Attorney-General (SA) v Jeffery - [2018] SASC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v JEFFERY
[2018] SASC 1
Reasons for Decision of The Honourable Justice Hinton
18 January 2018
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
Application by the Attorney-General for an extended supervision order pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (the Act), an interim supervision order pursuant to s 9(1) and an order that an assessment be conducted and report prepared pursuant to s 7(3)(b) of the same Act.
The respondent submitted that he is not a high risk offender within the meaning of s 5(c) of the Act with the consequence that the Attorney’s application is incompetent. The respondent pleaded guilty to attempted aggravated robbery contrary to s 137(1) and s 270A of the Criminal Law Consolidation Act 1935 (SA). The circumstances of the offending were that on 23 August 2013 at around 11.30am, the respondent entered the Everyday Friendly Grocer at Davoren Park demanding money and cigarettes while swinging above the head of one victim in a threatening manner a 1 to 1.5 metre long stick.
The respondent argued that his offending was not constituted of conduct that involved serious harm to a person or a risk of serious harm to a person. He relied on the decision of Attorney-General (SA) v Gates [2017] SASC 154 to argue that a comparison of his conduct with that of Mr Gates had to result in the conclusion that he was not a high risk offender. The Attorney-General argued that Gates could be distinguished on its facts and that the approach to the construction of the Act taken in Attorney-General (SA) v Wikaire [2017] SASC 58 was to be preferred.
Held:
1. The respondent is a high risk offender within the meaning of s 5(c) of the Act. The application is, therefore, competent.
2. The Attorney-General’s application for an interim supervision order pursuant to s 9 of the Act is granted.
3. Examination, assessment and report ordered pursuant to s 7(3)(b) of the Act.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 5(c), 7, 9, referred to.
Attorney-General (SA) v Wikaire (2017) 127 SASR 565; Attorney-General (SA) v Grosser [2016] SASC 49, applied.
Attorney-General (SA) v Gates [2017] SASC 154, not followed.

ATTORNEY-GENERAL (SA) v JEFFERY
[2018] SASC 1
Criminal: Application
HINTON J.
Introduction

The issue arising for determination on this application is whether Corey Daniel Jeffery is a high risk offender within the meaning of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act or the Act).
The High Risk Offenders Act vests power in this Court to make an extended supervision order allowing for a high risk offender to be supervised in the community after his or her sentence and any related…

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 Jeffery

Details

AGLC: Attorney-General (SA) v Jeffery [2018] SASC 1
Case: [2018] SASC 1
Decision Date: 18 January 2018

CaseChat Overview and Summary

The case of Attorney-General (SA) v Jeffery involved an application for an extended supervision order in relation to the offender, Mr Jeffery. The primary issue for the court was whether the allegations, if proven, would justify the making of an extended supervision order. The court was required to determine if Mr Jeffery posed an appreciable risk to the safety of the community if not supervised under such an order.

In reaching its decision, the court considered several factors. Firstly, Mr Jeffery had a history of convictions for serious offences, including robbery armed with an offensive weapon, robbery in company, attempted aggravated robbery, assault, and break and enter. Secondly, psychological assessments indicated that Mr Jeffery displayed static and dynamic criminogenic factors indicative of a predisposition to offending. These included a predominantly negative peer group, a severe conduct disorder in his adolescence, problems with authority, pathological boredom, poly substance abuse and alcoholism, a history of anger management and impulse control problems, and reckless behaviours. The court was particularly influenced by the fact that Mr Jeffery's primary criminogenic risk factor was identified as his history of drug addiction.

