ATTORNEY-GENERAL (SA) v TMS [2021] SASC 6 (5 February 2021)

Last Updated: 5 February 2021

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

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ATTORNEY-GENERAL (SA) v TMS

[2021] SASC 6

Judgment of the Honourable Justice Bampton

5 February 2021

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS

Application by the respondent pursuant to s 13 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“the HRO Act”) to revoke an interim supervision order made pursuant to s 9 of the HRO Act — whether the respondent is a high-risk offender pursuant to s 5 of the HRO Act — whether the respondent is a serious violent offender who committed a serious offence of violence — whether the conduct constituting the respondent’s offence constitutes a serious offence of violence — whether the interim supervision order should be revoked.

HELD: The respondent is a high-risk offender — application to revoke the interim supervision order dismissed.

Criminal Law (High Risk Offenders) Act 2015 (SA) ss 3, 4(1), 5(c), 7, 9(1); Criminal Law Consolidation Act 1935 (SA) ss 9(1), 21, S9, 83D, referred to.

Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216, applied.

R v Iannelli [2003] NSWCCA 1; (2003) 56 NSWLR 247; R v Gibbins (1918) 13 C App R 134; R v [TMS] (2011) 110 SASR 274, discussed.

Bedi v The Queen [1993] SASC 4210; (1993) 61 SASR 269; Attorney-General (SA) v Jeffrey [2018] SASC 1; (2018) 130 SASR 300, considered.

ATTORNEY-GENERAL (SA) v TMS

[2021] SASC 6

Criminal: Application

1. BAMPTON J: On 11 February 2011, the respondent was sentenced to 10 years’ imprisonment with a non-parole period of six years and eight months (“the sentence”) following her guilty pleas to two counts of aggravated acts endangering life^[1] and three counts of aggravated acts creating risk of serious harm^[2] (“the offending”). The respondent was released on parole on 9 May 2019 and the sentence expired on 5 October 2020.
2. Just prior to the expiry of the sentence the Attorney-General (“the Attorney”) made an application (“the application”) seeking the following orders and directions:
   1. That the Court direct that one or more prescribed health professionals 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.
   2. That the respondent be subject to an extended supervision order (“ESO”) for a period of up to five years pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“the HRO Act”) as she is, pursuant to s 7(4), a high-risk offender and poses an appreciable risk to the safety of the community if not supervised under an ESO.
   3. That the respondent be subject to an interim supervision order (“ISO”) from the date of making the interim order pursuant to s 9(1) of the HRO Act until the application for the ESO is determined.
3. The application is supported by an affidavit of Samantha Louise Graham affirmed 28 September 2020, exhibiting documentation including the Information charging the respondent with the offending, the sentencing remarks of Duggan J, a Violent Assessment Summary assessing the respondent at moderate risk of further violent reoffending without further treatment, and correspondence from the Parole Board supporting an ESO (“the documentation in support of the application”).
4. The application first came on for hearing on 2 October 2020. Mr Lang appeared on behalf of the respondent and informed the Court that Mr Truscott had the conduct of the matter, but as the matter had been called on at short notice Mr Truscott was on leave and unable to attend. Mr Lang stated that Mr Truscott intended to mount an argument that the HRO Act does not apply to the respondent as she does not fall within the definition of a high-risk offender.
5. As the application would not be determined before the expiry of the respondent’s sentence, and being satisfied that the matters referred to in the documentation in support of the application would, if proved, justify the making of an ESO, I ordered, pursuant to s 9 of the HRO Act, that the respondent be subject to an ISO pending determination of the application. I also intimated that as the application was made so close to the expiry of the sentence and the respondent’s counsel was not available, I would hear any application seeking to revoke the ISO the respondent may be advised to make.

The respondent’s application to revoke the ISO

6. The respondent then sought permission to make an application for revocation or variation of the ISO which was listed for argument on 5 November 2020.
7. As the respondent did not have counsel available to argue the application for the ISO on 2 October 2020 and the Attorney does not oppose a grant of permission, I am satisfied pursuant to s13(3)(b) of the HRO Act that it is in the interests of justice to grant permission to the respondent to apply to revoke or vary the ISO.
8. In seeking revocation of the ISO, the respondent points out that the object of the HRO Act is to protect the community from being exposed to an appreciable risk of harm posed by serious sexual offenders and serious violent offenders. She argues that the HRO Act is not enlivened as she is not a high-risk offender as prescribed by it.
9. If the ISO is not revoked, the respondent seeks the removal of condition 2.7 of the ISO, mandating that she be subject to electronic monitoring.

