Attorney-General (SA) v Grosser (No 3) - [2017] SASC 89

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL v GROSSER (No 3)
[2017] SASC 89
Judgment of The Honourable Justice Stanley
15 June 2017
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
Application by the Attorney-General for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
The respondent was convicted of one count of attempted murder and five counts of endangering life, and was sentenced to a term of imprisonment of 22 years with a non-parole period of 18 years commencing on 4 May 1994. On 14 April 2016, an interim supervision order was made pursuant to s 9 of the Act.
The respondent conceded he is a high-risk offender posing an appreciable risk to the safety of the community if not supervised under an extended supervision order. Thus the issues were narrowed to the length of the order and whether it should include a condition for electronic monitoring.
Held:
1. Regard must be had to the progress the respondent has made since the making of the interim order, which has been the product of successful treatment and a robust regime of supervision. However, it is appropriate that a lengthy extended supervision order be made as the respondent’s underlying psychiatric illness is incurable. The paramount consideration of public safety justifies a lengthy order. Having regard to the terms of s 12(1)(b) and the fact that the respondent has been subject to an interim supervision order for more than one year, an extended supervision order of four years is made (at [41] and [43]).
2. Whilst electronic monitoring infringes the respondent’s personal autonomy and is a source of embarrassment and inconvenience to him, it is a price that must be paid to maintain public safety, which is the paramount consideration. The extended supervision order should include a condition that the respondent be monitored by the use of an electronic device for a period of two years from the commencement of the order (at [42] and [44]).
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, s 9, s 10, s 11, s 12, s 13; Correctional Services Act 1982 (SA) s 64; Mental Health Act 2009 (SA), referred to.
Attorney-General v Kimmins [2016] SASC 176, considered.

ATTORNEY-GENERAL v GROSSER (No 3)
[2017] SASC 89
Criminal: Application
STANLEY J.
Introduction

This is an application made by the Attorney-General for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act).
On 30 November 2002, the respondent was convicted and sentenced to a term of imprisonment of 22 years, with a non-parole period of 18 years, commencing on 4 May 1994, for the offences of one count of attempted murder and five counts of endangering life.
On 14 April 2016, the Court ordered that the respondent be subject to an interim supervision order pursuant to s 9 of the Act. Pursuant to that order the respondent has been…

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.

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Details

Case: [2017] SASC 89
Decision Date: 15 June 2017

CaseChat Overview and Summary

In the matter of Attorney-General (SA) v Grosser, the Supreme Court of South Australia was asked to determine the appropriate length and conditions of an extended supervision order for the respondent, who had been found guilty of multiple serious offences including acts of violence against police officers. The Attorney-General argued for a long extended supervision order of up to five years, with a condition requiring the respondent to wear an electronic monitor. The respondent, on the other hand, sought a shorter period of supervision without any electronic monitoring. The central issue for the court was the extent to which the respondent posed a risk to the community and the need for measures to mitigate that risk.

The court considered various factors in making its decision, primarily focusing on the safety of the community. It evaluated the likelihood of the respondent committing further serious offences, the respondent's psychiatric condition, and his history of non-compliance with treatment and supervision. The court noted the respondent's continued preoccupation with paranoid delusions and his resistance to treatment. Dr. Nambiar's medical reports highlighted the respondent's ongoing delusional beliefs and his lack of insight into his mental illness. Additionally, the court took into account the severity of the respondent's previous offences, which involved a prolonged siege against police officers, resulting in serious injuries to an officer.

After considering the evidence and the prescribed factors, the court decided that an extended supervision order of five years was necessary to protect the community. The court also imposed a condition that the respondent be subject to electronic monitoring for the duration of the order. The decision was based on the high risk the respondent posed, his history of non-compliance with treatment, and the potential for reoffending if not closely supervised. The court's ruling aimed to balance the need for public safety with the respondent's rights and circumstances.

