ATTORNEY-GENERAL (SA) v TOPIA [2026] SASC 113

Applicant: ATTORNEY-GENERAL (SA) In Person Counsel: MR W SCOBIE - Solicitor: CROWN SOLICITOR (SA) Respondent: MR JEROME KIRITOPA TOPIA In Person Counsel: MS H HANNAFORD-GUNN (AS AMICUS CURIAE) - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 23/07/2026, 30/07/2026 File No/s: SCCRM-26-014672 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 [2026] SASC 113 Judgment of the Honourable Justice Gray (ex tempore) 31 July 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 - SERIOUS OR VIOLENT OFFENDER This is an application by the Attorney-General (‘applicant’) for the respondent to be subject to a continuing detention order (‘CDO’) pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the Act’). The application is made following a notice of referral as the Parole Board directed under s 17(1)(b)(ii) of the Act that the respondent be detained in custody pending attendance before the Court for determination as to whether a CDO should be made in respect of the respondent. On 10 December 2015, the respondent was sentenced to a term of imprisonment of 4 years and 6 months for the offences of intentionally causing harm, aggravated serious criminal trespass and aggravated cause harm to another. The respondent received a custodial sentence of 4 years and 6 months with a non-parole period of three years. He was further sentenced on 21 December 2016 in the Magistrates Court for the offence of aggravated assault causing harm and he received a cumulative sentence of 2 years and 6 months, resulting in a head sentence of 7 years with a non- parole period of 4 years and 8 months. On 17 December 2025, this Court made an extended supervision order (‘ESO’) under s 7 of the Act for a period of two years. The ESO is due to expire on 16 December 2027. The applicant alleges that the ESO has been breached by the respondent. The Attorney makes no submission as to whether a CDO is appropriate. The respondent submits that, whilst a breach of one condition of the ESO is admitted, the nature and circumstances of the breach do not demonstrate that the supervisory regime has failed to protect the community and that the jurisdictional pre-conditions to the making of a CDO are not made out. Held, declining to make a CDO: -- 1 of 9 -- 1. The respondent breached a condition of his ESO. However, the respondent does not pose an appreciable risk to the safety of the community if not detained. [31] 2. The risk that the respondent poses to the safety of the community can be addressed by the terms of the existing ESO, together with the imposition of further conditions to ensure the respondent receives treatment for his mental health conditions and remains subject to the intensive electronic monitoring regime of home detention. As such, the terms of the extended supervision order made on 17 December 2025, and varied by the Parole Board on 23 June 2026, will be varied. [32]-[36] -- 2 of 9 -- ATTORNEY-GENERAL (SA) v TOPIA [2026] SASC 113 Criminal: Application 1 GRAY J (ex tempore): This is an application by the Attorney-General (‘the applicant’) for Mr Jerome Kiritopa Topia (‘the respondent’) to be subject to a continuing detention order (‘CDO’) pursuant to s 18 of the Criminal Law (High-Risk Offenders) Act 2015 (SA) (‘the Act’). The application is made following a notice of referral as the Parole Board directed under s 17(1)(b)(ii) of the Act that the respondent be detained in custody pending attendance before the Court for determination as to whether a CDO should be made in respect of the respondent. 2 On 17 December 2025, this Court made an extended supervision order (‘ESO’) under s 7 of the Act for a period of two years.1 The applicant alleges that the ESO has been breached by the respondent. The applicant makes no submission as to whether a CDO is appropriate. 3 The respondent was unrepresented in these proceedings and Ms Hannaford-Gunn appeared as amicus curiae to assist the Court. The amicus submitted to the effect that whilst a breach of one condition of the ESO is admitted, the nature and circumstances of the breach do not demonstrate that the supervisory regime has failed to protect the community and that a jurisdictional pre-condition to the making of a CDO are not made out. 4 The issue that I must determine is whether it is appropriate to make a CDO or whether I should decline to make such an order. In determining whether or not to make a CDO, I must consider whether the circumstances or nature of the breach indicates a failure of the supervision order to safeguard the community, or if the risk has been addressed since the breach, or can be addressed in another way, such as by imposing further or varied conditions. Background 5 The respondent is subject to an ESO that, as I have indicated, was made on 17 December 2025 for a period of two years. The ESO is due to expire on 16 December 2027.2 6 The respondent is currently 38 years of age. He has an extensive criminal history, with violent offending dating back to 1999. He was convicted in the District Court on 10 December 2015 for intentionally causing harm, aggravated serious criminal trespass and aggravated cause harm to another. He received a custodial sentence of 4 years and 6 months with a non-parole period of three years. 