Attorney-General (SA) v Fenner

Case [2020] SASC 107

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

ATTORNEY-GENERAL (SA) v FENNER

[2020] SASC 107

Judgment of The Honourable Justice Livesey

18 June 2020

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY

Pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“the Act”) the Attorney-General made an application for the respondent to be subject to an extended supervision order for a period of 12 months. In February 2010 the respondent was sentenced to a period of imprisonment after pleading guilty to unlawful sexual intercourse with a person of the age of 15 years contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”). That term of imprisonment was wholly suspended upon the respondent entering into a bond to be of good behaviour for three years.

The respondent breached the bond by committing further criminal offences which included violent offending. As a consequence, the suspended sentence was revoked and the respondent was required to serve its entire term cumulative upon the sentences of imprisonment that were imposed for the further offending. The respondent's head sentence expired on 14 March 2020.

Section 5(a) of the Act defines a “high risk offender” to include “a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence”. The respondent opposed the Attorney’s application for an extended supervision order on the basis that he does not satisfy the definition of “high risk offender” within the meaning of s 5(a). He conceded that by virtue of his offence contrary to s 49(3) of the CLCA he committed a serious sexual offence and is a serious sexual offender but submitted that because he received a suspended sentence he was not “sentenced to a period of imprisonment”. He also contended that the evidence adduced by the Attorney-General does not establish that he poses an appreciable risk to the safety of the community if not supervised under an extended supervision order.

Held, granting the application:

1. The respondent is a “high risk offender” within the meaning of s 5(a) of the Criminal Law (High Risk Offenders) Act 2015 (SA). A “sentence to a period of imprisonment” for the purposes of s 5(a) includes a sentence of imprisonment that has been suspended, either wholly or partially.

2. The respondent poses an appreciable risk to the safety of the community if not supervised under an extended supervision order.

3. The respondent is to be subject to an extended supervision order for a period of 12 months commencing on 18 June 2020.

Crimes (High Risk Offenders) Act 2006 (NSW) s 4A; Criminal Law Consolidation Act 1935 (SA) s 49; Criminal Law (High Risk Offenders) Act 2015 (SA) s 3, s 4, s 5, s 7, s 10, s 11, s 12, s 18, s 21;

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Attorney-General (SA) v Fenner [2020] SASC 107
Case
[2020] SASC 107
Decision Date

CaseChat Overview and Summary

The case of Attorney-General (SA) v Fenner involved the application of the Attorney-General for an extended supervision order in relation to Mr Fenner, a convicted serious sexual offender who was to be released from prison. The legal issues before the court were whether Mr Fenner was a high-risk offender under the High Risk Offenders Act and whether certain post-custodial conditions were necessary for the protection of the community. The court had to consider the meaning of "sentenced to a period of imprisonment" in the context of a suspended sentence and whether the prescribed conditions were necessary for the protection of the community.

The court held that Mr Fenner was a high-risk offender as he was a serious sexual offender who was sentenced to a period of imprisonment, notwithstanding that the sentence was suspended. The court held that a suspended sentence remains a sentence to a period of imprisonment. The court also held that certain conditions, including restrictions on the use of electronic devices, were not necessary for the protection of the community. The court made an extended supervision order for a period of 12 months with specified conditions.

