Attorney-General (SA) v ADAMS

[2020] SASC 58

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

ATTORNEY-GENERAL (SA) v ADAMS

[2020] SASC 58

Judgment of The Honourable Justice Nicholson

22 April 2020

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

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS

The Attorney-General (SA) made an application pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) seeking a 2 year extended supervision order in relation to the respondent. The respondent opposes the application on the basis that he does not meet the threshold requirements required by the Criminal Law (High Risk Offenders) Act 2015 (SA). The respondent submits: that he did not commit a “serious offence of violence” as defined and therefore is not a high risk offender; and, that he does not pose an appreciable risk to the safety of the community if not supervised under the order.

Held, allowing the application for an extended supervision order:

(1) The respondent meets the threshold requirement to be regarded as a high risk offender as defined in the Criminal Law (High Risk Offenders) Act 2015 (SA) because his offending conduct involved a risk of serious harm to the victim, in that it involved a risk of harm consisting of serious and protracted impairment of a physical or mental function or consisting of serious disfigurement.

(2)     The respondent poses an appreciable risk to the safety of the community if not supervised under an extended supervision order.

(3)     The respondent is to be subject to an extended supervision order with the conditions proposed by the Attorney-General, excluding electronic monitoring, for a period of 2 years from the date of the order.

Criminal Law (High Risk Offenders) Act 2015 (SA) s 4, s 5, s 7, s 12; Criminal Law Consolidation Act 1935 (SA) s 21, s 24, s 83D, referred to.
Attorney-General (SA) v Wikaire (2017) 127 SASR 565; Attorney-General (SA) v Jeffery (2018) 130 SASR 300; Attorney-General (SA) v Davidson [2018] SASC 91; Attorney-General (SA) v Laughlin [2019] SASC 105, applied.
Attorney-General (SA) v Wells [2017] SASC 149; Attorney-General (SA) v Kember [2019] SASC 19; Attorney-General (SA) v Gates (2017) 129 SASR 298; Attorney-General (SA) v Grosser [2016] SASC 49, considered.

ATTORNEY-GENERAL (SA) v ADAMS
[2020] SASC 58

Criminal: Application

1. NICHOLSON J:  On 28 June 2018, the Attorney-General applied for the respondent to be subjected to an extended supervision order pursuant to subsection 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). The application is contested. The application was brought before the term of imprisonment then being served by the respondent was due to expire.

2. The Attorney was unsuccessful before Vanstone J in obtaining an interim supervision order prior to the respondent’s release from custody at the expiration of his sentence in late July 2018.  Since then, the respondent has spent much of the time in custody on remand for charges which were not proceeded with or with respect to which he was acquitted and for charges still awaiting trial.  He was last returned to custody on 1 May 2019 charged with one count of aggravated serious trespass in a place of residence and one count of dishonestly dealing with property.  He was committed to stand trial in the District Court on these two counts on 10 October 2019 and remains remanded in custody.

3. The terms of the extended supervision order, as sought by the Attorney, comprise, in general, the usual terms to be found in such an order, together with a curfew condition and a condition that the respondent is to wear an electronic monitoring device.  The Attorney has applied for any extended supervision order made to be in force for two years from the date of the order.

4. In considering the Attorney’s application, I have had regard to the affidavit material filed in support of the application being two affidavits of Sarah Narelle Mitchell affirmed 28 June 2018 and 24 July 2018 and an affidavit of RMH sworn on 11 March 2020, two reports from the forensic psychiatrist, Dr Pei Lim, dated 12 June 2019 and 3 October 2019 and the written and oral submissions presented by counsel for the Attorney and counsel for the respondent.

5. The respondent is now 23 years of age.  On 22 June 2015, he was sentenced in the District Court to imprisonment for three years and one month with a non-parole period of one year and two months after pleading guilty to the one count of aggravated robbery (the “index offence”) and two counts of failing to comply with bail.  The index offence was committed the day after he turned 18.  He was released on parole on three occasions (10 October 2017, 23 November 2017 and 14 February 2018) but each time he was returned to custody on a Parole Board warrant for breaching conditions of his parole.  The three periods spent on parole were, respectively, approximately one week, seven weeks and one month.  Following the third return to custody, he was directed to serve the balance of his head sentence which expired on 1 August 2018.  His prior criminal record is lengthy and significant for one so young and includes other offences of violence.  The Judge who sentenced for the index offence summarised this prior record in these terms. 

   You come before this court with a very serious and lengthy antecedent report. You have been committing offences since you were 13 years old. These offences have included theft, serious criminal trespass and failing to comply with your bail agreements on numerous occasions. They also include offences of being unlawfully on premises, affray and illegal use.

