Attorney-General (SA) v Dutton - [2025] SASC 143

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v DUTTON
[2025] SASC 143
Reasons for Decision of the Honourable Justice Kimber
29 August 2025
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER
Between about 2014 and 2018, the respondent committed sexual offences involving two young males (the sexual offences).
On 22 May 2024, the respondent was made subject to an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). The supervision order expires on 21 November 2026.
There is no dispute that the respondent breached a condition of the extended supervision order by testing positive to methamphetamine and amphetamine on 20 December 2024 and 6 January 2025. The respondent also breached conditions of the earlier interim supervision order. Pursuant to s 17 of the Act, the respondent has been referred to this Court for consideration of whether a continuing detention order should be made.
The sexual offences were committed when the respondent had been drinking and the same was the case when the respondent exchanged the text messages. The Attorney-General submits that the failure of the respondent to comply with the conditions of both the interim supervision order and extended supervision order by consuming alcohol, and more recently methamphetamine and amphetamine, informs the risk of the respondent committing an offence involving a child. The Attorney-General also submits that the Sexual Behaviour Clinic (SBC) program is an unmet treatment need and that program is likely to be able to be made available to the respondent in custody. The respondent submits that a continuing detention order should not be made. The respondent does not dispute that he needs to engage in treatment but submits that there is no certainty that the SBC program will be made available to him if he is detained.
Held:
1.The respondent has breached his extended supervision order and poses an appreciable risk to the safety of the community if not detained in custody.
2.The discretion to make a continuing detention order should be exercised.
3.Pursuant to section 18(2)(c) of the Act, the respondent is to be subject to a continuing detention order until 21 November 2026.

Criminal Law Consolidation Act 1935 (SA) s 63B(3)(b); Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 9, 12, 17, 18, referred to.
Attorney-General (SA) v Coaby [2019] SASC 137; Attorney-General (SA) v Drion [2020] SASC 120; Attorney General (Qld) v Francis [2007] 1 Qd R 396; Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74; Garlett v Western Australia (2022) 277 CLR 1; R v Schuster (2016) SASR 388, applied.

ATTORNEY-GENERAL (SA) v DUTTON
[2025] SASC 143
Criminal: Application
KIMBER J:

Mr Andrew Dutton (the respondent) is subject to an extended supervision order pursuant to…

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 Dutton

Details

AGLC: Attorney-General (SA) v Dutton [2025] SASC 143
Case: [2025] SASC 143
Decision Date: 29 August 2025

CaseChat Overview and Summary

In the case of Attorney-General (SA) v Dutton, the defendant, identified as the respondent, was convicted of offences including gross indecency involving young male victims. The court was tasked with determining the appropriate sentence and post-custodial orders to ensure public safety, given the respondent's history of similar offences and his recent communications with one of the victims. The legal issues revolved around the imposition of a continuing detention order under the Dangerous Sexual Offenders (Public Protection Orders) Act 2009 (SA) and the determination of the duration of such an order.

The court examined the respondent's history of offending, which included multiple incidents of gross indecency involving young males and his continued communication with one of the victims. Despite the respondent's claim that his actions were influenced by alcohol dependency, the court found that his inability to comply with conditions of orders and his ongoing interest in young males posed a significant risk to the community. The court noted that the respondent's contact with the victim, even while in custody, was a breach of his extended supervision order, highlighting a concerning pattern of behaviour.

Considering the risk posed by the respondent and his demonstrated inability to comply with legal conditions, the court concluded that the discretion under the Act should be exercised. The court determined that the respondent's risk could not diminish substantially before completing a specialised behaviour change program (SBC). Consequently, the court ordered that the respondent be subject to a continuing detention order until 21 November 2026. The court recognised that while it was uncertain whether the respondent would be accepted into the SBC program, if he was not, he could apply for a review of his detention under the Act.

Orders

Orders of the court

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Background

Background to the litigation

The contact with EC while detained in custody is not a breach of the extended supervision order as, pursuant to s 12(2) of the Act, those conditions are suspended while a person is in custody. Nevertheless, that the respondent was communicating with EC is still relevant, particularly in the context of the respondent’s offending history and the text messages with EC to which I have earlier referred. Along with other conduct, the contact with EC while in custody contributes to the existence of a concern that the interest of the respondent in EC is one which continues despite his arrest in 2024 and appearance before the Parole Board. Other aspects of the background of the respondent The respondent is 41 years of age. The respondent had a difficult childhood. His parents separated when he was eight years of age and he moved houses frequently between the ages of 12 and 14. This disrupted the education of the respondent, and he did not complete year 11. At about the age of eight years, the respondent was sexually abused by a family friend. The respondent has reported that this abuse ‘fucked up his life’, caused him to have problems with trust and that it was one of the main reasons that he started drinking. On leaving school, the respondent had several different jobs but appears to have been unemployed for about four years commencing in about 2016. At the age of 17, the respondent commenced a long relationship with an older woman, but she has passed away. The respondent has two sons. The respondent has several convictions over a period of about 20 years. The overwhelming majority of those convictions are for driving offences, breaches of bail and breaches of intervention orders. However, in 2014, 2016 and 2018 the respondent committed offences in which the victims were young males. The offence in 2014 was gross indecency. The victim was 10 years of age and the friend of one of the sons of the respondent. The victim was at the home of the respondent playing video games with the son. The victim turned around and saw that the respondent was standing in the door and was masturbating with his penis exposed. The victim immediately reported the matter to his parents and to the police, but nothing further came of the matter at that time. The offence in 2016 was also gross indecency and involved a different victim. The second victim was about 12 or 13 years of age and visiting the home of the respondent as a friend of the respondent’s son. The second victim went to go to the bathroom and saw the respondent looking at him and masturbating while standing in the hallway. Two years later, when the second victim was about 15 years of age, the respondent contacted him by Facebook Messenger. There then followed video calls and written messages with the purpose of making the second victim amenable to sexual activity, an offence contrary to s 63B(3)(b) of the Criminal Law Consolidation Act 1935 (SA). The respondent pleaded guilty to the three offences just outlined and was sentenced in the District Court in May 2023. In submissions on sentence, it was put by the respondent that the offending had occurred when under the influence of alcohol. The respondent submitted that he had been alcohol dependent and was drinking every day to the point of passing out. The sentencing Judge told the respondent that he needed to continue his abstinence from alcohol. For all three offences, the sentencing Judge imposed a head sentence of two years, 10 months and seven days with a non-parole period of one year and 10 months. That sentence was backdated to 3 November 2020. The report of Mr Luke Williams

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Given the risk posed by the respondent; his demonstrated inability to comply with the conditions of orders pursuant to the Act; his engagement in sexual communications with EC; and the paramount consideration of the safety of the community, I find that the discretion should be exercised. The duration of the order Given the respondent’s conduct in 2014, 2016 and 2018; the text messages with EC; the respondent’s inability to avoid the use of substances likely to lead to disinhibition; and the unmet need of, at least, treatment for his sexual interest in children, I am unable to conclude that the risk posed by the respondent may diminish in any substantial way before the SBC program is completed. For that reason, I order that the respondent be detained until 21 November 2026. I recognise that it is not certain that while in detention the respondent will be accepted into the SBC program commencing in October 2025. However, if, through no fault of his own, the respondent is not accepted, then he may have cause to advance an application pursuant to s 19 of the Act and submit that his detention be reviewed. That is not to express any view as to the merits of any such application. Orders Pursuant to s 18(2)(c) of the Act, I order that the respondent be subject to a continuing detention order until 21 November 2026.