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 period of parole have expired where otherwise he or she would be at liberty unconditionally. The object of the Act is expressly stated in s 3. It provides:
The object of this Act is to provide the means to protect the community from being exposed to an appreciable risk of harm posed by serious sexual offenders and serious violent offenders.
An extended supervision order may only be made on the application of the Attorney-General in relation to a high risk offender who, in the opinion of this Court, poses an appreciable risk to the safety of the community if not supervised under an order.[1] Before this Court can determine whether to make an extended supervision order, it is required by s 7(3) of the Act to direct that one or more legally qualified medical practitioners assess and report to the Court on, relevantly, the likelihood of the high risk offender committing a further serious offence of violence. Whilst awaiting such report and, generally, waiting to finalise an application for an extended supervision order, this Court is empowered to make an interim supervision order so that if a high risk offender is released into the community or his or her parole expires prior to the determination of an application made by the Attorney-General, he or she is nonetheless subject to supervision.[2]
[1] High Risk Offenders Act, s 7(4).
[2] High Risk Offenders Act, s 9.
By application dated 24 October 2017 the Attorney-General has applied pursuant to s 7(1) of the Act for an extended supervision order in relation to Mr Jeffery. That application being on foot, the Attorney has sought an order from the Court directing a legally qualified medical practitioner to undertake the assessment and prepare the report contemplated by s 7(3) of the Act. Anticipating that the application will not be determined prior to the date upon which the current sentence of imprisonment that Mr Jeffery is serving will expire,[3] the Attorney-General has also sought the making of an interim supervision order.
[3] 16 December 2017.
The power vested in the Attorney-General to apply to this Court for an extended supervision order and the powers vested in this Court to order the s 7(3) assessment and report and to make an interim supervision order are all predicate on the person subject of the application being a high risk offender within the meaning of the Act. Mr Jeffery submitted that he is not a high risk offender with the consequence that the Attorney’s application is incompetent and the related orders he seeks beyond power. If he is wrong in this contention, Mr Jeffery concedes that there is no further obstacle to the Court ordering the s 7(3) assessment and report nor the making of an interim supervision order.
On 14 December 2017, after hearing the parties, I determined that Mr Jeffery is a high risk offender within the meaning of the High Risk Offenders Act and that, therefore, the Attorney-General’s application was competent. Having arrived at that conclusion I determined that it was appropriate to make the orders sought by the Attorney. My reasons follow.
A High Risk Offender
Section 7(1) of the High Risk Offenders Act provides:
The Attorney-General may make an application to the Supreme Court for an extended supervision order to be made in respect of a person who is a high risk offender (the respondent).
Section 7(1) vests a right in the Attorney-General to apply to this Court for the identified relief. That right is conditioned; it may only be exercised in relation to a person who is a high risk offender. By necessary implication, s 7(1) also conditions the power vested in this Court. Where, as here, issue is taken with the competence of the application on the basis that the respondent is not a high risk offender, the contention advanced is that the evidence is not capable of satisfying the Court that as a matter of fact the respondent is a high risk offender such as to enliven the jurisdiction granted to hear and determine the application.
Section 5(c) of the High Risk Offenders Act defines a high risk offender as a serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence. In s 4 the High Risk Offenders Act defines a serious violent offender as a person convicted (whether before or after the commencement of the Act) of a serious offence of violence and a serious offence of violence as having the same meaning as in s 83D(1) of the Criminal Law Consolidation Act 1935 (SA). Section 83D(1) defines –
i.“serious offence of violence” as meaning a serious offence where the conduct constituting the offence involves:
a)      the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person; or
b)      serious damage to property in circumstances involving a risk of the death of, or harm to, a person; or
c)      perverting the course of justice in relation to any conduct that, if proved, would constitute a serious offence of violence as referred to in paragraph (a) or (b).
ii.“serious offence” as an indictable offence that is punishable by imprisonment for life or for a term of five years or more;
iii.“serious harm” as having the same meaning it has for the purposes of Part 3, Division 7A of the Criminal Law Consolidation Act 1935, being:
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.