   Your offending appears to have been almost continuous throughout 2010 and 2011, although I note there were no offences committed by you between 28 December 2011 and 4 April 2013. I will return to that part of your life a little later.

   Since April 2014 you have been dealt with by the Youth Court on 11 separate occasions for multiple offending during that period. You have been given periods of detention, you have had periods of detention suspended, you have breached that, you have been placed on bonds to be good behaviour and you have been given community service work. None of this appears to have deterred you from committing crime and on the occasion that I am now dealing with, a very serious crime.

6. Dr Lim has expressed the opinion that “there is a high likelihood of [the respondent] committing another similar offence of violence (eg aggravated robbery) in future”.  She has based this opinion on a number of dynamic and static risk factors, namely the respondent’s: history of previous violence, his history of substance (alcohol and drugs) abuse, his anti-social personality disorder, his victim blaming attitude, his propensity to be easily influenced by anti-social peers, and his poor stress and coping skills. 

7. The requirements to be established by the Attorney in order to empower the Court to make an extended supervision order are as set out in subsection 7(4) of the Act. In short, the Court must be satisfied that the respondent is a high risk offender and that the respondent poses an appreciable risk to the safety of the community if not supervised under the order. Once those two jurisdictional facts were to be established, the making of the order remains discretionary. Subsection 7(5) provides that the paramount consideration in determining whether to make an extended supervision order must be the safety of the community. Subsection 7(6) of the Act sets out a number of matters that must be taken into consideration by the Court to the extent that they apply or that evidence bearing on them is available, when determining whether or not to make an extended supervision order. I have had regard to the matters in subsections 7(4), (5) and (6).

8. The respondent submitted that the threshold requirement, that is, that he is to be regarded as a high risk offender as defined under the Act, has not been met and as such there is no jurisdiction to make an extended supervision order as sought or at all.  The various interlocking definitions as contained in the Act and also the Criminal Law Consolidation Act 1935 (SA) which must be considered before being in a position to determine whether or not a particular respondent is a high risk offender have been set out and discussed in the authorities to which I shortly will refer. I do not set those definitions out or further discuss them here.

9. For the purpose of her application, the Attorney relies on the index offence as qualifying the respondent as a high risk offender. For present purposes, a high risk offender as defined in section 5 of the Act includes a person who has been convicted of, and sentenced to a term of imprisonment in respect of, a serious offence of violence.

10. The essence of the respondent’s contention is that whilst the offence of aggravated robbery is capable of constituting a “serious offence of violence”, as defined, on the facts of this matter, the offence as committed by the respondent does not do so. It is submitted that the actual conduct that the respondent engaged in did not cause “the death of or serious harm to, a person or a risk of the death of, or serious harm to, a person” as required by section 83D(1) of the Criminal Law Consolidation Act 1935 and subsection 4(1) of the Act.  

11. For these purposes, serious harm is defined by section 21 of the Criminal Law Consolidation Act 1935 as follows.

    serious harm means—

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

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

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

12. As the authorities referred to below confirm, the language of the definition of serious offence of violence focusses not on the elements of the offence committed[1] but on the actual conduct underlying or giving rise to the charged offence.  The question to be determined is whether the offence as committed was a serious offence and one where the conduct constituting the offence involved the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person.  This issue has been dealt with in similar contexts on a number of occasions in this Court, see Attorney-General (SA) v Wikaire,[2] Attorney-General (SA) v Wells,[3] Attorney-General (SA) v Jeffery,[4] Attorney-General (SA) v Davidson,[5] Attorney-General (SA) v Laughlin,[6] Attorney-General (SA) v Kember[7] and Attorney-General (SA) v Gates.[8]

    [1]    Although, the offence itself must qualify, as the index offence does, as a “serious offence”, that is, an indictable offence punishable by imprisonment for life or for a term of five years or more, Criminal Law Consolidation Act 1935 (SA), section 83D(1).

    [2] [2017] SASC 58; (2017) 127 SASR 565.

    [3] [2017] SASC 149.

    [4] [2018] SASC 1; (2018) 130 SASR 300.

    [5] [2018] SASC 91.

    [6] [2019] SASC 105.

    [7] [2019] SASC 19.

    [8] [2017] SASC 154; (2017) 129 SASR 298.

13. The task before a court when a person is prosecuted for the offence in issue here is different from the task before a court when considering whether the offence, as committed, satisfies the definition of serious offence of violence.  To establish the offence, it is only necessary for the prosecution to satisfy the elements of the offence.  For the index offence, it was not necessary to prove that serious harm was caused or even likely.  However, for the purpose of satisfying the definition of serious offence of violence, it is necessary for the court to be satisfied that the respondent’s conduct in committing the offence involved at least a risk of serious harm, not being a fanciful, theoretical or remote risk.[9] 

    [9]    Attorney-General (SA) v Jeffery [2018] SASC 1; (2018) 130 SASR 300 at [17]-[21].

