Attorney-General (SA) v GUIDOTTO

[2020] SASC 12

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

ATTORNEY-GENERAL (SA) v GUIDOTTO

[2020] SASC 12

Judgment of The Honourable Justice Nicholson

5 February 2020

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

The Attorney-General (SA) made an application pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) for an extended supervision order in relation to the respondent. On 1 May 2019, and pending the determination of the application, the Court made an interim supervision order. The respondent opposed the making of an extended supervision order. He contended that he does not meet the threshold requirement to be regarded as a high risk offender as defined under the Criminal Law (High Risk Offenders) Act 2015 (SA). The respondent submitted that the offence of committing an act creating a risk of harm contrary to subsection 29(3) of the Criminal Law Consolidation Act 1935 (SA) committed by him and relied on by the Attorney does not fall within the definition of a “serious offence of violence”. The respondent also submitted that irrespective of the elements of the offence, the actual conduct the respondent engaged in neither caused serious harm nor posed a risk of serious harm.

Held, the respondent meets the threshold requirement to be regarded as a high risk offender as defined in the Criminal Law (High Risk Offenders) Act 2015 (SA). This is because the conduct of the respondent which constituted the offence involved at least a risk of serious harm to the victim in that it involved a risk of harm consisting of serious and protracted impairment of a physical or mental function or consisting of serious disfigurement.

Criminal Law (High Risk Offenders) Act 2015 (SA) s 4, s 5, s 7, s 9; Criminal Law (High Risk Offenders) Act 2015 (SA) s 21, s 23, s 29, s 83D, referred to.
Attorney-General (SA) v Wikaire (2017) 127 SASR 565; Attorney-General (SA) v Wells [2017] SASC 149; Attorney-General (SA) v Jeffery (2018) 130 SASR 300; Attorney-General (SA) v Davidson [2018] SASC 91; Attorney-General (SA) v Laughlin [2019] SASC 105; Attorney-General (SA) v Kember [2019] SASC 19; Attorney-General (SA) v Gates (2017) 129 SASR 298, considered.

ATTORNEY-GENERAL (SA) v GUIDOTTO
[2020] SASC 12

Criminal: Application

NICHOLSON J.

1. The Attorney-General has applied for the respondent to be subjected to an extended supervision order pursuant to subsection 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). The application is contested. On 1 May 2019, Hughes J made an interim supervision order pursuant to section 9 of the Act which was to remain in force until the determination of the application for an extended supervision order. The matter was argued late last year and I reserved judgment on 13 December 2019 following the receipt of additional written submissions from the parties.

2. The interim supervision order is comprised of terms usually to be found in such an order, together with a curfew condition and a condition that the respondent is to wear an electronic monitoring device.  The Attorney has applied for any extended supervision order made to be in force for three years from the date of the order.  It is likely that the Attorney will seek terms broadly the same as those of the interim supervision order.

3. The requirements to be established by the Attorney in order to justify the making of an extended supervision order are as set out in subsection 7(4) of the Act. In short, the Court must be satisfied that the respondent is a high risk offender and that the respondent poses an appreciable risk to the safety of the community if not supervised under the order. Subsection 7(5) provides that the paramount consideration in determining whether to make an extended supervision order must be the safety of the community. Subsection 7(6) of the Act sets out a number of matters that must be taken into consideration by the Court to the extent that they apply or that evidence bearing on them is available, when determining whether or not to make an extended supervision order.

4. At the request of both parties, I agreed to first hear and determine, as a preliminary issue, whether the respondent is to be characterised as a high risk offender under subsection 7(4) of the Act so as to satisfy the threshold requirement for the making of an extended supervision order.

5. In considering this threshold issue, I have had regard to the relevant aspects of the affidavit material filed in support of the application, being affidavits of Karim Wardhana Soetratma affirmed 26 April 2019 and Louise Michelle Kleinig sworn 8 October 2019, both solicitors employed in the Crown Solicitor’s Office.  I have not, at this stage, had regard to the report by forensic psychiatrist Dr N P Nambiar, dated 30 July 2019, that was requested when the interim supervision order was made.  I have also had the benefit of written and oral submissions presented by counsel for the Attorney and counsel for the respondent.

