The respondent punched, kicked and jabbed the victim while he was seated in the rear. When the car came to a stop, the respondent grabbed the victim and caused him to go to the ground. The respondent grabbed the hand of the victim and twisted the hand or arm of the victim. The respondent broke the arm of the victim in two places. The respondent made admissions to the police and pleaded guilty. A sentence of two months was imposed, suspended on a bond to be of good behaviour.
The suspension of the above sentence was revoked as the respondent breached the bond by committing offences of Aggravated Inducing a Child to Expose her Body and Aggravated Possession of Child Exploitation Material. Those offences were committed between August 2015 and June 2016. The sentencing Judge described those two offences in the following way:
[The complainant] was 13 years old at the time of the offences. You were nearly 19 years old at the time. You and the complainant engaged in a series of messages on Facebook. In these messages, you induced the complainant to send three photographs of herself whilst she was naked. You also sent a photo of your penis.
During the course of the messages, you asked the complainant if she would perform an act of fellatio upon you if she was physically present and you also asked her to send a photograph of her digitally penetrating herself. The complainant sent two images of herself naked. These are the subject of count 2, the aggravated possess child exploitation material.
When you were arrested you admitted having asked the complainant to send the images of herself. You said you received nine or 10 photographs of her in total.
For those two offences, the respondent was sentenced to a head sentence of one year and nine months ordered to be cumulative upon the sentence of two months. With respect to the effective total head sentence of one year and 11 months, a non-parole period of eight months was fixed. The effective total head sentence and non-parole period commenced on 13 April 2016.
Compliance with orders pursuant to the Act
The respondent has been subject to two previous extended supervision orders. The first was for two years from 11 January 2019. The second was for 18 months from 14 April 2021. Immediately before the extended supervision order imposed by me on 17 April 2023, the respondent was subject to an interim supervision order which commenced on 11 October 2022.
The respondent has breached orders made pursuant to the Act in the past. It is not necessary to refer to all breaches. However, I note the following breaches.
It is a mandatory condition of all extended supervision orders that a respondent not commit any offence.[1] In October 2019, the respondent was convicted of Failing to Comply with Reporting Obligations; Contravening a Direction not to Communicate with a Child; and, Providing False Information in relation to Reportable Contact with a Child. In September 2020, the respondent committed 10 offences of Failing to Comply with Reporting Obligations; those offences related to undisclosed social media or internet accounts. On 2 December 2021, the respondent again breached the Child Sex Offenders Registration Act 2006 (SA) (CSOR Act). The respondent communicated with a boy aged 15 years on Facebook but did not report that communication until 18 December 2021. There was nothing within the communication with the child to suggest that contact had a sexual character. That said, Dr Raeside has opined that the respondent ‘does not have a solely heterosexual attraction and therefore contact with an adolescent male must be seen as a concern, particularly whilst under an Extended Supervision Order’.
[1] The Act s 10(1)(a).
With respect to the breach on 2 December 2021, the Parole Board interviewed the respondent on 22 February 2022. The Parole Board found breaches of the conditions not to have contact with a person under 18 and not to commit an offence but took no further action. The respondent committed further breaches in March 2022. With respect to those breaches, the Parole Board interviewed the respondent on 24 May 2022 having issued a warrant on 7 April 2022. On 24 May 2022, the Parole Board found proved two breaches of the condition that the directions of a community corrections officer be obeyed and one breach of the condition to attend sexual offending counselling. The Parole Board ordered the respondent be released on 25 May 2022 and report to the Noarlunga Community Corrections Centre within one working day.
Dr Haeney and Dr Raeside
Dr Raeside interviewed the respondent on 14 February 2023 and has provided the most recent medical reports. Dr Raeside agrees with the previous expressed opinions of Dr Haeney that the primary diagnoses for the respondent appear to be antisocial personality disorder and borderline personality disorder, with some overlap between those disorders. Dr Raeside has described the two disorders as follows:
An Antisocial Personality Disorder is a lifelong history of difficulties with relationships, unlawful behaviour, impulsivity, irritability and anger, failure to sustain consistent work, and a childhood history of conduct disorder, which constitutes an antisocial personality disorder. This is a personality style that occurs in the context of childhood abuse and neglect, and poor educational and social opportunities and attainments.
A Borderline Personality Disorder is a longstanding maladaptive pattern of behaving and feeling with associated marked feelings of chronic depression alternating with rage, disturbance of self-image and identity, disturbance in judgement, and difficulty establishing satisfying relationships with other people.