The court ordered that Mr Fenner be subject to an extended supervision order for a period of 12 months with specified conditions, including restrictions on possession of firearms, ammunition, and offensive weapons, and requirements to submit to drug and alcohol testing and comply with a curfew. The order took effect on 18 June 2020.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In the light of this legislative context, I turn to consider the Attorney’s application concerning Mr Fenner.Evidence received In support of the Attorney’s application I received and have considered the following material:1Report of Dr Craig W J Raeside, forensic psychiatrist, dated 6 April 2020 (exhibit A1);2Affidavit of Holly Frances Nikoloff sworn 3 March 2020 (exhibit A2);3Second affidavit of Holly Frances Nikoloff sworn 17 March 2020 (exhibit A3); and4Letter dated 26 March 2020 to the Forensic Community Mental Health Service (exhibit A4). Dr Raeside was also called to give oral evidence. He was cross-examined by counsel for Mr Fenner. Following the hearing, counsel for Mr Fenner provided a report from the Parole Board dated 8 May 2020 regarding, among other things, his alleged breach of the “no-contact” condition in his interim supervision order on 14 March 2020. The Attorney did not object to my receiving of the report. I have had regard to it and will return to this alleged breach below.Mr Fenner’s personal circumstances Mr Fenner was born in Hobart and is currently 37 years old. He has one full brother and two half siblings. He is the father of four children aged, approximately, 17, 15, 11 and eight. Mr Fenner has not seen his children in the last couple of years. Mr Fenner’s family travelled frequently during his childhood. As a result, he attended numerous primary schools. His childhood was marred with turmoil in the family and whilst he had a “pretty good” relationship with his father, he had a difficult relationship with his mother although it had improved over time. When Mr Fenner’s parents separated he went to live with his father and his father’s girlfriend. He reports being sexually abused on a couple of occasions by his father’s girlfriend. Mr Fenner’s father died in 1999 from alcohol-related problems. Following his death, Mr Fenner moved to South Australia to live with his mother. Mr Fenner was schooled to near the end of year 10. He was suspended a few times for what he describes as “being a nuisance, an outcast”. He eventually left home at the age of 15 or 16. This coincided with when he left school. After leaving school Mr Fenner worked in a local meatworks for three years and mainly worked in meatworks subsequently. However, a significant injury suffered at work when his hand became stuck in a conveyer belt, which also dislocated his shoulder, ended his career. He also had a major motor vehicle accident in the late 2000s when he fell asleep whilst driving and crashed into a tree. He suffered significant injuries. Mr Fenner began using marijuana at the age of 15. He smoked around two grams a day. He began using amphetamines when he was 16. At his heaviest he was using (on average) one half to one gram a day spread over the week, initially orally, then smoking. His cannabis and methamphetamine use helped to increase his social confidence. Mr Fenner also has a significant history of opioid dependence. He is currently prescribed methadone (30 ml a day). In custody, he has tested positive to drugs on several occasions. In some instances he refused to provide a sample.

Decision

Reasons for decision

I do not consider these conditions to be necessary for the protection of the community in light of my findings at [132]. Whilst during the hearing of the application it was suggested that Mr Fenner could use electronic devices as a means of accessing drugs, there is no evidence before me to suggest that that is the case.Conclusion and orders I order that Mr Fenner be subject to an extended supervision order for a period of 12 months pursuant to ss 7(4) and 12(1) of the High Risk Offenders Act. The extended supervision order is subject to the following conditions:1The respondent is to be subject to an extended supervision order for a period of 12 months from the date of this order.2The conditions to which the respondent is subject are:2.1 the respondent will not commit any offence;2.2 that the respondent is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 2015 (SA)) or any part of a firearm;2.3 that the respondent is prohibited from possessing an offensive weapon unless the Supreme Court permits the person to possess such a weapon and the person complies with the terms and conditions of the permission;2.4 that the respondent will:2.4.1be under the supervision of a community corrections officer;2.4.2obey the reasonable directions of that community corrections officer;2.4.3submit to such tests (including testing without notice) for gunshot residue as the community corrections officer may reasonably require;2.5 the respondent will not depart from or attempt to depart from the State of South Australia without obtaining the written approval of the Parole Board at least seven (7) days prior to travel;2.6 the respondent will reside at an address that is approved in writing by his community corrections officer and will not change his residence without the prior written approval of his community corrections officer;2.7 for six months commencing on the making of this order the respondent will be fitted for an electronic monitoring device and wear this device as determined by the Parole Board. The respondent will obey all directions of his community corrections officer with respect to the wearing and maintenance of the electronic monitoring device. In the event of non-compliance with this order the Parole Board may extend the six-month period;2.8 upon his release from prison the respondent will be subject to a curfew for such period of time as determined by the Parole Board. Whilst subject to a curfew the respondent is to remain in his residence between 9 pm and 6 am, and he will present to police, a community corrections officer or such person as is authorised to conduct a curfew check at his front door on request;2.9 the respondent will maintain a telephone service for the duration of this order and provide his community corrections officer with the phone number(s);2.10 the respondent will not exceed a blood alcohol concentration of 0.05 grams of alcohol per 210 litres of breath;2.11 the respondent will not use, possess or administer any illegal or prescription drug except in accordance with the directions of a legally qualified medical practitioner;2.12 the respondent will advise his community corrections officer of any drug that has been prescribed to him by a legally qualified medical practitioner;2.13 the respondent will submit to drug and alcohol testing (including testing without notice) as directed by his community corrections officer and will do all things and sign all forms as may be necessary to enable samples to be taken and analysed, and to enable the results of such analysis to be provided to his community corrections officer and/or the Parole Board;2.14 the respondent will attend and participate in any assessments and/or counselling and/or treatment and/or programs for mental health issues and/or substance abuse issues as directed by his community corrections officer;2.15 the respondent will attend and engage with an employment support provider as directed by his community corrections officer;2.16 the respondent will obtain the approval of his community corrections officer prior to undertaking any remunerated or voluntary work;2.17 the respondent will not approach or contact, directly or indirectly, [JC] or [EW];2.18 the respondent will comply with any condition imposed by the Parole Board under s 11 of the Criminal Law (High Risk Offenders) Act 2015 (SA).3The extended supervision order takes effect on 18 June 2020.

