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 the car in nearby Conyngham Street. You, Mr Gates, walked to the service station. You had a 15 centimetre long wooden handled knife concealed under your t-shirt.
At the time you entered the service station and approached the counter there were no other customers about and it was dark. The console operator saw you approaching and noted that you had your right hand under your t-shirt. You were plainly holding a knife.
You, Mr Gates, approached the attendant, produced the knife and brandished it towards him and said “Give me the money quickly or I’ll fucking kill you”. The attendant opened the till and gathered approximately $130 in $20 and $10 notes and handed it to you Mr Gates. You then fled from the station to Conyngham Street where Ms Bourke was waiting.
The first question is whether Gates is a high risk offender. That expression is explained in s 5 of the Act. It is s 5(c) which provides the meaning relied upon by the Attorney-General in this instance. That is as follows:
5—Meaning of high risk offender
For the purposes of this Act, a high risk offender is—
...
(c)a serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence; ...
The terms used in that subparagraph are in turn defined in the Act. It is also necessary to look to the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”) and the Criminal Law (Sentencing) Act 1988 (SA) in order to ascertain the meaning of high risk offender when reliance is placed on subparagraph (c). I now set out the relevant definitions:
serious violent offender means a person convicted (whether before or after the commencement of this Act) of a serious offence of violence.
– s 4 of the Act.
serious offence of violence means a serious offence where the conduct constituting the offence involves –
(a)     the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person; or
(b)     serious damage to property in circumstances involving a risk of the death of, or harm to, a person; or
(c)     perverting the course of justice in relation to any conduct that, if proved, would constitute a serious offence of violence as referred to in paragraph (a) or (b).
– s 83D(1) of the CLCA. [italics are mine]
serious offence means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.
– s 83D(1) of the CLCA.
It is to be noted that serious harm is to bear the same meaning as it has for Part 3, Division 7A of the CLCA – s 83D of the CLCA.
serious harm means –
(a)harm that endangers a person’s life; or
(b)harm that consists of, or results in, serious and protracted impairment of a physical or mental function; or
(c)harm that consists of, or results in, serious disfigurement.
– s 83D(1) and s 21 of the CLCA.
harm means physical or mental harm (whether temporary or permanent).
– s 21 of the CLCA.
mental harm means psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm:
– s 21 of the CLCA.
Applying that analysis to the circumstances in the present case, the only contentious question comes down to whether the conduct constituting the offence of aggravated robbery committed by Gates involved “the death of, or serious harm to, [the victim] or a risk of the death of, or serious harm to” the victim, using the words of s 83D(1) of the CLCA, reproduced and italicised above. The other demands of the definitions incorporated into the expression high risk offender are satisfied.
Ms Montandon, for the applicant, submits that Gates’ conduct involved both serious harm and a risk of serious harm, as defined. First she relies on the remarks of the sentencing Judge to demonstrate that the victim actually suffered serious harm. In his remarks the Judge said, under the heading of “Victim Impact”:
I have had regard to the statement of the attendant. He was understandably traumatised by your behaviour and I imagine his anxiety about working in such a job will be ongoing.
This statement is plainly based on the victim impact statement, which is also before me, annexed to Ms Montandon’s affidavit. The relevant passage appears as follows:
Since the hold up, I have been anxious while working. When someone walks in to the store at a quieter time, I have some fear that could be a robber. Because I am working alone at that petrol station all the time, the fear of facing another hold up will stay in my head for a very long period of time.
As a father and husband, I fear what could happen to family if that happens again.
There are several difficulties in reaching the conclusion for which Ms Montandon advocates based on this statement. As I have mentioned, Gates pleaded guilty to the offence. Therefore the victim did not give evidence before the Judge. The victim impact statement supports the conclusion of the Judge that the victim was traumatised and asserts that the victim was anxious about continuing to work in his previous role. But of course these statements were not on oath and did not address any element of the offence. In circumstances where the injury suffered was not an element of the offence (such as would be the case in an offence of causing serious harm with intent) or, at the least, was not clearly accepted by the offender, I would be slow to conclude on this basis that a victim suffered serious harm. Even taking the Judge’s brief summary at face value, I would not readily conclude that the quite demanding definition of serious harm was met. In this case I am not satisfied that serious harm was caused.