After weighing these factors, the court concluded that the material, if proved, would justify the making of an extended supervision order. The court found that Mr Jeffery posed an appreciable risk to the safety of the community if not supervised under such an order. Consequently, the court made an extended supervision order for Mr Jeffery.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

HINTON J

I have read Mr Nguyen’s affidavits and the materials exhibited. I am satisfied that if the matters alleged in that material is proved, it would justify the making of an extended supervision order. If that material is proved, it would be open to the Court to conclude that Mr Jeffery poses an appreciable risk to the safety of the community if not supervised under an extended supervision order. Here I am influenced in particular by the following:i.Mr Jeffery’s antecedents include convictions for robbery armed with an offensive weapon, robbery in company, attempted aggravated robbery, assault and a number of convictions for break and enter;ii.In a psychological report prepared in September 2014 by Mr Balfour, a forensic psychologist, Mr Jeffery is described as displaying static and dynamic criminogenic factors indicative of a predisposition to offending, including a predominantly negative peer group, a severe conduct disorder in his adolescence, problems with authority, pathological boredom, poly substance abuse and alcoholism, a history of anger management and impulse control problems, and reckless behaviours. Mr Balfour considered Mr Jeffery’s primary criminogenic risk factor to be his history of drug addiction. In this regard Mr Jeffery reported having a serious intravenous amphetamine addiction at the time of the attempted aggravated robbery. That addiction represented a maladaptive coping strategy for mental health problems caused by childhood trauma. In relation to that trauma Mr Jeffery was considered to have developed a complex post-traumatic stress disorder from severe psychological, physical, and sexual abuse during his childhood and was at risk of developing an acquired brain injury from head trauma and drug overdoses. iii. In July 2015 the Department for Correctional Services conducted an Offender Risk Need Inventory in relation to Mr Jeffery. That Inventory indicated that Mr Jeffery was considered to be at high risk of recidivism. Areas identified as criminogenic needs included drug and alcohol abuse, problematic relationships and criminal/antisocial attitudes. iv.In August 2016 the Department for Correctional Services undertook an assessment of Mr Jeffery’s risk of re-offending and suitability for program involvement. He was considered to be at high risk of violent re-offending should he not receive treatment. He was also assessed for “responsivity issues” and found to have sustained neuropsychological deficits which might impact his ability to participate in criminogenic programs. In particular he was considered to have significant deficits in attention, language and visuospatial/constructional abilities, and in his delayed memory. That in turn suggested he might experience difficulty in learning and retaining the content of programs. Further assessments were recommended.v.In February 2017 in a report prepared by Stacey McCallum, a senior psychologist with the Department for Correctional Services, for the Sentence Management Unit, it is recorded:Mr Jeffery’s dynamic factors related to violence recidivism were assessed via a face-to-face interview on 15/02/2017 (McCallum, 2017). On the basis of a full actuarial risk assessment, Mr Jeffery was estimated to be at HIGH risk of violent re-offending should he not receive treatment. The dynamic risk factors identified as an area of concern in relation to Mr Jeffery’s risk of re-offending were: pro-criminal attitudes, poor work ethic; association with negative influence peers; poor emotional control; the use of weapons in the commission of violence, a poor insight into violence; a history of mental health symptoms; a significant history of problematic substance abuse; a lack of prosocial community supports; anticipated high risk release situations, a clear violence cycle; heightened impulsivity; complications with community supervision and security level of anticipated release institution (McCallum, 2016; McCallum, 2017). Mr Jeffery is therefore considered suitable for involvement in the Violence Prevention Program (VPP).vi.Within three weeks of being released on parole in May 2017 Mr Jeffery was arrested and charged with a series of offences committed on 11 and 12 May including interfere with a motor vehicle without consent, dishonestly receive property, unlawful possession, and two counts of serious criminal trespass in a place of residence. At the time of his arrest he appeared to be under the influence of drugs. By the time of the alleged offending Mr Jeffery had already breached his parole conditions in other respects on a number of occasions, most notably, by failing to report as directed. It is also to be observed that unbeknown to the Parole Board he had chosen to live with a former cellmate. That cellmate was arrested at the same time as Mr Jeffery. He too was under the influence of illicit drugs. The offending whilst on parole indicates that the criminogenic factors that render Mr Jeffery a high risk of violent offending remain operative. Conclusion

Ratio Decidendi

Legal Principle Established

Established by: HINTON J

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