Attorney-General (SA) v Banbery - [2020] SASC 232

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v BANBERY
[2020] SASC 232
Judgment of The Honourable Justice Bleby
4 December 2020
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
Application by the Attorney-General for South Australia for an extended supervision order pursuant to s7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA).
On 22 March 2018, the respondent pleaded guilty to two counts of possessing child exploitation material and six counts of communicating with the intention of making a child under the age of 17 years amenable to sexual activity, contrary to ss 63A and 63B respectively of the Criminal Law Consolidation Act 1935 (SA).
The respondent accepts that it is appropriate to impose an Extended Supervision Order (ESO), but disputes the duration of the order, the condition relating to the respondent’s residential address, the condition regulating the respondent’s access to the internet and to devices with the ability to connect to the internet, and the condition regulating the respondent’s access to his underage son.
Held, per Bleby J:
1. The respondent is a high risk offender who poses an appreciable risk to the safety of the community if not supervised under an extended supervision order.
2. The application for an extended supervision order is granted for a term of two years, in the terms of the applicant’s proposed order.
3. Proposed condition 2.22 is amended to allow for three hours of unsupervised telephone contact with the respondent’s son per week, totalling no more than one hour’s duration on any given day. The respondent’s Community Corrections Officer may otherwise approve, in writing beforehand, unsupervised contact of any form with the respondent’s son.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 4, 5, 7, 9, 10; Controlled Substances Act 1984 (SA) s 33I(1)(b); Criminal Law Consolidation Act 1935 (SA) ss 63A, 63B; Criminal Law (Sentencing) Act 1988 (SA) ss 23, 24, referred to.
Attorney-General v Grosser [2016] SASC 49; Attorney-General v Kimmins [2016] SASC 176; R v Schuster (2016) 125 SASR 388, considered.

ATTORNEY-GENERAL (SA) v BANBERY
[2020] SASC 232
Criminal Application

BLEBY J: This is an application by the Attorney-General for South Australia for the imposition of an extended supervision order against the respondent, Neal Daniel Banbery, pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (HRO Act).
The applicant seeks an extended supervision order (ESO) for a period of two years, on the basis that the respondent is a high risk offender under the HRO Act who poses an appreciable risk to the safety of the community if not supervised under such an order. The respondent accepts that it is appropriate to make an ESO, but disputes four aspects of the applicant’s proposed order. The areas of dispute are the duration of the ESO, the condition relating to…

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 Banbery

Details

AGLC: Attorney-General (SA) v Banbery [2020] SASC 232
Case: [2020] SASC 232
Decision Date: 4 December 2020

CaseChat Overview and Summary

The case of Attorney-General (SA) v Banbery involved an application for an extended supervision order (ESO) against the respondent, who had previously been convicted of drug-related offences and possession of child exploitation material. The applicant, the Attorney-General, sought the ESO on the grounds that the respondent was a high risk offender and posed a significant risk to community safety without supervision. The respondent agreed that an ESO was appropriate but disputed certain aspects of the proposed conditions. The Supreme Court of South Australia was tasked with determining the appropriate terms of the ESO.

The legal issues before the court included the appropriate duration of the ESO, the conditions governing the respondent's residential address, access to the internet and internet-capable devices, and contact with his underage son. The court needed to balance the need for community protection with the respondent's rights and the practicalities of supervision.

The court found that the respondent was indeed a high risk offender who posed a significant risk to the community. It accepted the proposed conditions with some modifications. The ESO was to last for two years, as sought by the Attorney-General. The condition regarding the respondent's residential address was modified to require prior written permission from the Community Corrections Officer for any change of address. The internet access condition was also modified to allow use of electronic devices only with prior permission from the Community Corrections Officer. The condition regarding contact with his son was adjusted to permit three hours of unsupervised telephone contact per week, with additional contact allowed with the approval of the Community Corrections Officer or a designated representative.

The court made an extended supervision order for a period of two years with specific conditions governing the respondent's residence, internet use, and contact with his underage son. The respondent is required to reside at an approved address and must obtain permission from the Community Corrections Officer for any changes. Internet use is restricted to devices approved by the Community Corrections Officer. Contact with his son is limited to three hours of unsupervised telephone contact per week, with additional contact permitted with approval. The court will further hear from the parties to determine the precise terms of these conditions.

