ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v JEROME KIRITOPA TOPIA [2024] SASC 128

Applicant: ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA Counsel: MS A MARSH - Solicitor: CROWN SOLICITOR (SA) Respondent: JEROME KIRITOPA TOPIA Counsel: MR T BLAKE - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 14/10/2024, 15/10/2024, 17/10/2024, 24/10/2024, 28/10/2024, 05/11/2024 File No/s: SCCRM-23-008796, SCCRM-24-040887 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 TOPIA [2024] SASC 128 Judgment of the Honourable Justice McDonald 7 November 2024 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 - GENERALLY This is an application to vary a continuing detention order (CDO) pursuant to s 19(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (HRO Act) (SCCRM-24-040887). The respondent is currently the subject of a CDO which was imposed by the Court on 7 May 2024, pursuant to s 18(2) of the HRO Act, and due to expire on 15 October 2024 (SCCRM-24-009882). The imposition of that CDO was made upon application by the Attorney-General (SA) and heard together with the related application for an extended supervision order (ESO) (SCCRM-23-008796). Prior to the imposition of the CDO, the respondent was subject to an ESO which expired on 16 March 2023. On 15 March 2023, upon application by the Attorney-General (SA), the respondent was made subject to a second interim supervision order (ISO), pending the determination of an ESO (SCCRM- 23-008796). On 26 March 2023, the respondent breached conditions of that ISO by absconding to New South Wales and was arrested on a Parole Board warrant on 18 January 2024. The Attorney-General (SA) brings this application to vary and extend the CDO for approximately six months to allow the respondent the opportunity to complete the Domestic and Family Violence Intervention Program, due to commence in the Mount Gambier Prison on 13 November 2024, with a completion time of approximately five months. In the alternative, the Attorney-General (SA) brings an application for the respondent to be made the subject of an ESO for the duration of two years. Held: 1. The respondent is to be subject to a continuing detention order, pursuant to s 18(2) of the HRO Act, until 13 May 2025. -- 1 of 17 -- 2. The Application for an extended supervision order is adjourned to the High Risk Offenders List on Wednesday, 7 May 2025 at 9.15am. Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, s 17(1)(b)(i), s 18 , s 18(2), s 19, s 19(1), referred to. Attorney-General (SA) v Topia [2024] SASC 76 ; Attorney-General (SA) v Moyle (No 2) [2019] 134 SASR 257, discussed. -- 2 of 17 -- ATTORNEY-GENERAL (SA) v TOPIA [2024] SASC 128 Criminal: Application McDONALD J: 1 Jerome Kiritopa Topia is currently the subject of a continuing detention order (‘CDO’) pursuant to s 18(2) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’). That order was made by Stanley J on 7 May 2024 and was due to expire on 15 October 2024. The Attorney-General (‘the applicant’) seeks a variation of the CDO pursuant to s 19(1) of the HRO Act, to extend the order for approximately six months. The reason that the variation is sought is to allow Mr Topia the opportunity to complete the Domestic and Family Violence Intervention Program (‘DFVIP’) which is due to commence in the Mount Gambier Prison on 13 November 2024. I am told that the program takes about five months to complete, however six months accommodates for a break over the Christmas period and any other exigencies that may arise. 2 In the alternative, pursuant to s 7 of the HRO Act, an application is made for Mr Topia to be made the subject of an extended supervision order (‘ESO’) for the duration of two years. Previous HRO Act orders 3 On 17 March 2021, Mr Topia was placed on an ESO for two years. Prior to that he was the subject of an interim supervision order (‘ISO’) pending the determination of the application for the ESO. 4 During the period of the first ISO and ESO, Mr Topia was returned to custody on three occasions for breaches of conditions of both orders. 5 On 13 January 2021, Mr Topia breached the ISO by cutting off his electronic monitoring device, absconding and failing to abide by his curfew. 6 A Parole Board warrant was executed on 17 January 2021 and Mr Topia was interviewed by the Parole Board on 4 March 2021. The Parole Board determined to release Mr Topia with an additional condition inserted into his ISO requiring electronic monitoring which was subject to an intensive supervision regime with the Intensive Compliance Unit. 7 On 17 March 2021, Mr Topia was made the subject of the ESO with conditions of electronic monitoring and a curfew. 8 It would appear that there was then a period of time during which Mr Topia responded well to the restrictive regime created by the ESO. In a minute dated 27 April 2022 that was prepared in support of the relaxation of Mr Topia’s ESO conditions, his case worker reported: -- 3 of 17 -- [2024] SASC 128 McDonald J 2 i. Mr Topia engaged in the Safe Relationship course through OARS and successfully completed this in June 2021. ii. He also completed Relapse Prevention through OARS. iii. All drug tests conducted indicate a negative result to all illicit substances. iv. Mr Topia is polite and compliant and has undertaken all directions provided to him. The writer and Mr Topia are working through Mr Topia’s overall problem-solving skills and executive planning skills in preparation for employment. v. The electronic monitoring has been for his movements, which are no longer considered a priority as Mr Topia undertakes the tasks required of him to successfully complete his order. 