Attorney-General (SA) v GS - [2025] SASC 29

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v GS
[2025] SASC 29
Ruling of the Honourable Justice Stein
13 March 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
The applicant brought applications for an indefinite detention order and an interim detention order pursuant to s 57 of the Sentencing Act 2017 (SA) and separately for an extended supervision order and an interim supervision order pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA). The respondent opposed the making of the interim detention order (the “IDO”) pending determination of the application under s 57(7).
The applicant contended the IDO was necessary to protect the safety of the community and that the evidence supported a finding that the respondent was unwilling to control his sexual instincts on the basis there was a significant risk he would, if given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts.
The respondent submitted there was insufficient evidence to make findings regarding his innate mental characteristics and on whether they would render him incapable of control of his sexual instincts and contended the risk posed could be appropriately managed in the community under strict interim supervision order conditions.
Held (refusing the application):
1.The evidence before the Court is not sufficient to warrant the making of an IDO. In any event, the Court would refuse to exercise the discretion to make an IDO on the basis other measures are apt to address the risk posed by the respondent, in particular, the making of an interim supervision order including electronic monitoring, home detention and non-contact conditions.
2.Potential uncertainty regarding the Court’s jurisdiction to make an order under s 57(7) of the Sentencing Act 2017 (SA) in the event an IDO is not made is not a sound basis to make an IDO when considered against the matters which militate in favour of refusing this application.

Consideration of the implications of delay in filing an application for an interim detention order pursuant to s 57 of the Sentencing Act 2017 (SA).
Sentencing Act 2017 (SA) s 57; Criminal Law (High Risk Offenders) Act 2015 (SA), referred to.
Attorney-General (SA) v Colangelo [2025] SASC 2; R v F, JM [2015] SASC 99; Attorney-General v Tipping [2019] SASC 7; Driver v Attorney-General (SA) [2022] SASCA 13; R v Hoare [2017] SASC 7; R v Stevens [2015] SASC 79; R v England (2004) 87 SASR 411; R v Ainsworth (2008) 100 SASR 238, considered.

ATTORNEY-GENERAL (SA) v GS
[2025] SASC 29
Criminal: Application

STEIN J: On 25 February 2025, the Attorney-General filed an application for an extended supervision order and interim supervision order pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA) (the “HRO Act”) and a separate application seeking an extended detention…

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 29
Case: [2025] SASC 29
Decision Date: 13 March 2025

CaseChat Overview and Summary

The application in this case was brought by the Attorney-General against GS, who was serving a sentence of nine years in prison with a non-parole period of seven years for serious sexual offences against his intellectually disabled daughter. The Attorney-General sought an interim detention order under s 57 of the Sentencing Act 1997 (SA) pending the determination of a potential application for an indefinite detention order. The application was made shortly before GS's head sentence was due to expire, which raised questions about the appropriateness of an interim detention order under the circumstances.

The legal issues the court needed to resolve included whether the court had jurisdiction to hear the application for an interim detention order given that it was filed while GS was in custody, and whether the application was made in a timely manner considering GS's impending release. The court also had to consider whether GS met the criteria for an indefinite detention order, specifically whether there was a significant risk that he would fail to exercise appropriate control of his sexual instincts if given an opportunity to commit a relevant offence.

In its decision, the court concluded that while there was jurisdiction to hear the application, the potential uncertainty about this point, combined with the lateness of the application, did not justify making an interim detention order. The court emphasised that the application was made less than three weeks before GS's sentence was to expire, resulting in a lack of evidence that directly addressed the criteria for an indefinite detention order. The court also noted that GS had a history of serious sexual offending and had been assessed as a moderate to high risk of reoffending, but the absence of expert opinion on GS's unwillingness to control his sexual instincts was a significant factor against making an interim order. The court ultimately refused the application for an interim detention order but made an interim supervision order along with other orders requested by the Attorney-General.