Dr Raeside is of the opinion that alcohol use disorder has been problematic for the respondent in the past and that it would be ‘a particular concern should he resume significant alcohol use in the future as it is likely to aggravate his underlying difficulties’. In the opinion of Dr Raeside, there remains a ‘high risk of a return to alcohol abuse and association with negative peers is likely to be a patent risk factor’.
Dr Raeside is also of the view that the respondent has longstanding problems with impulsivity and decision making. Dr Raeside is of the opinion that the breaches of the extended supervision orders by the respondent highlight his problems with impulsivity and that such ‘an underlying personality characteristic is not likely to be easily modifiable in the near future’. I pause to observe that the problems with impulsivity and decision making are arguably reflected in the way the respondent has dealt with anger in more recent times than the occasion of the Assault Causing Harm. The respondent told Dr Raeside that ‘[t]hese days I hit walls instead of people’. At the time of his interview with Dr Raeside, the respondent had a broken hand having struck a door after, or in the course of, an argument with his grandmother with whom he was then living.
Dr Raeside has also expressed opinions with respect to the risk of further offending. In a report prepared after Dr Raeside had considered a report of Mr Holas about the participation of the respondent in the Sexual Behaviour Clinic (SBC) program, Dr Raeside expressed the opinion that the respondent’s risk of sexual reoffending is ‘medium’. In the opinion of Dr Raeside, the risk of reoffending is not limited to sexual offending. In his view, there is a ‘considerable’ risk of violent offending. In his evidence, Dr Raeside described the risk of violent offending as being ‘[i]nterpersonal violence, that is some sort of one-on-one, getting into a fight, striking someone’ and expressed the view that the respondent was most at risk of fighting in a public place without using a weapon.
Participation in programs
The respondent has not participated in a program which might address his risk of violent offending. Dr Raeside has recommended that occur; primarily as it may help the respondent address ‘more adaptive ways of coping with stress than resorting to violence, either towards other [sic] or even towards himself’. While the respondent has not committed any offence of violence since the offence of Assault Causing Harm, as I have said, there is good reason to believe the issues with impulsivity remain.
The respondent has recently completed the SBC program at Owenia House. That program involved seven modules. Mr Holas is a senior social worker at Owenia House and his report is about the participation of the respondent in the SBC program. Mr Holas is of the view that the respondent ‘has developed some limited insight as to his offending pathway’. Before commencing the SBC program, the respondent was found to be in the average range of risk for sexual reoffending with ‘a 10-year risk of reoffending calculator predicting the likelihood of sexual reoffending during that time as 13.1 per cent’. In the opinion of Mr Holas, the 10-year predicted rate after completing the program is eight per cent. In the opinion of Mr Holas, the respondent is at below average risk of sexual reoffending.
Response to supervision more recently
The response of the respondent to supervision has been more positive in more recent times. While subject to the interim supervision order imposed on 11 October 2022, the respondent has completed the modules of the SBC program which he had not previously completed. The respondent has attended weekly appointments as directed. He has been described as being very compliant with his reporting obligations. There is reason to conclude the respondent may have become more motivated. Since 1 July 2022, the respondent has been drug tested on 16 occasions with 15 negative results. The other test has been described as a ‘diluted sample’ but the applicant did not submit that anything adverse to the respondent might be drawn from that sample. In addition, there have been negative breath tests.
The first issue – an appreciable risk to the safety of the community if not supervised under the order
The respondent submitted this jurisdictional fact was not established. The respondent submitted that the relevant appreciable risk in s 7(4) was the risk of an offence set out in s 7(6)(a). The respondent submitted that the violent offending described by Dr Raeside in his evidence was not a ‘serious offence of violence’ and I should reject that the risk of a serious sexual offence was ‘appreciable’.
With respect, the submission of the respondent misconstrues s 7(4) of the Act. The risk in s 7(4) is not limited to the risk of the offending set out in s 7(6)(a). The relevant risk in s 7(4) is to the safety of the community. In my view, that risk can arise because of any offending not just offences within s 7(6)(a). That is not to say that an absence of an appreciable risk of the commission of the offences in s 7(6)(a) is not relevant to whether the discretion to make an extended supervision order should be exercised. However, that is a separate issue.