9 On 1 June 2022, the Parole Board amended the conditions of Mr Topia’s ESO by revoking the electronic monitoring condition and reducing the curfew. No doubt at that time it was believed that Mr Topia’s rehabilitation had progressed to a point at which he no longer required such intensive monitoring. 10 That belief was promptly shown to be mistaken as on 21 June 2022, Mr Topia breached an ESO condition by consuming alcohol and on 29 June 2022, he failed to maintain a telephone service as required. A further Parole Board warrant was executed on 29 July 2022. 11 On 6 October 2022, the Parole Board resolved to release Mr Topia and amended his ESO to add a condition that “the Respondent will immediately attend, undertake and complete any psychiatric assessment and comply with any treatment required thereafter”. 12 The next update on Mr Topia’s progress was on 2 November 2022 when Mr Topia’s case manager provided an ‘Interim/Extended Supervision Order Progress Report’. In that report she noted: …it appears that while Mr Topia engaged well during 2021 into 2022, from May 2022 to the current date, he has had a decline in his mental health and as such has continued to struggle with his compliance with his ESO conditions and engagement within the community. His recent alleged offending, coupled with his recent observed erratic mental health presentation raises concerns for his ability to engage effectively in the community without ongoing psychiatric, pharmacological, or psychological intervention and ongoing monitoring. However should Mr Topia return to a stable mental state, it is possible that effective interventions can assist in reducing his risk of relapse and offending in the future. -- 4 of 17 -- [2024] SASC 128 McDonald J 3 13 On 6 March 2023, the applicant filed an application for a second ESO.1 On 15 March 2023, pending the determination of the application, Kimber J ordered that Mr Topia be the subject of a further ISO. 14 On or about 26 March 2023, Mr Topia again absconded, this time to New South Wales. He returned to South Australia on or around 14 January 2024 and was arrested on a Parole Board warrant on 18 January 2024. He has remained in custody since that time. Interactions with the Parole Board 15 On 19 January 2024, Mr Topia wrote to the Parole Board and sought release on the basis he had “a house, employment and a stable life”. He said that he had paid his debt to society and that “your Department for Correctional Services and Parole Board exist to hold me down to not succeed in life. I am not a junkie, gangster, or active criminal”. He claimed that he was studying a Masters of Business and owned his own business.2 16 Mr Topia was interviewed by the Parole Board on 12 March 2024. During that interview he said that he breached the order by leaving the State because “I don’t care about it, I just want to go home and see my family”.3 He said, the Court could do nothing “because its expired and I’m not under it anymore”.4 When it was explained to Mr Topia that the Court may make a further order or adjourn consideration of it, he said “no, that won’t happen because I’m not applying to be released on it. I just want to go home scot-free”.5 17 Throughout the interview, Mr Topia had no strategies or commitment to change. He simply kept repeating that he would leave the state, and everything would be “fine”.6 18 In a report dated 5 April 2024 (the Parole Board Reasons for Referral to the Supreme Court), the Presiding Member of the Parole Board described Mr Topia as becoming very aggressive and abusive in the interview, during which Mr Topia said “is this an assessment for a Supreme Court Extended Supervision Order, because I don’t want to be part of it if this is what you are doing because I just want to exclude myself. You can talk to her [indicating his CCO] I’m going”.7 He then abruptly left the interview. 1 SCCRM-23-008796. 2 SCCRM-24-009882, FDN 8, Second Affidavit of Angela Catherine Marsh made on 23 April 2024 at 30, AMC-8. 3 SCCRM-24-009882, FDN 8, Second Affidavit of Angela Catherine Marsh made on 23 April 2024 at 33, ACM-9. 4 Ibid. 5 Ibid. 6 Ibid. 7 Ibid at 34, ACM-9. -- 5 of 17 -- [2024] SASC 128 McDonald J 4 19 Based on that interview the Presiding Member observed:8 Mr Topia has absolutely no insight into his criminogenic behaviour. He has a really serious record both here and interstate. He has not responded to offers of help. He remains a high risk of re-offending. 20 The Presiding Member also noted that Forensic Mental Health had reported in October 2022 that Mr Topia had a propensity for paranoid symptoms, particularly when intoxicated.9 He was acutely dysregulated, prone to angry responses and on one occasion flooded his cell as a result. Ultimately, Forensic Mental Health expressed the view that: 10 Community tenure will likely be chronically impacted by volatile interpersonal relationships (where he is often the victim and help-seeking/assertive with Community Corrections Office contact), criminogenic connections, note considerable re-offending in the past. 21 The Presiding Member concluded her report by saying:11 It is not possible to manage Mr Topia safely in the community. We recommend a Continuing Detention Order. He is more likely to comply with intervention in custody than in the community. 