Attorney-General v Grosser - [2016] SASC 49

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL v GROSSER
[2016] SASC 49
Reasons for Decision of The Honourable Justice Stanley
14 April 2016
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - DISCHARGING FIREARMS
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
In 2002 the respondent, Tony Douglas Grosser, was found guilty of one count of attempted murder and five counts of endangering life. This followed a shootout with police at the property he occupied in the Barossa Valley in 1994 which resulted in a police officer, Derrick McManus, being shot by the respondent and severely wounded. During a 40-hour siege the respondent fired hundreds of rounds of ammunition at police. The respondent was sentenced to 22 years imprisonment with a non-parole period of 18 years. The term of imprisonment commenced on 5 May 1994. By reason of remissions, his sentence will be complete on 18 April 2016.
By an application made on 30 March 2016, pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA), the Attorney-General applied to the Court for a direction that one or more legally qualified practitioners examine the respondent and report to the Court with an assessment whether there was a likelihood of the respondent committing a further serious offence of violence and that the respondent be subject to an extended supervision order for a period of five years. As it was likely the application would not be determined prior to the respondent’s release date on 18 April 2016, an interim supervision order was sought from the date of the making of the order until the application for the extended supervision order was determined. The application was opposed by the respondent.
Held (per Stanley J):
1. That a legally qualified medical practitioner examine the respondent and report to the Court on the results of the examination, including an assessment of the likelihood of the respondent committing a further offence of violence (at [36]).
2. That the respondent is subject to an interim supervision order pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (at [36]).
Criminal Law (High Risk Offenders) Act 2015 (SA) s 3, s 4, s 7(3), s 7(5), s 9; Criminal Law Consolidation Act 1935 (SA) s 83D(1), referred to.

ATTORNEY-GENERAL v GROSSER
[2016] SASC 49
Application
STANLEY J:
Introduction

In 2002 the respondent, Tony Douglas Grosser, was found guilty of one count of attempted murder and five counts of endangering life. This followed a shootout with police at the property he occupied in the Barossa Valley in 1994 which resulted in a police officer, Derrick McManus, being shot by the respondent and severely wounded. During a 40-hour siege the respondent fired hundreds of rounds of ammunition at police. The respondent was sentenced to 22 years imprisonment with a non-parole period of 18 years. The term of imprisonment commenced on 5 May 1994. By reason of remissions, his sentence will be complete on 18 April 2016.
By an application made on 30 March 2016 the Attorney-General has applied for the following orders and directions:
1.That the Court direct that one or more legally qualified practitioners examine the respondent and report to the Court with an assessment whether there is a likelihood of the respondent committing a further serious offence of violence.
2.That the respondent be subject to an extended supervision order for a period of five years.
As it is likely this application will not be determined prior to the respondent’s release date on 18 April 2016, the following interim order is sought:
3.That the respondent be subject to an interim supervision order from the date of making the order until the application the extended supervision order is determined.
The application is made pursuant to the provisions of the Criminal Law (High Risk Offenders) Act 2015 (SA).
The application is opposed by the respondent.
Criminal Law (High Risk Offenders) Act 2015 (SA)
The object of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act) is to provide the means to protect the community from being exposed to an appreciable risk of harm posed by, inter alia, serious violent offenders.[1] Section 7 provides that the Attorney-General may make application to this Court for an extended supervision order to be made in respect of a person who is a high risk offender (the respondent). An application for an extended supervision order may only be made within 12 months of the relevant expiry date for the respondent. In the case of this respondent, the relevant expiry date is the date on which his term of imprisonment expires, namely, 18 April 2016.
[1] Section 3.
The paramount consideration in determining whether to make an extended supervision order must be the safety of the community.[2]
[2] Section 7(5).
Pursuant to s 7(4) this Court may order that the respondent is to be subject to an extended supervision order if satisfied that the respondent is a high risk offender and poses an appreciable risk to the safety of the community if not supervised under the order. Relevantly, a high risk offender is defined pursuant to s 5 to mean, inter alia, a serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence. A serious violent offender is a person convicted, whether before or after the commencement of the Act, of a serious offence of violence. A serious offence of violence means a serious offence where the conduct constituting the offence involves, inter alia, the death of, or serious harm to, a person.[3]
[3] Section 4 of the Act and s 83D(1) Criminal Law Consolidation Act 1935 (SA).
On this application there is no dispute that the respondent falls within the definition of a serious violent offender and therefore of a high risk offender.
Before determining whether to make an extended supervision order, the Court must direct that one or more legally qualified medical practitioners examine the respondent and report to the Court on the results of the examination including, in the case of the respondent, an assessment of the likelihood of the respondent committing a further serious offence of violence.[4] Section 7(6) provides:
[4] Section 7(3).