14. The circumstances of the respondent’s commission of the index offence, as found by the sentencing Judge were set out in her Honour’s remarks as follows.

    The circumstances of the aggravated robbery are that on 25 October 2014 you were present outside the casino. You were with a group of young men and juveniles. Some of these other members of your group threatened the victim … . Having done that, you all then ran off across the Festival Centre Plaza and hid behind the bunker which is the entrance to the car park for the Festival Theatre adjacent to Parliament House.

    There was closed-circuit television footage that was shown in court and it clearly shows you and the other young men running across the plaza and hiding in wait for the victim.

    The victim telephoned the police. His English was very broken. On the 000 call he can be heard desperately trying to get police attention but the operator is unable to understand him.

    He walked across the plaza whilst he was still talking on his phone. You and the other members of your group ran from behind the bunker as you saw him approaching. You assaulted him and stole $60 from him.

    The robbery is recorded on the 000 call. It is harrowing. It is plain that you are inflicting a significant amount of pain on [the victim], who was terrified at the time. He was screaming at you and your other co-offenders.

    The closed-circuit television footage shows that you remained until the end of the robbery with [the victim] before you ran off with your co-offenders.

15. The respondent admitted to the authors of the Department of Correctional Services pre-treatment assessment report dated 8 September 2016, that he dragged, kicked and punched the victim.

16. The victim was found to have suffered physical harm but not of the nature that would be characterised as serious harm.  However, the factual question before me is whether the conduct of the respondent constituting the offence involved “the risk of serious harm” to the victim.[10] 

    [10] Subsection 83D(1) of the Criminal Law Consolidation Act 1935 (SA).

17. I am satisfied that the conduct of the respondent which constituted the offence involved at the least “a risk of serious harm”[11] to the victim in that it involved a risk of harm consisting of serious and protracted impairment of a physical or mental function or consisting of serious disfigurement.  I appreciate that harm to this extent was not in fact caused but as I have said I am satisfied that the conduct involved a risk that such would be. 

    [11] As that term is defined, as set out above.

18. In coming to this conclusion, I have considered and adopted the reasoning in Wikaire, Jeffery, Davidson and Laughlin, referred to above and notwithstanding the more cautious or confined approach adopted in Gates.  In my view, upon an application of that reasoning, this is an example of a serious offence of violence, as defined for the purposes of the Act, and notwithstanding that the offence itself as charged and found proved did not have as an element the causing of serious harm or exposing the victim to a risk of serious harm. 

19. In Jeffery, Hinton J expressed the opinion that in the context of the Act, “risk” carried its normal meaning and embraced “a real or recognisable risk, albeit not a substantial risk”.[12]  To be excluded are risks that are fanciful, theoretical or remote.  The approach was followed by Doyle J in Laughlin. I also agree. On the facts of the present case the risk of serious harm was a real or recognisable one and not fanciful, theoretical or remote. There was a risk of serious physical harm. Kicks and punches have been known to result in very serious harm and sometimes death. Further, the assault took place in company at 2 am in an isolated location. Depending on the level of fortitude of a particular victim, such an event can result in serious mental harm.

    [12] Attorney-General (SA) v Jeffery [2018] SASC 1; (2018) 130 SASR 300 at [17].

20. I am satisfied that, as a matter of law and fact the offence, as committed by the respondent, is properly to be characterised as a serious offence of violence and that the threshold question, whether the respondent is a high risk offender, as defined, is to be answered in the affirmative.

21. The respondent also contends that the making of an extended supervision order is not warranted in the present case, that is, that I cannot be satisfied that the respondent poses an appreciable risk to the safety of the community if not supervised under the order.  I take a different view. 

22. Counsel for the respondent referred to a number of matters in support of his contention that the respondent would not present an appreciable risk to the community if released without being subject to an extended supervision order.  These matters included: the respondent’s acknowledgement to Dr Lim of the role of his drug use in his offending; that he is able to recognise other risk factors such as associating with anti-social peers and has shown insight into the causes of his offending; various positive and congratulatory comments in the violence prevention report about the respondent’s involvement with and behaviour in that program; that the respondent will live with and have the support of his mother and other members of his family when released; and that whilst in custody the respondent has busied himself with self-improvement activities, has worked industriously in the prison and has obtained certificates I and II in horticulture and a certificate I in building and construction.  Ultimately, it was counsel’s submission that the respondent now understands how he comes to commit offences and wants that to change so that he can lead an offence free and productive life.

23. I accept that the respondent has made changes, gained some insight and is anxious to rehabilitate.  I am also acutely aware that he is still only 23.  He has not been tested yet with the difficulties he inevitably will face when he re-enters society.  In my view, the respondent should embrace the type of assistance and supervision that should be provided under the extended supervision order.