22 On 14 March 2024, following his interview, the Parole Board was satisfied that Mr Topia had breached a number of the conditions of his ISO. These were that he failed to live at an approved residence; he breached his curfew; he made contact with a former partner with whom he was prohibited from having contact; and he left the State without the permission of the Parole Board. 23 As a result of the ISO breaches, the Parole Board determined that Mr Topia should be referred to the Supreme Court for consideration of whether it was appropriate to make a CDO pursuant to s 17(1)(b)(ii) of the HRO Act. 24 On 5 April 2024, the Parole Board provided reasons for referring the respondent to the Supreme Court. In summary, the Parole Board found:12 1. The respondent has no insight into his criminogenic behaviour. He has a serious criminal record both in South Australia and interstate. He has not responded to offers of help. He remains a high risk of re-offending. 2. The respondent has no strategies or indeed any commitment to change. He repeated during interview that he would leave the state and therefore everything would be “fine”. When asked why he breached the current 8 Ibid. 9 Ibid. 10 Ibid. 11 Ibid. 12 SCCRM-24-009882, FDN 8, Second Affidavit of Angela Catherine Marsh made on 23 April 2024 at 33-34, ACM-9. -- 6 of 17 -- [2024] SASC 128 McDonald J 5 ISO by absconding he said, “I don’t care about it I just want to go home and see my family”. 3. During the interview the respondent became aggressive and abusive, and ultimately said “I don’t want to be part of [the ESO matter] … I just want to exclude myself. … I’m going”. He then left the interview. 4. It is not possible to manage the respondent safely in the community. A CDO is recommended. He is more likely to comply with intervention in custody than in the community. 25 In March 2024, the applicant made on application for a CDO and, in the alternative, an application for an ESO before Stanley J. As mentioned, on 7 May 2024, Stanley J granted a CDO for a period of five months and nine days. In his reasons his Honour stated:13 In my view it is not yet appropriate for the respondent to be released from custody on the existing ISO made 15 March 2023. In 2021 he was assessed as being at a high risk of recidivism should he not receive treatment. Little has changed to suggest that assessment is no longer valid. The respondent has failed meaningfully to engage with any rehabilitation services or programs while the subject of the first ESO or the current ISO. He has not seriously addressed his risk of re-offending or his outstanding criminogenic risk factors. In addition, given his lengthy criminal history of more than 20 years, his statements to the Court and the Parole Board, his breaches of supervision orders and the paramount consideration to protect the safety of the community, I consider that it is appropriate to grant the application for a CDO. … I am satisfied that a CDO would not only protect the community but will provide the respondent with an opportunity to participate in, and complete the Domestic and Family Violence Intervention Program and undergo the s 7 assessment which is a pre-condition for the making of an ESO and for his release into the community under this ESO. 26 Most recently, on 9 October 2024, counsel for the applicant wrote to the Parole Board seeking confirmation of their position on the current application for an extension of the CDO. They responded:14 The Parole Board supports a further Continuing Detention Order or an extension for Mr Topia. It is the Parole Board’s view that Mr Topia is a serious risk and very likely to reoffend. Mr Topia’s presentation when last interviewed by the Parole Board was concerning. Domestic and Family Violence Intervention Program 27 On 23 May 2024, Mr Topia commenced a DFVIP at the Mount Gambier prison. It was the applicant’s contention that Mr Topia did not successfully complete the program. The program consists of two modules, module A and 13 Attorney-General (SA) v Topia [2024] SASC 76 at [23]-[25]. 14 SCCRM-24-040887, FDN 2, Affidavit of Angela Catherine Marsh made on 14 October 2024 at 5, ACM-1. -- 7 of 17 -- [2024] SASC 128 McDonald J 6 module B. It was submitted that Mr Topia completed module A on 18 July 2024,15 and whilst his participation was considered to be satisfactory, he at times appeared to be distracted.16 28 Mr Topia experienced a decline in his mental health towards the completion of module A (he has been diagnosed with Schizophrenia, an Antisocial Personality Disorder and a Substance Abuse Disorder). It was the applicant’s submission that as a consequence of the deterioration of Mr Topia’s mental health and corresponding behavioural issues, he was moved from the Mount Gambier Prison to Yatala Labour Prison. As a result, Mr Topia was unable to undertake module B of the program. 29 On that basis, it was submitted that it would be appropriate for Mr Topia to recommence undertaking the DFVIP in order to attempt to reduce his criminogenic risk factors. The program is due to commence in the Mount Gambier Prison in late early/mid November 2024. 30 Mr Topia (who generally appeared unrepresented during the proceedings before me), did not accept that he has not completed the DFVIP. He claimed to have engaged in and satisfactorily completed all of the requisite sessions and further said that he has done all that Corrections have asked of him. 31 Given that the opportunity to complete the DFVIP was central to the application for a CDO (both currently and previously before Stanley J), and the fact that Mr Topia was unrepresented, I requested that any primary documents relevant in assessing Mr Topia’s completion of the program, be provided to the Court. 