(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 committing a further serious sexual offence or serious offence of violence (as the case may be) if not supervised under the order;
(b)     the reports of any medical practitioner (as directed and nominated 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 terms of a supervision order are prescribed by s 10(1) of the Act. It provides:
(1) The following conditions apply in relation to an extended supervision order:
(a)     a condition that the person subject to the order not commit any offence;
(b)     a condition that the person subject to the order is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 1977) or any part of a firearm;
(c)     a condition prohibiting the person subject to the order from possessing an offensive weapon unless the Supreme Court permits the person to possess such a weapon and the person complies with the terms and conditions of the permission;
(d)     a condition that the person subject to the order—
(i) be under the supervision of a community corrections officer; and
(ii) obey the reasonable directions of the community corrections officer; and
(iii) submit to such tests (including testing without notice) for gunshot residue as the community corrections officer may reasonably require;
(e)     any other condition that the Court thinks fit and specifies in the order;
(f)      any condition imposed by the Parole Board under section 11.
Submissions
This application came before me on 11 April 2016. Mr Wait, counsel for the Attorney-General, submits that given the respondent’s impending release, and the unlikelihood that the medical report required by s 7(3) would be obtained before the respondent’s release, the Court should make an interim order pursuant to s 9 of the Act. Section 9 provides:
(1) The Supreme Court may make an interim supervision order if an application for an extended supervision order in relation to a high risk offender has been made and the Court is satisfied—
(a) that the relevant expiry date for the respondent is likely to occur before the application is determined; and
(b) that the matters alleged in the material supporting the application would, if proved, justify the making of an extended supervision order.
(2) An interim supervision order takes effect on the making of the order until the application for the extended supervision order is determined.
Pursuant to s 10(2) any interim supervision order includes the conditions referred to in s 10(1)(a) to (e). Mr Wait submits that the Court should make an interim supervision order pursuant to s 10(1)(e) that includes the following conditions:
1.The respondent not approach, attempt to contact or associate in any way, whether directly or indirectly, the victim of his offence, Mr Derrick McManus, or his immediate family;
2.The respondent report to his Community Corrections Officer within 24 hours of leaving custody and provide to his Community Corrections Officer his address and contact details;
3.The respondent wear an electronic monitoring device as required by his Community Corrections Officer;
4.The respondent advise his Community Corrections Officer of any change of address or contact details; and
5.The respondent not travel outside of the State without advising his Community Corrections Officer at least seven days prior to travel.
Mr Wait relies upon the affidavit of Holly Frances Nikoloff sworn 6 April 2016, and the affidavit of Eleanor Frances Nelson QC sworn 30 March 2016. He submits that the Court can be satisfied that if the matters alleged in those affidavits are proved, that would justify the making of an extended supervision order.
Mr Wait submits that the terms of an interim supervision order should include an obligation to wear an electronic monitoring device in circumstances where the respondent continues to exhibit an underlying anger about the circumstances of his offending and where there is reason to believe that prior to his offending and subsequent arrest, the respondent had concealed an arsenal of firearms which have not been discovered subsequently. In those circumstances, electronic monitoring will permit the authorities to track the respondent’s movements after his release in order to monitor whether he might be engaged in suspicious activity including seeking to recover those firearms. Second, electronic monitoring will serve as a deterrent from acting in a manner which poses a risk to the safety of the community.
Mr Koehn, counsel for the respondent, submits that the materials in the affidavits do no establish a prima facie case for the making of a supervision order. Those materials do not evidence an appreciable risk to the safety of the community posed by the respondent if he is not subject to a supervision order. Further, he submits that even if the Court is satisfied that the respondent poses an appreciable risk to the safety of the community if not supervised under an order, the Court still has a discretion whether to make an order pursuant to the Act, including an interim order. He submits that the Court does not have any up-to-date psychiatric evidence. The most recent psychiatric evidence are reports of Dr Vance Tottman of 6 August 2012 and Dr Ian Jennings of 23 July 2012. Dr Tottman’s opinion was that there was no evidence of any malevolent intent or level of anger towards anybody expressed by Mr Grosser in the one interview he had with him. Dr Jennings diagnosed the respondent as suffering from a paranoid personality disorder but thought there was a possibility he suffers from a delusional disorder of a persecutory type in which he has a fixed false belief that is potentially plausible and his behaviour and level of functioning is not affected other than through association with his underlying delusion or belief. He acknowledged, however, that given that a number of Mr Grosser’s beliefs in relation to police corruption are supported by other members of the community it is very difficult as a psychiatrist to determine whether his beliefs are delusional or not.