For the purposes of Part 3 Division 7A “harm” is defined as meaning “physical or mental harm (whether temporary or permanent)” and “mental harm” is defined to mean “psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm”.[4]
[4] Criminal Law Consolidation Act, 1935 (SA), s 21.
Mr Jeffery was sentenced in November 2014 to a period of imprisonment for a number of offences including attempted aggravated robbery. As will be seen the Attorney-General’s application is predicated on the circumstances of that attempted aggravated robbery offence (the predicate offence). For now it is sufficient to observe that the predicate offence did not involve conduct resulting in death or the risk of death, serious damage to property, or the perversion of the course of justice. Thus the Attorney-General’s contention is that the predicate offence was constituted of conduct that involved serious harm to a person or a risk of serious harm to a person.
It follows that in the present case the question whether the application is competent turns on the answer to two questions –
a)First, was Mr Jeffery sentenced to imprisonment for an indictable offence punishable by imprisonment for life or for a term of five years or more, and
b)Second, did the conduct constituting that offence involve serious harm to a person or a risk of serious harm to a person, where serious harm may be constituted of mental harm that consists of, or results in, serious and protracted impairment of a physical or mental function.
It was not disputed that the predicate offence attracted a maximum penalty of 12 years and was an indictable offence within the meaning of s 5 of the Summary Procedure Act 1921 (SA). The first question is then to be answered in the affirmative.
The second question requires the Court to make an evaluative judgment. Generally speaking that will involve consideration of all relevant factors and in relation thereto the making of an assessment of an ex ante probability that the act could result in serious harm. The question does not require a philosophical or scientific analysis of behaviour but a judgment reflecting common human experience.
In Attorney-General (SA) v Wikaire (Wikaire) Nicholson J considered the task contemplated by the Act and said:[5]
The definition of “serious offence of violence” requires the Court to consider more than simply any actual harm, in fact, suffered as a result of the conduct constituting the offence in question. The definition also captures the case where the conduct constituting the offence “involves … a risk of serious harm to a person”, such as where it involves a risk of harm that consists of, or results in, serious and protracted impairment of a mental function.
In my view, the focus of the inquiry is not to be confined to the consequences of the offending conduct but extends to the nature or character of the offending conduct itself. The definition of “serious offence of violence” requires the finding of a “serious offence” but one “where the conduct constituting the offence” is of a particular character. A major purpose underpinning the power conferred on the Court to make an extended supervision order is to assist in the protection of the public from being exposed to an appreciable risk of harm. Section 3 of the Act sets out the “Object of the Act”: “The object of this Act is to provide the means to protect the community from being exposed to an appreciable risk of harm posed by serious sexual offenders and serious violent offenders.”
Whether or not an offender has, in fact, caused serious harm (physical or mental) is an important consideration but whether or not such person poses the risk of causing such serious harm is no less important a consideration.
In a case such as the present, whether or not the conduct constituting the offence, in fact, caused serious harm to another may well have been a matter of happenstance dependent on a number of variables including, in particular, how robust the particular victim in question might have been. However, this is not to deny the intrinsic risks to be associated with conduct in the nature of that engaged in by an offender who commits an aggravated robbery such as in the present case.
[5] (2017) 127 SASR 565 at [13]-[16].
With one qualification, respectfully, I agree. The qualification is that where, as here, the competence of the application is challenged, whether the respondent poses a future risk of causing serious harm is an irrelevant consideration. Competence and its companion jurisdiction are, in this case, to be determined by answering the two questions posed above.[6]
[6] At [12].
In a case where the serious offence did not involve conduct that caused death or serious harm, the question arises as to what level of risk of death or serious harm suffices for the conduct to amount to a serious offence of violence within the meaning of the Act? The answer to that question is a matter of construction. The starting point is the text. The obvious point falls to be made here; Parliament did not expressly prescribe a level of risk. That said, it may be accepted that Parliament did not intend to capture the fanciful, theoretical or remote risk but was concerned with conduct carrying with it a real or recognisable risk, albeit not a substantial risk. That is to say, a minimal risk is still a real risk. To so conclude is not to set the bar impractically low. Parliament has, in fact, imposed a threshold by requiring that the risk not be of any harm but of serious harm, and, where such serious harm is constituted of a risk of psychological harm, that risk must be one likely to consist of or result in serious and protracted impairment of a physical or mental function.