1 Order of Kimber J in Attorney-General (SA) v Topia (Supreme Court of South Australia, SCCRM-23- 008796, 17 December 2025). 2 Minute of Tegan Cotton dated 27 July 2026; Affidavit of Stacey Marie Tyrrell dated 29 July 2026 (FDN 3) at pp 4-5 (Exhibit SMT-11). -- 3 of 9 -- [2026] SASC 113 Gray J 2 He was further sentenced on 21 December 2016 in the Magistrates Court for the offence of aggravated assault causing harm and he received a cumulative sentence of 2 years and 6 months, resulting in a head sentence of 7 years with a non-parole period of 4 years and 8 months. 7 An application for an extended supervision order was first made in respect of the respondent in 2020, and the respondent was placed upon an interim supervision order (‘ISO’) on 23 December 2020. Mr Topia breached that order by non-compliance with a curfew condition and by non-compliance with the requirements of electronic monitoring. In March 2021, Mr Topia was placed on an extended supervision order (‘ESO’). Mr Topia breached that order in 2022 by having an offensive weapon, using alcohol, and failing to maintain his telephone contact and re-offending, as well as failing to comply with his drug and alcohol testing condition.3 8 Mr Topia was subject to an ISO which was issued on 15 March 2023. This order was breached, including by Mr Topia leaving the state, and he was ordered by this Court to be detained until 15 October 2024.4 Subsequently, Mr Topia again breached the order by committing an offence, contacting a person he was prohibited from contacting and breaching his curfew.5 9 As indicated above, Mr Topia was placed on his current ESO by this Court on 17 December 2025. It is alleged that Mr Topia in the days following his release from custody was absent from his home address, and failed to comply with the directions given to him by his community corrections officer.6 It was recorded that on 20 December 2025, Mr Topia was at the Lyell McEwin Hospital. 7 On 22 December 2025, the Parole Board issued a warrant following an after-hours request from the Department of Correctional Services as it was alleged that the respondent had removed his electronic transmitter and his whereabouts were unknown. When interviewed by the Parole Board, Mr Topia indicated that he was in breach for going to the hospital, so he cut off his electronic monitoring.8 10 The respondent has remained in custody since his arrest on the Parole Board warrant. 11 Mr Topia has a significant history of mental health issues. He has a diagnosis of schizophrenia, with recurrent drug induced psychosis, borderline intellect and borderline and antisocial personality disorders. He is recorded as having been intermittently known to community and inpatient mental health service between 3 Letter of E F Nelson KC, Presiding Member of the Parole Board, dated 16 April 2026; Affidavit of Stacey Marie Tyrrell dated 01 May 2026 (FDN 7) at pp 47-48 (SMT-8). 4 Attorney-General (SA) v Topia [2024] SASC 128. 5 Letter of E F Nelson KC, Presiding Member of the Parole Board, dated 16 April 2026; Affidavit of Stacey Marie Tyrrell dated 01 May 2026 (FDN 7) at pp 47-48 (SMT-8). 6 See Affidavit of Rebecca Mary Wright dated 12 June 2026 (FDN 22) at [10]-[16]. 7 See Affidavit of Rebecca Mary Wright dated 12 June 2026 (FDN 22) at [21]. 8 Transcript of Parole Board interview dated 07 April 2026, at p 10; Affidavit of Stacey Marie Tyrrell dated 01 May 2026 (FDN 7) at p 42. -- 4 of 9 -- [2026] SASC 113 Gray J 3 2018 and January 2026. His only acute psychiatric admission to Forensic Mental Health Services at James Nash House occurred in 2020.9 Mr Topia has not been reviewed by a psychiatrist since his readmission to custody on 29 December 2025.10 12 The most recent report before the Court is a report of Ms Tegan Cotton, 11 a specialist clinician in the Sentence Management Unit with the Department of Correctional Services. Ms Cotton’s role concerns the supervision and monitoring of persons placed upon supervision orders. I am informed, to the effect, that Ms Cotton is appropriately qualified and is the person in the Department best placed to speak to Mr Topia’s ability to comply with the conditions of his current ESO. Ms Cotton refers to the accommodation options that may be available to Mr Topia should Mr Topia be released from custody. Ms Cotton indicates that should Mr Topia be released from custody then his mental health needs would need to be a priority. Ms Cotton also indicates that the current conditions of Mr Topia’s ESO, including those relating to accommodation and treatment needs, are considered appropriate.12 13 It is apparent from his attendances before this Court that Mr Topia appeared, at times, to be acutely unwell. At times, Mr Topia made remarks suggestive that he understood the nature of the proceedings, however, he also made what appeared to be statements that appeared illogical and unconnected to the issues in dispute.13 On a number of occasions Mr Topia appeared to be non-responsive. Significant efforts were made to obtain legal representation for Mr Topia and to ascertain if Mr Topia had capacity to represent himself at these proceedings. Ultimately, the Court was significantly assisted by the submissions of Ms Hannaford-Gunn, who appeared as amicus curiae. Relevant principles 14 Section 18(2) of the Act relevantly provides that the Court may order that a person be detained in custody if the Court is satisfied that the person has breached a condition of a supervision order and poses an appreciable risk to the safety of the community if not detained. Where those pre-conditions are met, the Court may order detention until the expiration of the breached supervision order or until the expiration of any further supervision order, or for a lesser period specified by the Court. In this case, the “breached supervision order” is the ESO which expires on 16 December 2027. 