Attorney-General (SA) v Huculjak (NO. 2) - [2019] SASC 210

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Application)
ATTORNEY-GENERAL (SA) v HUCULJAK (NO. 2)
[2019] SASC 210
Judgment of The Honourable Justice Hughes
10 December 2019
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS
Mr Huculjak was released from prison on 26 February 2018, after serving a 20 month sentence for offences including aggravated recklessly cause harm, aggravated assault and indecent assault. Upon his release on 21 February 2018 he was made subject to an interim supervision order and then an extended supervision order on 9 August 2018, the court being satisfied that he was a high risk offender under the Criminal Law (High Risk Offenders) Act 2015 (‘The HRO Act’). That order required the respondent to comply with certain conditions for 2 years, including not consuming alcohol or illicit drugs, submitting to testing for the presence of those substances and, at the request of his community corrections officer, participating in counselling programs and attending a psychologist.
The respondent breached the extended supervision order 7 times between August and December 2018, which led the Parole Board to detain him and refer the question of whether he should be subject to a continuing detention order to Supreme Court. On 31 May 2019 the Court declined to impose a continuing detention order on the basis that the order was not necessary for the protection of the community, at which point the respondent was released back into the community under the supervision order.
Shortly after his release he committed 4 further breaches which led the Parole Board to detain him on 18 June 2019 before releasing him again on 8 August 2019, under a new condition of electronic-monitoring.
On 23 September 2019, the Parole Board arrested and detained the respondent, on suspicion that he had again breached the supervision order. The Board found him to have breached the order by testing positive for alcohol and methamphetamine/amphetamine and by reporting several hours late to his community corrections officer on 20 September 2019.
The Board referred the question of whether the respondent should be made subject to a continuing detention order to the Supreme Court. On 13 November 2019, he was made subject to an interim detention order, to be detained pending the outcome of these proceedings.
Held, declining to make an order for the continuing detention of the respondent:
1. A continuing detention order is not required to ensure the safety of the community because:
a. Whilst there have been breaches, they have not resulted in offending and they do not themselves evidence a risk great enough to justify detention for the proper protection of the community;
b. There has been no change to the risk posed by the respondent since the Court declined to make the same order in May 2019;
c. Whilst the Violence Prevention Program is available 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.

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Details

Case: [2019] SASC 210
Decision Date: 10 December 2019

CaseChat Overview and Summary

The appellant, the Attorney-General for the State of South Australia, appealed against the sentence imposed on the respondent, Mr Huculjak, who was convicted of sexual offences against children. The primary judge found that the respondent's offending was in the middle range of seriousness, and imposed a sentence of imprisonment for a non-parole period of four years and six months, with a total sentence of six years and six months. The primary judge also imposed post-custodial orders including a sexual offender declaration, a violent offender declaration and a sexual offence prevention order.

The appeal raised issues concerning the quantum of the sentence and the imposition of the post-custodial orders. The Attorney-General contended that the primary judge had failed to adequately consider the seriousness of the offending and the need for general and specific deterrence. The respondent argued that the sentence was appropriate and that the post-custodial orders were unreasonable and disproportionate.

The Court held that the primary judge had erred in assessing the seriousness of the offending. The Court found that the primary judge had not adequately considered the impact of the offending on the victims and had placed insufficient weight on the need for general deterrence. The Court also found that the post-custodial orders were reasonable and proportionate, having regard to the nature of the offending and the need to protect the community. The Court varied the sentence to imprisonment for a non-parole period of six years and a total sentence of eight years and six months, and affirmed the imposition of the post-custodial orders.

The Court ordered that the appeal be allowed, the sentence be varied as set out above, and the imposition of the post-custodial orders be affirmed.

Orders