ATTORNEY-GENERAL (SA) v PATRICK ANGUS [2026] SASC 6

Applicant: ATTORNEY-GENERAL (SA) Counsel: MS E DIBDEN - Solicitor: CROWN SOLICITOR (SA) Respondent: PATRICK ANGUS Counsel: MR G TRUSCOTT - Solicitor: ABORIGINAL LEGAL RIGHTS MOVEMENT Hearing Date/s: 13/11/2025, 17/12/2025 File No/s: SCCRM-25-043410 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. ATTORNEY-GENERAL (SA) v ANGUS [2026] SASC 6 Reasons for Decision of the Honourable Justice Kimber 23 January 2026 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 - DANGEROUS SEXUAL OFFENDER The respondent has a history of offending which includes having sexually assaulted a young woman having entered her room without permission and having masturbated in public. The respondent has been the subject of two extended supervision orders pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). The first extended supervision order was made on 26 October 2022 for a period of two years. The second extended supervision order (the second ESO) was made on 29 January 2025 for a period of two years and six months. There is no dispute that the respondent has breached the second ESO. On 10 July 2025 he was under influence of a drug, and he has admitted consuming methamphetamine on 16 July 2025 (the breaches). Pursuant to s 17 of the Act, the respondent was referred to this Court for consideration of whether a continuing detention order (CDO) should be made. The Attorney-General took no position on the referral. The respondent submitted that a CDO should not be made. The respondent submitted that his drug use was not a recent development nor escalation of his behaviour. The respondent also highlights that the breaches have not resulted in further relevant offending. Held: 1. The discretion to make a CDO is enlivened as the respondent has breached the second ESO and poses an appreciable risk to the safety of the community if not detained in custody. -- 1 of 12 -- 2. The discretion to make a CDO will not be exercised. The conditions of the second ESO and the vigilance with which compliance with those conditions is being supervised are safeguarding the community appropriately. 3. The conditions of the second ESO are amended to impose a curfew between 8pm and 6am. Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 17, 18, referred to. Attorney-General (SA) v Grosser [2016] SASC 49; Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74; Attorney-General (SA) v Drion [2020] SASC 120; Attorney-General (SA) v Coaby [2019] SASC 137; Attorney-General (SA) v Angus [2023] SASC 181, applied. -- 2 of 12 -- ATTORNEY-GENERAL (SA) v ANGUS [2026] SASC 6 Criminal: Application KIMBER J. Introduction 1 This is a referral by the Parole Board under s 18(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act) for the determination of whether a continuing detention order (CDO) should made in respect of Mr Angus (the respondent). 2 The respondent has been the subject of two extended supervision orders. The first extended supervision order (the first ESO) was made on 26 October 2022 for a period of two years. The second extended supervision order (the second ESO) was made on 29 January 2025 for a period of two years and six months. The second ESO is due to expire on 28 July 2027. 3 On 15 October 2025, the Parole Board satisfied itself that the respondent had twice breached the condition of the second ESO that he must not consume any illicit drug by being observed to be under the influence of illicit substances on 10 July 2025 and by admitting to consuming methamphetamine on 16 July 2025 (the current breaches). The Parole Board resolved that the respondent be detained in custody pending attendance before the Supreme Court for consideration of a CDO pursuant to s 17(1)(b)(ii) of the Act. The referral for a CDO was filed by the Attorney-General on 23 October 2025. 4 There is no dispute that the respondent has breached the second ESO. The first question is whether the respondent poses an appreciable risk to the safety of the community if not detained in custody. If the answer to that question is in the affirmative, the second question is whether, given the above risk, a CDO should be made, and if so, the duration of that order. I am satisfied that the respondent poses an appreciable risk to the safety of the community if not detained in custody. However, I am not satisfied that a CDO should be made. My reasons follow. The legislation 5 Section 18(1) of the Act provides that if the Parole Board directs that a person subject to a supervision order be detained in custody pending attendance before the Supreme Court for determination as to whether a CDO should be made, the matter is referred to the Court by force of that subsection. 