I do not think a consideration of context and purpose calls for any different conclusion. When one has regard to the criteria contained in s 7(4) which must be satisfied before an extended supervision order may be made, it is plain that a high risk offender is a person who has a demonstrated capacity to conduct themselves in a manner that causes death or serious harm or a risk of the same, and, who poses an appreciable risk of doing so again. Whilst it is the demonstrated capacity which, if established, renders a person liable to an application for an extended supervision order, the mere fact that the person has such demonstrated capacity is insufficient to support the making of an order. Possession of the demonstrated capacity only entitles the community, on the application of the Attorney-General, to a trial of the risk that the respondent poses and an investigation of the same by a medical practitioner under s 7(3). It is instructive to observe that the risk associated with the predicate offending need not be appreciable where the risk posed to the safety of the community in the future must be.[7] In Attorney-General v Grosser Stanley J considered an appreciable risk as:[8]
… one that is capable of being estimated, perceptible and sensible. Necessarily, a risk must be anticipatory. An appreciable risk is a risk that is not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in future in a manner that poses a risk to the safety of the community. It is a question of degree. …
[footnote omitted]
[7] High Risk Offenders Act, s 7(4).
[8] [2016] SASC 49 at [29].
The absence of the same qualification in the definition of serious offence of violence, suggests that the degree or threshold of risk for the purposes of the definition of serious harm can be no greater.[9]
[9] If, indeed, there be a difference; Bolkiah v KPMG [1999] 2 AC 222 at 236-237 (Lord Millett).
In my view the absence of any express qualification of the degree of risk of serious harm, taken with the protective purpose of the legislation, and the fact that possession of the demonstrated capacity only enlivens the right to a trial of the future risk posed by a person and the associated investigation of that question by a medical practitioner and no more, suggests that no further qualification of the risk associated with the predicate offence, where such offence does not involve death or actual serious harm but the risk of the same, be read into the Act.
In short, the text provides no express or implicit qualification of the risk associated with the serious offence of violence where such offence did not result in actual death or serious harm, and neither the context nor the purpose of the legislation require that words be read in or that the word risk be given anything other than its normal meaning free of any qualification other than as excluding the fanciful, the theoretical, and the remote.
I do not think that any qualification of the level of risk required by the definition of a high risk offender can be discerned from a consideration of the definitions of serious offence and serious offence of violence in the context of the Criminal Law Consolidation Act 1935 (SA) and the insertion of the discerned meaning into ss 7(1), 7(3) and 9 of the High Risk Offenders Act for two reasons.[10] First, with respect, such approach misconceives the function of a definition. In this regard in Kelly v The Queen McHugh J said:[11]
The function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better – I think the only proper – course is to read the words of the definition into the substantive enactment and then construe the substantive enactment – in its extended or confined sense – in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment. …
[10] CfAttorney-General (SA) v Gates [2017] SASC 154.
[11] (2004) 218 CLR 216 at [103].
Second, whilst the High Risk Offenders Act picks up the definitions of serious offence and serious offence of violence contained in s 83D(1) of the Criminal Law Consolidation Act 1935 the relevant statutory context in which those definitions fall to be considered is that of the High Risk Offenders Act. Nothing more of the Criminal Law Consolidation Act 1935 is picked up. The correct approach is then to read the defined expression in the High Risk Offenders Act, namely, high risk offender, in the sense defined unless the context provided by the High Risk Offenders Act indicates to the contrary. Hence in Gibb v Federal Commissioner of Taxation (Cth) Barwick CJ, McTiernan and Taylor JJ stated:[12]
The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of the definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – or are to be taken to include certain things which, but for the definition, they would not include … Such clauses are therefore no more than an aid to the construction of the statute and do not operate in any other way.
