Attorney-General (SA) v Gillard - [2022] SASC 104

Supreme Court of South Australia
(Criminal: Application)

ATTORNEY-GENERAL (SA) v GILLARD
[2022] SASC 104
Judgment of the Honourable Justice Kimber
23 September 2022
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 - DANGEROUS SEXUAL OFFENDER
Application pursuant to s7(4) of the Criminal Law (High Risk Offenders) Act2015 (SA) (the Act) by the Attorney‑General for an extended supervision order and application pursuant to s 9(1) of the Act for an interim supervision order.
The respondent was found guilty by a jury of Recklessly Causing Harm (the offence) and sentenced to a suspended sentence of one year, 10 months and 12 days with a non-parole period of 10 months. The order suspending the sentence was later revoked. The conduct constituting the offence was a single blow with an open hand to the side of the head of the victim which caused the victim to fall to the floor. The victim sustained bruising to the right eye, broken bones in the cavity of that eye and some injury to the right cheek. At the time of sentencing about four years after the offence, the victim stated he lived in constant fear of being assaulted again.
The making of an extended supervision order and/or an interim supervision order requires a respondent to be a high risk offender as defined in the Act. The Attorney-General’s application was made on three grounds, namely the conduct constituting the offences involves harm that consists of, or results in a: serious and protracted impairment of a mental function; risk of a serious and protracted impairment of a physical function and/or risk of a serious and protracted impairment of a mental function.
Held, dismissing the applications:
1. The respondent is not a high risk offender as required by both s 7(4) and s 9(1) of the Act.
2.There is no jurisdiction to make either an extended supervision order or interim supervision order.

Criminal Law (High Risk Offenders) Act 2015 (SA) s 5(c), s 7(a), s 9(1)(b); Criminal Law Consolidation Act 1935 (SA) s 21(1), s 24(2)(a), s 83D(1), referred to.
Attorney-General (SA) v Davidson [2018] SASC 91; Attorney-General (SA) v Laughlin [2019] SASC 105; Attorney-General (SA) v Jeffrey (2018) 130 SASR 300; Attorney-General (SA) v Wikaire (2017) 127 SASR 565, applied.
Attorney-General (SA) v Adams [2020] SASC 58; Attorney-General (SA) v Gates (2017) 129 SASR 298, considered.

ATTORNEY-GENERAL (SA) v GILLARD
[2022] SASC 104
Criminal: Application
KIMBER J:
Introduction

Mr Gillard (the respondent) was serving a term of imprisonment for the offence of Recklessly Causing Harm.[1] That term expired on 17 September 2022.
[1] Contrary to the Criminal Law Consolidation Act 1935 (SA) s 24(2) (CLCA).
On 6 September 2022 the Attorney-General filed an application for the respondent to be subject to an extended supervision order pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act (the Act).[2] Consistent with that application, the Attorney-General also filed an application for an interim supervision order pursuant to s 9(1) of the Act.
[2] Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(4) (the Act).
The parties made submissions on 15 September 2022. The Attorney-General was represented by counsel. The respondent was unrepresented and made submissions. The submissions of the respondent were almost exclusively directed to whether the matters alleged in the material supporting the application would, if proved, justify the making of an extended supervision order.[3] For reasons I will give, it was unnecessary for me to consider that issue. I mean no disrespect by not setting out his submissions. On 15 September 2022 I gave Mr Greeves leave to appear as a friend of the Court. The grant of that leave was not opposed by the Attorney-General or the respondent. I gave ex tempore reasons for giving Mr Greeves that leave. I will not repeat those reasons as they appear in the transcript of the hearing on 15 September 2022.
[3] Ibid s 9(1)(b).
The jurisdictional facts of which I must be satisfied to make an interim supervision order are set out in s 9(1) of the Act. Section 9(1) of the Act provides:[4]
(1) The Supreme Court may make an interim supervision order if an application for an extended supervision order in relation to a high risk offender has been made and the Court is satisfied—
(a) that the relevant expiry date for the respondent is likely to occur before the application is determined; and
(b) that the matters alleged in the material supporting the application would, if proved, justify the making of an extended supervision order.
[4] Ibid s9(1).
As can be seen, the making of an interim supervision order requires me to be satisfied that an application has been made for an extended supervision order in relation to a ‘high risk offender’. That the respondent is a ‘high risk offender’ is also an essential requirement for the making of an extended supervision order pursuant to s 7(4) of the Act.