6 Section 18(2) of the Act provides: (2) The Supreme Court may, if satisfied that the person— -- 3 of 12 -- [2026] SASC 6 Kimber J 2 (a) has breached a condition of the supervision order; and (b) poses an appreciable risk to the safety of the community if not detained in custody, order that the person be detained in custody (a continuing detention order)— (c) until the expiration of the breached supervision order; or (d) if a further supervision order is made in respect of the person—until the expiration of that further supervision order; or (e) for such lesser period as may be specified by the Court. 7 If the Court finds the existence of the matters referred to in ss 18(2)(a) and 18(2)(b), which are jurisdictional facts, a discretionary power is enlivened. 8 Section 18(3) provides that the paramount consideration of the Court in determining whether to make a CDO is the safety of the community. CDOs – Some principles 9 The term ‘appreciable risk’ was described by Stanley J in Attorney-General v Grosser1, albeit in the context of s 7 of the Act, in the following terms:2 I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible. 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. (footnotes omitted) 10 In Attorney-General (SA) v Sullivan (No 2),3 Hinton J stated:4 The power to make a continuing detention order is not a power to punish a person for breaching a supervision order. It is a power to be exercised for protective not punitive purposes. The question is whether the drastic step of incarcerating the high risk offender for the duration of the extended supervision order or some lesser period is necessary to protect the community from an appreciable risk to its safety as posed by the high risk offender. That question is to be answered in the knowledge that the alternative is the continuation of the supervision order, possibly varied. Obviously the risk posed by the offender subject of the breached supervision order must be reassessed in the light of the nature and circumstances of the breach. 11 In Attorney-General (SA) v Drion,5 Livesey J (as he then was) held:6 1 Attorney-General (SA) v Grosser [2016] SASC 49. 2 Ibid, [29]. 3 Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74. 4 Ibid, [9]. 5 Attorney-General (SA) v Drion [2020] SASC 120. 6 Ibid, [68]. -- 4 of 12 -- [2026] SASC 6 Kimber J 3 [the] following considerations (amongst others) are relevant to the determination that this Court must make under s 18(2) of the Act where continuing detention is sought: 1. The purpose of detention is not punitive but protective; 2. When assessing the risk posed by a respondent, it is relevant to re-assess the risk given the nature and circumstances of any breach; 3. It is necessary to identify with some particularity the risk that the respondent poses to the community, before turning to consider whether detention is necessary to adequately protect the community from that risk; 4. In some cases the risk to the community may be immediate and the appropriate response may need to be detention. However, in other cases the risk may be less immediate, but no less profound, and may require detention so as to facilitate different measures associated with intervention and prevention; and 5. The respondent should not be detained for any longer than is necessary to ensure adequate protection of the community. 12 Further, as remarked by Hughes J in the Attorney-General (SA) v Coaby:7 A continuing detention order is not the only response that can be made to a breach of a supervision order. If the circumstances or nature of the breach does not indicate a failure of the supervision order to safeguard the community, or if the risk has been addressed since the breach, or if the risk can be addressed in another way such as further or different conditions on the supervision order, then a detention order should not be made. The current breaches of the second ESO 13 The current breaches of the second ESO are those found proved by the Parole Board on 15 October 2025, referred to in paragraph [3] above. On July 2025 by being observed to be under the influence of an illicit substance(s) and by admitting on 16 July 2025 to having consumed methamphetamine. 14 The relevant condition in breach is Condition 9 of the second ESO, which states:8 9 The Respondent must not use, possess (have), or consume a alcohol; or b any drug, including any narcotic or psychotropic drug, that is not prescribed by a qualified medical practitioner or legally available in another way, and then only at the prescribed or recommended dosage. 15 The respondent does not dispute the current breaches and admitted them to the Parole Board, both in writing and during his interview.9 7 Attorney-General (SA) v Coaby [2019] SASC 137, [19]. 8 Affidavit of Eloise Ruth Dibden made on 23 October 2025, Exhibit ERD-1. 