Mr Koehn submits that since late last year the respondent has been trialled on an antipsychotic medication. This has not been completely successful as it has produced unpleasant side effects which has resulted in the trial of that medication ceasing. Further, he submits that the respondent is the subject of a community mental health treatment order since 4 March 2016 and is under the direction of community mental health authorities. He submits that the respondent will comply with those orders. He would also comply with the terms of the intervention order issued at the instigation of his former partner Lorraine Braunack.
Mr Koehn submits that the Court can be satisfied that there is no appreciable risk to the safety of the community posed by the respondent if he is not the subject of an extended supervision order given that 22 years have elapsed since his offending in which time he has converted to Christianity and has renounced violence. In that time there has been no complaint that he has engaged in violent behaviour or of his conduct as a prisoner. While he continues to believe in police corruption, similar beliefs are held by others in the community and they are not subject to supervision orders.
In relation to the question of concealed firearms, Mr Koehn submits that there is little basis to suppose the respondent knows the whereabouts of any hidden firearms. Mr Koehn points to the findings of Magistrate Sheppard that she is not satisfied that the respondent knows where they are. The respondent has cooperated with police investigations in relation to the matter in 2012 and 2013, and he continues to deny knowledge of where they have been stashed.
Mr Koehn submits that if an interim supervision order is made it should not include the provisions sought by the Attorney-General requiring the wearing of an electronic monitoring device or the provision of his residential address to the authorities. The respondent is concerned that the public not know where he resides and the requirement that he wear an electronic monitoring device would represent a significant erosion of his liberty without adequate justification.
Consideration
There is no opposition to the application by the Attorney-General for an order that the Court direct a legally qualified medical practitioner (to be nominated by the prescribed authority for the purpose) examine the respondent and report to the Court on the results of the examination, including an assessment of the likelihood of the respondent committing a further serious offence of violence.
Pursuant to Regulation 4 of the Criminal Law (High Risk Offenders) Regulations 2015 (SA) the prescribed authority is the person for the time being performing the duties, or holding or acting in the position, of the Clinical Director, Forensic and Mental Health Service South Australia.
The matters I have to decide are whether an interim supervision order should be made and, if so, the terms of such an order.
Whether an interim supervision order should be made is to be determined by reference to the provisions of s 9(1) of the Act. Section 9(1) confers a discretion in the court to make an interim order if two conditions precedent are satisfied. They are that the relevant expiry date for the respondent is likely to occur before the application for an extended supervision order is determined and that the matters alleged in the materials supporting the application for an extended supervision order would, if proved, justify the making of that order.
I am satisfied that the first of those conditions precedent is satisfied. The relevant expiry date is 18 April 2016. Before I can determine whether to make an extended supervision order I must direct that one or more legally qualified medical practitioners examine the respondent and report to the Court on the results of that examination. I am yet to make that order. In the circumstances it is highly unlikely that the application for the extended supervision order will be determined before 18 April 2016.
The real issue is whether the matters alleged in the materials supporting the application would, if proved, justify the making of an extended supervision order. Those materials are:
·SAPOL Offender History Report dated 2 March 2016;
·SAPOL Parole Submission dated 1 March 2012;
·Summary of telephone interception in prison dated between 27 June 2010 and 28 February 2012;
·Department of Correctional Services Special Purpose Presentence Report dated 18 October 2002;
·Department of Correctional Services Violence Prevention Program Screening Assessment Report dated 21 July 2009;
·Department of Correctional Services Assessment Report dated 12 October 2010;
·Department of Correctional Services Parole Report dated 5 March 2012;
·Department of Correctional Services Minute re Movement / Separation of Mr Grosser within prison dated 10 July 2012 (including an attached Advertiser article dated 24 June 2012);
·Department of Correctional Services Minute regarding allegations made by members of the public about mistreatment of Mr Grosser within prison dated 8 August 2012;
·Department of Correctional Services Offender Plan dated 13 January 2012;
·Application for Release on Parole by the respondent dated 20 October 2011;
·Transcript of an interview conducted by the Parole Board with the respondent in relation to his application for parole on 12 November 2013;
·Reasons of the Parole Board for refusing to release the respondent on Parole dated 21 November 2013;
·Sentencing remarks of Justice Millhouse dated 23 December 1996;
·Court of Criminal Appeal judgment in relation to the respondent dated 23 July 1999;
·Sentencing remarks of Justice Duggan in relation to the respondent dated 13 November 2002;
·Court of Criminal Appeal judgment dated 14 August 2003;
·Court of Criminal Appeal judgment dated 2 October 2003;
·Judgment of Magistrate Sheppard in relation to a restraining order applied for by Police in relation to Lorraine Braunack dated 22 July 2013;
·Letter from the respondent to the Parole Board dated 5 May 2012;
·Letter from the respondent to the Parole Board dated 26 September 2013;
·Report of Dr Jennings dated 23 July 2012; and
·Report of Dr Tottman dated 6 August 2012.

