Bills

Criminal Law (High Risk Offenders) (Additional High Risk Offenders) Amendment Bill

Introduction and First Reading

The Hon. C. BONAROS (16:12): Obtained leave and introduced a bill for an act to amend the Criminal Law (High Risk Offenders) Act 2015. Read a first time.

Second Reading

The Hon. C. BONAROS (16:13): I move:

That this bill be now read a second time.

It is every parent's worst nightmare—the death of a child. For Belair mother Andrea Foster that nightmare began seven years ago when her daughter Michelle was brutally killed in a random, unprovoked attack. The man responsible for Michelle's death, Jayden Lowah, was just 20 years old. He was experiencing psychosis from schizophrenia when he fatally bashed Michelle outside Colonnades Shopping Centre in Adelaide's southern suburbs in October 2018, slamming her head facedown onto the ground repeatedly. Despite the best efforts of emergency services, Michelle, aged just 36, a mother of two young girls, died from severe head injuries.

The pain for Andrea and her family is unimaginable. Not only did she lose her daughter, she also has to deal with the mental health of two traumatised granddaughters, children who lost their mother in the most horrific of circumstances. Mr Lowah was found not guilty of murder due to mental incompetence (entrenched schizophrenia) and was placed under a mental health supervision order for life.

In April this year, Deputy State Coroner Naomi Kereru found that Lowah's illness had been mismanaged for years and that there were multiple missed opportunities by our justice, corrections and mental health systems. Lowah had been diagnosed with schizophrenia at just 15 years old after threatening to kill his father. He had a long history of random violence and incarceration. In 2017, he assaulted strangers on Hindley Street and Gouger Street and was imprisoned. The court heard those incidents included when he grabbed a woman by the hair and slammed her to the ground on Hindley Street, and when he picked up a chair and struck a man on Gouger Street.

When Lowah's sentence ended, he was released in September 2018 homeless, untreated and without support. The Parole Board had no powers to make orders as he had served out his sentence, despite the very clear red flags and being refused parole on an earlier occasion. The day after his release, he called an ambulance and told staff at Noarlunga Hospital he felt he would probably kill someone. Despite that clear and terrifying warning, he was discharged from hospital the very same day; 41 days later, Michelle Foster was dead.

The Deputy State Coroner found that, while no single person was directly responsible, there were systemic failures—failures in communication, risk assessment and coordination between Corrections, Health and mental health services—and there may not have been one single incident but there was a litany of missed opportunities and red flags in the lead-up to Michelle's tragic and senseless death.

The Deputy State Coroner noted that had Lowah's mental competence been subject to investigation at the time of his two attacks on those two strangers—namely, a mental health assessment when he was last before the court—it was probable that he would have been treated in a forensic mental health setting instead of prison, from where he was released. A prison social worker had even warned SAPOL the day before his release that Lowah was:

…at high risk of reoffending and harming others due to his significant history of making threats towards others, poor frustration tolerance, impulsivity and emotional dysregulation.

Yet he could not be placed under ongoing supervision because he did not meet the legal definition of a high-risk offender under the Criminal Law (High Risk Offenders) Act 2015, which is the first limb of the criteria for an extended supervision order, with the second limb being the risk to the community's safety, which he would have undoubtedly met.

Currently, an extended supervision order can only be applied in limited circumstances, such as where offenders have been convicted of serious sexual or violent crimes punishable by five years or more, or terrorism-related offences. This excludes people like Lowah: individuals whose chronic mental illness and violent behaviour make them an ongoing threat to the community even if their prior offences do not meet the existing threshold.

The bill before us seeks to broaden the definition of a high-risk offender to include a new category: those who pose a public risk due to serious mental illness combined with violent tendencies. Detective Superintendent Blandford, on behalf of SAPOL, supported the expanded definition during the inquest:

…DCS and SAPOL are of the same view that there should actually be a public interest, public risk clause within the High Risk Offenders Act that can be considered, not just a serious violent offender or a sexual offence or a counter-terrorism type offence.

The Deputy State Coroner also referred to its endorsement in the police commissioner's briefing to the Attorney-General dated March 2019. It would allow the Attorney-General to seek an extended supervision order for such individuals, ensuring they are not simply released into the community without oversight.

Under an extended supervision order the court may impose strict, parole-like conditions such as mandatory treatment, electronic monitoring, supervision and residency requirements for up to five years, renewable as needed. Breaches can result in continued detention. Had these safeguards been in place in 2018 Lowah could have been subject to supervision and treatment instead of being left to deteriorate, and Michelle Foster might still be alive.

The Deputy State Coroner's findings make it clear: our systems failed Michelle. They failed Michelle's mother Andrea, her brother Peter, Michelle's children, and her family. They failed her two daughters, who were aged just eight and 13 at the time of Michelle's death and who have since grown up without their mother. This bill would ensure authorities are equipped with a tool to protect the community, to better manage high-risk individuals, and to prevent such tragedies from happening again.

How is it that a man with a history of random violence, incarceration and serious mental health issues, a man who has been flagged since at least the age of 15 with authorities, is released into the community just hours—just hours—after presenting to a hospital expressing a desire to kill somebody? That is exactly what did happen in this instance, and Andrea Foster, her family, and Michelle's brother have been living with the unthinkable ever since. Michelle Foster's story should not be repeated in this jurisdiction, and this bill is a necessary step to make sure that it is not.

A government spokesperson just yesterday told the ABC that the government was looking at reforms to the Mental Health Act, but will consider this bill on its merits. I support looking at our Mental Health Act—it is something that many of us in this place have been pushing for for a long time—but the bottom line is that that is not enough, it is not enough in the context of everything you have just heard. We have had ample opportunity to consider these reforms now. Michelle's family have waited seven long years for us to consider reforms to a system that ultimately resulted in the taking of their daughter, their sister's, life.

Mr President, with your indulgence I acknowledge that we have here today Michelle's mother, Andrea, and her brother Peter, who, after everything they have been through, after seven long years, have also been confronted with the fact that this was not a preventable death in the findings of the Coroner. There is no one single incident that resulted in Michelle's death, we know that, but the Coroner has quite rightly pointed out that there were so many missed opportunities and red flags, that this was the perfect example of a systemic failure across government agencies that ultimately resulted in the unthinkable death of their daughter and sister.

I appreciate that I am introducing this bill at a very late stage during the sitting, but I do not think it will be the first time we have considered bills swiftly in this place, and I put all members on notice that it is my intention to take this bill to a vote during the next sitting week, potentially the final sitting week of the year.

I also want to acknowledge the selflessness of what Andrea and Peter are doing to ensure that no other family has to endure the nightmare that they have. Nobody can do anything but sympathise with Andrea and Peter over their frustration in having to wait so long for this outcome, but also that one finding in relation to whether or not this was a preventable death.

There was, as I said, no single event, but there were an absolute litany of missed opportunities and red flags that, had they not been missed, might have prevented Michelle's tragic and horrific death, Michelle's senseless death. We are all collectively responsible for those errors, and we have a responsibility to prevent other families from enduring that same heartache and pain that Andrea and Peter have had to endure for all this time. The Deputy State Coroner agrees with the premise of this bill. In fact, it is her recommendation. The Department for Correctional Services agrees with the premise of this bill. SAPOL agrees with the premise of this bill.

My question to this parliament, and my plea to this parliament, is: what will it take for all of us to ensure that we heed the advice of each and every person and authority who has told us that this bill is necessary to prevent another family from going through what Andrea and Peter and Michelle's daughters have been left to deal with?

Debate adjourned on motion of Hon. I.K. Hunter.