The respondent’s sentence imposed 11 February 2011

10. On 6 October 2010, the respondent pleaded guilty to the offending. Her co‑accused were found guilty following a trial before a jury of the same five offences (“the five offences”). Justice Duggan sentenced the respondent and her co‑accused during the one sentencing hearing on 11 February 2011.
11. The victims of the offending were five children whose ages ranged from four years to seven years (“the children”). Justice Duggan detailed in his sentencing remarks that the essence of the prosecution case was that the respondent and her co-accused, along with other adults who were occupants of the same house, embarked on a common purpose of treating the children “in a particularly cruel way, by subjecting them to a daily routine of punishment” (“the joint enterprise”).^[3]
12. The conduct which formed the basis of the offending consisted of depriving the children of proper food and sustenance over a four-month period. Justice Duggan described the way the children were treated as “beyond comprehension”. His Honour detailed that the children were made to stand against a wall without moving away, except with the permission of an adult, and that it reached the point where the children were made to stand in the same position from morning until night. The children were fed scraps of food, most of which was left over after other children residing in the same house had eaten. His Honour stated that the respondent and the co-accused were vigilant to ensure that the children were prevented from eating more food which included putting their hands around the throats of the children to get food out of their mouths.
13. Justice Duggan remarked that the condition of the children gradually deteriorated and the cruelty ended only when one of the children lapsed into a state of unconsciousness with a life-threatening condition. The child was taken to hospital and investigations by the authorities revealed the extent of the ill‑treatment the child and the other four children were subjected to.
14. When medically examined, all five children were withdrawn and un‑expressive. Two of the children were in an emaciated state and lighter than 97 percent of children their age. Some of the children showed signs of injury and all showed signs of malnutrition due to lack of food. Justice Duggan stated that the deteriorating condition of the children must have been evident to every adult living in the house.
15. The respondent and her co-accused were convicted on the basis that they each did acts or made omissions knowing that the acts or omissions were likely to endanger life in the case of two emaciated children, and likely to cause serious harm in the case of the other three children, and that they were recklessly indifferent as to whether they endangered life or caused serious harm.
16. Justice Duggan said that he was satisfied the respondent played a more significant role in the offending than the co-accused, and sentenced her to 10 years’ imprisonment with a non-parole period of six years and eight months deemed to have commenced from 6 October 2010.

The HRO Act

17. The Attorney maintains that the respondent is a high-risk offender as defined by s 5 of the HRO Act. Section 5(c) relevantly provides that, for the purposes of the HRO Act, a high-risk offender is:

(c) a serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence;

A serious violent offender and a serious offence of violence are defined in s 4(1) of the HRO Act as follows:

serious violent offender means a person convicted (whether before or after the commencement of this Act) of a serious offence of violence;

serious offence of violence has the same meaning as in section 83D(1) of the Criminal Law Consolidation Act 1935;

18. Section 83D in Part 3B Division 1 of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) relevantly provides that:

serious offence means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more and

serious offence of violence means a serious offence where the conduct constituting the offence involves—

(a) the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person; ...

19. Section 83D provides that harm has the same meaning as in Part 3 Division 7A and that serious harm has “the same meaning as in Part 3 Division 7A”.
20. The meaning of serious harm is found in s 21 of Part 3 Division 7A of the CLCA, which provides:

serious harm means—

(a) harm that endangers a person's life; or

(b) harm that consists of, or results in, serious and protracted impairment of a physical or mental function; or

(c) harm that consists of, or results in, serious disfigurement.

21. Section 29 in Part 3 Division 7A of the CLCA prescribes the offence of acts endangering life or creating risk of serious harm. Section 29(1) provides that an act endangering life is committed:

Where a person, without lawful excuse, does an act or makes an omission—

(a) knowing that the act or omission is likely to endanger the life of another; and

(b) intending to endanger the life of another or being recklessly indifferent as to whether the life of another is endangered, ...

