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.

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…

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: [2020] SASC 12
Decision Date: 5 February 2020

CaseChat Overview and Summary

The case of Attorney-General (SA) v GUIDOTTO involved the respondent, an offender, appealing against the severity of his sentence and certain post-custodial orders imposed by the trial judge. The appeal centred around the imposition of a post-custodial order restricting the respondent’s association with certain individuals, which was imposed under the South Australian Sentencing Act. The appeal was heard in the Supreme Court of South Australia.

The primary legal issue was whether the trial judge had the authority to impose the post-custodial order restricting the respondent's association with specific individuals, and if so, whether the order was proportionate to the offence committed. The appeal also questioned the discretion of the trial judge in sentencing, particularly in relation to the balance between the punitive and rehabilitative aspects of the sentence.

The Supreme Court found that the trial judge had indeed the authority to impose the post-custodial order, as it was within the scope of the relevant legislative provisions. The court held that the order was appropriate given the nature and circumstances of the offence, which involved serious criminal conduct. The court also examined the proportionality of the order in relation to the offence, considering the respondent’s history and the potential risk to the community. Ultimately, the court upheld the sentence and the post-custodial order, affirming that the trial judge had exercised his discretion appropriately in the circumstances.

The final orders of the court were to dismiss the appeal and to affirm the sentence and post-custodial order imposed by the trial judge. The respondent was thus required to comply with the restrictions placed upon him, in addition to serving the custodial sentence.

Orders