I turn to the question whether the offence involved a “risk of ... serious harm to a person”. The applicant argues that Gates’ conduct in the course of committing the offence posed an obvious risk that the victim might “suffer significant psychiatric sequelae such as post-traumatic stress disorder or an adjustment disorder with anxiety state, sufficient to give rise to serious harm”. Reference was made to Attorney-General (SA) v Wikaire (2017) 127 SASR 565. That was an application similar to the present one. There, Nicholson J had regard to the consequences to the victim of an armed robbery during which the offender, holding a screwdriver, jumped the counter at a supermarket and demanded and stole money and cigarettes. The after-effects to the victim were said to include loss of sleep, nightmares, flashbacks, inability to eat for a couple of days, being easily startled, anxiety, social isolation and inability to work for months. Nicholson J assumed without deciding that these effects fell short of amounting to “serious harm”: [12]. His Honour then said at [17]:
The short point is that the respondent’s conduct in jumping over the counter and threatening the attendant with a screwdriver, particularly, when under the influence of alcohol or an illegal drug[1] was conduct constituting the offence which involved an obvious risk that a particular victim of the offence might suffer significant psychiatric sequelae sufficient to give rise to serious and protracted impairment of a mental function, that is, serious harm. Such potential sequelae would include conditions such as post-traumatic stress disorder or an adjustment disorder with anxiety state.
The Judge concluded that the offence committed by Wikaire did carry a risk of causing serious harm. Wikaire’s case is distinguishable on the facts because of the dynamic behaviour of Wikaire during the offence and his preparedness to approach the victim at close quarters.
[1] Given the potential for disinhibition and reduced physical control.
It is instructive to consider what level or quality of risk is contemplated in the use of that word at two points in the definition of “serious offence of violence” in s 83D(1) of the CLCA. Risks may be adjudged as anything from theoretical to substantial. Plainly the risk would need to be at least an appreciable one. It could not be enough that it be a speculative risk.
The division of the CLCA (Division 1) in which the definition of serious offence of violence occurs and from which it is, for these purposes, borrowed, falls within Part 3B of that Act, which is entitled, “Offences relating to criminal organisations”. Division 1 is in turn entitled, “Participation in criminal organisation”. The term serious offence of violence is used in that division to describe and define the aims or activities of a criminal group. A criminal group falls within the definition of criminal organisation. Two of the offences created by the division proscribe participation in criminal organisations. One way of proving that a group is a criminal group is by proof that its aims or activities include involvement in a serious offence of violence. Thus, the definition of serious offence of violence is linked to the means of proving the mental element of those two offences, that is, knowing or reckless participation in such an organisation. In my view, the word risk as used both there and in its role in defining high risk offender, must take its meaning from the context in which it appears and from the work it performs in Division 1. Since criminal responsibility for serious offences attaches to a person’s knowledge or recklessness as to participation in organisations undertaking those activities or having those aims, and as the definition of serious offence of violence is effectively built into the mental element of these serious offences, the nature of the required risk should be seen to be at the substantial end, rather than at the theoretical end of the continuum which that word comprehends. It should be given substantial rather than theoretical content.
In my opinion, at least the risk should be able to be described as an obvious one. I would go further and say that risk of death or serious harm should be interpreted to require that death or serious harm would be a not unexpected incident, or an ordinary incident, of the conduct constituting the offence. Affording content of this nature to the word risk has the advantage of providing an objective standard. It also recognises that the definition of serious offence of violence contains two parts, that is, the risk of the death or serious harm to a person is juxtaposed to actual death or serious harm. The focus should be on the proven behaviour of the offender and, absent death or serious harm being caused, an objective assessment of the risk of death or serious harm which arose from that behaviour. I do not consider that in weighing the meaning of risk the Court should entertain scenarios in which serious harm might have occurred through chance or unexpected eventuality. To put that another way, the manner of committing the offence should be such as to give rise to an inherent or intrinsic risk of death or serious harm.
Interpreting the demands of the legislation in this way, I have formed the view that the respondent’s crime did not involve “a risk of the death of, or serious harm to” another. I accept that this involves an evaluative judgment about the respondent’s offence, and there is little enough material on which to base that judgment. The difference in terms of position on the continuum of which I speak between this case and Wikaire’s may be very small. Nonetheless, on my assessment, the respondent is not shown to have committed a serious offence of violence and is not, it follows, a serious violent offender. Accordingly he does not answer the description of a high risk offender.
In the circumstances there is no jurisdiction to make the order sought. The application is dismissed.