Section 29(2) provides that an act creating risk of serious harm is committed:

Where a person, without lawful excuse, does an act or makes an omission—

(a) knowing that the act or omission is likely to cause serious harm to another; and

(b) intending to cause such harm or being recklessly indifferent as to whether such harm is caused, ...

Is the respondent a high-risk offender?

22. The respondent argues that her offending involved crimes of neglect and such offending was not intended to be subject to the HRO Act which provides for supervision of those convicted of sexual offences, violent crimes, and terrorism offences.
23. The respondent submits that as the s 83D definition of a serious offence of violence is in Part 3B—Offences Relating to Criminal Organisations, Division 1—Participation in Criminal Organisation of the CLCA, it is implicit that the offences of violence must involve direct physical force.
24. The respondent argues that Part 3B Division 1 of the CLCA is concerned with violent criminal gangs and, from the language of the section, it is clearly intended to refer to actions of direct physical violence of a type that a criminal gang might commit. The respondent points out that the definition of serious offence of violence in s 83D of the CLCA includes risk of death or serious harm, damage to property in a manner that might give risk to death or serious harm, and perverting the course of justice. As “violence” is not defined, the respondent submits that it must have a meaning in the ordinary sense of the word, that is, of direct physical force creating a risk of injury of the sort that a criminal gang might employ.
25. The respondent contends that she was not convicted of committing an act of direct physical force and the particulars of the charges against her did not make any mention of physical force being used. She points out the particulars of the aggravated acts of endangering life she was convicted of provide that she:

Did acts preventing [the victim] from getting adequate food and made omissions, namely failing to provide [the victim] with adequate food, knowing that the acts and omissions were likely to endanger the life of [the victim].

Further, she submits that the particulars of the aggravated acts creating risk of serious harm offences were also phrased in terms of preventing provision of and omitting to provide food.

26. The respondent contends that crimes of withholding food do not fall into the category of serious acts of violence. Had a crime of neglect been intended to enliven the HRO Act, she submits that the HRO Act would have specifically included such a crime as a category of non-violent offending.
27. The respondent argues that the way the HRO Act distinguishes between sexual, violent, and terrorism offending is instructive. She contends that the specific reference in it to violent offending, sexual offending, and terrorism offending indicates a clear intention to define violence as including an act of violence.
28. The respondent submits that the documentation in support of the application does not even establish on a prima facie basis that she is an appreciable risk to the safety of the community pursuant to s 9(1)(b) of the HRO Act. She refers to the fact that the Violent Assessment Summary dated 27 July 2020, included in the documentation in support of the application, assessed her at moderate risk on 27 July 2020. She points out that the psychologist who assessed her qualified the assessment on the basis that she is female and the covert nature of her offending. The psychologist explained that it is important to note that the forensic risk assessment tool used to assess the respondent’s risk “is designed for a male forensic population and may not validly predict her actual level of risk”.^[4]
29. The respondent asserts that the documentation in support of the application fails to demonstrate what offending she is at risk of committing in the community. She says this is particularly so given that her offending occurred in the context of dysfunctional relationships and was the result of interactions with people in an unusual situation involving many children. The respondent refers to Duggan J’s sentencing remark to the effect that she and the co-accused acted together for a common purpose. Additionally, the respondent refers to his Honour’s conclusion that her offending was brought about by her jealousy in relation to one of the co‑accused which, it is submitted, had a lot to do with the unusual dynamic that existed in the household. The respondent submits that there is no evidence suggesting she is at risk of harming children given that she is subject to intervention orders preventing her from contacting the victims of her offending. Further, she says, as detailed in Dr Balfour’s report dated 20 December 2010,^[5] that she is unable to have any further children and none of the documentation in support of the application suggests that she is a risk to the wider community.
30. Finally, the respondent asks, in the event her application to revoke the ISO is dismissed, that the electronic monitoring condition of the ISO be removed as it creates social stigma, prevents easy bathing and swimming, and must be constantly charged.