An appreciable risk is one that is capable of being estimated, perceptible and sensible but which is not purely speculative. I was satisfied the respondent posed an appreciable risk to the safety of the community if not supervised under the order. The relevant appreciable risks were that the respondent will commit a sexual offence and/or an offence of violence. I accepted the opinion of Dr Raeside that there is a medium risk of the former with the risk of the latter being more significant.
In finding that there is an appreciable risk to the safety of the community if not supervised under the order, I did not overlook that there has not been any violent or sexual offence for many years and the respondent has now completed the SBC program. The offence of Assault Causing Harm was committed in December 2014 and the two sexual offences were committed between August 2015 and June 2016. The respondent was a much younger man than he is today. Nonetheless, I was satisfied that the respondent still has problems with impulsivity. So much is clear from the way he dealt with his anger during an argument with his grandmother. In addition, I accepted the opinions of Dr Raeside that there is a ‘significant’ risk of the respondent resuming alcohol use in the absence of a supervision order and that ‘the high risk of a return to alcohol abuse and association with negative peers is likely to be a potent risk factor’. The conditions of an extended supervision order limit the risk of the respondent using alcohol. A supervision order will enable the respondent to be directed to attend a program(s) which may address his risk of alcohol abuse and violent offending. While the completion of the SBC program is a matter in the favour of the respondent, on the evidence, a risk of sexual offending remains.
Whether the discretion should be exercised

In submitting the discretion should not be exercised, the respondent relied upon the same matters pressed with respect to the issue of appreciable risk. The respondent also submitted that any appropriate programs may be undertaken without a supervision order. The respondent emphasised that he had been subject to supervision orders pursuant to the Act for a substantial period of time. As set out above, in that time, the respondent has not committed a violent or sexual offence and has completed the SBC program.
I was satisfied it was appropriate to exercise my discretion to impose an extended supervision order. It may be that there will come a time when even if the jurisdictional facts in s 7(4) are satisfied with respect to the respondent, it will not be appropriate to exercise the discretion. However, that time has not been reached. My reasons follow.
I accepted that the risk of sexual offending may be less than it has been in the past. Since about mid-2022 the respondent has engaged with supervision in a more constructive fashion. At the same time, the risks of sexual and violent reoffending are as I have described above. Supervision will limit the risk of alcohol use and the risks of offending that, on the evidence, may accompany that use. For the purposes of this application, it may be assumed that the risk of violent offending is of a type described by Dr Raeside (i.e. – fighting without a weapon) and that offending of that type involves less risk of harm than other violent offending. Nonetheless, assaults of the type described by Dr Raeside can cause meaningful harm to a victim. Perhaps more importantly, it can be observed the respondent broke the arm of a person without using a weapon.
It is the case that a person can complete relevant programs without being subject to an extended supervision order but there was good reason to doubt the respondent is such a person. The respondent has significant issues with impulsivity. The respondent has breached orders in the past in more than one way, including by not complying with obligations with respect to a program. Although he has shown improvement in more recent times, in the past the respondent has been noted to push the boundaries of his supervision orders and has expressed the view that compliance with the orders was unacceptable. In all the circumstances, I was satisfied the respondent was unlikely to complete relevant programs unless subject to an extended supervision order.
The third issue – the duration of the order
The evidence of Dr Raeside was that in order to be optimistic about the future of the respondent, he would want to see the improvements evidenced in more recent times persist over 12 months. Given that evidence, the respondent submitted any extended supervision order should conclude about 12 months after the imposition of the interim supervision order. As set out above, the engagement with supervision has been more positive since about mid-2022.
I was satisfied the order should be for a period of 12 months from the date of the making of the extended supervision order. As set out above, the greater risk posed by the respondent is of violent offending and there is a link between the risk of that type of offending and alcohol use. I accepted the evidence of Dr Raeside that the respondent is unlikely to be accepted into, and complete, any program which might address his issues with alcohol within six months. While it may be accepted the respondent could start any program in less than 12 months and then complete that program while not subject to an extended supervision order, for the reasons set out above, it is unlikely the respondent would do that.
In all the circumstances, I was satisfied the period of the extended supervision order should be sufficient to: allow for the completion of a program(s); provide a meaningful opportunity for the respondent to continue to demonstrate his ability to abstain from alcohol and avoid negative peers; and provide a meaningful opportunity for the respondent to show his increased engagement with supervision and potentially greater motivation to comply with conditions as demonstrated since about mid-2022 could be sustained.
In all the circumstances, I was satisfied the appropriate period of the extended supervision order was 12 months from the date of the making of that order.