Attorney-General (SA) v BRADBROOK - [2020] SASC 57

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v BRADBROOK
[2020] SASC 57
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) for an extended supervision order in relation to the respondent. Pending the determination of the application, the Court made an interim supervision order against the respondent on 1 October 2019. The Attorney-General seeks a 3 year extended supervision order. The respondent opposes the making of an extended supervision order on the basis that he does not meet its threshold requirements under the Criminal Law (High Risk Offenders) Act 2015 (SA). The respondent submits: that he has not committed a “serious offence of violence” (as defined); he does not pose an appreciable risk to the safety of the community if not supervised under the order. The respondent further challenges the proposed electronic monitoring and curfew conditions.
Held, allowing the application for an extended supervision order:
(1) The respondent meets the threshold requirements to be regarded as a high risk offender as defined in the Criminal Law (High Risk Offenders) Act 2015 (SA). His offending conduct involved at least 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. Further, the respondent poses an appreciable risk to the safety of the community if not supervised under an extended supervision order.
(2) The respondent is to be subject to an extended supervision order with conditions, including electronic monitoring and curfew conditions, for a period of 2 years and 6 months from the date of the order.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 4, s 7, s 9, 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 BRADBROOK
[2020] SASC 57
Criminal: Application

NICHOLSON J: The Attorney-General has 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. On 1 October 2019, I made an interim supervision order pursuant to section 9 of the Act which was to remain until the determination of the application for an extended supervision order.
The terms of the extended supervision order, as sought by the Attorney, are materially the same as those contained in the interim supervision order. They 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 terms also include non-contact provisions with respect to prior victims of domestic violence offending. The Attorney has applied for any extended supervision order made to be in force for three years from the date of the order.
In considering the Attorney’s application, I have had regard to the affidavit material filed in support of the application being affidavits of Jesse François Metzer affirmed 6 August 2019, 23 August 2019, 25 November 2019, 11 February 2020 and an affidavit of Renae Lauren Porcelli sworn on 25 November 2019, a report from the forensic psychiatrist, Dr Catherine Crouch, dated 15 October 2019 and an addendum report from Dr Crouch dated 13 December 2019, together with the written and oral submissions presented by counsel for the Attorney and counsel for the respondent.
The respondent is only in his early thirties. However, he already has an extensive prior criminal history recorded over more than eight pages which includes offences of violence and a history of failing to comply with orders of the Court including bonds, bail agreements and a supervision order. He has been released on parole on two previous occasions in 2012/2013 and 2015 and each time breached his conditions of parole. The respondent’s more serious offences as an adult include intentionally causing harm in 2018, carry an offensive weapon in 2017, possess prohibited weapon and theft in 2014, serious criminal trespass in occupied residential premises and theft in 2011, assault in 2010 and theft in 2008. He also has a very extensive criminal record as a youth.
The reporting forensic psychiatrist, Dr Crouch, summarised the respondent’s background in her first report as follows.
[The respondent] is a 30 year old man with a significant history of childhood trauma and abandonment. He has never had a stable environment to grow and has been largely institutionalized since the age of 12. He has limited prosocial supports and adapted to a life living itinerantly on the streets using illicit substances surrounded by a negative and older peer group. From a young age he was exposed to violence and this was likely further reinforced through his time on the streets. [The respondent] has never had the opportunity to engage in regular stable education or employment. He has never had the opportunity to learn and adapt appropriate socially acceptable coping skills. He has limited emotional intelligence and ability to understand his emotions. He demonstrates limited empathy for others and through his early life experiences he has learnt to justify and accept his aggression as appropriate behaviour.
There was no evidence that [the respondent]suffers from a major mental illness. He has a long-standing history of substance use. He has been assessed as suffering from a Borderline Intellectual Impairment.
[The respondent] displaced a history of impulsive behaviour and instability. He was undeterred by consequences and appeared to have little consideration for authority. He showed minimal insight into his offending and a lack of empathy for his victims. There was evidence of conduct disorder as a child.