The Attorney’s submissions

31. The Attorney contends that the ISO was properly made because the offending involved five serious offences of violence and the documentation in support of the application would, if proved, demonstrate that the respondent poses an appreciable risk to the safety of the community if not supervised under an ESO order as:
    1. She has been assessed as being at moderate risk of violent reoffending without further treatment.
    2. She has failed to comply with the conditions of her parole.
32. The Attorney points out that each of the aggravated acts endangering life and aggravated acts creating risk of serious harm offences committed by the respondent are indictable offences, punishable by imprisonment for 18 years and 12 years respectively. As they are indictable offences punishable by imprisonment for a term of five years or more, they are serious offences and serious offences of violence for the purposes of s 83D of the CLCA and therefore serious offences of violence as defined by the HRO Act. The Attorney submits that the critical issue is whether the respondent’s conduct constituting the five offences was conduct which involved the risk or actual outcomes prescribed in s 83D of the CLCA. It is submitted that the documentation in support of the application, in particular, the certificate of record,^[6] read in conjunction with the Information^[7] and the sentencing remarks of Duggan J,^[8] establish the respondent and her co-accused engaged in the following conduct constituting the five offences:
    1. They carried out acts preventing each child getting adequate food; and
    2. They made omissions, namely, failing to provide each child with adequate food.
33. It is submitted that the omissions are self-explanatory but that the factual findings of Duggan J provide additional detail as to the acts constituting the five offences committed by the respondent personally, or by others in the course of the joint enterprise:
    1. The children, then aged between four and seven, were made to stand against a wall from morning to night without moving away, except with the permission of an adult.
    2. The children received scraps to eat and were prevented from eating more by the adults.
    3. All adults, including the respondent, were involved in putting their hands around the throats of the children to get food out of their mouths.
    4. The respondent played a more significant role in the offending than the other adults.
34. The Attorney contends that it is an element of the offence of endangering life, and therefore consistent with the respondent’s pleas and convictions, that the act or omission in question was, in fact, likely to endanger the life of the relevant victim.^[9] By the same logic, it is an element of the offence of creating a risk of serious harm that a risk of serious harm was in fact created.
35. It is asserted that the conduct constituting the offending involved risks which were consistent with the elements of the five offences, the respondent’s pleas of guilty, and Duggan J’s factual findings in imposing sentence, namely that:
    1. The conduct endangered the lives of and, therefore, involved a risk of death to the children the subject of counts 1 and 3 on the Information dated 5 October 2010.
    2. The conduct created a risk of serious harm to the children the subject of counts 5, 7, and 9 on the Information dated 5 October 2010.
36. The Attorney, in pointing out that harm and serious harm are defined in 83D of the CLCA to have “the same meaning as in Part 3 Division 7A”, submits that the allegations in the documentation in support of the application, if proven, would establish that the conduct constituting the five offences had the effect set out in s 83D of the CLCA.
37. The Attorney submits that it is open to the Court to conclude that conduct constituting a serious offence of violence may consist entirely of omissions, of a combination of acts of omissions, or solely of acts.
38. It is submitted that as the HRO Act imports the definition of serious offence of violence from s 83D of the CLCA, on a plain reading, that definition does not require that the conduct constituting the offence consist of a positive or overt act. Rather than focusing on the nature of the conduct in an abstract way, the definition is outcome-based: a serious offence will be a serious offence of violence if the conduct involves death or serious harm, or a risk of death or serious harm to a person. The definition looks to the effect or result of the conduct rather than the conduct itself. Relevantly, it focuses on the actual or risked effect of the conduct on the victim rather than the nature or character of the conduct of the offender.
39. It is submitted that this interpretation of the definition is consistent with the protective object of the HRO Act^[10] and the paramount consideration of the Supreme Court in determining whether to make an ESO, that is, the safety of the community.^[11] It is contended that it is immaterial that the definition of serious offence of violence does not accord with the plain English definition of the word “violence”. The importation into the HRO Act of the definition of serious offence of violence in s 83D of the CLCA reveals Parliament’s evident intention to displace or extend the meaning of “violence” beyond its plain English definition. It is submitted that Parliament has deliberately extended the ordinary meaning of “violence” for the purposes of defining precisely who is to fall within the purview of the high-risk offender scheme. This is to ensure that those who commit a certain kind of offending, and have therefore demonstrated capacity to conduct themselves in a manner that causes death or serious harm or risk of the same, are susceptible to a supervisory regime intended to guard against future offending of the same or similar conduct,^[12] or which would create the same or similar risks to the safety of the community. The focus must be on the conduct constituting the offence rather than the inherent nature of the offence or the elements of the offence.
40. The Attorney submits that in the respondent’s appeal against two of her convictions, which was dismissed by the Court of Criminal Appeal, Peek J considered the circumstances in which an omission may form the basis of criminal liability. Justice Peek explained:^[13]