On 16 September 2022 I declined to make the orders sought by the Attorney‑General as I was not satisfied the respondent is a ‘high risk offender’. I advised that reasons would be given later. These are those reasons.
High Risk Offender
Section 5(c) of the Act provides that a high risk offender includes a ‘serious violent offender’ who was sentenced to a period of imprisonment in respect of the ‘serious offence of violence’.[5] Section 4 of the Act provides that a ‘serious violent offender’ means a person convicted of a ‘serious offence of violence’ and that a ‘serious offence of violence’ has the same meaning as set out in s 83D(1) of the Criminal Law Consolidation Act (CLCA).[6] Section 83D(1) of the CLCA relevantly provides that a: [7]
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.
[5] Ibid s 5(c).
[6] CLCA s 83D(1).
[7] Ibid.
In this case, death was not caused, so the issue is whether the respondent committed a ‘serious offence’ where the ‘conduct constituting the offence’ (the conduct) involves ‘serious harm’ to a person or a risk of ‘serious harm’ to a person. A ‘serious offence’ is defined within s 83D(1) of the CLCA to mean ‘an indictable offence that is punishable by imprisonment for life or for a term of five years or more’. Section 83D(1) of the CLCA further provides that ‘serious harm’ bears the same meaning as set out in Part 3 Division 7A of the CLCA. ‘Serious harm’ is defined in that Part within s 21(1) of the CLCA to mean:[8]
(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.
[8] Ibid s 21(1).
Section 21(1) of the CLCA also sets out the meanings of other terms with potential relevance. ‘Harm’ is defined to mean ‘physical or mental harm (whether temporary or permanent)’.[9] ‘Mental harm’ is defined to mean ‘psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm’.[10]
The issues in this case
[9] Ibid s 21.
[10] Ibid s 21.
As set out above, the relevant offence committed by the respondent was Recklessly Causing Harm contrary to s 24(2)(a) of the CLCA.[11] That offence carries a maximum penalty of imprisonment for five years. That aspect of the definition of ‘serious offence of violence’ being satisfied, the real issue is whether the conduct involves ‘serious harm’ or a risk of ‘serious harm’. The Attorney‑General did not submit the conduct involves harm that endangers life, nor harm that consists of or results in serious disfigurement. The Attorney-General also did not submit the conduct involves harm that consists of, or results in, serious and protracted impairment of a physical function. I agree with those submissions.
[11] Ibid s 24(2)(a).
The Attorney-General submitted that the ‘conduct constituting the offence’ involves: harm that consists of or results in, serious and protracted impairment of a mental function[12] or a ‘risk of harm’ consisting of or resulting in serious and protracted impairment of a physical or mental function.[13] In considering those submissions and the material before me, I must consider the conduct, rather than the inherent nature of the offence or the elements of the offence in the abstract.[14]
The conduct constituting the offence
[12] Limb (b) of the definition of serious harm in s 21(1) of the CLCA.
[13] Section 83D(1) of the CLCA and limb (c) of the definition of serious harm.
[14] Attorney-General (SA) v Davidson [2018] SASC 91, [4] (Davidson); Attorney-General (SA) v Laughlin [2019] SASC 105, [10] (Laughlin).
The respondent was acquitted by a jury of the principal charge of Causing Harm with Intent to Cause Harm but found guilty of the alternative charge of Recklessly Causing Harm. On 8 November 2019 the respondent was sentenced in the District Court to one year, 10 months and 12 days with a non-parole period of 10 months. That sentence was suspended upon entry into a good behaviour bond for a period of two years (with other conditions). The suspended sentence bond was breached by the respondent. On 14 December 2020 a different District Court judge revoked the suspended sentence, but reduced the head sentence to one year, nine months and four days. The non-parole period remained the same. That sentence then commenced on 14 December 2020.
The only account before me of the conduct is the Sentencing Remarks of the Sentencing Judge on 8 November 2019 (the remarks). The Sentencing Judge stated:[15]
… on 23 March 2015 which is now over four years ago, you attended in the company of another person at the home of your victim’s mother at Beulah Park. You had convinced yourself that the victim, who was your then employee, had stolen money from you. While he had in fact used your credit card to withdraw a sum of money, he remined you that you had given him permission to withdraw that sum as his wages.
