Attorney-General (SA) v Huculjak - [2019] SASC 88

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v HUCULJAK
[2019] SASC 88
Judgment of The Honourable Justice Hughes
12 June 2019
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
On 26 February 2018, the Respondent was released from prison after serving a 20 month sentence for various offences, including aggravated recklessly cause harm, aggravated assault and indecent assault. He was released subject to an interim supervision order made by this Court pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). On 9 August 2018, this Court confirmed that the risk the Respondent posed to the safety of the community made it appropriate that he be subject to an extended supervision order pursuant to s 7 of the Act.
On 21 February 2019, following the Respondent’s failure to attend the Living Without Violence program as directed by his Community Corrections Officer, the Parole Board determined that a referral should be made to this Court pursuant to s 17(1)(b)(ii) as to whether the Respondent should be subject to a continuing detention order. On referral, the Attorney-General supported the making of a continuing detention order. The Respondent opposed the order.
Held, the Respondent breached the conditions of his extended supervision and poses an appreciable risk to the safety of the community. However, a continuing detention order is not required to secure the protection of the community. The Respondent has been detained for 6 months. The community’s protection is now adequately addressed through the terms of the extended supervision order under which the Respondent can be directed to participate in programs to reduce his dynamic risk factors. The referral for a continuing detention order is dismissed. The Respondent is to be released from custody on the extended supervision order made by this Court on 9 August 2018.
Criminal Law (High Risk Offenders) Act 2015 s 18, referred to.
Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SADC 74; Attorney-General v Sullivan (No 2) [2018] SASC 74; R v Schuster (2016) SASR 388, applied.
Attorney-General (SA) v Moyle (No 2) [2019] SASC 31, considered.

ATTORNEY-GENERAL (SA) v HUCULJAK
[2019] SASC 88
Hughes J:

The Court is required to determine whether the Respondent, Mr Huculjak, should be subject to a continuing detention order made under the Criminal Law (High Risk Offenders) Act 2015 (SA) (the HRO Act). The question arises because of a breach by Mr Huculjak of an extended supervision order to which he was subject. On such a breach, the Parole Board may release the person or refer them to the Court for a continuing detention order. The Board referred Mr Huculjak to the Court. On a referral, the person and the Attorney-General are entitled to be heard.
The Attorney-General submits that the Court should make a continuing detention order in relation to Mr Huculjak. Mr Huculjak submits that an order is not necessary and that the Court should release him whereupon he will continue to…

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.

Keep reading for free

Create a free CaseChat account to read Attorney-General (SA) v Huculjak and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] SASC 88
Decision Date: 12 June 2019

CaseChat Overview and Summary

In the case of Attorney-General (SA) v Huculjak, the South Australian Supreme Court was tasked with considering whether the respondent, Huculjak, should remain in detention following the completion of his sentence. The Attorney-General argued for continued detention on the grounds that Huculjak posed a risk to the community due to his past offending behaviour. Huculjak, represented by Mr Marcus, contended that he had already served a substantial period in custody and that further detention was unnecessary. The legal issues centred on the appropriate balance between the risk Huculjak posed to the community and the principle of proportionality in sentencing, particularly in light of Huculjak's significant time already served in prison.

The court weighed the similarities and differences between Huculjak's case and that of Mr Moyle, a previous case where the court had ordered post-custodial detention. While acknowledging that there were significant similarities, the court noted critical distinctions, such as the entrenched nature of Mr Moyle's violent offending compared to Huculjak's predominantly street-level offences. Additionally, the court considered Huculjak's time already served in custody, which had likely mitigated some of the risks he posed. The court also highlighted that Huculjak was not yet institutionalised, unlike Mr Moyle, and that any curative effects of imprisonment had already largely accumulated. The evidence in the case was finely balanced, and the court was not convinced that Huculjak's risk to the community was such that it required further detention to address it.

The court concluded that Huculjak's risk to the community was likely reduced due to his lengthy period in custody, and that a further 11 months in detention was not necessary. Furthermore, the court determined that Huculjak's participation in a violence prevention program was not a sufficient reason for continued detention, as he could be directed to attend such a program in the community if released on conditions. The court declined to make an order for continuing detention and directed the parties to propose a date for Huculjak's release under the conditions of his extended supervision order. This decision underscores the importance of considering the proportionality of sentencing and the potential benefits of rehabilitation in the community.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Although there are strong similarities between the Respondent’s circumstances and those of Mr Moyle, there are some important differences. Mr Moyle’s history of violent offending is significantly more entrenched than that of the Respondent. This much was properly conceded by Ms Haines for the Attorney-General. Mr Moyle’s violence was characteristic of much of his antecedent history. Mr Huculjak’s past offending is predominantly, as Mr Marcus put it, “street-level”. But it is also evident that the decision in Moyle was influenced by Mr Moyle’s institutionalisation. Mr Huculjak is not institutionalised. He faces the distinct possibility of this occurring but it could not be said yet to be the case. Finally, although the Court put little weight on it, the period in custody was suggested as being likely to have some curative effect on Mr Moyle. In Mr Huculjak’s case, any such benefit has likely already accumulated by virtue of his imprisonment for the last six months.Conclusion The evidence in this matter is finely balanced. I am not satisfied that the risk to the community that Mr Huculjak presents at this point in time has been shown to be such as requires detention to address it. Having spent such a considerable period in custody for his failure to comply with the conditions of his extended supervision order, I consider that the risk is likely to be somewhat ameliorated insofar as the Respondent is under no illusion as to the consequences of non-compliance. I do not consider that a further 11 months’ detention, or any period less than that, is necessary to secure the safety of the community. Further, I do not consider that detention in order to secure his participation in the violence prevention program is required. Firstly, his participation cannot be guaranteed. Secondly, if released on conditions, there is an opportunity to direct him to attend, for a second time, the LWV program in the community or such other program as the Department for Correctional Services considers appropriate. If he is so directed and does not participate, he will most likely find himself the subject of further consideration by the Parole Board. I decline to make an order for continuing detention. I will hear the parties as to the date on which my order should take effect to address the immediate needs of Mr Huculjak following his release under the conditions of the extended supervision order to which he continues to be subject.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.