Traditionally, the common law was primarily concerned with regulating and punishing the commission of an act rather than an omission to act. However, it came to be accepted that in certain circumstances an omission may form the basis for criminal liability but it was necessary that such omission constitute a breach of an identifiable duty or obligation arising at law, whether common law or statute. It is worthwhile noting that, as Handley JA observed in R v Iannelli,^[14] the first area in which the concept of an omission as a basis of criminal liability took hold was in the law relating to homicide and largely because an omission causing death might (in appropriate circumstances) be treated especially severely because of the seriousness of its consequence. ...

The subject matter of offences of homicide is, of course, closely related to the subject matter of the statutory offence with which we are presently concerned, that of endangering life. ...

(Footnote in original)

Justice Peek went on to consider the development of the common law of homicide by omission. The Attorney referred to his Honour’s reference to the case of R v Gibbins,^[15] where a woman was convicted for the murder of her partner’s seven‑year-old child who died of starvation. The Court accepted that she had assumed a duty of care for the child and the failure to do so by withholding food (in conjunction with the requisite intention) constituted the offence of murder.^[16]

41. It is submitted that the imposition of a positive duty to act and the criminalisation of a failure to perform that act is an established, if rarely called on, part of the criminal law. It recognises that, in certain circumstances, the consequences of a person’s inaction can be catastrophic. Accordingly, it is submitted that there is no rational reason why the high-risk offender regime ought not apply to persons who through their inaction have offended in a manner that has caused death or serious harm or a risk of death or serious harm. The consequences of an omission in circumstances in which a person has a positive duty to act can be as harmful and catastrophic as the consequences of a positive or overt act. The criminal law recognises this category of offending and imposes criminal sanctions in respect of a failure to act in such circumstances.

Consideration

42. The HRO Act is enlivened if the respondent is a serious violent offender who was sentenced to a period of imprisonment in respect of a serious offence of violence. The HRO Acts imports the definition of serious offence of violence from s 83D(1) in Part 3B Division 1 of the CLCA which relevantly defines a serious offence of violence as a serious offence where the conduct constituting the offence involves the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person. Serious offence is defined to mean an indictable offence that is punishable by imprisonment for life or for a term of five years or more.
43. Section 83D(1) also provides that harm has the same meaning as in Part 3 Division 7A and that serious harm has “the same meaning as in Part 3 Division 7A”. As set above, s 21 in Part 3 Division 7 defines serious harm. Section 29 in Part 3 Division 7A prescribes the offence of acts endangering life or creating risk of serious harm. Section 29(2) in prescribing the offence of acts creating risk of serious harm refers to serious harm. It provides that a person is guilty of an offence where the person, without lawful excuse, does an act or makes an omission knowing that the act or omission is likely to cause serious harm to another and intending to cause such harm or being recklessly indifferent as to whether such harm is caused.
44. The definition of serious offence of violence does not require that the conduct constituting the offence consist of a positive or overt act. It focuses on the actual harm suffered as a result of the conduct constituting the offence as well as conduct constituting the offence which involves a risk of death or serious harm.
45. The respondent argues that s 83D of the CLCA concerns criminal gangs and violence of the kind committed by participants in such gangs as it is in Part 3B Division 1—Participation in criminal organisations. I point out it is only the s 83D definition of serious offence of violence which is imported into the HRO Act together with the definitions of serious offence and serious harm that are required to interpret the definition of serious offence of violence. As contended by the Attorney, citing McHugh J in Kelly v The Queen:^[17]

... once it is clear that the definition applies, the better — I think the only proper — course is to read the words of the definition into the substantive enactment and then construe the substantive enactment — in its extended or confined sense — in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment.

the relevant context and purpose of a serious violent offender is the context and purpose of the HRO Act, not the context and purpose of the Part 3B of the CLCA pertaining to criminal organisations.