32 Both Mr Topia and counsel for the applicant provided documents that related to the DFVIP. Mr Topia provided a two-page proforma titled ‘DFVIP Violence and Abuse Map’ dated 17 July 2024, in which he had made various entries in handwriting, three undated printed handouts from the DFVIP, a two-page letter from OARS dated 24 June 2024 and a handwritten note titled ‘Developing Ongoing Family Skills and Values’. Whilst these documents indicate that Mr Topia has made some efforts towards rehabilitation, they did not assist in the determination of how much of the DFVIP he has completed. 33 Counsel for the applicant provided an affidavit dated 14 October 2024, exhibiting an email with attachments from the DCS Sentence Management Unit (‘SMU’). The email sets out a brief explanation of the DFVIP. It states:17 15 Whilst the attendance records would suggest that Mr Topia may have failed to attend the final session of module A, for current purposes I am prepared to accept that Mr Topia successfully completed module A, but for the post module A individual session (Affidavit of Shae Kleinig made on 23 October 2024 at [20.5]). 16 SCCRM-24-040887, FDN 2, Affidavit of Angela Catherine Marsh made on 14 October 2024. 17 SCCRM-24-040887, FDN 3, Second Affidavit of Angela Catherine Marsh made on 14 October 2024 at 4, ACM-3. -- 8 of 17 -- [2024] SASC 128 McDonald J 7 DFVIP has two modules, A and B. I have been able to confirm that each module runs for 10 weeks. There are 14 group sessions run over 7 weeks and the rest are individual sessions. 34 The attachments to the email are the case notes that confirm Mr Topia’s DFVIP attendance. 35 These notes record that Mr Topia first attended the DFVIP on 23 May 2024. He attended an introductory session and participated in his first session in module A on 29 May 2024. Between that date and 18 July 2024, Mr Topia participated in a further 13 module A sessions. 36 The next entry is dated 31 July 2024, and it records that Mr Topia did not attend at a module B session “due to being in management cells”. There are two entries for 1 August 2024. These are “DNA [did not attend] DFVIP Module A (this entry contains a typographical error and should read module B)18 AM session due to being in management cells”, and “Mr Topia did not attend DFVIP Module B session 2 PM session due to being in the management cells”. In other words, he did not attend at the morning or afternoon session of module B on 1 August 2024. 37 Despite the production of these case notes, Mr Topia remained adamant that he had completed both modules A and B. Amongst other things, Mr Topia said:19 … the proper participation and attendance records literally show that I’ve done over 30 sessions and it’s filmed on camera with 15 other witnesses and I’ve completed it, there was three facilitators and there was 13 other inmates filmed on camera, all 31 sessions, the intensive 10 week domestic family violence intervention program, was no nine month one, it was cut short because they had to make it that short because of Justice Stanley. So I completed that satisfactory. I received a receipt, I’ve got all the stuff in my property but the DCS won’t let me bring it to this courtroom. 38 He further elaborated:20 I know I completed it and I’ve got the certificates in my file there. I’ve done everything that the court has done since 2021 since Dr Raeside read a report four years ago. DCS has not allowed me to participate in anything, only once Justice Stanley made an order for them to do it and they still say they can’t have me complete it, when I’ve already done. I’ve done everything they’ve said. I’ve done everything they said in relation to that, your Honour. 39 Given the impasse that had been reached, and conscious of the gravity of the consequences for Mr Topia if the application is granted, I raised with counsel for the applicant the option of calling evidence on the topic of Mr Topia’s participation in the DFVIP, which would also provide Mr Topia with the opportunity to cross- examine the relevant witness. Counsel for the applicant agreed that this would be an appropriate course. 18 SCCRM-24-040887, FDN 17, Affidavit of Shae Kleinig made on 23 October 2024 at [23]. 19 14 October 2024 T8. 20 14 October 2024 T10. -- 9 of 17 -- [2024] SASC 128 McDonald J 8 40 In advance of the hearing, an affidavit was filed by Shae Kleinig.21 Ms Kleinig is employed within the Department of Correctional Services as a Clinician, Rehabilitation Programs Branch, Family Violence/General Offending, based at Mount Gambier Prison. On 24 October 2024, Ms Kleinig gave evidence that confirmed and expanded upon the details contained within her affidavit. 41 Ms Kleinig explained that the DFVIP is divided into modules A and B, each of which runs for about 10 weeks. Each participant commences the program with an individual session with a facilitator, that is designed to assess the needs of the individual. Four further individual sessions are subsequently provided. These take place at the end of the eight sessions in both module A and B, in between the two modules and at the conclusion of the program. 