Ratio Decidendi

Legal Principle Established

A further issue agitated by the parties concerned material a prescribed health professional should be given access to under s 21 of the Act for the purposes of examining the respondent and preparing a report. The respondent’s position was that a prescribed health professional should not be given access to materials regarding criminal offences allegedly committed by the respondent but which ultimately did not proceed or were not otherwise proved in court. The Attorney’s response was that there is nothing in ss 7 or 21 which expressly, or by necessary implication, limits the materials that can be considered by a prescribed health professional. In any event, in this matter, Dr Raeside confined his assessment to the matters for which Mr Fenner had been convicted. This may be contrasted with the broader basis on which the SBC post-treatment assessment report had been prepared. Consideration I shall now consider s 7(4) of the High Risk Offenders Act.Is the respondent a high risk offender? As mentioned earlier in these reasons, the first of the two jurisdictional facts in s 7(4) which the Attorney-General must prove is that the respondent is a “high risk offender”. In this case that requires the Court to be satisfied that Mr Fenner is, for the purposes of s 5(a), “a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence”. I am satisfied that Mr Fenner committed a “serious sexual offence” and is a “serious sexual offender”. The question of construction is whether Mr Fenner was “sentenced to a period of imprisonment” with respect to the serious sexual offence within the meaning of s 5(a) where that sentence was suspended pursuant to s 96 of the Sentencing Act 2017 (SA) or its predecessor, s 38 of the Criminal Law (Sentencing) Act 1988 (SA). The general principles of statutory construction are well settled. In Certain Lloyd’s Underwriters v Cross the joint reasons of French CJ and Hayne J again articulated those principles, emphasising text, context and evident statutory purpose.[24] In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue Hayne, Heydon, Crennan and Kiefel JJ said:[25]This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.(Footnotes omitted.)[24] (2012) 248 CLR 378, [23]-[25].[25] (2009) 239 CLR 27, [47]. Part of the relevant statutory context is the means by which sentences come to be suspended. By s 96 of the Sentencing Act 2017 (SA) the power of a sentencing court to suspend a period of imprisonment is conditioned on a finding “that good reason exists for doing so”.[26] The same approach can be seen in the former s 38 of the Criminal Law (Sentencing) Act 1988 (SA). From s 96 and its progenitor it can be discerned that a suspension of imprisonment in South Australia is only available where, first, the sentencing court imposes a term of imprisonment and, secondly, the court is satisfied that good reason exists to suspend it. Unless that first step is taken, the second cannot arise. When the bond that is entered into as part of the suspension is not complied with, and the suspension is revoked, it is the original sentence of imprisonment that confronts the offender. It follows then that a sentence that has been suspended, whether wholly or partially, stands as and remains a sentence to a period of imprisonment.[27][26] Sentencing Act 2017 (SA), s 96(1).[27] Elliot v Harris (No 2) (1976) 13 SASR 516, 527 (Bray CJ); R v O’Keefe [1969] 2 QB 29, 32 (Lord Parker CJ); R v Gillan (1991) 100 ALR 66, 71 (the Court).