46. The sentencing remarks of Duggan J make clear the conduct constituting the five offences involved treating the children “in a particularly cruel way, by subjecting them to a daily routine of punishment” and depriving them proper food and sustenance. In committing the five offences the respondent (who played a more significant role than the co-accused) and the co-accused:
    1. forced the children to stand against a wall from morning to night without moving away, except with the permission of an adult;
    2. gave the children scraps to eat and prevented them from eating more;
    3. put their hands around the throats of the children to get food out of their mouths.
47. The conduct constituting the offending involved risks which were consistent with the elements of the offences of aggravated acts likely to endanger life and aggravated acts creating risk of serious harm, the respondent’s pleas of guilty, and the factual findings made by the sentencing Judge in imposing the sentence.
48. I am satisfied that the conduct constituting the five offences involved risk of death or serious harm as set out in s 83D of the CLCA. The offending involved serious offences of violence being serious offences where the conduct constituting the offences involved a risk of the death, or serious harm to, a person. That is the conduct endangered the lives of and, therefore, involved a risk of death to the two children who were the subjects of the counts of aggravated acts endangering life. Further, the conduct created a risk of serious harm to the three children the subjects of counts of aggravated acts creating risk of serious harm.
49. In my view, to construe a serious offence of violence as excluding conduct constituted by omissions or a failure to act would hinder the protective purposes of the HRO Act. Accordingly, I agree with the submission that the supervisory regime of the HRO Act must be available to guard against the risk posed to the community by offenders whose offending comprises omissions or failures to act.
50. I conclude that “conduct constituting” a serious offence of violence can consist entirely of omissions, of a combination of acts and omissions, or solely of acts.
51. If this conclusion is wrong, as submitted by the Attorney, the respondent’s overt conduct, in lining the children up against a wall from morning to night and choking food out of each hungry child’s mouth (being conduct constituting the five offences), is conduct that carries with it a risk of serious mental harm, as defined by s 21 of the CLCA, to each child treated in that way.
52. The five offences committed by the respondent are indictable offences, punishable by imprisonment for 18 years and 12 years respectively. As such they are serious offences and serious offences of violence for the purposes of s 83D of the CLCA, and therefore serious offences of violence as defined by the HRO Act. The documentation in support of the application establishes the respondent and her co-accused engaged in conduct constituting the five offences which included acts preventing the children getting adequate food and omissions in failing to provide each child with adequate food.
53. I am satisfied that the conduct constituting the five offences committed by the respondent involved either the risk of death or serious harm to the children.
54. The respondent’s convictions were imposed in respect of five offences that were serious offences of violence. As such, the respondent is a serious violent offender as defined by the HRO Act and the Court’s power to make an ESO under s 7 or an ISO under s 9 is enlivened.
55. The next issue in determining whether the ISO should be revoked is to consider, pursuant to s 9(1)(b), whether the matters alleged in the documentation relied on in support of the application would, if proved, justify the making of an ESO.
56. The documentation relied on in support of the application includes a report from the psychologist Dr Richard Balfour dated 20 December 2010 and a report from the psychotherapist Ms Sue Bertossa dated 3 November 2016. Dr Balfour reported that the probability of the respondent reoffending in a similar manner is very remote. Dr Balfour also considered that the type of psychosocial problems which contributed to the respondent’s offending behaviour would respond well to strict community supervision and assertive case management. Ms Bertossa referred in her report to the positive steps the respondent had taken toward rehabilitation. In addition to these reports, I have had regard to the Violent Assessment Summary and the letter from the Parole Board. As detailed above, the qualified Violent Assessment Summary assesses the respondent at moderate risk of further violent reoffending without further treatment. In the letter dated 27 August 2020,^[18] Ms Nelson QC, the Presiding Member of the Parole Board, details that the respondent’s progress on parole has been reasonable but there have been some breaches, including attending a licenced premise overnight, returning a positive test to methamphetamine, and being at an address in breach of her parole conditions. Ms Nelson also notes the respondent has engaged well with her Community Corrections Officer, Relationships Australia, Flinders Well-Being, and Salt and Pepper, and that she has been referred to a psychiatrist. Ms Nelson concludes her letter advising that the Board supports an ESO, as the respondent needs ongoing support and assistance to build upon the gains she has made on parole.
57. Having regard to the documents relied on in support of the application and the submissions made by the Attorney and the respondent, I am satisfied pursuant to s 9 (1)(b) of the HRO Act that the matters alleged in the documentation relied on in support of the application would, if proved, justify the making of an ESO.
58. As the HRO Act is enlivened, it is necessary the respondent undergo assessment by a prescribed health professional pursuant to s 7(3) of the HRO Act who will report to the Court detailing that assessment and the likelihood of the respondent committing a further serious offence of violence.^[19] Once in receipt of that report, the Court will determine in accordance with s 7 of the HRO Act whether the respondent is a high-risk offender who poses an appreciable risk to the safety of the community if not subject to an ESO. Accordingly, the ISO must remain in place pending determination of the application.
59. I dismiss the respondent’s application to revoke the ISO.
60. Finally, I have considered the documentation relied on in support of the application in considering the respondent’s request that the electronic monitoring condition of the ISO be removed. I have also had regard to a further report from Ms Sue Bertossa dated 30 September 2020, stating that the respondent has undergone significant rehabilitation whilst serving her 10-year sentence. Ms Bertossa says the respondent has engaged well with therapy programs and has applied her learnings to cement personal and positive life changes. Ms Bertossa states that, in her view, an ESO is not warranted.
61. Having had regard to the matters the documentation relied on in support of the application, and Ms Bertossa’s further report, I consider it appropriate to adjourn consideration of the application for removal of the electronic monitoring condition until a prescribed health professional has assessed the respondent and provided a report to the Court detailing that assessment.