When you entered the house, you argued with him. His mother was present at the time. There was no doubt that you did make contact to the side of the victim’s head, and that he fell to the floor and sustained injuries to which I will refer.
In dispute at the trial was whether you had punched the victim once to the side of the head or hit him with an open hand. The jury verdict is opaque. (The Prosecutor) very properly submitted this morning that I do not need to make a specific finding as to whether it was an open hand or a punch. I must however determine, for the purpose of sentence, the facts consistent with the verdict of the jury.
I have no doubt at all that you did hit him with a hand and not a fist. However not much turns on that in the end because the injury which he sustained were caused by that hit to the side of the head.
[15] Sentencing Remarks of Judge Beazley, 8 November 2019, pp. 1-2.
Given the above, I am satisfied that the conduct was a single blow to the side of the head with an open hand. The Attorney-General submitted the blow must have been a particularly forceful one given the physical injuries sustained. Mr Greeves submitted that what the Sentencing Judge said left a doubt about whether the immediate cause of the physical injuries to the eye was the force of the blow or, given the victim fell, whether the immediate cause of those injuries was the contact with the ground. I use the term ‘immediate cause’ in the following way. If the ‘immediate cause’ of the injuries to the eye was the blow with the hand, then those injuries had been sustained before the fall to the ground. If the ‘immediate cause’ was the fall to the ground, the injuries were not sustained before contact with the ground. Mr Greeves noted that, although the most serious physical injury was to the eye, the Sentencing Judge only found that the blow was ‘to the side of the victim’s head’ (i.e. – not specifically the eye) and that the words ‘he fell to the floor and sustained injuries’ and ‘the injury which he sustained were caused by that hit to the side of the head’ may be read in more than one way. I will return to this.
The injuries caused
Turning to the injuries caused, the only material before me is again the remarks.
As to matters relevant to ‘physical function’, the victim sustained ‘swelling and bruising to the right eye, broken bones in the right eye cavity and some injury to the right cheek’.[16] An ambulance attended and the victim walked to that vehicle with assistance. The victim was taken to hospital. The Sentencing Judge said, ‘somewhat surprisingly, the victim discharged himself from hospital early in the morning’.[17]
[16] Ibid p. 2.
[17] Ibid p. 2.
Turning to matters particularly relevant to the ‘mental function’ of the victim, a victim impact statement had been read to the Sentencing Court. The remarks set out:[18]
You may not have been previously aware of his (sic) victim’s unfortunate history. He explained that he had suffered the loss of his sister shortly before he met you. He was depressed because of that loss. He said because of that your conduct was devastating. He had come to regard you as a brother. He said he now lives in constant fear that he will be assaulted again. The fact remains that four years has passed by. He does not understand why you hit him.
[18] Ibid pp. 2-3.
Some further findings about the conduct
I have already found the conduct was a single blow to the side of the head with a hand. Notwithstanding the injuries to the right eye cavity, I am uncertain whether the blow was the immediate cause of those injuries. I have a doubt about that for two reasons. First, there is nothing before me about the likelihood of a blow with an open hand (even one which might cause a fall to the ground) being sufficient to be the immediate cause of broken bones in the right eye cavity. Second, I agree that the remarks can be read in more than one way. This is no criticism of the remarks. It was not necessary for the Sentencing Judge to determine the immediate cause of any of the injuries. For the task of sentencing it was sufficient that the blow was a substantial cause of the injuries. The Sentencing Judge makes no express reference to the victim striking his head on the ground. Nonetheless, in my view, it remains the case that the remarks do not establish that the blow was to the eye cavity and was the immediate cause of the broken bones. It is not unheard of for serious injury to be sustained when a person falls to the ground and their head strikes on the ground.
However, I am satisfied that the blow was a forceful one. At best for the respondent, it was of sufficient force to cause the victim to fall to the ground.
Serious and protracted impairment of a physical function or mental function
As set out above, the Attorney-General did not submit the harm caused by the conduct consisted of, or resulted in, serious and protracted impairment of a physical function and I agree with that approach. The Sentencing Judge did not find the victim had been rendered unconscious and while he appeared to have required assistance to walk to the ambulance, there is nothing before me as to how long had passed since the blow. While the victim was admitted to hospital and discharged himself, there is no evidence about why he was admitted, nor about his physical function at that time. While the victim suffered broken bones to the right eye, there is nothing before me to suggest his vision was impaired, let alone that any such impairment was protracted.