42 The DFVIP is intensive. The second session is a “motivational session”, in which the 13 participants are divided into two separate groups. The purpose of this session is to begin to integrate the group and motivate them to engage in the program. Following this, two group sessions are run each week. Each session is four hours and is divided over the course of the day with a two hour session in the morning and a further session in the afternoon. 43 The focus of module A is on the participants learning and understanding the concepts that they are being taught. At the end of module A there is an expectation that each participant will present a “violence and abuse map” to the group. 44 The same topics are revisited in module B, however the focus moves to the participants applying the concepts that they have learnt to their own personal circumstances and experiences. By the end of module B the facilitators look for the participants to focus on modifying their own behaviour. In order to complete module B and the DFVIP the participants are required to complete an “extensive safety plan” and present it to the group. 45 Ms Kleinig was present as a facilitator at all of the DFVIP sessions that Mr Topia attended between 23 May 2024 and 18 July 2024. Mr Topia attended the first individual session, the motivational session and the second individual session that took place after eight group sessions. Ms Kleinig confirmed that Mr Topia also completed the 14 group sessions of module A however on 25 July 2024, he was moved to the Induction/Management cells due to his declining mental health and poor custodial conduct. Mr Topia did not participate in the individual session that normally occurs between the two modules. 46 Module B of the DFVIP commenced at the Mount Gambier Prison on 31 July 2024. Mr Topia did not commence or complete any of module B. 47 On 7 August 2024, Mr Topia was transferred to Yatala Labour Prison and was subsequently withdrawn from the program that same day. 21 SCCRM-24-040887, FDN 17, Affidavit of Shae Kleinig made on 23 October 2024. -- 10 of 17 -- [2024] SASC 128 McDonald J 9 48 In her affidavit, Ms Kleinig made some observation about Mr Topia’s involvement in the DFVIP. She said that although Mr Topia’s initial participation was considered satisfactory, that deteriorated over time. Ms Kleinig explained:22 … The respondent was observed to become hyper-fixated on his child protection matter involving his child and this was a barrier to his engagement at times due to his interjections during the program delivery whereby he would ask questions relating to his child protection matter, which caused him observable difficulties remaining focussed on program content. Facilitators observed a marked decline in the respondent’s mental health and presentation towards the completion of Module A. These observations included the respondent becoming increasingly paranoid about other prisoners and correctional staff tampering with his food and drink. He was also observed on several occasions to have periods where he appeared to be asleep during program delivery; and he appeared to experience an increase in hyper-vigilance and anxiety. 49 Ms Kleinig elaborated upon this explanation in her evidence. She said that whilst Mr Topia’s attendance was good and he was always polite, towards the end of module A he found it difficult to focus on what was being taught. His mental health and behavioural issues appeared to be escalating in tandem with his concerns about his child protection issue and his increasing paranoia. 50 By way of example Ms Kleinig gave evidence about unusual behaviour exhibited by Mr Topia during the last session of module A. On this occasion, the participants were to present their “violence and abuse map”. This session, like all group sessions, was to be video recorded. Each of the participants had signed a consent to the recording of the sessions at the outset of the program. On this occasion Mr Topia refused to be videoed when he presented his “violence and abuse map”. When he was told that he could not progress to module B unless he did so, Mr Topia said that he would only present if the video camera was turned off. He expressed concerns that anything that he said that was recorded could be used against him in child protection proceedings. 51 Ms Kleinig noted that module B of the DFVIP concluded the week ending the 27 September 2024. Had Mr Topia remained engaged with the program, he would have completed it within the time of the CDO, as intended by Stanley J. 52 On the basis of the documents that have been produced to the Court, and the evidence that I have heard, I am satisfied that although Mr Topia has completed module A of the DFVIP (with the exception of the post-module A individual session), he has not undertaken module B. 53 During the course of submissions, Mr Topia suggested that rather than repeating module A, he could commence with module B of the DFVIP. Ms Kleinig responded to that suggestion in her affidavit, and advised that this was not an option if Mr Topia remains in custody. The requirements of the program, if undertaken in prison, are that Mr Topia must recommence at the beginning and complete both module A and module B. In her evidence she explained that was 22 SCCRM-24-040887, FDN 17, Affidavit of Shae Kleinig made on 23 October 2024 at [39]. -- 11 of 17 -- [2024] SASC 128 McDonald J 10 because the methodology used in the DFVIP relies upon the group dynamic. It is important for the participants to build a strong therapeutic rapport with other members of the group, particularly given the amount of personal, sensitive material that is shared. Part of the focus of module A is to build confidence and trust amongst the group and the facilitators. Ms Kleinig described it as the scaffolding upon which module B is built. When asked whether it would be detrimental to the existing group or to the person attempting to join at module B, she replied “both”. 