^[1] Contrary to s 9(1) of the Criminal Law Consolidation Act 1935 (SA).

^[2] Contrary to s 29(2) of the Criminal Law Consolidation Act 1935 (SA).

^[3] Exhibit SLG-2 to the affidavit of Samantha Louise Graham affirmed on 28 September 2020.

^[4] Exhibit SLG-12 to the affidavit of Samantha Louise Graham affirmed 28 September 2020 at 102.

^[5] Exhibit SLG-5 to the affidavit of Samantha Louise Graham affirmed 28 September 2020 at 50.

^[6] Exhibit SLG-4 to the affidavit of Samantha Louise Graham affirmed 28 September 2020 at 33-38.

^[7] Exhibit SLG-1 to the affidavit of Samantha Louise Graham affirmed 28 September 2020 at 1-8.

^[8] Exhibit SLG-2 to the affidavit of Samantha Louise Graham affirmed 28 September 2020 at 9-18.

^[9] Bedi v The Queen [1993] SASC 4210; (1993) 61 SASR 269 at 274 (Duggan J, Bollen and Mullighan JJ concurring).

^[10] Criminal Law (High Risk Offenders) Act 2015 (SA) s 3.

^[11] Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(5).

^[12] Attorney-General (SA) v Jeffery [2018] SASC 1; (2018) 130 SASR 300 at [18].

^[13] (2011) 110 SASR 274 at [27]-[28]. Justice Peek at [8] refers to the fact that the respondent had appealed against the counts of aggravated acts of endangering life she had pleaded guilty to. His Honour noted that the pleas were entered on the basis that the Director of Public Prosecutions agreed not to object to an appeal against conviction.

^[14] [2003] NSWCCA 1; (2003) 56 NSWLR 247.

^[15] (1918) 13 Cr App R 134.

^[16] R v [TMS] (2011) 110 SASR 274 at [28].

^[17] [2004] HCA 12; (2004) 218 CLR 216 at [103].

^[18] Exhibit SLG-17 to the affidavit of Samantha Louise Graham affirmed 28 September 2020 at 118-120.

^[19] At the request of the respondent, the examination of her pursuant to s 7(3)(b) of the HRO Act was ordered on 5 November 2020. The respondent made the request without conceding she was a high-risk offender but to avoid delays in the examination in the event her application to revoke the ISO was unsuccessful.