I have considered all of these materials.
The materials include allegations that the respondent suffers from a paranoid personality disorder or a delusional disorder of a persecutory type, he remains angry concerning the events surrounding his offending in 1994 which verges on the obsessive, he harbours intense antipathy towards Ms Braunack over her role in those events, and he is capable of committing various acts of abuse upon his release if so minded. In addition, there are allegations that the respondent acquired firearms and a large quantity of ammunition which he hid in various locations inside his property at Nuriootpa and elsewhere buried in the ground, and a small number of weapons remain unaccounted for, buried or hidden in a place or places possibly known to the respondent. There are also allegations that the respondent believes he has been targeted by corrupt police and members of organised criminal gangs. There are allegations of the respondent continuing to experience levels of paranoia and associated delusional thinking. The material discloses allegations that the respondent blames others for the circumstances in which he finds himself. There are allegations that his mental health is linked with his previous offending and he would pose a risk once he is released, particularly if he is able to obtain access to weapons.
I am satisfied that if these allegations were proved, they would justify the making of an extended supervision order. The making of an extended supervision order depends upon satisfaction that the respondent is a high risk offender and he poses an appreciable risk to the safety of the community if not supervised under such an order. There is no issue that he is a high risk offender.
I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible.[5] Necessarily, a risk must be anticipatory. An appreciable risk is a risk that is not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in future in a manner that poses a risk to the safety of the community. It is a question of degree. The extent of the appreciable risk is informed by the consideration that in determining whether to make an extended supervision order the safety of the community is paramount. I construe that requirement to mean that where a court considers that the question of whether to make an order is finely balanced, the protection of the community would favour making the order rather than declining to do so. I do not suggest that this consideration is exhaustive of the work to be performed by s 7(5) of the Act. The full extent of the operation of this provision falls to be considered on another occasion.
[5] Concise Oxford Dictionary.
In this case, I am satisfied that if the matters alleged in the materials supporting the application are proved, I am satisfied that the respondent poses an appreciable risk to the safety of the community and the discretion to make an extended supervision order would be satisfied.
That finding enlivens the discretion to make the interim intervention order.
I am satisfied such an order should be made. In my view the preservation of the safety of the community pending the determination of whether to make an extended supervision order justifies making an interim supervision order.
Accordingly, I turn to the question of the terms of that order.
In addition to the conditions prescribed by s 10(2) of the Act, I would impose the additional conditions sought by the Attorney-General. I note that the respondent does not oppose the Court making the first and fifth of the orders sought by the Attorney-General in the event that the Court was disposed to make an interim order. I am satisfied that the Court should also require the respondent provide to his Community Corrections Officer his address and contact details at all times. Notwithstanding the respondent’s concern about the invasion of his privacy, it is absolutely necessary that the Community Corrections Officer responsible for his supervision knows his address and contact details. The absence of such information would render supervision of the respondent nearly impossible and the supervision order ineffective.
I am also satisfied that it is appropriate to require the respondent to wear an electronic monitoring device as required by his Community Corrections Officer. Given the nature of the risk to community safety posed by the respondent if the materials in support of the application are proved, it is critical that the authorities are able to monitor the movements of the respondent at all times so as to optimise the prospects of detention in the event that the respondent was to act in a manner that resulted in the risk to community safety he posed being realised. I also accept that the requirement to wear an electronic monitoring device might serve to deter the respondent from engaging in activity which threatens the safety of the community.
Conclusion
The Court orders:
1.That a legally qualified medical practitioner (to be nominated by the person for the time being performing the duties, or holding or acting in the position, of the Clinical Director, Forensic Mental Health Service South Australia), examine the respondent and report to the Court on the results of the examination, including an assessment of the likelihood of the respondent committing a further offence of violence;
2.That the respondent is subject to an interim supervision order pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA);
3.The following conditions apply in relation to the interim supervision order:
3.1    that the respondent not commit any offence;
3.2    that the respondent is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 1977 (SA)) or any part of a firearm;
3.3    that the respondent is prohibited from possessing an offensive weapon;
3.4    that the respondent be subject to the supervision of a Community Corrections Officer and obey the reasonable directions of that officer and submit to such tests (including testing without notice) for gunshot residue as the officer may reasonably require;
3.5    that the respondent not approach, attempt to contact or associate in any way, whether directly or indirectly, with the victim of his offence, Mr Derrick McManus;
3.6    that the respondent report to his Community Corrections Officer within 24 hours of leaving custody and provide to that officer his address and contact details;
3.7    that the respondent wear an electronic monitoring device as required by his Community Corrections Officer;
3.8    that the respondent advise his Community Corrections Officer of any change of address or contact details; and
3.9    that the respondent not travel outside of the State of South Australia without advising his Community Corrections Officer at least seven days prior to travel.