Attorney-General (SA) v Cromb - [2024] SASC 116

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v CROMB
[2024] SASC 116
Judgment of the Honourable Justice McDonald
20 September 2024
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS CRIMINAL
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - COMMUNITY BASED ORDERS
The Attorney-General seeks the imposition of an extended supervision order, submitting that the respondent poses a high risk to the community given the nature of his offending. The Attorney-General further submits that despite the apparent progress of the respondent both in custody and continuing upon his release, the respondent has only been out of custody for a short period of time and for that period has been subject to parole conditions. It was submitted that an extended supervision order is necessary to allow for the continued supervision of the respondent’s progress.
The respondent submits that it is for the Attorney-General to establish that an extended supervision order is required to mitigate the risk the respondent poses to the community, which on the respondent’s submission, the Attorney-General has not done. In any event the respondent further contends that an extended supervision order is not required due to a combination of factors including: the lack of criminal antecedents and hence absence of entrenched recidivist behaviour; the fact that the respondent has not contacted any of his former associates; and that the respondent has made significant personal progress with the help of therapy sessions.
Held: The application for an extended supervision order is granted – but for a shorter period, being 12 months, than that applied for.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 3, s 5(ca), s 7, s 9(1); Criminal Law Consolidation Act 1935 (SA) s 83CA(1)(b), referred to.
Cromb v The King; Pay v The King [2024] SASCA 8; Attorney-General v Grosser [2016] SASC 49, considered.

ATTORNEY-GENERAL (SA) v CROMB
[2024] SASC 116
Criminal: Application
McDONALD J.

On 2 June 2023, Mr Cromb was sentenced to two years, six months and 19 days imprisonment with a non-parole period of 18 months for the offence of possessing a document or record containing information of a kind likely to be of practical use to a person committing or preparing a terrorist act.[1] The sentence was backdated to commence on 4 March 2022, when Mr Cromb was first taken into custody.
[1] Criminal Law Consolidation Act 1935 (SA) s 83CA(1)(b).
On 27 September 2023, the Attorney-General filed an application that Mr Cromb be made the subject of an extended supervision order (‘ESO’) under s 7(1) and s 9(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’). The basis of the application is that Mr…

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 Cromb

Details

AGLC: Attorney-General (SA) v Cromb [2024] SASC 116
Case: [2024] SASC 116
Decision Date: 20 September 2024

CaseChat Overview and Summary

In the case of Attorney-General (SA) v Cromb, the court was tasked with determining whether to impose an Extended Supervision Order (ESO) on Mr Cromb, a convicted individual deemed a high-risk offender. The Attorney-General applied for the ESO under the Criminal Law (High Risk Offenders) Act 2015 (SA), seeking to protect the community from any appreciable risk Mr Cromb might pose upon his release from custody. The key legal issue revolved around whether Mr Cromb indeed posed an appreciable risk to the community that warranted such a supervisory order.

The court meticulously reviewed the evidence presented, including expert reports, parole compliance reports, and assessments by the Offenders Aid and Rehabilitation Services of South Australia (OARS). Despite the broad definition of terrorist offences and the inherent challenges in precisely quantifying the risk Mr Cromb might present, the court held that the paramount consideration must be the safety of the community. The court concluded that while Mr Cromb had demonstrated compliance with parole conditions and engagement in rehabilitation programs, the nature of his previous offences, which involved the possession of extremist materials, posed a significant threat. The court found that Mr Cromb's association with groups that could radicalise others and the potential for his activities to facilitate terrorist acts constituted an appreciable risk to the community.

The court ultimately decided against making an ESO, noting that the safety of the community was not sufficiently threatened by Mr Cromb at that particular juncture. However, the court left the door open for future reconsideration should circumstances change. This nuanced decision underscored the court's commitment to balancing individual rehabilitation efforts with the imperative to safeguard public safety.

Orders

Orders of the court

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Background

Background to the litigation

The issue on this application is whether Mr Cromb poses an appreciable risk to the safety of the community if not supervised under an ESO.Background to the application As I have said, the Attorney-General filed the application for an ESO on 27 September 2023. The application first came before the Court on 4 October 2023. On that occasion, the hearing was adjourned to enable Mr Cromb’s counsel to obtain instructions. The application next came before the court on 25 October 2023, at which time a report was ordered from a prescribed health professional to report on the likelihood of Mr Cromb “committing a terrorist offence, or otherwise being involved in a terrorist act, or committing a serious offence of violence”.[2] Counsel for the Attorney-General advised the Court that at that time an interim supervision order was not sought as Mr Cromb’s relevant expiry date was not until 24 September 2024.[2] Criminal Law (High Risk Offenders) Act 2015 (SA) s 7. The matter next came before the Court on 22 May 2024. At that time Mr Cromb remained in custody. In the intervening period a comprehensive report had been provided by Dr Paul Furst. On 9 July 2024, Mr Cromb was released from custody on parole. His parole conditions include non-intensive electronic monitoring with a curfew. His parole is due to expire on 22 September 2024, which means he will only have had the benefit of supervision in the community for two and a half months.Parole Board report At the request of Mr Cromb’s counsel, a report was ordered from the Parole Board addressing Mr Cromb’s compliance with his parole conditions. That report was provided on 20 August 2024. The Parole Board expressed the view that given the relatively short period of time that Mr Cromb has been in the community, it was “too early to form a view about compliance particularly given that he is a high-risk terror suspect”. The Parole Board reported that to date Mr Cromb has complied with his parole conditions and is engaging with a psychologist, Ben Stewart, on a fortnightly basis. His drug and alcohol tests have all been negative, he attends supervision as directed, and engages in the social inclusion program which provides social support including activities such as fishing, gardening and hiking. Mr Cromb has also recently commenced part time employment, working two days a week as a shoe repairer. Prior to his incarceration he had previously worked in this role.OARS report Mr Cromb has also been receiving the assistance of the Offenders Aid and Rehabilitation Services of South Australia (‘OARS’), both whilst in custody, and since his release into the community. I have been provided with two reports from this organisation. The first, dated 16 August 2024, provides details of the OARS crisis emergency accommodation that has been provided to Mr Cromb. In that report the author notes:Mr Cromb has engaged well throughout his tenancy thus far and has adhered to tenancy requirements and expectations with no visitors on site, no illicit substances, no illegal activity, rent paid on time, no property damage or concerns with household management. There has been no reports of complaints and his engagement with Senior case management has been respectful, friendly and responsive when contacted.