54 Based on this evidence I am satisfied that it is not an option for Mr Topia to join a DFVIP at the module B stage if he remains in custody. There may however be the option of Mr Topia commencing at module B and completing only that portion of the program if it is undertaken in the community. It was Ms Kleinig’s evidence that unlike in prison, those participating in the DFVIP outside of a custodial environment can commence at the beginning of module B. . 55 Mr Topia made a further suggestion that his progression through the program could be expedited if he was permitted to engage in individual one to one sessions. Ms Kleinig said that was also not an option. It is recommended that Mr Topia participate in the required group-based therapy sessions to gain the best learning outcomes possible and to receive appropriate intervention based on his level of risk. Individual treatment sessions are time limited and would not equate to the required treatment intensity for the DFVIP. 56 Ms Kleinig also advised that usually, programs which only include individual based treatment are only offered to participants who are unable to participate in group-based programs (i.e. due to low cognitive functioning). Based on this, Mr Topia would not be eligible to participate in the DFVIP by way of only individual based treatment. Report of Dr Jayawant 57 On 15 March 2023, when Kimber J ordered that Mr Topia be the subject of a second ISO, his Honour also ordered that pursuant to s 7(3) of the HRO Act, a report be provided by a prescribed health professional to examine Mr Topia and report on the likelihood of him committing a further serious offence of violence. 58 Dr Amisha Jayawant was requested to prepare the report. In order to do so, Dr Jayawant attempted to interview Mr Topia on three occasions. On 15 March 2024, Mr Topia declined to attend the appointment via audio video link (‘AVL’) from the Adelaide Remand Centre. In the following weeks he was encouraged to participate by prison health staff but continued to refuse. 59 He was offered another appointment on 1 May 2024, via AVL at the Port Augusta Prison. That appointment could not go ahead however, due to a booking error at the prison. 60 A third appointment was scheduled for 8 May 2024, again via AVL to the Port August Prison. Mr Topia attended the AVL meeting but declined to -- 12 of 17 -- [2024] SASC 128 McDonald J 11 participate, stating that he did not wish to incriminate himself. Although Dr Jayawant advised Mr Topia that it was in his best interest to engage in the appointment, as otherwise he would have to write the report without his input and views, Mr Topia maintained that he would not participate and ended the interview. 61 It was therefore necessary for Dr Jayawant to complete the report without any input from Mr Topia. Dr Jayawant did, however, have available to him voluminous amounts of materials that have been filed in the Court for the various applications that have been made under the HRO Act over many years. These included earlier psychiatric reports, documents prepared by the Department for Correctional Services, Parole Board documents and documents containing details of Mr Topia’s prior offending. Diagnosis 62 Dr Jayawant concurred with earlier diagnoses in that he found that Mr Topia has an Antisocial Personality Disorder, a Substance Abuse Disorder and Schizophrenia. In relation to the diagnosis of Schizophrenia. Dr Jayawant made the observation that there has been a deterioration in Mr Topia’s mental state and functioning since ceasing treatment, in particular from May 2022 when he began breaching his ESO conditions, and in March 2023 when he absconded interstate, ostensibly to avoid the imposition of a further ESO. 63 Dr Jayawant made the following observations about the risk that Mr Topia poses to the community:23 I was not able to interview Mr Topia despite several attempts. However, the best predictor of future violence is past violence. Based on the available information, Mr Topia has many risk factors which increase the likelihood of future violent offending. Even if Mr Topia’s dynamic risk factors are addressed, his static risk factors place him at a high risk of reoffending. Mr Topia began using substances and offending in his early teens, leading to juvenile and adult offending. His attitude towards his substance use and offending has been poor, minimising substance use and severity of offending, with a strong external locus of control evident. Concerningly, Mr Topia has demonstrated little insight into his substance use, mental health condition and the link to his offending behaviours. He has not completed recommended programs in prison due to various factors, including lack of time remaining on his sentence previously. While there is no developmental trauma, he has had several adult relationships, marked by domestic violence. There have been apprehended violence orders where he has been both, defendant and victim. There is no stable employment history due to his substance use, offending and periods in prison. While he reportedly attempted to obtain employment and further his qualifications while under the ESO, there were challenges which he attributed to external factors e.g. tenuous relationship with his partner and lack of support by the job network provider. 