9 See Second Affidavit of Eloise Ruth Dibden made on 29 October 2025, Exhibits ERD-8 and ERD-9. -- 5 of 12 -- [2026] SASC 6 Kimber J 4 The earlier breaches of the second ESO 16 Whilst not the breaches the subject of the current referral pursuant to s 18(1) of the Act, the respondent has previously been found to have breached two conditions of the second ESO. 17 On 6 February 2025, the Department for Correctional Services (DCS) reported to the Parole Board that the respondent had presented under the influence of methamphetamine and had stated that he would return a positive drug test yet refused to participate in such drug testing (the earlier breaches). On 7 February 2025, the Parole Board issued a warrant for the respondent’s arrest, which was executed that same day. 18 The respondent was interviewed by the Parole Board on 1 July 2025. The Parole Board found proved a breach of Condition 9 (i.e. – the ‘no drugs’ condition) and Condition 10 (i.e. – the ‘drug and alcohol testing’ condition) and resolved to release the respondent once suitable accommodation was secured.10 The respondent was released from custody on 10 July 2025. Consistent with the history above, the respondent breached that day. Time spent in custody on the breaches of the second ESO 19 As a result of the respondent’s earlier breaches of the second ESO, the respondent was detained in custody from 7 February 2025 until his release on 10 July 2025. That is just over five months in custody. 20 The respondent was then re-arrested on 17 July 2025, arising from the current breaches, and has been remanded in custody pending the determination of this application. That reflects, to this point, a period of over six months in custody. 21 Combined, the respondent has spent over 11 months in custody due to breaching the second ESO. The index offending and criminal history 22 The index offending and the criminal history of the respondent was set out by Stein J in Attorney-General (SA) v Angus. I respectfully adopt that summary:11 The respondent pleaded guilty to aggravated serious criminal trespass in a place of residence and indecent assault. The remarks of the sentencing Judge state that the victim of the offending was an 18-year-old woman asleep in her room in a student accommodation annex. The respondent obtained entry to her room through an unlocked balcony door. The victim woke to find the respondent crouching at eye level staring at her. The respondent touched her right leg above her knee and slid his hand up her leg towards her upper thigh. The respondent slapped the victim’s hand while she was holding her phone trying to send messages to others to obtain help. The victim tried to leave the room and was tripped up. The respondent then left through the balcony door. The respondent was sentenced on the basis that when the respondent entered he had the intention to steal and he did not enter 10 Ibid, Exhibit ERD-6. 11 [2023] SASC 181, [14]–[17] (footnotes omitted). -- 6 of 12 -- [2026] SASC 6 Kimber J 5 with sexual intent. However, he nevertheless committed the offence of indecent assault. The sentencing remarks refer to the respondent’s personal circumstances. The respondent is an Aboriginal man who has experienced a troubled upbringing. His adulthood was described as marked by periods of drug and alcohol abuse and homelessness. The respondent was sentenced to a period of imprisonment of three years and six months to commence from 30 October 2018. The respondent has criminal convictions in South Australia including for indecent behaviour in December 2016 and in February 2017 involving public masturbation. The sentencing Magistrate observed in his remarks on penalty that the respondent was not trying to exhibit himself to the wider public and the respondent made some effort to place himself where perhaps he would be less likely to be seen. The respondent was charged after a further instance of public masturbation on 11 September 2022 and was sentenced in January 2023. This offending occurred while the respondent was subject to an ISO. The respondent conceded the allegations. The sentencing Magistrate agreed with the respondent’s counsel’s submission that the community was protected by the ESO and discharged the respondent without further penalty with the respondent having spent just over six weeks in custody. The respondent’s criminal history also records convictions in the Northern Territory in March 2015 for offences of gross indecency in a public place. 