Orders

Orders of the court

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Background

Background to the litigation

The applicant seeks an extended supervision order (ESO) for a period of two years, on the basis that the respondent is a high risk offender under the HRO Act who poses an appreciable risk to the safety of the community if not supervised under such an order. The respondent accepts that it is appropriate to make an ESO, but disputes four aspects of the applicant’s proposed order. The areas of dispute are the duration of the ESO, the condition relating to the respondent’s residential address, the condition regulating the respondent’s access to the internet and to devices with the ability to connect to the internet, and the condition regulating the respondent’s access to his underage son.Factual background On 16 February 2018, the respondent pleaded guilty to the offence of possessing a controlled drug for supply, contrary to s 33I(1)(b) of the Controlled Substances Act 1984. On 22 March 2018, he pleaded guilty to two counts of possessing child exploitation material depicting children between the ages of 14 and 16 years, and six counts of communicating with the intention of making a child under the age of 17 years amenable to sexual activity, contrary to ss 63A and 63B respectively of the Criminal Law Consolidation Act 1935 (SA) (CLCA). On 16 July 2018, the District Court of South Australia sentenced the respondent to three years, seven months and eight days’ imprisonment with a non‑parole period of two years, 10 months and 19 days. The respondent’s head sentence expired on 30 August 2020. The respondent was born in Adelaide in December 1978. During his childhood and adolescence, he displayed behavioural difficulties and attended a number of schools. He left school at the age of 15. He left home at 17 and at 20 he established his own business. After 13 years, that business collapsed. In 2015, the respondent commenced using methamphetamines. In 2016, for the purposes of sentencing for the index offending, he told a forensic psychologist that he had been experiencing mood swings. He displayed aggression, agitation and suffered depression. He reported a family history of bipolar disorder and violence. He also reported two unsuccessful suicide attempts. The respondent has been in a relationship with his wife for approximately 22 years. They have a young teenage son. They separated in 2016, although they are still married and his wife remains supportive of him. The respondent has a limited history of criminal offending. In October 2016, he was sentenced to two weeks’ imprisonment for four counts of failing to comply with a bail agreement relating to bail granted in respect of a charge of possessing a controlled drug. In February 2017, he was sentenced to one day’s imprisonment for disorderly behaviour and resisting police. In May 2017, he was sentenced to four months’ imprisonment, suspended, for two counts of unlawful possession, four counts of breaching bail, possession of a prohibited weapon and resisting police. The circumstances of the index offending are as follows. On 30 May 2016, police attended at the respondent’s address and located 4.86g of mixed weight material containing methylamphetamine, as well as a set of scales that contained traces of methylamphetamine. The respondent pleaded guilty to possessing a controlled drug for supply on the basis that he intended to use some of the drug himself but also intended to supply some to other people. Police also seized two mobile phones which, upon analysis, revealed a series of conversations on a messaging app called ‘KIK’. These conversations involved sending and receiving sexually explicit material with underage children. The two offences of possessing child exploitation material relate to images received in the course of those conversations, which depicted children performing various sexual acts.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I will therefore make condition 2.8 as sought by the Attorney-General.Conclusion On the Attorney-General’s application, I am satisfied 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 the order. I grant the application for an extended supervision order. With respect to the contested provisions of the proposed order:·as to proposed condition 1, the order will be for a duration of two years;·as to proposed condition 2.6, the condition will be that the respondent will reside at an address that has been approved by the Community Corrections Officer, and will not change his residence without the prior written permission of the Community Corrections Officer;·as to proposed condition 2.8, the condition will be that the respondent will not use or possess any tablet, computer, mobile telephone or photographic equipment or gaming console or any other electronic device capable of taking or storing photographic images, or with ability connect to the internet unless permission is given to use or possess that item by his Community Corrections Officer; and·as to proposed condition 2.22, the condition will be that the respondent will not contact, attempt to contact or associate in any way, whether directly or indirectly, any person under the age of eighteen (18) years, unless his Community Corrections Officer is present, or a person nominated by his Community Corrections Officer is present. His Community Corrections Officer may otherwise approve, in writing beforehand, unsupervised contact of any form with the respondent’s son, for example, a single instance or a defined, ongoing form of contact. However, the respondent is in any event permitted to have three hours of unsupervised telephone contact per week with his son. That contact is to be by way of a telephone call or calls totalling no more than one hour’s duration on any given day. I will hear the parties as to the precise terms of the conditions.

Ratio Decidendi

Legal Principle Established

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