6. The respondent submitted that the threshold requirement, that is, that he is to be regarded as a high risk offender as defined under the Act, has not been met and as such there is no jurisdiction to make an extended supervision order as sought or at all.  The various interlocking definitions, contained in the Act and in the Criminal Law Consolidation Act 1935 (SA), which govern the question of whether or not a particular respondent is a high risk offender have been set out and discussed in the authorities to which I shortly will refer. It is not necessary to set those definitions out or further discuss them here.

7. On 20 November 2014, the respondent was sentenced to nine months imprisonment for the offence of committing an act creating a risk of harm contrary to subsection 29(3) of the Criminal Law Consolidation Act 1935, the maximum penalty for which (in the case of a basic offence) is imprisonment for five years. This sentence was ordered to be served cumulatively on a lengthy sentence imposed for other offending. For the purpose of her application, the Attorney relies on the offence of creating a risk of harm as qualifying the respondent as a high risk offender. For present purposes, a high risk offender as defined in section 5 of the Act includes a person who has been convicted of and sentenced to a term of imprisonment in respect of a serious offence of violence.

8. The essence of the respondent’s contention is that the offence of creating a risk of harm does not fall within the definition of a “serious offence of violence”.  It is contended that, whilst it is a serious offence,[1] it is not one where the elements of the offence involve conduct causing “the death of or serious harm to, a person or a risk of the death of, or serious harm to, a person” as required by subsection 83D(1) of the Criminal Law Consolidation Act 1935 and subsection 4(1) of the Act.  It is also submitted that irrespective of the elements of the offence, the actual conduct the respondent engaged in neither caused serious harm nor posed a risk of serious harm. 

   [1] On the basis that it carries a maximum penalty of imprisonment for five years, see section 4 of the Act and subsection 83D(1) of the Criminal Law Consolidation Act 1935 (SA).

9. For these purposes, serious harm is defined by section 21 of the Criminal Law Consolidation Act 1935 to mean:

   serious harm means—

   (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.

10. The respondent has submitted that, because he was charged with and found guilty only of creating a risk of harm, such is not capable of satisfying the definition of serious offence of violence for the purpose of the Act.  Neither serious harm nor a risk of serious harm was alleged or found proved.  Furthermore, according to the respondent’s submission, the actual factual basis of the offending was not such as to support a conclusion that the conduct of the respondent involved a risk of serious harm to the victim. 

11. I accept that the respondent was only charged with creating a risk of harm.  As such, the question of whether serious harm was caused or whether there was a risk of serious harm was irrelevant to and not addressed in the proceedings with respect to the charged offence.  However, the language of the definition of serious offence of violence focusses not on the elements of the offence committed but on the actual conduct underlying or giving rise to the charged offence.  The question to be determined is whether the actual conduct involved serious harm to a person or a risk of serious harm to a person.  This issue has been dealt with in similar contexts on a number of occasions in this Court, see Attorney-General (SA) v Wikaire,[2] Attorney-General (SA) v Wells,[3] Attorney-General (SA) v Jeffery,[4] Attorney-General (SA) v Davidson,[5] Attorney-General (SA) v Laughlin,[6] Attorney-General (SA) v Kember[7] and Attorney-General (SA) v Gates.[8]

    [2] [2017] SASC 58; (2017) 127 SASR 565.

    [3] [2017] SASC 149.

    [4] [2018] SASC 1; (2018) 130 SASR 300.

    [5] [2018] SASC 91.

    [6] [2019] SASC 105.

    [7] [2019] SASC 19.

    [8] [2017] SASC 154; (2017) 129 SASR 298.