[12] (1966) 118 CLR 628 at 635.
The offending on which the application is predicated

In support of his application the Attorney-General relies upon two affidavits, both sworn by Mr Joseph Nguyen, one on 24 October 2017 and the other 12 December 2017, and the exhibits thereto (JN 1-18). The following is drawn from those affidavits and exhibits.
On 7 November 2014, under s 18A of the Criminal Law (Sentencing) Act 1988 (SA), Mr Jeffery was sentenced in the District Court to one penalty for the offences of attempted aggravated robbery, theft and assault committed by him on 20 and 23 August 2013 and 9 September 2013, being imprisonment for 4 years and 3 months with a non-parole period of 2 years and 2 months. That sentence was ordered to commence on 15 November 2013, the day on which Mr Jeffery was taken into custody. [13]
[13] The applicable maximum penalties were imprisonment for up to 12 years, 10 years and 2 years respectively.
As at the date of the Attorney-General’s application Mr Jeffery was in prison serving the sentence imposed on 7 November 2014.[14] That sentence was due to expire on 16 December 2017.[15]
[14] Mr Jeffery became eligible for parole on 14 November 2015. He was granted parole on 21 April 2017. He was returned to custody on a Parole Board warrant on 15 May 2017. Mr Jeffery has been charged with offences allegedly committed whilst he was on parole. I understand he has been refused bail on those offences.
[15] Thus, 16 December 2017 is the relevant expiry date: High Risk Offenders Act, s 4.
The sentencing Judge described the circumstances of Mr Jeffery’s offending as follows:[16]
Corey Daniel Jeffrey (sic), you were committed for sentence on charges of theft and aggravated theft using force committed on 20 August 2013 when you entered a supermarket at Davoren Park carrying a tree branch and stole pizzas and attempted to steal cash and cigarettes.
I received victim impact statements from the proprietors. Both victims indicated that they fear for their safety, have difficulty sleeping and going to work. They have flashbacks about the incident, become stressed and angry easily and their family relationships have become strained. They lost money as they had to close the store briefly following the incident and have not been able to work as effectively since.
[16] Sentencing Remarks, DCCRM-14-1561 & 14-1407, 7 November 2014.
Exhibits JN 15 and 16 are more illuminating. They consist of the declarations of Ms Lien My Truong and her husband, Be Tran, which formed part of the prosecution brief upon which the sentencing Judge relied in summarising the circumstances of Mr Jeffery’s offending. JN 17, the transcript of sentencing submissions, indicates that no issue was taken with the content of the declarations of Ms Truong and Mr Tran.
Ms Truong and Mr Tran were the owner operators of the Everyday Friendly Grocer at Davoren Park. At around 11.30am on 23 August 2013, Ms Truong was behind the second checkout in the shop using her laptop as she waited for the next customer. She watched as a man, Mr Jeffery, came in and walked past the main checkout. She did not know him. He walked towards her and up to the door to the checkout area. She noticed that he was holding a clear plastic bag, similar to a fruit and vegetable bag. He demanded money and cigarettes and lifted a stick over his head in a threatening manner.
Ms Truong described the stick as being about 1½ metres long. Her husband said it was a metre long. He added that it was about 5 centimetres thick and appeared to be a branch from a tree.
Mr Jeffery threatened Ms Truong. She clapped into the microphone of the PA system that was installed in the shop giving the agreed signal indicating that she needed help at the checkout. Her husband was in the shop at the time.
Mr Jeffery continued to threaten Ms Truong. He was very angry. He opened the door to the till area and entered. She was scared, her heart was racing, and she was shaking. She told Mr Jeffery she would open the till and give him money. Mr Jeffery continued to wave the stick at her, swinging it over her head, but not making contact. She thought he was going to hurt her, but nonetheless tried to delay opening the till in order that her husband would arrive.
Mr Tran tells how he was in the backroom to the shop having something to eat. He heard the signal over the PA system. He looked at the CCTV monitor. He saw his wife standing behind the checkout with her hands in the air. In front of her was a man holding a stick above his head.