23 It is not suggested that the respondent has committed any further offence since September 2022. The reports of Dr Jayawant and Mr Williams Dr Jayawant 24 There are two psychiatric reports of Dr Amisha Jayawant, a consultant forensic psychiatrist, before me on this referral. The first report was provided on 20 August 2022 for the purpose of considering the imposition of the first ESO and the second report was provided on 19 January 2025 for the same purpose with respect to the second ESO. 25 I respectfully adopt the following summary of Stein J of the first report of Dr Jayawant:12 Dr Jayawant’s report states the respondent fulfilled the criteria for antisocial personality disorder. Dr Jayawant considered that the respondent has several risk factors which increase his risk of future serious sexual offending. It was of concern that previous sexual offences related to public masturbation but the offence for which he was the subject of the application for an ESO involved indecent assault. Dr Jayawant considered the respondent to have consistently minimised his offending. The respondent did not have sexual deviance or paraphilia but had a significant problem with substance use causing problems in several aspects of his life. Dr Jayawant noted the respondent had refused treatment for sexual offending while serving his sentence and had not engaged meaningfully in drug and alcohol programs previously despite stating he wanted to complete drug and alcohol programs on release. Dr Jayawant referred to frequent re-offending and poor response to supervision in the community. Dr Jayawant concluded that based on the respondent’s history and his 12 [2023] SASC 181, [31] (footnotes omitted). -- 7 of 12 -- [2026] SASC 6 Kimber J 6 assessment of risk, the respondent had many risk factors for sexual recidivism and he believed the risk of the respondent committing a further serious sexual offence was high. 26 In the latest report, Dr Jayawant states that the respondent’s risk profile ‘remains unchanged since my initial assessment in 2022’.13 Dr Jayawant further notes that the respondent ‘continues to have many risk factors which increase his risk of future serious sexual offending’; the respondent had committed a further sexual offence (i.e. – the offending on 11 September 2022) since their first assessment of the respondent; and the respondent has been unsuccessful in completing the Sexual Behaviour Clinic (SBC) Program in the community.14 Dr Jayawant considered that the respondent’s ‘risk of committing a further serious sexual offence remains high’.15 Mr Williams 27 Mr Luke Williams, a psychologist, has furnished a report dated 20 November 2023 assessing the respondent’s ‘cognitive and adaptive functioning to inform his possible suitability for inclusion in the National Disability Insurance Scheme (NDIS) and suitability for various rehabilitation options related to his offending behaviour’.16 28 Justice Stein summarised the report as follows, which I respectfully adopt:17 The respondent’s assessment scores included scores of low average for verbal comprehension, working memory, processing speed and IQ and an average score for perceptual reasoning and general ability index. The differences between the IQ and general ability index scores were attributed to the influence of the impact of the respondent’s working memory and processing speed. Mr Williams did not consider the respondent’s score satisfied criteria for an intellectual development disorder. However, he observed that the respondent demonstrated significant defects in his adaptive functioning with his overall score indicating moderate levels of disability. Mr Williams considered the respondent’s primary diagnosis to be mixed personality disorder with antisocial and borderline traits and polysubstance use disorder. The report did not directly address the respondent’s ability to engage with the SBC or SBC- me program. Rehabilitation programs 29 In a Minute dated 3 November 2025 provided by the Sentence Management Unit of DCS, it was noted that the respondent ‘did not commence any intervention or engage with any programs in the community’ due to the limited time he was in the community.18 It was noted that the respondent had received assistance through 13 See Second Affidavit of Eloise Ruth Dibden made on 29 October 2025, Exhibit ERD-15. 14 Ibid. 15 Ibid. 16 Ibid, Exhibit ERD-16 referring to the Affidavit of Eloise Ruth Dibden made on 20 September 2024, Exhibit ERD-51. 17 Attorney-General (SA) v Angus [2023] SASC 181, [32]–[33] (footnotes omitted). 18 Third Affidavit of Eloise Ruth Dibden made on 3 November 2025, Exhibit ERD-17. -- 8 of 12 -- [2026] SASC 6 Kimber J 7 Aboriginal Liaison Officers with practical matters, such as transport and assistance with HousingSA and Centrelink. 30 The Minute also refers to the respondent making enquiries about engaging in alcohol and other drug counselling whilst in custody. Such counselling in custody has previously been offered by Life Without Barriers and OARS. Although, for reasons beyond the respondent’s control, these programs have not been able to be offered to him. The respondent has, however, been accepted onto the Prisoner Care Program through the Aboriginal Legal Rights Movement, which ‘assists with sourcing housing and alcohol and other drug counselling services’. The Minute further notes that, in the community, substance use counselling can be accessed through a range of services with most services having waitlists of approximately six weeks. 