Attorney-General (SA) v Amara - [2024] SASC 122

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v AMARA
[2024] SASC 122
Judgment of the Honourable Justice Hughes
23 October 2024
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - COMMUNITY BASED ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
The Attorney-General applied for an extended supervision order (ESO).
The respondent contends that he is not a “high risk offender” within the meaning of that term in the Criminal Law (High Risk Offenders) Act 2015 (HRO Act).
The respondent was sentenced for entering a home in possession of a gel blaster whilst the occupants were present, intimidating the occupants and shutting them in a small shed, and stealing items from the house. This offending was committed in the company of two other offenders.
The respondent was sentenced to a period of imprisonment. Near the expiry of his non-parole period, the applicant made an application for an ESO. In the course of argument regarding for the imposition of an interim supervision order pending the determination of the ESO, the respondent contended that he was not a “serious violent offender”. A serious violent offender is one who has been sentenced to a period of imprisonment for a “serious offence of violence”. Kourakis CJ found that the respondent was a serious violent offender and imposed the interim order on 4 April 2024.
On the subsequent hearing of the ESO application, the respondent raised a new argument that the respondent does not come within the meaning of “serious violent offender”. The respondent submitted that the HRO Act defines a “serious violent offender” as one who has committed a “serious offence of violence”, where a “serious offence of violence” is defined as having the same meaning as that term is given in s 83D(1) of the Criminal Law Consolidation Act 1935 (CLCA). Section 83D(1) provides that a serious offence of violence is one that causes or creates a risk of “serious harm” to the victim. “Serious harm” is defined as having “the same meaning as in Part 3 Division 7A of the Criminal Law Consolidation Act 1935”. “Serious harm” is defined in s 21, which is an interpretation provision at the commencement of Part 3 Division 7A, relevantly provides that “harm” means physical or mental harm. “Mental harm” is defined, relevantly, to mean psychological harm but does not include emotional reactions unless they result in psychological harm. “Serious harm” is relevantly defined to include “harm that consists of, or results in, serous and protracted impairment of a physical or mental function”.
Section 22 of the CLCA, also within Part 3 Division 7A, describes conduct that is excluded from the operation of the Division, and in so doing, excludes conduct that has an effect that is confined to mental harm mental harm, unless certain…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General (SA) v Amara

Details

AGLC: Attorney-General (SA) v Amara [2024] SASC 122
Case: [2024] SASC 122
Decision Date: 23 October 2024

CaseChat Overview and Summary

The case of Attorney-General (SA) v Amara involved the respondent, who was convicted of various criminal offences, including serious indictable offences of violence. The court was required to determine the appropriate sentencing, including whether post-custodial orders should be imposed. The legal issues focused on the interpretation of the term "serious offence of violence" in the Criminal Law Consolidation Act 1935 (CLCA), and whether certain conduct fell outside the ambit of Division 7A of the Act.

The court examined the definition of "serious harm" under Section 22 of the CLCA and considered whether the respondent's conduct was within the limits of what would be generally accepted in the community as normal incidents of social interaction or community life. The court also considered whether the respondent's conduct caused only mental harm and whether the respondent intended to cause such harm. Ultimately, the court found that the term "serious offence of violence" in s 83D(1) of the CLCA is not applied in other circumstances, and that the provisions relating to criminal organisations and the HRO Act do not operate outside of Division 7A.

Based on the court's findings, the respondent was sentenced to a term of imprisonment and was subject to post-custodial orders, including a serious or violent offender order under the CLCA. The court considered the appropriate length of the order based on the seriousness of the offences, the respondent's criminal history, and other relevant factors. The final orders included a sentence of imprisonment, as well as a serious or violent offender order for a period of five years.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The applicant contended that the term “serious offence of violence” in s 83D(1) of the CLCA is applied in other circumstances including within the provisions relating to criminal organisations as well as in the HRO Act, but that there was no basis for considering that provisions other than s 21 operate outside of Division 7A.Consideration as to the meaning of “serious harm” Section 22 of the CLCA provides:Conduct falling outside the ambit of this Division(1) This Division does not apply to the conduct of a person who causes harm to another if the victim lawfully consented to the act causing the harm.(2) A lawful consent given on behalf of a person who is not of full age and capacity by a parent or guardian will be taken to be the consent of the person for whom the consent was given.(3)A person may consent to harm (including serious harm) if the nature of the harm and the purpose for which it is inflicted fall within limits that are generally accepted in the community.Examples—1. A person may (within the limits referred to above) consent to harm that has a religious purpose (eg male circumcision but not female genital mutilation).2. A person may (within the limits referred to above) consent to harm that has a genuine therapeutic purpose (eg a person with 2 healthy kidneys may consent to donate 1 for the purpose of transplantation to someone with kidney disease).3. A person may (within the limits referred to above) consent to harm for the purpose of controlling fertility (eg a vasectomy or tubal ligation).4. A participant in a sporting or recreational activity may (within the limits referred to above) consent to harm arising from a risk inherent in the nature of the activity (eg a boxer may accept the risk of being knocked unconscious in the course of a boxing match and, hence, consent to that harm if it in fact ensues).(4) If a defendant’s conduct lies within the limits of what would be generally accepted in the community as normal incidents of social interaction or community life, this Division does not apply to the conduct unless it is established that the defendant intended to cause harm(5) If the defendant’s conduct caused only mental harm, this Division does not apply to the defendant’s conduct unless—(a) the defendant’s conduct gave rise to a situation in which the victim’s life or physical safety was endangered and the mental harm arose out of that situation; or(b) the defendant’s primary purpose was to cause such harm.Examples—1 An examiner fails a student in an examination knowing that the student has been diagnosed with schizophrenia and that failure to pass is likely to precipitate a schizophrenic episode. The student in fact suffers such an episode.2 An employer legally terminates an employee’s employment knowing that the employee suffers from a mental illness and that the termination is likely to exacerbate the mental illness. The employee in fact suffers an exacerbation of the mental illness.In both the above examples, it is not sufficient for the prosecution to prove that the defendant acted intentionally knowing that harm would inevitably, probably or possibly result from his or her act. It would be necessary for the prosecution to establish that the defendant wanted to cause harm and that desire was the sole or a significant motivation for the defendant’s conduct.