Mr Tran then ran from the backroom towards the checkout. As he did so he could hear his wife repeatedly saying, “no” and a male voice yelling in an aggressive manner.
By this time Mr Jeffery was behind the checkout counter, demanding that Ms Truong open the till. He was hitting the till with the stick he had in his hands. Mr Tran armed himself with an umbrella. He approached yelling at Mr Jeffery to stop. Mr Jeffery swung the stick he had at Mr Tran, and hit him in the face, yelling aggressively at Mr Tran, “you get out”. Mr Tran picked up a broom. Mr Jeffery then hit Mr Tran a second time. Mr Tran then fended off further blows with the broom. Mr Tran said he was hit about four times in all. All the while the male was yelling at him aggressively.
Mr Jeffery ran to the entrance pulling a newspaper stand down behind him as he went. Mr Tran gave chase. Once Mr Jeffery was outside he ran off.
Mr Tran said the whole incident would have lasted less than a minute. He received a scratch and bruising to his left forearm and a cut to the inside of his left upper lip.
Ms Truong identified Mr Jeffery as the same man who three days earlier had run out of the shop with six pizzas taken from the freezer that he did not pay for.
In her victim impact statement of 8 July 2014 Ms Truong writes:[17]
The incident has left a permanent psychology scar in all aspect of my life. It has a very negative impact which cannot be erase or forgotten and will stay with me for the rest of my life.
It has effect my work. I can no longer work properly, or focus on my work, as I’m always worry & stress out. My mind always alert & on the watch at the whole time. The incident happen during the day, it made me wonder how do I feel safe at all? There is no excuse when it come to crime …
And:
The incident affect my work – my income has decrease, due to my mental state abnormal. It has effect my relationship, my family. I tend to get irritate easily. My temperature/attitude has change, I have no patience with people around me. I’m constantly fidget, angry, stress out. I cannot sleep properly at night time, often have nightmare about incident. I haven’t able to go to psychologist as no one will look after my business and it cost a lot to have ongoing treatments or any consultant.
[17] Exhibit JN 2.
In bringing her statement to a close Ms Truong also said:
Please note This incident has left a great impact for the rest of my life. No amount of money could make up for the loss that I go through.
In his victim impact statement of 8 July 2014 Mr Tran said:[18]
The incident has make me fear about my wife and my safety. I stress out everyday when I go to work because I don’t know what going to happen to me. I have difficulty to sleep at night, as I keep having flashback about the incident. Sometime I only sleep 2hrs a night & stay awake feel very restless.
[18] Exhibit JN 3.
Mr Tran also refers to feeling worry, stress, irritation, upset and anger as a consequence of Mr Jeffery’s conduct and an inability to work effectively. He closes his victim impact statement referring to his suffering an adverse mental state that will stay with him for a very long time and that he “will never be the same person again after this negative incident”.
Each of Mr Tran’s and Ms Truong’s victim impact statements were tendered and read to the court as part of the sentencing process. Mr Jeffery did not object to that course or to the content. No objection to their receipt in this Court was mounted nor any request made that the Attorney-General present either Mr Tran or Ms Truong for cross-examination. Rather, as will be seen, whilst not challenging the content of Mr Tran’s and Ms Truong’s declarations and victim impact statements, Counsel argued that the weight that could be attached to the content of those documents was limited.
Is Mr Jeffery a High Risk Offender?
Here I am concerned to answer the second of the two questions posed above which determine the question of competence and jurisdiction, the first being, as indicated, answered in the affirmative.
The Attorney-General does not contend that Mr Jeffery’s conduct involved actual physical harm amounting to serious harm.