9 See Prison Health Report of Dr Ranjeewa Pussellage dated 27 May 2026 (FDN 20) at p 2. 10 See Prison Health Report of Dr Ranjeewa Pussellage dated 27 May 2026 (FDN 20) at p 2. 11 Minute of Tegan Cotton dated 27 July 2026; Affidavit of Stacey Marie Tyrrell dated 29 July 2026 (FDN 3) at pp 4-5 (Exhibit SMT-11). 12 Minute of Tegan Cotton dated 27 July 2026; Affidavit of Stacey Marie Tyrrell dated 29 July 2026 (FDN 3) at pp 4-5 (Exhibit SMT-11). 13 Transcript of Proceedings, Attorney-General (SA) v Topia (Supreme Court of South Australia, SCCRM- 26-014672, Gray J) 7.7-9.16. -- 5 of 9 -- [2026] SASC 113 Gray J 4 15 A CDO can only be made if the Court is satisfied both that a breach of the supervision order has occurred and that the person poses an appreciable risk to the safety of the community if not detained. As was explained in Attorney-General v Thomas,14 those requirements are properly characterised as jurisdictional facts which much be established before the discretion to order detention is enlivened. 16 In Thomas, B Doyle J held that the Court’s satisfaction as to both jurisdictional facts is to be reached on the balance of probabilities, having regard to the structure of s 18 of the Act and the fact that the Court proceeds according to ordinary evidentiary principles. 17 In Attorney-General (SA) v Grosser,15 Stanley J described an appreciable risk as one that is capable of being estimated, perceptible and sensible. His Honour emphasised that such a risk is necessarily anticipatory. It must not be purely speculative and must be founded in evidence, providing a substantive basis for apprehending that the person may, in the future, engage in conduct posing a risk to the safety of the community. 18 As Thomas makes clear, the assessment of risk under s 18(2) of the Act differs from that undertaken when determining whether to make an ESO. Under s 18, the relevant question is whether the person poses an appreciable risk to the safety of the community if not detained but instead remains subject to supervision. In that context, breaches of supervision orders assume particular significance. In Thomas, it was observed that such breaches may demonstrate that the existing supervisory regime is inadequate to manage the relevant risk, including where they reveal a resistance or inability to comply with conditions or involve conduct with a criminogenic link to further offending. 19 In Police (SA) v Sullivan,16 Hinton J held: 17 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. 20 In Attorney-General (SA) v Coaby,18 Hughes J held that, 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 14 [2026] SASC 4 (‘Thomas’). 15 [2016] SASC 49. 16 [2018] SASC 11. 17 [2018] SASC 11 at [85]. 18 [2019] SASC 137. -- 6 of 9 -- [2026] SASC 113 Gray J 5 the risk can be addressed in another way such as by imposing further or varied conditions on the supervision order, then a CDO should not be made. 21 Having regard to the above, an issue I must decide is whether the respondent poses an appreciable risk to the safety of the community such that the exceptional step of constraining his liberty is warranted, as supervision is not sufficient to ensure adequate protection of the community. If such constraint of liberty is justified, I must consider for what period the respondent should be detained. Consideration 22 As indicated above, I may order that the respondent be detained in custody if I am satisfied firstly, that the respondent has breached a condition of a supervision order, and secondly, that the respondent poses an appreciable risk to the safety of the community if not detained. 23 It is not in dispute that the respondent breached a condition of his ESO. The material before this Court indicates that Mr Topia breached the conditions of his ESO by removing his electronic monitoring device. In his interview with the Parole Board, Mr Topia acknowledged removing the device. 24 I am satisfied that the first criteria for the making of a CDO is made out. 25 The primary issue that I must consider on this application is the second criteria, namely whether the respondent poses an appreciable risk to the safety of the community if not detained. In considering this issue I have had regard to the detailed written and oral submissions of the applicant and the amicus curiae, and to the extensive affidavit material filed in this matter. 