The Attorney-General submitted I should be satisfied the harm caused by the conduct consisted of, or resulted in, serious and protracted impairment of a mental function. The Attorney-General particularly emphasised the Sentencing Judge set out that four years after the conduct, the victim ‘said he now lives in constant fear that he will be assaulted again’. Mr Greeves submitted the necessary finding should not be made. Mr Greeves submitted the Sentencing Judge did not express himself in terms consistent with making a finding. Mr Greeves submitted the words used by the Sentencing Judge were consistent only with a recitation of what the victim had said.
Care must be taken in drawing conclusions adverse to the respondent from the remarks. The starting point must be that the words used by a Sentencing Judge were used deliberately. Nonetheless, I am satisfied the Sentencing Judge was satisfied the victim lived in constant fear four years after the conduct for two reasons. First, the way the Sentencing Judge expressed himself is not inconsistent with him accepting what the victim had said, particularly if it had not been disputed in submissions. There is no suggestion in the remarks there had been a dispute about any aspect of the victim impact statement. Second, this was a matter adverse to the respondent in sentencing. Had it been a matter disputed, or doubted by the Sentencing Judge, I would expect the Sentencing Judge to have said so.
Ultimately, bearing in mind the only relevant material available to me is the remarks and provided any finding I make is not inconsistent with those remarks, it is for me to be satisfied whether the victim lived in constant fear four years after the conduct. The Sentencing Judge thought that important to set out in the remarks and did not express a doubt about it. I do not consider that such a fear over such a long period is unlikely given the victim was struck by his employer without cause and the physical injuries he suffered. I see no reason to doubt what the victim said. I am satisfied four years after the conduct, the victim lived ‘in constant fear’ of being assaulted again. The issue is whether that fear amounts to a ‘serious and protracted impairment of a mental function’. The Attorney-General submitted it does. Mr Greeves submitted to the contrary.
‘Mental function’ is not defined in the Act. In my view, its meaning is informed by the context in which it appears. Section 21(1) of the CLCA provides that a serious and protracted impairment of a mental function is a form of ‘serious harm’. That same section sets out that ‘harm’ means physical or mental harm and that ‘mental harm’ means ‘psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm’ (emphasis added).[19] In my view, bearing in mind that ‘mental function’ is not defined and that its meaning is to be construed from the context in which it appears, relevant to this case, I must be satisfied the conduct caused a serious and protracted impairment of a mental function, being more than the emotional reaction of fear.
[19] CLCA s 21.
I am not satisfied the conduct consisted of, or resulted in, a serious and protracted impairment of a mental function. Given that all that is before me is the remarks, I am only satisfied that four years after the assault, the victim lived in constant fear of an assault. I am not satisfied that fear, without more, is an impairment of a mental function.
Risk of serious and protracted impairment of a physical or mental function
In determining whether the conduct of the respondent involved the relevant risks, I am required to make an evaluative judgment. That judgment must be reflective of common human experience. [20] The relevant risk must be more than fanciful, theoretical or remote.[21] As observed by Hinton J in Attorney-General (SA) v Jeffrey, while the relevant risk must be ‘real or recognisable’, it need not be substantial.[22]
[20] Attorney-General (SA) vJeffrey (2018) 130 SASR 300, [13] (Jeffrey).
[21] Jeffrey [17]; Laughlin (n1) [18]; Attorney-General (SA) v Adams [2020] SASC 58, [13] (Adams).
[22] Jeffrey [17].

That serious harm was not caused does not mean that there cannot be satisfaction of a relevant risk. As observed by Nicholson J in Attorney-General (SA) v Wikaire:[23]
Whether or not an offender has, in fact caused serious harm (physical or mental) is an important consideration but whether or not such a person poses the risk of causing such serious harm in no less important a consideration.
[23] Attorney-General (SA) v Wikaire (2017) 127 SASR 565, [14] (Wikaire).
The submissions on risk
The Attorney-General submitted that the conduct was a blow of ‘some significant force’ given the victim fell to the ground and cannot have gotten up straightaway. The Attorney-General submitted a blow of that kind on the head and ‘close to the eye’ involved forces which carried a risk of ‘serious harm in the nature of a brain or an eye injury’. Mr Greeves submitted that the hit to the head may have led to the fall, and that the impact of the fall may have caused the eye socket to fracture. That being so, Mr Greeves submitted the force of the blow may not have been the immediate cause of the injuries to the face of the victim and particularly not the fractures. Mr Greeves put that the risk of a single blow to the side of the head causing serious harm could only be theoretical or remote.