An application under the High Risk Offenders Act is not a component of the sentencing process. A victim impact statement exhibited to an affidavit in proceedings under the Act is not, therefore, provided under the Criminal Law (Sentencing) Act 1988 (SA). Whilst I did not hear argument on the point, it is not immediately apparent to me that the rules of evidence do not apply to an application under the High Risk Offenders Act. I have acted on the understanding that Ms Truong’s and Mr Tran’s victim impact statements and declarations have been exhibited to Mr Nguyen’s affidavit on the basis that those documents contain the evidence that Mr Tran and Ms Truong would be prepared to give if called. As mentioned, no objection was taken to my receiving the affidavit of Mr Nguyen along with the exhibits thereto, including Ms Truong’s and Mr Tran’s victim impact statements and declarations. In those circumstances I consider that it is open to me to act on the basis that the contents of the declarations and victim impact statements are, as I have said, the evidence that Mr Tran and Ms Truong would give if they stepped into the witness box and were sworn, and that such evidence is not challenged.
I have no doubt that Ms Truong and Mr Tran suffered actual psychological harm because of Mr Jeffery’s attempted aggravated robbery. I am prepared to accept that such harm was serious. I am troubled by the suggestion that it is open to the Court to conclude on the strength of Ms Truong’s and Mr Tran’s victim impact statements that the psychological harm they sustained resulted in serious and protracted impairment of a physical or mental function. I do not think the mere fact that Ms Truong made her victim impact statement some eleven months after the offending a sufficient basis to conclude that the psychological impact she describes amounts to serious and protracted impairment of a mental function. I make plain, I do not say that it did not. On the evidence placed before me, however, I am not satisfied that it did.
I turn from the question of whether Mr Jeffery’s conduct in committing the attempted aggravated robbery involved serious harm to a person to the question of whether it involved a risk of serious harm to a person, where such harm is constituted of mental harm that consists of, or results in, serious and protracted impairment of a physical or mental function.
In Wikaire the predicate offence was armed robbery. Mr Wikaire jumped over the counter at a supermarket and threatened an attendant with a screwdriver before stealing money and cigarettes. Nicholson J observed:[19]
In a case such as the present, whether or not the conduct constituting the offence, in fact, caused serious harm to another may well have been a matter of happenstance dependent on a number of variables including, in particular, how robust the particular victim in question might have been. However, this is not to deny the intrinsic risks to be associated with conduct in the nature of that engaged in by an offender who commits an aggravated robbery such as in the present case.
[19] (2017) 127 SASR 565 at [16].
As to the particular risk arising from the conduct, Nicholson J found:[20]
The short point is that the respondent’s conduct in jumping over the counter and threatening the attendant with a screwdriver, particularly, when under the influence of alcohol or an illegal drug was conduct constituting the offence which involved an obvious risk that a particular victim of the offence might suffer significant psychiatric sequelae sufficient to give rise to serious and protracted impairment of a mental function, that is, serious harm. Such potential sequelae would include conditions such as post-traumatic stress disorder or an adjustment disorder with anxiety state.
He added:[21]
In addition, a victim of such conduct in the position of the sales assistant in this case might have a physical weakness such as a serious heart condition. Ordinarily, an offender must take their victim as they find them, at least for causation purposes. The shock and fear caused to such a victim might trigger a life threatening or seriously disabling heart attack.
[20] Attorney-General (SA) v Wikaire (2017) 127 SASR 565 at [17].
[21] Attorney-General (SA) v Wikaire (2017) 127 SASR 565 at [18].
In Attorney-General (SA) v Gates Mr Gates entered a service station armed with a long handled knife. He approached the attendant, produced the knife and, brandishing it towards the attendant, said, “Give me the money quickly or I’ll fucking kill you”.[22] The attendant then opened the till and gathered approximately $130 in $20 and $10 notes and handed it to Mr Gates.
[22] Attorney-General (SA) v Gates [2017] SASC 154.
As here the question for the Court was whether Mr Gates was a high risk offender. More particularly, whether the armed robbery he committed involved a risk of serious harm to a person. Relying on Wikaire the Attorney-General contended that Mr Gates’ conduct “posed an obvious risk that the victim might “suffer significant psychiatric sequelae such as post-traumatic stress disorder or an adjustment disorder with anxiety state, sufficient to give rise to serious harm”.”