Dr Crouch has expressed the opinion that the respondent’s risk of future serious violent offending is high, as a consequence of the number and nature of his static and dynamic risk factors. Other clinical assessments identified in materials filed on behalf of the Attorney have arrived at a similar conclusion. Dr Crouch also recommended a number of areas of need and proposed interventions such as a violence prevention program, stable prosocial accommodation, a structured day and meaningful employment. She expressed the opinion that with appropriate interventions, the respondent’s risk of future serious violent offending may be reduced.
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).
The respondent submitted that the threshold requirement 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.
On 7 November 2018, the respondent was sentenced to imprisonment for one year, four months and 25 days for the offence of intentionally causing harm contrary to subsection 24(1) of the Criminal Law Consolidation Act 1935 (SA). The maximum penalty for this offence (in the case of a basic offence) is imprisonment for 10 years. The sentence was ordered to be served cumulatively on terms of imprisonment ordered with respect to other offending. For the purpose of her application, the Attorney relies on the offence of intentionally causing harm 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.
The essence of the respondent’s contention is that the offence of causing harm with intent does not fall within the definition of a “serious offence of violence”. It is contended that, whilst it is a serious offence, it is not one where the elements of the offence involve conduct causing “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 subsection 83D(1) of the Criminal Law Consolidation Act 1935 and subsection 4(1) of the Act. It is also submitted that irrespective of the elements of the offence, the actual conduct the respondent engaged in neither caused serious harm nor posed a risk of serious harm.
For these purposes, serious harm is defined by section 21 of the Criminal Law Consolidation Act 1935 as meaning:
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.
The respondent has submitted that because he was charged with and found guilty only of causing harm and only with having an intention to cause harm, such is not capable of satisfying the definition of serious offence of violence for the purpose of the Act. Neither serious harm nor a risk of serious harm was found proved. Furthermore, according to the respondent’s submission, the actual factual basis of the offending was not such as to properly support a conclusion that the conduct of the respondent involved a risk of serious harm to the victim.
I accept that the respondent was only charged with causing harm with intent to cause harm and, as such, the question of whether serious harm was caused or whether there was a risk of serious harm was irrelevant to and not addressed in the proceedings for the charged offence. However, the language of the definition of serious offence of violence focusses not on the elements of the offence committed but on the actual conduct underlying or giving rise to the charged offence. The question to be determined is whether the actual conduct involved serious harm to a person or a risk of 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,[1] Attorney-General (SA) v Wells,[2] Attorney-General (SA) v Jeffery,[3] Attorney-General (SA) v Davidson,[4] Attorney-General (SA) v Laughlin,[5] Attorney-General (SA) v Kember[6] and Attorney-General (SA) v Gates.[7]
[1] [2017] SASC 58; (2017) 127 SASR 565.
[2] [2017] SASC 149.
[3] [2018] SASC 1; (2018) 130 SASR 300.
[4] [2018] SASC 91.
[5] [2019] SASC 105.
[6] [2019] SASC 19.
[7] [2017] SASC 154; (2017) 129 SASR 298.
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 necessary to establish, inter alia, that harm, only, was caused. Because only the lesser form of the charge[8] was laid 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 only necessary for the court to be satisfied that the respondent’s conduct in committing the offence involved a risk of serious harm, not being a fanciful, theoretical or remote risk.[9] The two respective assessments are not incompatible nor does a finding of the former necessarily preclude a finding of the latter.
[8] As opposed to causing serious harm with intent contrary to subsection 23(1) of the Criminal Law Consolidation Act 1935 (SA).
[9] Attorney-General (SA) v Jeffery [2018] SASC 1; (2018) 130 SASR 300 at [17]-[21].
The offending was captured on CCTV. The factual basis for the offending as found, according to the sentencing remarks of his Honour Judge Slattery delivered on 7 November 2018 included that the respondent:
Had been watching television in his cell throughout the morning. [The victim] changed the channel to a different program and [the respondent] proceeded to get up and start yelling at him and told him that [the respondent was] going to cave his head in. [The respondent] started kicking and punching [the victim] and he raised both his hands to protect his head and face. As [the victim] fell onto the bottom bunk, [the respondent] began stomping on his head and punching and kicking him. [The respondent] then picked up a chair from inside [the cell] and began to strike [the victim] with it. In total, [the respondent] punched [the victim] 38 times, kneed him once, stomped on him three times and struck him with the chair once. [The respondent’s attack] … lasted a period of 74 seconds.