Evidence

Evidence Before The Court

I agree that an ESO should not be made to “see how a person released on parole will go”. The only question for me is whether Mr Cromb poses an appreciable risk to the community, and whether it is appropriate that I make such an order. It follows, therefore, that the fact that Mr Cromb was held in custody beyond the expiry of his non-parole period, can have little weight beyond informing whether Mr Cromb does in fact pose that risk.Absence of evidence establishing that Mr Cromb poses an appreciable risk to the community if not supervised under an ESO It is the role of this Court to determine whether Mr Cromb poses an appreciable risk to the community if not supervised under an ESO. Whilst the experts endeavour to assist the Court by quantifying that risk, it does not derogate from the responsibility of the Court to make the determination. It was Mr Wilson’s submission that there are two fundamental flaws with the efforts of the experts and the Attorney-General to measure the risk posed by Mr Cromb. These are that Dr Furst himself accepts that his attempts to quantify the risk is little more than an “educated guess”.[48] Secondly, that the range of offences under consideration is so wide that there is a lack of clarity around the nature of the threat that it is suggested that Mr Cromb poses.[48] Furst Report at [11.6]. I have already set out the relevant passages from Dr Furst’s report that relate to his attempts to quantify or measure the risk posed by Mr Cromb. I will not repeat them. There is some force in the submission made by Mr Wilson that there is a degree of artificiality in any attempt to apply some form of mathematical formula to arrive at a percentage reflecting the likelihood of the commission of a further terrorist offence. There is equally force in the submission that the range of offences that falls within the definition is so broad that such an exercise in quantification, is of limited value in considering the question of a risk to the community. It was Mr Wilson’s submission that the risk to the community is that described by the Court of Appeal in Cromb and Pay when the Court said:[49]The circumstances of possession are important and inform the risk that the material might have become available to someone else. There was a real risk of the documents becoming available to someone open to being radicalised, including to violence. The material was possessed by persons who held, or had held, leadership positions in white supremacist groups, the purpose of which was to attract members and radicalise them.[49] Cromb v The King; Pay v The King [2024] SASCA 8 at [101]. Based upon that observation, the submission was made that the only risk posed by Mr Cromb was that:[50][H]e was affiliated with a group who would recruit and indoctrinate others it increased the likelihood of those documents containing information that could be of practical use in committing a terrorist offence falling into the wrong hands and leading to either or both the radicalisation of others or the assistance or motivation or practical assistance that might be provided for others to commit a terrorist act. [50] T27-28.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

With respect to Mr Wilson, I do not agree that what fell from the Court of Appeal in the passage cited above limits the manner in which this Court can now assess the risk posed by Mr Cromb. The Court of Appeal were considering whether a sentence that had been imposed for an offence that involved the possession of extremist documents was manifestly excessive. It was important in that context to consider the circumstances in which the documents were in Mr Cromb’s possession. That did not detract from the earlier passage in the judgment in which the Court made the following observation about offences of this type:[51]Offences involving material which can be characterised as being terrorist have the potential to be very harmful and are to be treated seriously. We agree with the respondent that this is reflected in the Explanatory Memorandum to a Bill that was recently enacted by the Commonwealth Parliament creating a similar offence to s 83CA. The Explanatory Memorandum to that Bill includes the following:By attaching criminality to the nature of material possessed, the offences would reflect the harm that is inherent in violent extremist material. Violent extremist material is harmful because it facilitates radicalisation. Violent extremist material may encourage and assist in planning violent acts. These acts can threaten public safety, and Australia’s core values and principles, including human rights, the rule of law, democracy, equal opportunity and freedom. While Australians are free to hold and communicate a variety of beliefs, the use or advocacy of violence to promote these beliefs is unacceptable. Violent extremist material adversely affects social cohesion as it can vilify and portray or encourage violence against certain groups in society. Australians have the right to live free from discrimination, hatred and violence. (Footnotes omitted)[51] Cromb v The King; Pay v The King [2024] SASCA 8 at [31].Consideration The object of the HRO Act is to provide a means to protect the community from being exposed to an appreciable risk of harm posed by various serious offenders. It follows that the paramount consideration of this Court in determining whether to make an ESO must be the safety of the community.[52][52] Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(5). By virtue of the nature of the offence he has committed, Mr Cromb is a high-risk offender. The definition of a terrorist offence is broad, broad enough to include the possession of terrorist materials. This no doubt reflects that terrorist conduct of any form poses one of the gravest threats to the safety of society. In Attorney-General v Grosser,[53] Stanley J considered the concept of an “appreciable risk”. His Honour said:[54]I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible. Necessarily, a risk must be anticipatory. An appreciable risk is a risk that is not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in future in a manner that poses a risk to the safety of the community. It is a question of degree. The extent of the appreciable risk is informed by the consideration that in determining whether to make an extended supervision order the safety of the community is paramount. I construe that requirement to mean that where a court considers that the question of whether to make an order is finely balanced, the protection of the community would favour making the order rather than declining to do so.(Footnote omitted)[53] [2016] SASC 49.[54] Ibid at [29].