23 SCCRM-23-008796, FDN 30, Report of Dr Amisha Jayawant dated 24 August 2024 at 11-12. -- 13 of 17 -- [2024] SASC 128 McDonald J 12 Compliance with medications and supervision has been poor. He has not remained compliant with recommended treatment for schizophrenia and has historically ceased medications while in prison and on release. He has declined medical reviews in custody, and has not complied with specific directions to take suboxone in custody. He has absconded interstate to avoid an upcoming ESO application and recent appointments related to the application. Therefore, I believe Mr Topia’s risk of committing a further serious violent offence is high. (Emphasis in the original) Relevant Legislation 64 The powers of the Court to make, vary or revoke a CDO are contained in ss 18 and 19 of the HRO Act. Section 18 sets out the jurisdictional considerations that enliven the discretionary power to make a CDO, namely that the respondent has breached a condition of a supervision order and that they pose an appreciable risk to the safety of the community if not detained in custody. Section 18(2) of the HRO Act provides a discretionary power to the Supreme Court to make a CDO. In determining whether to exercise the discretion, the paramount consideration of the Court is the safety of the community.24 65 There is no specific test or other criteria set out in the HRO Act for the Court to consider before exercising its discretion to vary or revoke a CDO upon an application by the Attorney-General.25 It is therefore appropriate to consider the same factors to be taken into account in determining whether to impose a CDO, as set out above. In practical terms, given that the breaching conduct was established at the time the original CDO was made, the Court is required to consider whether Mr Topia continues to pose an appreciable risk to the safety of the community if not detained in custody. 66 Although the s 7(3) report from Dr Jayawant has now been received, and in that sense the Court is in a position to determine the application for an ESO, it does not necessarily follow that such a determination should or must be made at this point in time. In Attorney-General (SA) v Moyle (No 2),26 in considering the issue of whether a CDO, issued as a consequence of a breach of an ISO, ceases to operate upon the cessation of the ISO in circumstances in which it is succeeded by an ESO, Hinton J made the following observation:27 … How an offender responds to a continuing detention order made in consequence of the breach of an interim supervision order would be highly relevant to the terms of any extended supervision order. I see nothing in the Act that obliges the Court to proceed to determine an application and no reason why the application could not be adjourned. Indeed 24 Criminal Law (High Risk Offenders) Act 2015 (SA) s 18(3). 25 This is in contrast to a variation application made by a person subject to a CDO which is governed by s 19(2) and (3) and requires that there be a material change in a person’s circumstances and that variation must be in the interests of justice. 26 (2019) 134 SASR 257. 27 Ibid at [18]. -- 14 of 17 -- [2024] SASC 128 McDonald J 13 s 7(6)(f) would support adjourning the application for an extended supervision order where a continuing detention order has been made and the term of such order correlates to the duration of a treatment or educative program that it is intended the offender undertake. I acknowledge that that introduces the possibility of an indeterminate continuing detention order and that it is unlikely that Parliament contemplated such outcome, particularly where a detention order made in relation to an extended supervision could not have a lifespan greater than the order itself. Such possibility will weigh heavily with the Court in the exercise of the powers conferred … 67 It follows that there is no statutory impediment to making the order to vary and extend the CDO and adjourn consideration of the ESO application to a later date. Rehabilitation options in custody 68 I have received a report from the SMU regarding the rehabilitation options available to Mr Topia if he is to remain in custody on a CDO. 69 Although, as mentioned previously, Mr Topia completed module A of the DFVIP, with the exception of the post-module A individual session, he has yet to complete module B. Enquiries have been made about whether Mr Topia could be considered for inclusion in a further DFVIP. The Rehabilitation Programs Branch have confirmed that Mr Topia could be considered for a further program, on the basis that he was able to transfer to an institution where the program was being run and that his mental health would be stabilised and remain stable throughout his time in the program. 70 A review of Mr Topia’s placement options has occurred in line with upcoming DFVIP’s, and it has been determined that the most viable option is to consider Mr Topia for a return to Mount Gambier Prison, where a DFVIP is to commence on 13 November 2024. In the event that is to occur, supports could be put in place to maximise the opportunity for Mr Topia to successfully complete the program. The SMU set out the intended plan:28 Mr Topia could be returned to Mount Gambier Prison and he could be provided with support by a social worker, Case Management Coordinator and Aboriginal Liaison Officer. He would also have access to nursing staff for medical and psychiatric needs, including administration of his prescribed medications. 