The victim suffered physical harm with facial fractures and other injuries and required surgery. The physical injuries were of a serious nature and caused the victim significant stress and anxiety as explained in the sentencing remarks.
There was no finding that the victim suffered serious harm as that term is defined (see earlier).[10] However, the factual question before me is whether the conduct of the respondent 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.[11]
[10] Although he may have; the issue was not before the Court. There are at least two potential reasons why the prosecuting authority did not press a charge of causing serious harm with intent: it may have been concerned that it could not prove beyond reasonable doubt an intention to cause serious harm and/or it may have been concerned that it could not prove that serious harm resulted.
[11] Subsection 83D(1) of the Criminal Law Consolidation Act 1935 (SA).
I am satisfied that the conduct of the respondent which constituted the offence involved at the least “a risk of serious harm”[12] 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 may not in fact have been caused but as I have said I am satisfied that the conduct involved a risk that such would be.
[12] As that term is defined, as set out above.
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 a clear 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.
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”.[13] 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 – nor speculative.
[13] Attorney-General (SA) v Jeffery [2018] SASC 1; (2018) 130 SASR 300 at [17].
I reject both of the respondent’s contentions concerning the threshold issue. 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.
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.
Following my review of the evidentiary materials relied on in support of the order, in particular, the conclusions reached by Dr Crouch, and the parties’ respective submissions, I am satisfied that the respondent does pose an appreciable risk to the safety of the community if not supervised bearing in mind the meaning of the term “appreciable risk” as explained by Stanley J in Attorney-General (SA) v Grosser.[14]
[14] [2016] SASC 49 at [29]-[32].
Counsel for the respondent submitted that less weight should be placed on the respondent’s most serious offence of violence (causing harm with intent) because it occurred whilst in custody where stressors and tensions can be greater or more likely to lead to violence than in a community setting. I accept that this may be so. However, Dr Crouch did not modify her ultimate opinion because of this. Rather, she expressed the view that the combination of all of the respondent’s risk factors (which she itemised) resulted in her assessment that the respondent had a high risk of future violent offending and that this risk “would be even further heightened in the correctional setting”. I am satisfied that the safety of the community requires in this case the making of an extended supervision order.
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.[15] The respondent is presently in custody on remand with respect to other charged offences. He has indicated his intention to defend the charges at trial although that may not take place for quite some time yet. He has also indicated an intention to seek bail. It is possible that a significant proportion of the term of any extended supervision order will elapse prior to the respondent being released from custody and the suspension of the conditions coming to an end. However, there is also the possibility that the respondent will be released earlier either on bail or upon the charges being withdrawn. The making of an extended supervision order now would guard against this eventuality. In the circumstances, I am not satisfied that the extended supervision order, as sought, can be said to lack utility.
[15] Section 12 of the Act.

The respondent has objected to the inclusion of an electronic monitoring condition and a night time curfew. His counsel submitted that these restrictions were unnecessary in the respondent’s circumstances and compliance by him would prove very difficult. However, I take the view that, given the respondent’s record of repeatedly offending in the past, his history of failing to comply with supervision type requirements (bail and parole conditions) and the opinion of Dr Crouch, these two requirements should be of real assistance to Corrections in its attempts to properly supervise the respondent and moderate the risk he poses to the safety of the community. Dr Crouch expressed this opinion with which I agree.
[The respondent] has a history of itinerancy and poor engagement, electronic monitoring and a curfew could assist in maintaining stable accommodation and engagement with services, which would in turn modify his risk of offending.
I am satisfied that the conditions proposed by the Attorney-General, including the curfew and the electronic monitoring conditions, are necessary in order to address appropriately the need to take account of the safety of the community. I am satisfied that an order should be made in the first instance for a period of two years and six months. I think it appropriate, in this case, that if the Attorney, in due course, takes the view that another extended supervision order is warranted, a fresh application with an updated evidentiary basis should be made.
I am satisfied that the Attorney-General has made out the requirements of subsection 7(4) and I will make the order as sought for a period of two years and six months.