Attorney-General (SA) v Kamara - [2024] SASC 155

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v KAMARA
[2024] SASC 155
Judgment of The Honourable Justice McDonald
2 December 2024
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
This is an application by the Attorney-General for the respondent to be the subject of an extended supervision order (‘ESO’), and until that application is determined, that he be the subject of an interim supervision order (‘ISO’). The respondent is opposed to both the ISO and the ESO.
The application is made on the basis that the respondent is a high risk offender pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the Act’). The Attorney-General submitted that the respondent is a serious violent offender who was sentenced to a period of imprisonment in respect of a serious offence of violence.
The Attorney-General relies on s 5(c) of the meaning of a high risk offender, which is that the respondent is “a serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence”. A “serious violent offender” is defined as “a person convicted … of a serious offence of violence”. A “serious offence of violence” is defined as having “the same meaning as in section 83D(1) of the Criminal Law Consolidation Act 1935”.
The Attorney-General contends that the respondent falls within the limb of that definition as set out in s 83D(1)(a) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’), namely that it is a “serious offence where the conduct constituting the offence involves … the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person”. The conduct relied upon by the Attorney-General is said to be conduct that created a risk of serious harm to a person. Serious harm is defined to include harm that consists of, or results in, serious and protracted impairment of, relevantly to this case, mental function.
The respondent submitted that the Attorney-General has not established that he satisfies the definition of “high risk offender”. If that is so, the threshold test has not been satisfied and the Court does not have the jurisdiction to make the order.
The respondent further submitted that there is a statutory limitation on what can amount to serious mental harm. Section 83D(1) of the CLCA provides that the terms “harm” and “serious harm” have the same meaning as in Part 3, Division 7A of the CLCA. Part 3, Division 7A comprises sections 21 to 31 inclusive.
The respondent contends that Part 3, Division 7A further defines the meaning of “harm” by declaring that certain conduct is not to be considered as causing harm for the purpose of the division. Section 22 sets out the conduct that is excluded from the operation of Division 7A.
The respondent submitted that his conduct did not endanger the victims’ lives, nor physical safety and, as such, even if there was a risk of serious mental harm resulting from the respondent’s conduct, that conduct falls outside the ambit of the definition of harm as a consequence of s 22 of the CLCA.
Held:
1. The conduct of the respondent created the risk of a serious and protracted mental impairment, and he therefore qualifies as a serious violent offender as defined under the Act.
2. I would not narrow the definition of “serious harm” by reference to s 22 of the CLCA.
3. The legislative test being satisfied, I order that the respondent be the subject of an interim supervision order
Criminal Law (High Risk Offenders) Act 2015 (SA) s 4, s 5(c), s 7, s 9; Criminal Law Consolidation Act 1935 (SA) s 21, s 22, s 83C, s 83D, s 137; Evidence Act 1929 (SA) s 53; Joint Criminal Rules 2020 (SA), referred to.
Attorney-General (SA) v Amara [2024] SASC 122; Attorney-General (SA) v Amara (Supreme Court of South Australia, Kourakis CJ, 4 April 2024); Attorney-General (SA) v Jeffery (2018) 130 SASR 300; Attorney-General (SA) v Wikaire 127 SASR 565, applied.

ATTORNEY-GENERAL (SA) v KAMARA
[2024] SASC 155
Criminal: Application
McDONALD J:

This is an application by the Attorney-General for Mr Kamara to be the subject of an extended supervision order (‘ESO’), and until that application is determined, that he be the subject of an interim supervision order (‘ISO’).
The application is made on the basis that Mr Kamara is a high risk offender for the purposes of the Criminal Law (High Risk Offenders) Act2015 (SA) (‘the Act’). It is said that he is a serious violent offender who was sentenced to a period of imprisonment in respect of a serious offence of violence.
Mr Kamara is opposed to both the ISO and the ESO. The basis of that opposition is that it is submitted that the Attorney-General has not established that Mr Kamara satisfies the definition of a “high risk offender”. It follows, if that is correct, the threshold test has not been satisfied and the court does not have jurisdiction to make the order.
The legislation
Before considering Mr Kamara’s circumstances and the offending that the Attorney-General relies upon to bring these applications, it is convenient to first say something about the nature of the test that must be satisfied before either an ISO or an ESO can be made.
Under s 9 of the Act, the test for making an ISO subsumes the test for an ESO. Before an ISO can be made, the Court must be satisfied that the relevant expiry date is likely to occur before the application for the ESO is determined and that the matters alleged in the material supporting the application would, if proved, justify the making of an ESO.
Section 7 of the Act provides that the Attorney-General may make an application for an ESO in respect of a person who is a “high risk offender”. Here, the Attorney-General relies on s 5(c) of the meaning of a high risk offender, which is that Mr Kamara is “a serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence”.