Vanstone J approached the question by analysing the level of risk contemplated by the definition of “serious offence of violence” in s 83D(1). Her Honour commenced her analysis observing that a risk could be “adjudged as anything from theoretical to substantial”, considered that “plainly the risk would need to be at least an appreciable one”, and thought a speculative risk insufficient.[23] Her Honour then considered the “level or quality of risk” that the definition of “serious offence of violence” attracted in the context in which it appeared in the Criminal Law Consolidation Act 1935. Her Honour considered that “the word risk as used both there [in Division 1 of the Criminal Law Consolidation Act 1935] and in its role in defining high risk offender, must take its meaning from the context in which it appears and from the work it performs in Division 1”.[24] Vanstone J held:[25]
… Since criminal responsibility for serious offences [contained in Division 1 of the Criminal Law Consolidation Act 1935] attaches to a person’s knowledge or recklessness as to participation in organisations undertaking those activities or having those aims, and as the definition of serious offence of violence is effectively built into the mental element of those offences, the nature of the required risk should be seen to be at the substantial end, rather than at the theoretical end of the continuum which that word comprehends. It should be given substantial rather than theoretical content.
In my opinion, at least the risk should be able to be described as an obvious one. I would go further and say that risk of death or serious harm should be interpreted to require that death or serious harm would not be an unexpected incident, or an ordinary incident, of the conduct constituting the offence. Affording content of this nature to the word risk has the advantage of providing an objective standard. It also recognises that the definition of serious offence of violence contained two parts, that is, the risk of the death or serious harm to a person is juxtaposed to actual death or serious harm. The focus should be on the proven behaviour of the offender and, absent death or serious harm being caused, an objective assessment of the risk of death or serious harm which arose from that behaviour. I do not consider that in weighing the meaning of risk the Court should entertain scenarios in which serious harm might have occurred through chance or unexpected eventuality. To put that another way, the manner of committing the offence should be such as to give rise to an inherent or intrinsic risk of death or serious harm.
[23] Attorney-General (SA) v Gates [2017] SASC 154 at [9].
[24] Attorney-General (SA) v Gates [2017] SASC 154 at [10].
[25] Attorney-General (SA) v Gates [2017] SASC 154 at [10]-[11].
Vanstone J concluded that the conduct did not involve a risk of the death of, or serious harm to, another.[26] Her Honour distinguished Wikaire on the basis that it may be considered to occupy a different position on the continuum of risk “because of the dynamic behaviour of Wikaire during the offence and his preparedness to approach the victim at close quarters”.[27]
[26] Attorney-General (SA) v Gates [2017] SASC 154 at [12].
[27] Attorney-General (SA) v Gates [2017] SASC 154 at [8], [12].
In the present case Mr Jeffery submitted that I should adopt the approach of Vanstone J in Gates in which case, a comparison of his conduct with that of Mr Gates’ had to result in a conclusion that he was not a high risk offender. Counsel for the Attorney-General submitted that I was not bound by Gates and that the approach to the construction of the High Risk Offenders Act in Wikaire was to be preferred.
I have already indicated that, respectfully, I do not accept the approach to the construction of the High Risk Offenders Act undertaken in Gates. Further, Gates does not answer the question of why the conduct engaged in did not carry with it the risk of mental harm that could result in serious and protracted impairment of a physical or mental function or why psychological harm resulting in serious and protracted impairment of a physical or mental function would not be an ordinary incident or expected incident of such conduct. Mr Gates did not close quarters, but the very purpose of his brandishing the knife was to indicate a preparedness to do so if his demands were not met.
Ms Truong was vulnerable. She did not know, and could not know, what Mr Jeffery was capable of. She feared he would hurt her. Reasoning with him did not appear to be an option in the circumstances. Mr Jeffery yelled at her aggressively and continually. His conduct was intended to instil fear and to overbear the will of Ms Truong.
I do not think it can be doubted that a stick, 1 to 1½ metres in length, approximately 5 centimetres thick, can be used by a person to cause great physical injury to another who is unarmed, and used to do so quickly. Here it was deliberately deployed as a weapon with the intention that Ms Truong and subsequently Mr Tran believe that it would be used to hurt them if required.