In summary, the court's decision hinged on the timing of the application and the lack of evidence directly addressing the criteria for an indefinite detention order. The court concluded that these factors, combined with the potential uncertainty about jurisdiction, justified refusing the interim detention order. The court did, however, impose an interim supervision order and other related orders.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow I have determined to refuse the application for an interim detention order pending determination of the s 57(7) application. Background GS was sentenced on 29 September 2017 in the District Court to nine years imprisonment with a non-parole period of seven years backdated to 13 March 2016. Accordingly, GS’s head sentence will expire on 13 March 2025. Consequently, the applications had to be addressed as a matter of urgency. GS was sentenced following his conviction by a jury of unlawful sexual intercourse, two counts of gross indecency and attempting to obstruct or pervert the course of justice. The offences involved GS’s intellectually disabled daughter who was 15 years old at the time but had been assessed as having the mental age of an average six year old. The sentencing remarks of Judge Rice describe the circumstances of the offence of unlawful sexual intercourse as involving penile-vaginal sexual intercourse. In relation to the counts of gross indecency, the first related to GS ejaculating on the victim’s leg and the second related to GS providing the victim with a vibrator. After his arrest, GS was released subject to bail conditions which included a non-contact clause. Approximately a year later, the victim retracted her earlier allegations. When re-interviewed about four months thereafter, she said in effect that GS had made her retract her allegations and that she stood by her earlier account. That conduct gave rise to the attempt to obstruct or pervert the course of justice charge. The Judge sentenced GS on the basis that the offences occurred against a backdrop of some ongoing sexual contact and were not opportunistic or isolated. In April 2010, GS was sentenced in the District Court to a charge of unlawful sexual intercourse with a person under the age of 14 for offending in 2009. For the 2009 offending, GS was sentenced to a head sentence of three years imprisonment with a non-parole period of 18 months. He received a discount as a result of a guilty plea. The sentencing remarks for the 2009 offending observed that GS was 28 and the victim was 13 at the time of the offending. GS met the victim by chance and they developed a friendship. On 12 January 2009, GS telephoned the victim and met her at the shops. They walked towards the victim’s house and then, on the way, had sexual intercourse under a bridge over a dry creek bed. GS then ceased contact with the victim. GS was released on parole in 2011. However, parole was later cancelled because GS failed to comply with reporting obligations under the Child Sex Offenders Registration Act 2006 (SA) because he failed to report that he had access to the internet, his internet access details or that he had grown a beard. GS has a history of other offending, including assault, aggravated assault, breaching bail and breaching community service orders. In 2011, a psychologist, Ms Bruggemann, assessed GS for suitability for the Owenia House program. The psychologist undertook a risk assessment examining both static and dynamic factors. Ms Bruggemann considered GS was an appropriate candidate for treatment at Owenia House with dynamic needs that could benefit from treatment.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Both parties took the position that given the application was filed while GS was in custody, the Court will have jurisdiction to entertain an application for an indefinite detention order in due course. However, the Attorney-General submitted that in the absence of binding authority on the point, I could take potential uncertainty about jurisdiction into account. While I accept his Honour’s observations were obiter, I consider persuasive the reasoning of the Chief Justice in Attorney-General v Tipping[13] to the effect that the Court has jurisdiction to make an order under s 57(7) if an application has been filed while the respondent is in custody. Possible uncertainty about that position does not cause me to form the view that I should exercise my discretion to make an interim detention order given the matters to which I have referred which militate in favour of refusing the application for an interim detention order. [13] Attorney-General v Tipping [2019] SASC 7 at [13]-[14] (Kourakis CJ).Conclusion and orders I refuse the application for an interim detention order. I will make an interim supervision order together with the other orders sought by the Attorney-General including ordering reports.

Ratio Decidendi

Legal Principle Established

GS submitted that the tardiness of the application caused prejudice to GS and constituted a failure to accord him procedural fairness. Consideration The filed material established:·GS is a serious repeat offender.·GS had engaged in extremely serious sexual offending against children, firstly against a 13 year old (in 2009) and then against his 15 year old disabled daughter (in about 2015).·GS was assessed in 2011 by a psychologist as of moderate-high risk of sexual reoffending should he not receive treatment. ·In November 2023, Ms Feliciotto assessed GS as having a predicted sexual recidivism of 35.1 percent over five years in comparison to the normative sample for the relevant tool and offence type. That equates GS to being at moderate-high risk of sexual re-offending.·Ms Feliciotto’s report dated 9 May 2024 observed that denial of responsibility did not preclude engagement in a criminogenic program, but failure to discuss a range of areas relevant to behaviours can be considered a barrier to engagement. ·GS commenced the SBC in January 2024. The SBC termination report recorded concerns with his participation, including that he maintained his innocence. ·GS withdrew from the SBC, maintaining his innocence.·GS has unmet treatment needs.·The DCS recommended an application for an ESO. The definition of unwilling in s 57(1) of the Sentencing Act is that a person will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of their sexual instincts. There are no reports of psychologists or psychiatrists which directly address GS’s unwillingness to control his sexual instincts within the meaning of s 57. In the absence of expert opinion, for the purposes of considering an interim detention order, I am being asked to infer that GS is relevantly unwilling in essence from the nature of his index offending against his history of prior offending, escalation of offending, the assessment of his risk by the DCS clinician, GS’s failure to accept responsibility for his offending and his failure to complete the SBC. However, the filed materials do not contain any recommendation by a DCS clinician for making an s 57 application. The risk assessment by DCS placed GS at moderate to high risk of reoffending with a predicted risk of recidivism of about 35 percent. While undoubtedly of concern, that it is not the highest level of risk which may otherwise accompany an assessment of unwillingness to control sexual instincts. Since April 2024 there have been no significant events impacting on GS’s risk assessment. No steps were taken until a short time before the expiry of the head sentence to seek a s 57 order. While I accept the Attorney-General’s submission that an application for an order under s 57 can be made up until the expiry of the head sentence, delay can be a relevant consideration in the exercise of the discretion to make an interim detention order.[10] In this case, the institution of an application less than 3 weeks prior to expiry of GS’s nine year head sentence has had the consequence of a lack of evidence which focusses on the criteria relevant to a decision about an indefinite detention order and thus the making of an interim order. While the order sought at present is an interim order, the Court is left in the unfortunate position of being asked to draw inferences from material which does not have as its primary consideration the relevant test for an order under s 57. [10] Attorney-General v Tipping [2019] SASC 7 at [8] (Kourakis CJ).