12. The task before a court when a person is prosecuted for the offence in issue here is different from the task before a court when considering whether the offence, as committed, satisfies the definition of serious offence of violence.  To establish the offence, it is necessary to establish, inter alia, that harm, only, was objectively likely.  Because only the lesser form of the charge[9] was laid it was not necessary to prove that serious harm was objectively likely.  However, for the purpose of satisfying the definition of serious offence of violence, it is only necessary for the court to be satisfied that the respondent’s conduct in committing the offence involved a risk of serious harm, not being a fanciful, theoretical or remote risk.[10] The two respective assessments are not incompatible nor does a finding of the former necessarily preclude a finding of the latter. 

    [9] As opposed to creating a risk of serious harm contrary to subsection 29(2) of the Criminal Law Consolidation Act 1935 (SA).

    [10] Attorney-General (SA) v Jeffery [2018] SASC 1; (2018) 130 SASR 300 at [17]-[21].

13. The factual basis for the offending as found, according to the sentencing remarks of his Honour Judge Tilmouth delivered on 20 November 2014 included the following:

    You are also before the court for sentence with respect to creating a risk of causing harm, for which you are liable for up to five years imprisonment. This occurred shortly after the second trespass when a neighbour on a quad bike realised something strange was happening, so he stopped at the bottom of the driveway as you were making an escape at speed in a motor vehicle. You collided with the quad bike with him sitting on it, which upturned and clearly from his victim impact statement was frightening and shocking. You are sentenced on the basis of the amended charge, namely, that you knew the manner of escape was likely to cause harm and being recklessly indifferent as to whether harm was caused to him.

    The victim did not suffer physical harm.  However, the factual question before me is whether the conduct of the respondent constituting the offence involved:

    the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person.[11] 

    [11] Subsection 83D(1) of the Criminal Law Consolidation Act 1935 (SA).

14. I am satisfied that the conduct of the respondent which constituted the offence involved at the least “a risk of serious harm”[12] to the victim in that it involved a risk of harm consisting of serious and protracted impairment of a physical or mental function or consisting of serious disfigurement.  I appreciate that harm to this extent was not in fact caused but as I have said I am satisfied that the conduct involved a risk that such would be. 

    [12] As that term is defined, as set out above.

15. In coming to this conclusion, I have considered and adopted the reasoning in Wikaire, Jeffery, Davidson and Laughlin, referred to above and notwithstanding the more cautious or confined approach adopted in Gates.  In my view, upon an application of that reasoning, this is an example of a serious offence of violence as defined for the purposes of the Act and notwithstanding that the offence itself, as charged and found proved, did not have, as an element, the causing of serious harm or exposing the victim to a risk of serious harm. 

16. In Jeffery, Hinton J expressed the opinion that in the context of the Act, “risk” carried its normal meaning and embraced “a real or recognisable risk, albeit not a substantial risk”.[13]  To be excluded are risks that are fanciful, theoretical or remote.  The approach was followed by Doyle J in Laughlin.  I also agree.  On the facts of the present case the risk of serious harm was a real or recognisable one and not fanciful, theoretical or remote.  The driving of a car at any speed (other than, perhaps, a barely moving car) so as to collide with a quad bike being ridden by an unprotected passenger poses an obvious risk of causing “serious harm”.

    [13] Attorney-General (SA) v Jeffery [2018] SASC 1; (2018) 130 SASR 300 at [17].

17. I reject both of the respondent’s contentions.  I am satisfied that, as a matter of law and fact the offence, as committed by the respondent, is properly to be characterised as a serious offence of violence and that the threshold question, whether the respondent is a high risk offender, as defined, is to be answered in the affirmative.  I will hear the parties further on whether the other requirements for the making of an extended supervision order have been established by the Attorney and, if so, whether the discretion to make one should be exercised.

18. During the argument, I raised with the parties whether on a proper construction of the Act, the finding by Hughes J that the respondent was a high risk offender for the purpose of making an interim supervision order, might preclude a Judge of coordinate jurisdiction, when considering the making of an extended supervision order, from reaching a different conclusion.  Counsel for the Attorney provided helpful supplementary written submissions contending that I was entitled to consider the question afresh and come to a different conclusion. Counsel for the respondent adopted those supplementary submissions.  Given that I have reached the same conclusion as did Hughes J, I would prefer not to express a final view on this issue unless and until it were to arise for decision.