Until her husband arrived, Ms Truong was in a position where Mr Jeffery, who was behind the checkout with her and in striking distance, continued to wave the stick above and around her head. He was yelling at her. He was aggressive. He was demanding money. The implicit threat was that at any time he could bring that stick crashing down upon her head, her shoulders, her arms or any other part of her body in reach. Implicitly he was prepared to harm her, and, as I have said, she did not know and could not know, to what extent he was prepared to do so.
Not surprisingly she tells of being in fear and describes a heightened state of anxiety at the prospect of being hurt.
It would not be unusual to expect any person who was in Ms Truong’s position to experience difficulty in returning to the same job or a similar job. The criminal courts routinely hear of victims of armed and aggravated robberies experiencing such difficulty. Some never return to work, some can no longer work in an environment where unaccompanied by others they must serve members of the public who walk in off the street. The anxiety experienced by the victim upon returning to the work environment can simply be, and often is, too much. Clearly the fortitude of the individual will determine whether they can return to work comfortably, but just because some people can do so does not, in my view, alter the fact that the consequences I have described may be considered ordinary incidents of conduct such as that engaged in by Mr Jeffery.

Ongoing fear and anxiety as a consequence of being the victim of an attempted aggravated robbery can infect other areas of the victim’s life beyond the capacity to work. Those consequences can be debilitating. It is not necessary in this case to further consider such consequences.
In my view Mr Jeffery’s conduct cannot be considered materially different to that in Wikaire. I do not think the choice of weapon, which is the primary difference between this case and Wikaire, is significant. What must be borne in mind is all of the circumstances in which Mr Jeffery waved the stick above Ms Truong’s head. Bearing those circumstances in mind, as in Wikaire, I consider Mr Jeffery’s conduct to involve a risk that the victim might suffer “significant psychiatric sequelae sufficient to give rise to serious and protracted impairment of a mental function, that is, serious harm”. I agree that such sequelae could include post-traumatic stress disorder or an adjustment disorder with anxiety state. Either disorder may not be permanent, but permanence is not required. The fear and anxiety that results from being a victim of an aggravated robbery may require ongoing medication, may mean a protracted period off work, a necessary change to duties, and often a change of job or career. The pressures associated with these changes in life then have a ripple effect. I do not doubt that conduct such as that engaged in by Mr Jeffery carries with it a risk of mental harm that can result in serious and protracted impairment of physical and/or mental functioning.
It was not suggested that the Court could not arrive at such conclusion relying upon its own understanding of common human experience.
For these reasons I concluded that Mr Jeffery was a high risk offender.
So concluding has the consequence that I need not consider the position of Mr Tran or the added anguish that Ms Truong may have experienced seeing Mr Tran being struck by Mr Jeffery. Someone in Mr Tran’s position can also suffer serious and protracted psychological sequelae and in each of Ms Truong’s and Mr Tran’s cases, concern for the safety of the other can exacerbate or at least contribute to such sequelae.
An order under s 7(3)?
Upon concluding that Mr Jeffery was a high risk offender within the meaning of the Act, I directed under s 7(3) of the Act that a legally qualified medical practitioner examine Mr Jeffery and report to the Court on the results of the examination, including an assessment of the likelihood of Mr Jeffery committing a further serious offence of violence.
An interim extended supervision order?
As indicated, Counsel for Mr Jeffery conceded that if he was a high risk offender no further obstacle prohibited this Court from making an interim extended supervision order under s 9 of the High Risk Offenders Act and that, on the material contained in and exhibited to Mr Nguyen’s affidavits it was open to the Court to do so.
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
For these reasons I determined that Mr Jeffery was a high risk offender within the meaning of the High Risk Offenders Act and that, therefore, the Attorney-General’s application was competent. Having arrived at that conclusion I determined that it was appropriate to make the orders sought by the Attorney-General under ss 7(3) and 9 of the Act.