The court ordered that the respondent be subject to an extended supervision order for five years, with a condition requiring him to wear an electronic monitoring device for the entire duration of the order.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Attorney-General submits that the respondent should be subject to a relatively long extended supervision order of up to the maximum of five years, with a condition that he be subject to a requirement to wear an electronic monitor. The Attorney-General submits that requirement should be imposed for the entirety of the order or for a shorter period in light of the power conferred on the Parole Board to impose a further condition of this kind upon expiry of the Court ordered condition, pursuant to s 11(1)(a)(iii) of the Act, should this prove necessary. The respondent submits that he should be subject to an extended supervision order for a relatively short period of time and there not be a condition requiring him to wear an electronic monitor. Evidence In determining whether to make an order for extended supervision, the Court must consider the safety of the community as the paramount consideration, as well as the matters identified in s 7(6) of the Act (which I have referred to above), relevantly:·the likelihood of the respondent committing a further serious offence of violence if not supervised by an order (s 7(6)(a));·reports of any medical practitioner made pursuant to s 7(3) of the Act (s 7(6)(b));·any report of the Parole Board made pursuant to s 64(5) of the Correctional Services Act 1982 (s 7(6)(c));·any relevant evidence or representations of the respondent (s 7(6)(e));·any treatment or rehabilitation program in which the respondent has participated, including the extent of participation and willingness to partake (s 7(6)(f));·the extent to which the respondent has complied with the existing extended supervision order (s 7(6)(h));·the circumstances and seriousness of the respondent’s prior offending (s 7(6)(j));·any remarks of the sentencing court in passing sentence (s 7(6)(k)); and·any other matter the Court thinks relevant (s 7(6)(l)). As to the likelihood of the respondent committing a further serious offence of violence if left unsupervised, Dr Nambiar, a medical practitioner nominated pursuant to s 7(3) of the Act, assessed the respondent as remaining pre-occupied with paranoid delusions in his report of 20 May 2016 and addendum report of 24 January 2017. These reports explain the background and nature of the respondent’s diagnosis of Paranoid Delusional Disorder with persecutory beliefs involving conspiracy theories. That diagnosis is reported to have motivated his behaviour during the siege. In his first report Dr Nambiar notes the respondent continued to act on his beliefs whilst in custody, having made contact with others in relation to his concerns as to police corruption and organised crime. He continues to read literature on the NCA bombing, which in Dr Nambiar’s view suggests that he may devote significant time to internet research on similar topics if granted access to the internet. The respondent’s religiosity also grew during his incarceration. He claimed to personally have healing powers. The respondent’s attitude to treatment is of “forced compliance”. He does not acknowledge that he has a mental illness and has stated that he would not take medication if not subject to a Community Treatment Order.

Decision

Reasons for decision

STANLEY J

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Ratio Decidendi

Legal Principle Established

Established by: STANLEY J

Finally, I note that in sentencing the respondent in 1996, Millhouse J remarked that the offending was a “most serious” example of violence towards police officers and other law enforcement officials, with respondent’s conduct seeming “quite deliberate”, with no sense of regret or remorse perceivable from the respondent during his evidence. Following an appeal against conviction the respondent was sentenced for a second time by Justice Duggan, who remarked that he “cannot accept that at this stage [his] expression of remorse… is genuine”.Consideration The paramount consideration in this matter is the safety of the community. In addition, the Court must also take into consideration those matters prescribed by s 7(6) that are relevant. The most significant factors in determining the length of the order and whether it should contain a condition of electronic monitoring are the circumstances and seriousness of the offending by the respondent, the evidence of his psychiatric condition and the likelihood he would commit a further serious offence of violence if not supervised under the order. The circumstances and seriousness of the offences in respect of which the respondent was found guilty are extremely serious. The offending occurred during a siege at the respondent’s home in Nuriootpa in May 1994. At the time the respondent was 40 years of age and lived with his de facto partner and their two young children. The siege commenced when Star Force officers attended at the respondent’s residence in order to arrest him on a court warrant. Officers took up positions around his home and the officer in charge called the respondent’s name and informed him that police officers were present. The respondent was armed with several firearms. Officer McManus took up a position near a glass sliding door at the side of the house. The respondent fired several shots from a high powered rifle through the glass door. Officer McManus was shot a number of times. He suffered severe injuries and lay where he had been wounded for some hours before being rescued. He was extremely fortunate to have survived. The respondent’s de facto partner and their two young children were inside the house when the siege commenced. They later escaped. Over a period of about 40 hours the respondent fired hundreds of rounds of ammunition at police officers using three high powered firearms. The respondent took up a position in the roof cavity of the house in order to fire upon police. On five occasions he specifically shot in the direction of police officers thus endangering their lives. The respondent only surrendered when police demolished a section of the roof area of the house. The respondent previously held a firearms licence which had been cancelled prior to the siege. At the time of the cancellation the police seized all firearms and ammunition that were able to be located. At the time of the siege the respondent held an arsenal of weapons together with ammunition concealed within his house. In 2013 Detective Shillabeer gave evidence before the Magistrates Court that four weapons registered to the respondent and two weapons registered to his de facto partner could not be found. Detective Shillabeer gave evidence that he had been told by the respondent that prior to the siege the respondent had buried firearms to hide them from police but they were readily recoverable. The respondent admitted he had hidden weapons at his Nuriootpa property and at a horse stud. He had subsequently recovered the weapons. The magistrate found that there were five or possibly six firearms to which the respondent had access that remain unaccounted for, although she was unable to find that the respondent now knows the whereabouts of those guns. That remains the position currently.