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…

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 Gillard

Details

AGLC: Attorney-General (SA) v Gillard [2022] SASC 104
Case: [2022] SASC 104
Decision Date: 23 September 2022

CaseChat Overview and Summary

In Attorney-General (SA) v Gillard, the Attorney-General of South Australia sought to have the respondent declared a high risk offender under the High Risk Offenders (Public Protection Orders) Act 2010 (SA). This declaration would allow for the imposition of an interim and extended supervision order. The respondent, who had a prior criminal history, had been convicted of assault occasioning bodily harm. The Attorney-General argued that the respondent posed a high risk to public safety due to the nature of the offence and the potential for serious and protracted impairment of mental function.

The court was required to determine whether the respondent was a high risk offender under the Act, and whether it had jurisdiction to make an interim supervision order and an extended supervision order. The key legal issue was whether the risk of serious and protracted impairment of mental function was real or recognisable, given the nature of the offence and the injuries sustained by the victim. The court had to balance the need to protect the public against the risk of an unwarranted deprivation of liberty.

The court found that, while there was a theoretical risk of serious and protracted impairment of mental function, the risk was not real or recognisable. The court noted that there was no weapon involved, and the injuries sustained by the victim were not of the type that would typically result in such impairment. The court concluded that the respondent did not pose a high risk to public safety and that there was no jurisdiction to make the orders sought by the Attorney-General. The application for an interim supervision order and the application for an extended supervision order were dismissed.

The court did not consider it necessary to address whether the matters alleged in the material supporting the application would, if proved, justify the making of an extended supervision order, as the threshold issue of whether the respondent was a high risk offender had been resolved in the negative.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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).

Ratio Decidendi

Legal Principle Established

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