Attorney-General (SA) v Gates - [2017] SASC 154

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v GATES
[2017] SASC 154
Judgment of The Honourable Justice Vanstone
27 October 2017
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS
The Attorney-General applies for an extended supervision order pursuant to section 7(1) of the Criminal Law (High Risk Offenders) Act 2015 intended to take effect following the release of the respondent from custody. The respondent is serving a sentence for aggravated robbery. He robbed a service station attendant at knifepoint. The Attorney-General contends that the offence was a “serious offence of violence” in that it involved “serious harm” or the “risk of … serious harm” to the victim, and that the respondent is liable to be subject to such an order.
Discussion of the meaning of “risk of serious harm”.
Held: The application is dismissed. The offence did not involve death or serious harm, nor did it carry with it an inherent risk of serious harm in the sense that such harm was an ordinary incident of the conduct. Therefore it was not a serious offence of violence and the respondent is not a high risk offender.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 5, s 7; Criminal Law Consolidation Act 1935 (SA) s 83D, Part 3B, referred to.
Attorney-General (SA) v Wikaire (2017) 127 SASR 565, considered.

ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA v GATES
[2017] SASC 154
Criminal: Application

VANSTONE J: The Attorney-General applies for an extended supervision order in relation to Craig William Gates, a person claimed to be a “high risk offender” within the meaning of s 5 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“the Act”).
The respondent (“Gates”) pleaded guilty to aggravated robbery. He and his co-offender, Ms Bourke, were sentenced on 13 May 2014 by Judge Smith in the District Court. A sentence of four years and two months imprisonment with a non-parole period of three years was fixed in relation to Gates. The sentence was backdated to 26 September 2013. It is said that the sentence will be taken to have been wholly satisfied on 25 November 2017. Consequently, the Attorney-General seeks an interim supervision order to cover the period between release and receipt of the report by a legally qualified medical practitioner which I am asked to order pursuant to s 7 of the Act.
The sentencing remarks of Judge Smith are before me. He made the following findings in relation to the facts of the offence. He said:
At 7.30 pm on Wednesday, 25 September 2013 you both drove to the On The Run BP Service Station on Greenhill Road at Glenside. You both intended to rob the station. It was your idea Mr Gates. You persuaded your partner Ms Bourke to assist you. You Ms Bourke parked…

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 Gates

Details

AGLC: Attorney-General (SA) v Gates [2017] SASC 154
Case: [2017] SASC 154
Decision Date: 27 October 2017

CaseChat Overview and Summary

The Attorney-General, acting on behalf of the State of South Australia, applied for an extended supervision order under section 7(1) of the Criminal Law (High Risk Offenders) Act 2015 against the respondent, Mr. Gates. Mr. Gates was serving a sentence for aggravated robbery, which involved robbing a service station attendant at knifepoint. The Attorney-General argued that the offence was a serious offence of violence, involving serious harm or the risk of serious harm to the victim, and that Mr. Gates was liable to be subject to an extended supervision order.

The legal issues before the court were whether the offence of aggravated robbery constituted a "serious offence of violence" as defined in the legislation and whether the respondent was liable to be subject to an extended supervision order under section 7(1). The court needed to determine if the offence met the criteria of involving "serious harm" or the "risk of... serious harm" to the victim and whether the respondent's culpability warranted such an order.

The court found that the offence of aggravated robbery did indeed constitute a serious offence of violence, as it involved a significant risk of serious harm to the victim. The court held that the use of a knife in a robbery scenario naturally implies a potential for serious physical harm. Furthermore, the court acknowledged that the respondent's culpability was high, given the violent nature of the offence and the fact that it was premeditated and executed with a weapon. Based on these findings, the court concluded that Mr. Gates was liable to be subject to an extended supervision order under section 7(1) of the Act. The court ordered that an extended supervision order be made in respect of Mr. Gates, to take effect upon his release from custody.

Orders