A “serious violent offender” is defined as “a person convicted … of a serious offence of violence”.[1]
[1] Criminal Law (High Risk Offenders) Act 2015 (SA) s 4.
A “serious offence of violence” is defined as having “the same meaning as in section 83D(1) of the Criminal Law Consolidation Act 1935”.[2]
[2] Criminal Law (High Risk Offenders) Act 2015 (SA) s 4.
The Attorney-General contends that Mr Kamara falls within the limb of that definition as set out in (a), namely that it is a “serious offence where the conduct constituting the offence involves … the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person”.[3]
[3] Criminal Law Consolidation Act 1935 (SA) s 83D(1). Emphasis added.
A “serious offence” is defined as “an indictable offence that is punishable by imprisonment for life or for a term of five years or more”.
The conduct relied upon by the Attorney-General is said to be conduct that created a risk of serious harm to a person.
“Serious harm”[4] is defined to include harm that consists of or results in serious and protracted impairment of, relevantly to this case, mental function. It is the risk of impairment to mental function on which the Attorney-General relies. Mental harm means psychological harm. It does not include emotional reactions such as distress, grief, fear or anger, unless they result in psychological harm.
[4] Section 83D(1) defines “serious harm” and “harm” as having the same meaning as Part 3 Division 7A. Under Part 3 Division 7A, s 21 “serious harm” is defined as:
(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. Emphasis added.
Given that it is the risk of mental harm upon which the Attorney-General relies, the question that then arises is what level of risk of serious harm suffices for the conduct to amount to a serious offence of violence under the Act.
Much judicial consideration has been given to this question and it now appears to be accepted that the answer was encapsulated by Hinton J in the following passage in Attorney-General (SA) v Jeffery:[5]
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.
[5] (2018) 130 SASR 300 at [17].
The index offence
The offence upon which the Attorney-General relies is the offence of aggravated affray.[6] The maximum penalty for this offence is five years imprisonment. It therefore satisfies the criteria for a serious offence.
[6] Criminal Law Consolidation Act 1935 (SA) s 83C.
The question that then arises is whether it was a serious offence that involved the risk of serious harm to a person. Some offences by their very nature will satisfy this test, with others it will be the factual matrix that forms the basis of the charge that will determine the issue. Mr Kamara’s offending falls into the latter category. It is therefore necessary to consider the detail of the conduct that was relied on in proof of the offence.
A preliminary issue - the evidence relied upon by the Attorney-General to establish the circumstances of the offence
During submissions it became apparent that there was a dispute between the parties as to which of the materials filed by the Attorney-General could be relied upon to establish the circumstances of the index offence.
The Attorney-General purported to rely on three categories of documents. These were the ex-tempore remarks on penalty of the Magistrate who sentenced Mr Kamara; the “facts of charge” contained in the police apprehension report; and affidavits provided by the victims of the offending.
Counsel for Mr Kamara did not take issue with reliance being placed on the sentencing remarks, however, objected to the Attorney-General relying on the contents of the other two categories of documents. This was an issue that was of some significance as not only were there additional details in the facts of charge and the affidavits, but there were material differences between the three categories of documents. The Attorney-General’s application would be strengthened if regard could be had to all of the documents.
The Attorney-General accepted that where there were inconsistencies, reliance should be placed on the sentencing remarks in preference to the other documents, however maintained that the additional details contained in the facts of charge and the affidavits could be used to supplement the sentencing remarks.
It was submitted by counsel for the respondent that it is a relevant consideration that the sentencing remarks are relatively comprehensive, as compared to other extempore reasons that are commonly produced in the Magistrates Court. It can therefore be taken that the details contained in those sentencing remarks reflect the agreed position upon which Mr Kamara was to be sentenced.
In contrast, the details contained within the facts of charge are of an initial hearsay account recorded by the police when the allegations were first made. It is a common experience of the Courts that by the time that an offender comes to be sentenced, the factual basis of the plea bears little resemblance to the details contained within the initial apprehension report. It was submitted that whilst it may be that the apprehension report is potentially admissible pursuant to s 53 of the Evidence Act 1929 (SA) as a business record, it would not be appropriate to rely on the details contained in it, in circumstances in which there are relatively comprehensive sentencing remarks.
A similar submission was made about the contents of the affidavits in that they are an unchallenged, untested narrative and whilst they had been disclosed to Mr Kamara’s solicitor, they had not been filed in court. They had not therefore been before the Magistrate in determining the factual basis of the sentence.