31 The Respondent has also been assessed by the Rehabilitation Programs Branch (RPB) as suitable for a custodial SBC program and advised that he could be included in their upcoming program in Port Lincoln scheduled to commence in December 2025. However, the date for the respondent’s inclusion in the SBC program in December 2025 has passed, with the RPB having required notice by 14 November 2025. The next SBC program is likely to commence in early-to-mid 2026, which will run for 10 months. 32 The SBC and the modified SBC-me programs are also offered in the community at Owenia House. The respondent will have to be re-assessed for inclusion in such programs at Owenia House, and Owenia House have ‘strongly recommended’ that the respondent be considered for a custodial-based program. A date for the next round of community-based programs has not yet been set. 33 The respondent has previously participated in the SBC program at Owenia House in August 2022 and attended three sessions before returning to custody. Due to the respondent’s ‘functioning and ability to participate’, Owenia House decided that the respondent would benefit from joining the modified SBC-me program. In June 2023, the respondent completed four sessions at Owenia House before, again, returning to custody. The position of the Parole Board 34 In a letter to the Attorney-General dated 24 October 2025, the Parole Board resolved to recommend a CDO. Among other things, the Parole Board has opined:19 [The respondent] is not amenable to supervision. … His behaviour cannot be appropriately managed in the community, and he represents a substantial risk to the safety of the community to such an extent that the Parole Board requests that the matter be referred by you to the Supreme Court for a [CDO]. 19 Second Affidavit of Eloise Ruth Dibden made on 29 October 2025, Exhibit ERD-10. -- 9 of 12 -- [2026] SASC 6 Kimber J 8 Submissions Submissions of the Attorney-General 35 The Attorney-General takes no position on the referral but has provided considerable assistance with respect to the facts and the legal principles. The Court is grateful for that assistance. Submissions of the respondent 36 The respondent opposes a CDO being made. 37 The respondent submits that his drug use is not a recent development nor an escalation of his behaviour. 38 Referring to the principles of Attorney-General (SA) v Drion,20 as referred to at [11] above, the respondent contends that the most important consideration in the making of a CDO is that the decision to detain is not a punitive one. The respondent also highlights the nature and circumstance of the breach, namely that the breaches have not resulted in further relevant offending. Furthermore, the respondent contends that his risk of sexual offending is chiefly based on the index offending and submits his other offending that may be considered as ‘sexual offending’ was not viewed as predatory in nature by the sentencing Court. For these reasons, the respondent contends that he is a ‘somewhat atypical sexual offender’. 39 The respondent further submits that, in the community, he will have access to the Prisoner Care Program. The respondent relies on a letter provided by his caseworker in the Prisoner Care Program, which confirms that support can be made available to him.21 The respondent also proposes to access alcohol and other drug counselling through the Warrondi Day Program, a program offered through the Salvation Army. This will first require an intake assessment organised by the Prisoner Care Program, ‘which can be done in a matter of days’.22 The respondent submits this will address ‘the most obvious risk in relation to drug use’.23 Consideration 40 As mentioned, it is necessary to reassess the risk posed by the respondent given the nature and circumstances of the breach. 41 The risk is that the respondent will consume drugs, particularly methamphetamine and that, having done so, his libido may increase, and he may become disinhibited. As a matter of common sense, this increases the risk of reoffending. It is necessary then to consider what that reoffending might be. The history of the respondent is consistent with him masturbating in public or in other 20 Attorney-General (SA) v Drion [2020] SASC 120. 21 Affidavit of Garen Morocco Truscott made on 13 November 2025, Exhibit GMT-1. 22 Written Submissions of the Respondent, [30]. 23 Ibid. -- 10 of 12 -- [2026] SASC 6 Kimber J 9 places which might offend and/or cause distress to others. There is a clear risk that the respondent may commit offences of gross indecency if not detained. 