26 The respondent has a serious history of violent offending. I note, however, as identified in the submissions of Ms Hannaford-Gunn, that a significant period of time has passed since Mr Topia was convicted of serious violent offending. Mr Topia does, however, have a poor history of compliance with supervision. As the report of Ms Nelson KC, Presiding Member of the Parole Board, records:19 Mr Topia has a history of substance abuse including alcohol abuse, cannabis and suboxone. He has also been diagnosed with an anti-social personality disorder, characterised by lack of empathy, disregard for rules and social norms, impulsivity, recklessness and a strong external locus of control. He has been difficult to supervise because he does not engage, he blames others for outcomes which were clearly a result of his own behaviour, he has anti-authoritarian attitude and historically has been non-compliant to the point where he cannot be managed safely in the community. 19 Letter of E F Nelson KC, Presiding Member of the Parole Board, dated 16 April 2026; Affidavit of Stacey Marie Tyrrell dated 01 May 2026 (FDN 7) at p 48 (SMT-8). -- 7 of 9 -- [2026] SASC 113 Gray J 6 27 Expert assessment has consistently placed the respondent at a high risk of re-offending. 28 I must consider these matters together with the nature of the breach. The nature of Mr Topia’s breach is significant. By removing his electronic monitoring device, Mr Topia has directly and deliberately breached a condition of his ESO. It is also concerning that Mr Topia has a history of difficulty with compliance and following the directions of his supervising officer. These matters need, however, to be considered in the context of the breach which demonstrates a difficulty transitioning from custody to supervision in the community. It is relevant that the breach occurred in the context of Mr Topia seeking medical assessment at the Lyell McEwin hospital. 29 I have had regard to the submissions of the applicant and of the amicus curiae in considering the issue of whether the respondent poses an appreciable risk to the safety of the community if not detained. I accept that, in considering whether a CDO should be made, I must have primary regard to the protection and safety of the community. 30 Considering the material before me, and the submissions advanced, I do not consider that the circumstances or the nature of the breach indicates a failure of the supervision order to safeguard the community. The respondent’s breach appears to be related to a difficulty with transitioning from a custodial environment to supervision in the community, together with difficulties associated with his mental health condition. 31 The respondent has been in custody since 29 December 2025,20 such that he should be aware of the consequences of any breach. I do not consider, based on the material before me, that the respondent poses an appreciable risk to the safety of the community if not detained. 32 I consider that the risk that the respondent poses to the safety of the community can be addressed by the terms of the existing ESO, together with the imposition of conditions to ensure the respondent receives treatment for his mental health condition and remains subject to the intensive electronic monitoring regime of home detention. 33 The further condition that I will impose is consistent with the health and mental health support needs identified in the report of Ms Cotton and is aimed at ensuring that the respondent transitions appropriately to supervision in the community and receives timely medical assessment. The additional condition that I impose will be as follows: The respondent must attend upon a general practitioner as directed by his supervising officer as soon as practicable upon his release from custody so that a general practitioner may determine the appropriateness of a mental health care plan and any other referrals 20 Written Submissions of Attorney-General dated 23 July 2026 (FDN 35) at [11]. -- 8 of 9 -- [2026] SASC 113 Gray J 7 including to the community mental health service, or as may be appropriate for psychiatric review and consideration of a Community Treatment Order. 34 As I have indicated, I consider that it is appropriate that the additional condition imposed by the Parole Board on 23 June 2026 remain, until the Parole Board otherwise orders. This condition provides for electronic monitoring and for Mr Topia to be subject to an intensive electronic monitoring regime of home detention. 35 It will be a matter for Mr Topia’s supervising officer to consider what other programs and therapies Mr Topia must engage in, to address his rehabilitation. Mr Topia will remain subject to the home detention regime; however, this should not prevent him from engaging in such programs as has been identified as appropriate to assist his rehabilitation. Orders 36 It follows that I decline to grant the application for a CDO. I will vary the terms of the ESO commencing from today’s date in accordance with the terms and conditions which I will now read and explain to the respondent. It will be an order of this Court that the conditions of the ESO made on file SCCRM-23-008796 be varied so that the conditions of the ESO are as I will explain. The application for a continuing detention order dated 13 April 2026 (FDN 1) is dismissed. 37 I will now read and explain these orders to Mr Topia. -- 9 of 9 --