Attorney-General (SA) v DUTHIE - [2023] SASC 82

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v DUTHIE
[2023] SASC 82
Judgment of the Honourable Justice McIntyre
24 May 2023
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
On 25 November 2022, this Court made an interim supervision order with respect to the respondent pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act).
The respondent conceded that he is a high risk offender and largely consents to the making of an extended supervision order under s 7 of the Act in the terms proposed by the applicant. However, he opposes home detention conditions being imposed.
Held:
1. An extended supervision order will be made in the terms proposed by the applicant.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, referred to.
Attorney-General (SA) v Grosser (No 3) [2017] SASC 89, considered.

ATTORNEY-GENERAL (SA) v DUTHIE
[2023] SASC 82
Criminal: Application
McINTYRE J:

The applicant, the Attorney-General for the State of South Australia, applies for an extended supervision order (ESO) under s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). The respondent was subject to an ESO from 29 November 2018 until 28 November 2022. He is currently subject to an interim supervision order (ISO) made on 25 November 2022 pending the determination of these proceedings.
The respondent concedes, and I am satisfied, that he is a high-risk offender. He further concedes that he poses an appreciable risk to the safety of the community if not supervised under an ESO. I am satisfied that this is the case and that it is appropriate that an ESO should be made. The issue is whether the respondent ought to be subject to home detention conditions. Specifically, the respondent contests paragraph 28 of the draft orders proposed by the applicant which reads as follows:
Unless otherwise provided by the Parole Board, the Respondent will not leave his residence at any time without the prior approval of his Community Corrections Officer, except for the purpose of remunerated employment, urgent medical or dental treatment, to minimise the risk of serious injury or death to himself or to any other person, or any purpose approved or directed by his Community Corrections Officer.
The respondent contends that the imposition of a home detention order is unduly onerous and, in many respects, counterproductive. It is said that the risk to the community is exacerbated by the imposition of home detention conditions and that the home detention conditions in the previous order did not prevent the respondent engaging in further offending.
The appellant says that the respondent’s risk has not decreased since the previous order was made. The respondent has had little opportunity to undertake rehabilitation in the community owing to his concerning pattern of non-compliance with the supervision order including fresh…

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.

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Details

Case: [2023] SASC 82
Decision Date

CaseChat Overview and Summary

The case of Attorney-General (SA) v Duthieis a criminal application concerning the imposition of an extended supervision order (ESO) on the respondent, who had previously been subject to an ESO and an interim supervision order. The Attorney-General for the State of South Australia sought the order under the Criminal Law (High Risk Offenders) Act 2015 (SA). The primary legal issue the court had to decide was whether the respondent should be subject to home detention conditions as part of the ESO. The respondent contested the proposed home detention conditions, arguing they were unduly onerous and counterproductive, while the Attorney-General argued that the conditions were necessary to protect the community given the respondent's history of non-compliance and further offending.

The court considered the respondent's history of non-compliance with previous supervision orders, his pattern of deceptive and manipulative behaviour, and his risk of reoffending. The court also took into account reports from the Parole Board and a forensic psychiatrist, Dr Raeside, who both supported the imposition of the home detention conditions to protect the community. While the court acknowledged the restrictive nature of home detention and its potential to cause frustration and boredom for the respondent, it found that the paramount consideration was the safety of the community. The court noted that the respondent's unwillingness to comply with the conditions and his lack of insight into the necessity for them demonstrated the need for strict supervision upon his release. The court held that the home detention condition should remain in place to facilitate the respondent's transition into the community and his participation in rehabilitation, with the possibility of applying for its removal if he demonstrated improved compliance and rehabilitation efforts.

In summary, the court granted the Attorney-General's application for an extended supervision order with home detention conditions, rejecting the respondent's opposition to these conditions. The court emphasised the need to balance the respondent's rights and freedoms with the paramount consideration of public safety, and it found that the home detention conditions were necessary to protect the community given the respondent's history of non-compliance and risk of reoffending.

Orders