42 The more difficult question is whether the respondent may commit more serious offending. A starting point is that, as a matter of the Court’s experience, illicit drug use can increase the likelihood of offending. However, the real issue in the case of the respondent is whether he might commit conduct like that involving the 18-year-old victim in her student accommodation. The sentencing remarks for that offence do not suggest the respondent was intoxicated and the respondent was sentenced on the basis that he had not entered the room of the victim intending to assault her. However, an absence of intoxication on that occasion would not assist the respondent. Assuming the respondent was sober, for reasons given, his ongoing drug use increases the risk that he might behave in a similar way again. Further, the absence of an intoxicant which might have had a disinhibiting impact on the occasion of the sexual assault might be said to heighten rather than diminish the risk posed by the respondent. 43 It follows from the above that I am satisfied that there is a substantial risk that, if not detained, the applicant might commit offences of gross indecency and some risk that he might assault a woman in a sexual way. This accords with the opinion of Dr Jayawant that the risk of the respondent committing a further serious sexual offence is high. I accept that opinion. Further, given the history of the respondent, including that he has used illicit drugs immediately upon his release more than once, the risk of the respondent committing offences of gross indecency is immediate. As to the risk of sexual offending against a woman, I am not satisfied that risk is necessarily immediate, but should that risk be occasioned, there is plainly a substantial risk of a significant adverse impact upon any victim. 44 At the same time, the strictness of the conditions and the vigilance which breaches have been dealt with is suggestive of the supervision order safeguarding the community. Further, while for this proceeding it can be assumed that successful participation in an SBC programme might reduce the respondent’s risk of reoffending, and it has been recommended that participation occur in custody, on the information before me, the respondent might not commence that programme until about mid-2026 if he is detained. There is insufficient information before me to conclude with confidence that the next such programme available in the community might be any later than that. This is not to overlook that, if detained, the respondent may be more likely to complete the programme in custody as he might be in an environment which is more stable than the community. 45 It is necessary that I say something about accommodation options for the respondent if he is not detained. At the time of oral submissions, DCS indicated that the respondent did not have accommodation available in the community, but DCS was continuing to explore options. While accommodation is not a reason to detain the respondent, it is logical that instability in the community may increase the risk of the respondent reoffending. As a consequence, on 17 December 2025, I indicated that a realistic outcome of the referral was that a CDO may not be made. -- 11 of 12 -- [2026] SASC 6 Kimber J 10 Having given that indication, with the consent of the respondent, I listed the referral for a decision on 23 January 2026 in order that further efforts might be made to secure accommodation for the respondent. Since 17 December 2025, and at the time of settling this judgment, the only further information is from the solicitor for the respondent to the effect that the Prisoner Care Program has a potential address at Elizabeth Vale. Assuming that to be so, there is nothing before me as to the suitability of that address for the respondent. 46 As mentioned, unstable or unsuitable accommodation may increase the risk of reoffending. At the same time, as mentioned, accommodation is not a reason to detain the respondent. 47 Although I am satisfied that the respondent poses the relevant appreciable risk if a CDO is not made, I am not satisfied that the discretion to make that order should be exercised. In my view, with a degree of hesitation, the existing conditions of the supervision order and the vigilance with which compliance with those conditions is being supervised are safeguarding the community appropriately. In the circumstances, I am however satisfied that it is appropriate to amend the supervision order to amend the hours of the curfew to being between 8pm and 6am as recommended by DCS. Orders 48 I decline to make a CDO. I amend the conditions of the second ESO to impose a curfew between 8pm and 6am. -- 12 of 12 --