Attorney-General (SA) v Davidson - [2018] SASC 91

Supreme Court of South Australia
(Criminal: Application)
ATTORNEY-GENERAL (SA) v DAVIDSON
[2018] SASC 91
Reasons for Ruling of The Honourable Chief Justice Kourakis (ex tempore)
14 May 2018
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
Application by the Attorney-General for the State of South Australia for an interim supervision order pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
The circumstances of the offending were that on 21 June 2013 the respondent caused harm by dangerous driving, aggravated by an attempt to escape police.
Held, granting the application:
1. The respondent is a serious violent offender for the purposes of s 4 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
2. The respondent be the subject of an interim supervision order pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA) on the terms and conditions as initialled by his Honour, including changes to the curfew hours.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 4, s 9; Criminal Law Consolidation Act 1935 (SA) s 19A, s 83D(1), referred to.

WORDS AND PHRASES CONSIDERED/DEFINED
"high risk offender", "interim supervision order"

ATTORNEY-GENERAL (SA) v DAVIDSON
[2018] SASC 91
Criminal

KOURAKIS CJ (ex tempore): This is an application by the Attorney-General for an interim supervision order pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act). The power to make a supervision order is conditioned on the respondent to the application falling within the definition of a serious violent offender, who was sentenced to a period of imprisonment in respect of the serious offence of violence. Pursuant to s 4 of the High Risk Offenders Act, a serious violent offender is defined as a person convicted of a ‘serious offence of violence’. A ‘serious offence of violence’ is in turn defined by reference to the meaning of those words in s 83D(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). Section 83D(1) of the CLCA in turn defines a ‘serious offence’ to be an indictable offence that is punishable by imprisonment for life or for a term of five years or more, and defines ‘serious offence of violence’ to mean the following:
Serious offence of violence means a serious offence where the conduct constituting offence involves—
(a)   the death of, or serious harm to, a person or a risk of death of, or serious harm to, a person: or
(b)   serious damage to property in circumstances involving a risk of the death of, or harm to, a person; or
(c)   perverting the course of justice in relation to any conduct that, if proved would constitute a serious offence of violence as referred to in paragraph (a) or (b).
The offence relied on by the Attorney-General in this case is an offence of causing harm by dangerous driving, aggravated by an attempt to escape police.[1] The circumstances of the offence, that is, the conduct constituting the offence for the purposes of the definition of ‘serious offence of violence’, were as follows. At about 9 am on 21 June 2013 police officers saw the respondent, Mr Davidson, driving along Commercial Road, Port Adelaide. They followed him along a series of roads before activating their emergency lights in the suburb of Alberton. Mr Davidson then accelerated away from police, sped along some suburban roads before turning into Port Road and travelling in the direction of the city. Speeds of over 90 km/h, in what was a 60 km/h zone, were reached. When Mr Davidson reached the intersection of Port Road and West Lakes Boulevard he braked heavily and turned right into the Boulevard but stopped at the traffic lights. When the traffic lights turned green the respondent continued along West Lakes Boulevard, overtaking other traffic as he went. He again reached speeds of about 90 km/h. Travelling along West Lakes Boulevard, he crossed over on to the wrong side of the road and drove towards oncoming traffic. Mr Davidson lost control of his car and collided head on with a Toyota sedan. At that time, or at least just before the collision, the speed of his car was between 40 and 50 km/h. The driver of the Toyota lost consciousness for a short time. She was conveyed to hospital suffering from fractured and bruised ribs, damaged tendons and associated swelling and bruising.
[1] Contrary to s 19A of the Criminal Law Consolidation Act 1935 (SA).
The offence, as I mentioned a moment ago, was one of causing harm only, not causing serious harm. The injuries that I have described were not characterised as sufficient to support a charge of causing more serious harm.
Mr Vadasz, for Mr Davidson, submits that the definition of serious offence of violence requires the respondent to have been convicted of an offence, an element of which is the causing of serious harm or creating a risk of serious harm. Mr Vadasz submits that, therefore, the subject offence in this case does not fall within the definition. I do not accept that submission. The definition of serious offence of violence calls attention to 'the conduct constituting the offence'.[2] That language is not apt to the restriction contended for by Mr Vadasz. It focuses on the actual conduct constituting the offence of which the respondent to the application was responsible for causing the conduct which I have just described is conduct which created a risk of serious harm even though the driver, largely as a matter of happenstance, was not serious harmed in this case.
[2] Section 83D(1), Criminal Law Consolidation Act 1935 (SA).
For that reason I find that the respondent is a serious violent offender and that proof of the enlivening condition of the exercise of the powers under the the High Risk Offenders Act has been discharged.
Mr Davidson is due for release on the expiry of his sentence on 20 May of this year. The Attorney-General therefore makes an application for an interim supervision order pursuant to s 9 of the the High Risk Offenders Act. This Court may make an interim supervision order if it is satisfied that the relevant expiry date for the respondent is likely to occur before the application is determined and that the matters alleged in the supporting material would, if proved, justify the making of an extended supervision order.
Plainly, the first limb is satisfied.
I am satisfied too with respect to the second limb. I acknowledge that the offence of aggravated cause harm by driving, which is the subject offence in this case, is an unusual basis for an application such as this but the offence is consistent with a pattern of broader dangerous offending of which Mr Davidson has been convicted over time. Mr Davidson’s prior offences include assaults, robberies, an earlier offence of endangering life and an offence of aggravated drive dangerously. It is to be observed that the motive for this offending was to evade police.
Mr Davidson's response to intervention programs, in and out of prison, have been less than ideal. I am satisfied that the material on which the Attorney-General relies to show that Mr Davidson could, if proved, establish a risk to the community if he were to be released without such an order.
Accordingly, I direct that a legally qualified medical practitioner, to be nominated by the clinical director Forensic Mental Health Services South Australia, examine Mr Davidson and report to the Court on the results of the examination, including an assessment of the likelihood of the respondent committing a further serious violent offence pursuant to s 7(3)(b) of the High Risk Offenders Act.
I also order that Mr Davidson be the subject of an interim supervision order on the terms and conditions which I initial this day with the changes to the curfew hours made by me and initialled by me.