Attorney-General (SA) v Austin - [2025] SASC 74

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v AUSTIN
[2025] SASC 74
Judgment of the Honourable Justice Gray (ex tempore)
15 May 2025
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AND OTHER MATTERS RELATING TO TERRORISM - CONTROL, EXTENDED SUPERVISION, PREVENTATIVE DETENTION AND CONTINUING DETENTION ORDERS
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 - DANGEROUS CRIMINAL
The applicant, the Attorney-General, seeks an extended supervision order under section 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) for the respondent, Bradley Wayne Austin, who is due for release on 20 May 2025 after serving a sentence for offences including possessing explosive materials, possessing instructions for making explosive devices, making threats to kill, and possessing extremist material.
The applicant contends that despite the respondent’s advanced age and numerous health conditions requiring continuous care, he poses an appreciable risk to community safety if released without supervision, citing his long history of offenses involving explosives dating back to 1984. The applicant also points to the respondent’s pattern of violent, threatening behaviour while in custody, including multiple threats to use explosives.
The respondent argues that his significant physical health problems and limited mobility effectively prevent him from posing a genuine risk to the community. He contends that he requires aged care placement with 24-hour assistance for his daily needs and that supervision conditions would unnecessarily complicate his ability to secure appropriate accommodation while offering little practical benefit given his physical limitations.
Held: Application granted – interim supervision order made pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 3, 4, 5, 5A, 7, 9, 10; Criminal Law Consolidation Act 1935 (SA) s 19, 83N, 83O; Summary Offences Act 1953 (SA) s 37, referred to.
Attorney-General v Grosser [2016] SASC 49; Attorney-General (SA) v RM [2022] SASC 160, considered.

ATTORNEY-GENERAL (SA) v AUSTIN
[2025] SASC 74

GRAY J (ex tempore): In 2022 the respondent, Bradley Wayne Austin, was sentenced in respect of one count of possessing or taking a step in the process of manufacturing an explosive device contrary to s 83N(3) of the Criminal Law Consolidation Act 1935 (SA), one count of possessing instructions on how to make an explosive device contrary to s 83O(1)(c) of the Criminal Law Consolidation Act 1935 (SA), one count of threatening to kill or endanger life contrary to s 19(1) of the Criminal Law Consolidation Act 1935 (SA), and one count of possessing extremist material contrary to s 37(1)(a) of the Summary Offences Act 1953 (SA).
By an application made on 16 April 2025, the Attorney-General has applied for an extended supervision order under s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the Act’). The applicant seeks the following orders:
1.That the Court direct that one or…

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 Austin

Details

AGLC: Attorney-General (SA) v Austin [2025] SASC 74
Case: [2025] SASC 74
Decision Date: 15 May 2025

CaseChat Overview and Summary

The case of Attorney-General (SA) v Austin was heard in the Supreme Court of South Australia. The central issue in this case was whether an interim supervision order should be made for the respondent, who was deemed a high-risk offender, under the provisions of the Criminal Law (High Risk Offenders) Act 2015 (SA). The application for this order was made by the Attorney-General, and the respondent argued against it, claiming that he was already physically restrained and required intensive care, making any supervision order impractical.

The court had to decide two main legal issues. The first was whether the expiry date of the respondent's relevant term was likely to occur before the application for the extended supervision order was determined. The second issue was whether the material presented in the application, if proven, would justify the making of an extended supervision order. The court had to assess if the respondent posed an appreciable risk to the safety of the community if not supervised under such an order.

The court found that the respondent was indeed a high-risk offender and that the risk he posed to the community, if not supervised, was appreciable and capable of being estimated. The respondent's physical condition and need for care did not negate the risk he posed, and thus, the court was satisfied that the criteria for making an extended supervision order were met. The court concluded that the theoretical remoteness of the risk did not preclude the imposition of a supervision order, which was necessary to ensure the safety of the community.

The court ordered that a legally qualified medical practitioner be appointed to examine the respondent and report to the court on the results of the examination. This was in accordance with the provisions of the Criminal Law (High Risk Offenders) Regulations 2015 (SA). The court did not specify further terms of the interim supervision order but left it open for further determination based on the medical report.

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

GRAY J

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Ratio Decidendi

Legal Principle Established

Established by: GRAY J

The respondent submitted by his counsel that his situation was very similar to the circumstances considered in Attorney-General v RM, with the exception that he did not suffer from cognitive decline affecting his judgment and impulse control. It was submitted that Mr Austin still required daily care for his physical aliment and was practically immobile and required intensive assistance with his daily living. It was submitted on the respondent’s behalf that any conditions of a supervision order would have little practical effect as the respondent is already physically restrained by his immobility and his serious medical needs.[33] It was submitted on behalf of the respondent that any risk that the respondent posed to the safety of the community was so theoretically remote and the imposition of any order would impede the respondent’s ability to reside in a facility that would provide him with the 24 hour care that he requires.[34][33] Respondent’s Written Submissions (FDN 14) at [61].[34] Respondent’s Written Submissions (FDN 14) at [62].Consideration There is no opposition to the application by the Attorney-General for an order that the Court direct a legally qualified medical practitioner (to be nominated by the prescribed authority) examine the respondent and report to the Court on the results of the examination.[35][35] Pursuant to regulation 4 of the Criminal Law (High Risk Offenders) Regulations 2015 (SA) the prescribed authority is the person for the time being performing the duties, or acting in the position, of Clinical Director, Forensic and Mental Health Service South Australia The matters I have to decide are firstly, whether an interim supervision order should be made, and if so, the terms of such an order. Whether an interim order should be made is determined by the provisions of s 9 of the Act. As indicated above there are two conditions. The first of these is not in dispute. The parties agree that the relevant expiry date for the respondent is likely to occur before the application for the extended supervision order is determined, and I am satisfied that this criteria is established. The second criteria is whether the Court is satisfied that the matters alleged in the material supporting the application for the extended supervision order, if proved, would justify the making of an Extended Supervision Order. I have set out above the material before this Court. The making of an extended supervision order depends upon satisfaction that the respondent is a high-risk offender and that he poses an appreciable risk to the safety of the community if not supervised under such an order.[36] There is no issue that Mr Austin is a high-risk offender, and I make that finding.[36] See further, Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(6). I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible.[37] A risk that is speculative to the point of being hypothetical will not generally be considered to be an appreciable risk.[38] In making this assessment a realistic and pragmatic approach to assessing the circumstances of the individual under consideration should be made.[39][37] Attorney-General v Grosser [2016] SASC 49 at [29] (Stanley J).[38] Attorney-General (SA) v RM [2022] SASC 160 at [45] (McDonald J).[39] Attorney-General (SA) v RM [2022] SASC 160 at [46] (McDonald J).