Attorney-General (SA) v DEMOS - [2023] SASC 79

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v DEMOS
[2023] SASC 79
Reasons for Decision of the Honourable Justice Kimber
24 May 2023
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
Application pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act) by the Attorney-General for an extended supervision order.
On 30 April 2020, the respondent was sentenced to imprisonment for four years with a non-parole period of two years and six months for an offence of Causing Serious Harm with Intent to Cause Serious Harm. On 29 September 2022, while serving the sentence, the respondent was interviewed to assess his risk of violent offending. During this interview, and in response to questions regarding the offence, the respondent said that ‘he would probably do it again’.
On 2 November 2022, an interim supervision order was made. The respondent breached that order 12 days after being released into the community. His breaches involved failing to comply with his home detention condition, failing to reside at an approved address, and failing to obey the directions of his Community Corrections Officer.
The Attorney-General’s application is made on the grounds the respondent is a high risk offender as defined in the Act and poses an appreciable risk to the community if not supervised under the order sought.
Held:
1.The respondent is a high risk offender and poses an appreciable risk to the safety of the community if not supervised under an extended supervision order.
2.The discretion to order the respondent be subject to an extended supervision order should be exercised.

3. The period of the extended supervision order should be 18 months.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 5, 6, 7, and 10, referred to.
Attorney-General (SA) v Fenner [2020] SASC 107; R v Kimmins [2016] SASC 176, applied.

ATTORNEY-GENERAL (SA) v DEMOS
[2023] SASC 79
Criminal: Application
KIMBER J:

On 25 October 2022, the Attorney‑General filed an application for the respondent to be subject to an extended supervision order pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). The head sentence of the respondent was due to expire on 4 November 2022.
On 2 November 2022, I made an interim supervision order pursuant to s 9 of the Act. Pursuant to s 7(3) of the Act, I directed that one prescribed health professional examine the respondent and report to the Court on the results of the examination, including an assessment of the likelihood of the respondent committing a further serious offence of violence. Dr Raeside conducted that examination on 15 December 2022 and his report is dated the following day.
On 22 March 2023, I heard submissions with respect to the application pursuant to s 7(4) of the Act. The respondent was unrepresented and made clear that he did not wish to make…

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 DEMOS

Details

AGLC: Attorney-General (SA) v DEMOS [2023] SASC 79
Case: [2023] SASC 79
Decision Date

CaseChat Overview and Summary

In the case of Attorney-General (SA) v DEMOS, the applicant, the Attorney-General for South Australia, sought an extended supervision order for the respondent, DEMOS, following his release from prison. The court was tasked with determining whether the conditions proposed for DEMOS's supervision were appropriate, considering the risk he posed to the community and the need for close monitoring of his behaviour. The application was heard in the Supreme Court of South Australia.

The primary legal issue before the court was whether the stringent conditions proposed for DEMOS's supervision were justified, given his history of drug use, violent offending, and lack of participation in rehabilitation programs. The court needed to balance the respondent's rights with the need to protect the community and ensure compliance with parole conditions. This involved assessing the risk posed by DEMOS and determining the appropriate duration of the supervision order.

The court found that the conditions were appropriate and necessary to manage the risk posed by DEMOS. The extensive history of drug use, violent offending, and absence of participation in rehabilitation programs established a significant risk to community safety. The court emphasised the importance of closely monitoring DEMOS's behaviour to protect the public and facilitate his potential participation in rehabilitation programs. Given the evidence presented, the court concluded that the proposed 18-month duration of the supervision order was appropriate, allowing sufficient time for DEMOS to engage in any required programs and prepare relevant reports.

The court granted the Attorney-General's application for an extended supervision order, imposing the specified conditions on DEMOS for a period of 18 months. This decision was based on the significant risk posed by DEMOS and the need for close monitoring to protect the community and facilitate his participation in rehabilitation programs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Before imposing the above condition, I was cognisant it is a very stringent, restrictive condition. Other than as provided for within the condition, the respondent is confined to his address for six months from the date of the order (unless the Parole Board determines it to be for some other period). I was satisfied the condition was appropriate as I was satisfied that the history of drug use by the respondent, his history of violent offending, absence of relevant participation in a rehabilitation program and the comments the respondent made on 29 September 2022 established that he posed a significant risk to the safety of the community if released. The condition was appropriate in order to promote the protection of the community and the ability to closely monitor the behaviour of the respondent. Duration of the order In all the circumstances, I was satisfied the extended supervision order should be for a period of 18 months. As the Attorney‑General submitted, that period was what was likely to be necessary to allow the respondent to be referred to, and participate in, any programs which he may be directed to attend. That period would also allow for the preparation of any report with respect to that participation.