71 In addition to this, the Self-Management and Recovery Training (‘SMART’) sessions, which provide cognitive behavioural therapy for prisoners with substance dependencies or problem behaviours, are run in the Mount Gambier Prison. I am told that Mr Topia would also be eligible for and could be considered for inclusion in this program. 28 SCCRM-24-040887, FDN 2, Affidavit of Angela Catherine Marsh made on 14 October 2024 at 7, ACM-2. -- 15 of 17 -- [2024] SASC 128 McDonald J 14 Further submissions on 5 November 2024 72 Until 5 November 2024, Mr Topia appeared unrepresented. That was his choice. He was repeatedly reminded that counsel was available to represent him, however he remained steadfast in his views that he preferred to represent himself. 73 On 24 October 2024, Mr Topia had a change of heart and requested an opportunity for further submissions to be made on his behalf by counsel. I agreed to that request. 74 On 5 November 2024, Mr Blake appeared on behalf of Mr Topia. In advance of the hearing, Mr Blake provided detailed written submissions which he supplemented with further oral submissions in court. In summary, it was Mr Blake’s submission that historically Mr Topia has demonstrated that he can be compliant and behave in a pro social manner for extended periods of time. The difficulty that arises is that Mr Topia has poor mechanisms for coping with social or familial stressors which result in his behaviour and mental health deteriorating. It is in those circumstances that he poses the greatest risk to the community. 75 Mr Blake submitted that the most appropriate outcome for Mr Topia was that he be placed on an ESO with strict conditions (similar to those that were successful in 2021/2022) and a condition that he complete module B of the DFVIP in the community. 76 A difficulty with that proposal is, however, that Mr Topia’s conduct can be erratic and he has made it plain in his interview with the Parole Board that he has no intention of being compliant with the conditions of an ESO. 77 I have also been advised by the SMU that community groups undertaking the DFVIP are generally more chaotic in nature with higher levels of drop out, absenteeism due to competing demands, and participants who are struggling with active alcohol and drug use. Such circumstances would be problematic for Mr Topia successfully completing the program. 78 As an alternative, Mr Blake suggested that Mr Topia may complete module A in custody, which he would commence almost immediately and then complete module B in the community. There are however a number of practical and therapeutic issues that arise from that suggestion. 79 Module A of the DFVIP will commence on 13 November 2024 in Mount Gambier Prison and is due to conclude on 7 February 2025. The next module B to be conducted in the community is to commence on 2 May 2025 (i.e. a gap of about three months). Usually there is little or no break between modules. The SMU make the observation that module B is the module during which they generally see the most progress in participants because the greatest focus is on them as individuals. Changing from a custody-based program into a community program will result in Mr Topia engaging with new facilitators, with whom he would not have built up any rapport, and new group members. The SMU -- 16 of 17 -- [2024] SASC 128 McDonald J 15 expressed the view that this was likely to be disruptive to the therapeutic process and considered less than ideal for Mr Topia. Consideration 80 In my view, based on all of the material available to me, in particular Dr Jayawant’s report, and the information from the Parole Board, Mr Topia remains at high risk of committing a further serious violent offence. It follows that he continues to pose an appreciable risk to the safety of the community if not detained in custody. In imposing the original CDO, it was the intention of Stanley J to fix a period of time sufficient for Mr Topia to complete the DFVIP. Unfortunately, due to Mr Topia’s deteriorating mental health and institutional behaviour that did not occur. 81 In those circumstances it is appropriate to grant the application for a variation to extend the CDO such that it will now expire on 13 May 2025. That will afford sufficient time for Mr Topia to undertake the DFVIP in the Mount Gambier Prison. 82 In making this determination I have also been particularly influenced by three further considerations. These are that there need be no delay in Mr Topia commencing the DFVIP. I am advised that it will commence as soon as his transfer to the Mount Gambier Prison can be arranged. Further, the order is for a finite duration, sufficient to enable Mr Topia to complete both modules of the program. 83 The final matter is that since his arrest in January 2024, Mr Topia has made it plain through his conduct and responses in various interviews that, absent being compelled, he has no intention to engage with the relevant authorities or abide by the conditions of any Court imposed orders. This results in Mr Topia posing a particularly high risk to the safety of the community. 84 I make the following orders: 1. Mr Topia be subject to a CDO until 13 May 2025. 2. The application for an ESO is adjourned to the High Risk Offenders List on Wednesday, 7 May 2025 at 9.15am. -- 17 of 17 --