Attorney-General (SA) v GS - [2025] SASC 142

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v GS
[2025] SASC 142
Reasons for Decision of the Honourable Justice Kimber
29 August 2025
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER
On 13 March 2025, the respondent was made subject to an interim supervision order pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). The respondent is also subject to an application by the Attorney-General for a detention order pursuant to s 57 of the Sentencing Act 2017 (SA) and the respondent is next before the Court on 15 October 2025 with respect to the applications for an extended supervision order and a detention order.
Having entered the interim supervision order on 13 March 2025, there is no dispute that the respondent breached conditions of his order by no later than 10 June 2025. The breaches were discovered when a police officer attended the home of the respondent to conduct a search pursuant to s 66M of the Child Sex Offenders Registration Act 2006 (SA). Because of the breaches, pursuant to s 17 of the Act, the Parole Board directed that the respondent be detained in custody pending attendance before this Court for determination of whether a continuing detention order should be made.
The Attorney-General submits that the respondent poses an appreciable risk of committing a sexual offence involving a child if not detained in custody. The Attorney-General also submits that the respondent has unmet treatment needs and that if the order is made until December 2026, there will be the opportunity for the respondent to complete the SBC program while in detention. The respondent submitted that the necessary appreciable risk had not been established and, even if it has been, the discretion should not be exercised.
Held:
1.The respondent has breached his interim supervision order and poses an appreciable risk to the safety of the community if not detained in custody.
2.The discretion to make a continuing detention order should be exercised.
3.Pursuant to section 18(2)(c) of the Act, the respondent is to be subject to a continuing detention order until 16 December 2026.

Child Sex Offenders Registration Act 2006 (SA) s 66M; Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 9, 17, 18; Sentencing Act 2017 (SA) s 57, referred to.
Attorney-General (SA) v Coaby [2019] SASC 137; Attorney-General (SA) v Drion [2020] SASC 120; Attorney General (Qld) v Francis [2007] 1 Qd R 396; Attorney-General (SA) v GS [2025] SASC 29; Attorney-General v Moyle (No 2) (2019) 134 SASR 257; Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74; Garlett v Western Australia (2022) 277 CLR 1; R v Schuster (2016) SASR 388, applied.

ATTORNEY-GENERAL (SA) v GS
[2025] SASC 142
Criminal: Application
KIMBER J:

GS (

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 GS

Details

AGLC: Attorney-General (SA) v GS [2025] SASC 142
Case: [2025] SASC 142
Decision Date: 29 August 2025

CaseChat Overview and Summary

The case of Attorney-General (SA) v GS involved a dispute over the imposition of a post-custodial order on the respondent, GS, who was deemed a dangerous sexual offender. GS had been convicted of a serious sexual offence and was subject to a supervision order. The Attorney-General sought a continuing detention order under the Serious Sex Offenders (Supervision and Monitoring) Act 2005 (SA) due to concerns that GS had breached his supervision conditions and posed a risk to the community.

The primary legal issue the court had to address was whether GS posed an appreciable risk to the community that necessitated his continued detention under a post-custodial order. The court had to balance the need to protect the community against the principle that detention should not be punitive but rather protective. The court also had to consider the respondent's history of engagement with rehabilitation programs and his current risk assessment.

The court reasoned that while GS had completed a substantial portion of the Sex Offender Behaviour program in 2015, the more pertinent factor was his lack of engagement in any such program in 2024 and his use of specific search terms in 2025, indicating ongoing risk. Additionally, despite his prior participation in the Sex Offender Behaviour program, GS had recently been assessed to be at moderate-high risk of sexual reoffending. The court highlighted that the purpose of detention is protective and not punitive, and it must be determined whether detention is necessary to adequately protect the community from the risk posed by the respondent. The court concluded that GS posed an appreciable risk to the safety of the community, as there was a likelihood he would attempt to contact and sexually exploit a child, either in person or using an electronic device. Consequently, the court found that detention was necessary to protect the community.

The court ordered that GS be subject to a continuing detention order to protect the community from the risk he posed. This decision underscores the importance of the court's role in balancing the need for community protection against the principles governing post-custodial orders for dangerous sexual offenders.

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

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Ratio Decidendi

Legal Principle Established

While it is to the credit of the respondent that he completed a substantial portion of the SBC program in 2015, more relevant is that, in 2024, the respondent did not engage in the same program and, in 2025, the respondent used the search terms set out in [13] above. Also relevant is that, despite the participation in the SBC program in 2015, the respondent has more recently been assessed to be at moderate-high risk of sexual reoffending. Consideration In Attorney-General (SA) v Sullivan (No 2),[3] Hinton J stated:[4]The power to make a continuing detention order is not a power to punish a person for breaching a supervision order. It is a power to be exercised for protective not punitive purposes. The question is whether the drastic step of incarcerating the high risk offender for the duration of the extended supervision order or some lesser period is necessary to protect the community from an appreciable risk to its safety as posed by the high risk offender. That question is to be answered in the knowledge that the alternative is the continuation of the supervision order, possibly varied. Obviously the risk posed by the offender subject of the breached supervision order must be reassessed in the light of the nature and circumstances of the breach.[3] Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74.[4] Ibid, [9]. In Attorney-General (SA) v Drion,[5] Livesey J (as he then was) held:[6]The authorities to which I have referred suggest that the following considerations (amongst others) are relevant to the determination that this Court must make under s 18(2) of the Act where continuing detention is sought:1.The purpose of detention is not punitive but protective;2.When assessing the risk posed by a respondent, it is relevant to re-assess the risk given the nature and circumstances of any breach;3.It is necessary to identify with some particularity the risk that the respondent poses to the community, before turning to consider whether detention is necessary to adequately protect the community from that risk;4.In some cases the risk to the community may be immediate and the appropriate response may need to be detention. However, in other cases the risk may be less immediate, but no less profound, and may require detention so as to facilitate different measures associated with intervention and prevention; and5. The respondent should not be detained for any longer than is necessary to ensure adequate protection of the community.[5] Attorney-General (SA) v Drion [2020] SASC 120.[6] Ibid, [68].Appreciable risk Consistent with the above, it is necessary to identify with some particularity the risk the respondent poses to the safety of the community if not detained. I find that there is an appreciable risk that, if not detained, the respondent will take steps to contact a child, likely a teenaged female under the age of 18, and take steps to exploit that child in a sexual way. The respondent may do that using an electronic device, such as a phone. The respondent may do it in person. The respondent may do both. It is well known that the sexual exploitation of a child can have adverse impacts upon a child which are significant and long-lasting. This is the case regardless of how the exploitation is achieved. For those reasons, the respondent poses an appreciable risk to the safety of the community if not detained.