Evaluation of the risk of protracted impairment
As set out above, the conduct was an open-handed blow and I am not satisfied it was to the eye. For that reason, I am not satisfied the conduct involved a risk of an eye injury (i.e. physical harm) which amounts to ‘serious harm’. I am satisfied that blow was a forceful one (at least causing the victim to fall to the ground). I accept the head can be a vulnerable part of the body and it is notorious that falls to the ground may cause very serious injury if the head strikes the ground (as may have occurred in this case). However, in evaluating the relevant risk, I must return to the conduct. I am only satisfied the conduct was a forceful blow to the side of the head with an open hand. I cannot quantify the degree of force, other than it was, at least, sufficient to cause the victim to fall to the ground. I am satisfied the conduct involved a ‘theoretical’ risk of ‘serious and protracted impairment of a physical function’, but I am not satisfied the risk was greater than that. I am not satisfied the necessary risk is ‘real or recognisable’.
I turn to whether I am satisfied the conduct involved a risk of serious and protracted impairment of a mental function.
The Attorney-General pointed to the fear expressed by the victim, persisting for at least four years. The Attorney-General also emphasised the setting in which the conduct occurred. The victim was at his mother’s home, the respondent was his employer, the respondent and victim were close and the victim said that at the time of the conduct he was ‘depressed’ because of the loss of his sister. The Attorney-General submitted the relevant ‘mental function’ in this context was ‘responding to life based upon the stimuli that are around’. Mr Greeves submitted that ‘emotional reactions’ such as fear fell short of psychological harm. Mr Greeves submitted any risk of a serious and protracted impairment of a mental function arising from a blow with an open hand could only be fanciful, theoretical or remote.
As to the approach to be taken to the vulnerability of a victim, I agree with the approach in Attorney-General v Laughlin where Doyle J held: [24]
… I accept that the assessment of risk must be approached on the basis that the victim was a person without any particular known vulnerability and so might be assumed to be a person of normal fortitude. But, in my view, that still means the matter is to be approached with some flexibility and allowing for some range of susceptibility, albeit perhaps excluding the most vulnerable and the most robust of persons on the basis that that would involve dealing with risks which are of a more theoretical nature rather than those which the section is intended to capture.
[24] Laughlin [23].
It is necessary to say something about the use of the word ‘depressed’ by the victim in his victim impact statement. Without more, I am not satisfied the use of that word by the victim provides a reliable basis upon which to conclude the victim had a pre‑existing mental illness, or vulnerability to such an illness, at the time of the conduct. It is not uncommon for the word ‘depressed’ to be used by persons who are not medical practitioners, psychologists or other mental health professionals, without there being any diagnosis of such an illness. I will proceed on the basis the victim was a person of normal fortitude.
I have considered several judgments of this Court which have discussed the risk of ‘serious and protracted impairment of a mental function’ following violent conduct.[25] While those judgments are instructive, I must form a judgment based upon what I have found to be the conduct of the respondent and the other relevant aspects of the remarks. Unlike in other matters, there was no weapon, the mere threatened use of which may cause significant and long standing issues with respect to ‘mental function’. At the same time, it must not be overlooked that the victim was struck and suffered a significant injury to the eye. I have no doubt that a forceful blow to the head (even with an open hand) which causes a person to fall to the ground and has the, at least, indirect outcomes of admission to hospital and fractures to the eye is conduct with a ‘theoretical’ risk of serious and protracted impairment of a mental function. However, I am not satisfied that risk is ‘real or recognisable’.
[25] Attorney-General (SA) v Gates (2017) 129 SASR 298 (Gates); Jeffrey; Wikaire; Laughlin.
Conclusion
For the above reasons, I am not satisfied the respondent is a ‘high risk offender’. It follows there is no jurisdiction for the orders sought. The application for an interim supervision order and the application for an extended supervision order are dismissed. In the circumstances, it is not necessary for me to consider whether the matters alleged in the material supporting the application would, if proved, justify the making of an extended supervision order.[26]
[26] The Act s 9(1)(b).