24. Notwithstanding the matters raised by counsel, just canvassed, and following my review of the evidentiary materials relied on in support of the order with the assistance of Dr Lim’s opinion and the parties’ respective submissions, I am satisfied that the respondent does pose an appreciable risk to the safety of the community in the sense of that term as explained by Stanley J in Attorney-General (SA) v Grosser if not supervised under an extended supervision order.[13]  Further, I am satisfied that the paramount consideration, being the safety of the community, requires in this case the making of an extended supervision order.  To this point, the respondent has spent very little time in the community since committing the index offence.  He does not have a demonstrable track record of rehabilitative conduct.

    [13] [2016] SASC 49 at [29]-[32].

25. During the hearing, the question of the utility of making an extended supervision order at this stage was raised.  An extended supervision order in the case of the respondent will take effect on the day it is made but the obligations imposed will be suspended while he remains in custody.[14]  The respondent is likely to remain in custody on remand until, at the earliest,[15] his trial listed for November of this year.  Thereafter, a two year order, as sought by the Attorney would only have at most about one year and five months to run.  That is still a significant period of time for the respondent to be in the community with the benefit of supervision under the order.  Further, there is also the possibility that the respondent will be released earlier either on bail or upon the charges being withdrawn and the Attorney seeks to guard against this eventuality.  In the circumstances, I am not satisfied that the extended supervision order, as sought, can be said to lack utility.

    [14] Section 12 of the Act.

    [15] Of course there is always the possibility of having to spend longer in custody if the respondent were to be convicted.

1. I am also satisfied that the conditions proposed by the Attorney but for one possible exception are appropriate and necessary in order to address the need to promote the safety of the community.  The possible exception is the electronic monitoring condition.  I asked the Attorney’s counsel what further value there would be in maintaining the electronic monitoring condition.  I received an affidavit sworn by RMH, the Regional Director, Community Corrections Southern, Statewide Operations in the Department for Correctional Services, which explained in some detail the procedures and practices involved with respect to the electronic monitoring of a person under the supervision of Correctional Services.  According to RMH, there are three potential ways of monitoring such a GPS system.

   There are three potential ways of monitoring a GPS system: passive, hybrid or active monitoring.  A passive system collects data to enable a retrospective review of an individual’s movements, if required.  An active system relies on a dedicated officer actively watching all movements of an individual in real time and providing an immediate response to any deviations.  In a hybrid model, real time alerts are acted upon in accordance with risk.

2. According to RMH, the Department for Correctional Services uses a hybrid system.  It can set up inclusion zones (such as the person’s residence if they are subject to a curfew) and exclusion zones (such as localities a person is prohibited from visiting).  When these zones are breached an alert will be triggered and an Intensive Compliance Unit (ICU) Officer can then ascertain the person’s real time location.  Depending on the circumstances, the ICU Officer will respond as necessary, including alerting police or a Correctional Services Officer.  The electronic monitoring system can also be used to examine retrospectively where a person has been.

3. Counsel for the Attorney submitted that the primary advantage that electronic monitoring offered in this case was to support the curfew condition.  For example, if remote checking during the curfew hours disclosed that the respondent was not at home, Corrections could then track his movements and ascertain where he was such as, for example, a hotel or other licensed premises (prohibited under the extended supervision order).  

4. The major problem with electronic monitoring from the respondent’s perspective is that the required wearing of a leg bracelet is particularly intrusive and restrictive of the person’s activities.  Whilst it can assist in identifying (mostly after the event) breaches of the extended supervision order and anti-social conduct, it also operates to restrict the person from engaging in pro-social and important rehabilitative activities such as gaining and keeping employment and engaging in sporting activities.

5. The respondent is a 23 year old Aboriginal man who wants to return to live in Port Pirie with his family.  It is ultimately in the interest of the protection of the community that the respondent undertakes pro-social activities, keeps himself busy and obtains remunerative employment.  The respondent has an unenviable criminal record for one so young.  However, he is yet to cause anyone serious physical harm. 

6. The respondent needs the assistance and supervision that the extended supervision order can offer.  However, on balance, I take the view that his prospects of rehabilitation would be enhanced rather than compromised if he were not made subject to electronic monitoring.  The curfew requirement can still be checked and enforced the old-fashioned way by random night time checks.  Of course, and this must be made very clear to the respondent, if he were to breach the extended supervision order in any way, the Parole Board might impose electronic monitoring or the Attorney might apply for the extended supervision order to be varied by the including of an electronic monitoring condition.

7. I am satisfied that an extended supervision order should be made in the first instance for a period of two years as sought by the Attorney and in the terms as sought except for the electronic monitoring condition which I propose to exclude.