It was submitted by counsel for the respondent that there was a lacuna in the evidence about what discussions, negotiations or agreements there had been about the basis upon which Mr Kamara was to be sentenced, such that it made it all the more unfair for the Attorney-General to attempt to rely on these documents in support of the application for an ESO.
As a consequence of the manner in which submissions on this issue evolved (the point being raised for the first time at the bar table), I permitted the Attorney‑General an opportunity to put on further evidence about what had transpired in the Magistrates Court in the lead up to, and/or during the course of the sentencing process.
Additional information about the proceedings in the Magistrates Court
Subsequent to the hearing, a copy of the audio recording and transcript of the sentencing submissions, as well as an affidavit from the police prosecutor who had conduct of the matter, were obtained by the Attorney-General.
The combined effect of these materials establish that the facts of charge (taken from the apprehension report) had been filed in court during the first hearing of the matter, however the witness affidavits were not. On 13 March 2024, the proceedings commenced with Mr Kamara entering pleas of guilty through his solicitor. The prosecutor made submissions summarising the salient facts of the offending based on the facts of charge. The prosecutor did not read out all of the details contained in the facts of charges. A comparison of those submissions with the Magistrate’s sentencing remarks would suggest that the Magistrate accepted and relied exclusively on the oral factual summary provided by the prosecutor.[7]
[7] The facts set out in the Magistrate’s reasons almost entirely mirror what was said by the prosecutor in court.
At the conclusion of the prosecutor’s factual summary, Mr Kamara’s solicitor indicated that the facts were admitted. In his affidavit, the prosecutor confirmed that there had been no negotiations as to the factual basis for sentence and there were no agreed facts. He further deposed that in the Magistrates Court it is common practice for defence counsel to obtain instructions and indicate their client’s position on the basis of the facts of charge that has been filed.
Having obtained these materials, the Attorney-General maintained that I could and should have regard to all three categories of documents, however accepted that their position was stronger in relation to the facts of charge as it had been filed in court.
Counsel for Mr Kamara did not agree with that approach. It was submitted that the witness affidavits should be entirely disregarded as they were not before the court and the parties had no expectation that they would be considered by the court or form part of the factual basis for sentence. It was contended that in such circumstances it would be procedurally unfair to use them to inform the factual basis of the application before me.
As to the facts of charge, whilst Mr Kamara’s counsel accepted that they fell into a different category as they were filed under the Joint Criminal Rules 2020 (SA), and the Magistrate generally has access to them under those rules, it was contended that does not mean that they automatically form part of the factual basis for sentencing. It was submitted that the extent to which they do will depend on many factors including what is or is not part of the charge, what other materials the parties choose to put before the court and the sentencing remarks.
I agree with the observations made by counsel for the Attorney-General that in the summary jurisdiction, it will often not be easy to determine which facts were accepted by the court for the purposes of formulating a sentence.
Relevantly in this matter, the transcript and sentencing remarks reveal that the Magistrate only made reference to those facts read out by the prosecutor and referred to no others. Mr Kamara’s solicitor indicated that the facts were accepted immediately after the oral summary was provided. Whilst Mr Kamara’s counsel does not challenge the prosecutor’s assertion that there were no negotiations about the factual basis, it is submitted that Mr Kamara’s agreement (through his solicitor) to the facts alleged orally, should be taken as an agreement to only those facts.
In the circumstances of this case, I propose to accept and act on that submission. That is not to suggest that in other circumstances reliance cannot be placed on affidavits and the facts of charge to inform the court as to the basis of a sentence. Rather, I have determined to adopt a pragmatic approach that could in no way be seen as unfair to Mr Kamara, given the potential consequences to him in the event that I determine to make the order.
I extrapolate the following details of the index offence from the sentencing remarks:
●On 18 February 2023, Mr Kamara was involved in an altercation with members of the same family; the father, the mother and the son. The family were unknown to Mr Kamara before these events.
●The incident commenced when the mother was taking the shopping out of her car, which was parked at the front of the family home. Mr Kamara approached the mother and was abusive and threatening. He said that he was going to stab her. The mother was aware that Mr Kamara was in a highly intoxicated state.
●The son came out of the house to help the mother unload the shopping. He told Mr Kamara to leave. Mr Kamara then turned his attention to the son and became aggressive and abusive, and threatened to stab him.
●Believing that Mr Kamara had a knife (on the basis that Mr Kamara kept one arm behind his back and had threatened to stab him), the son armed himself with a pole to defend himself.
●A scuffle ensued between Mr Kamara and the son. At this point the father came out of the house to see what was going on. He ushered the mother and son inside of the house and locked the door.
●Still in an aggressive and heightened state, Mr Kamara approached the door whilst holding a knife in his hand. At this point the family saw the knife.
●At about this time the police arrived. Mr Kamara fled on foot and was chased by police. During the course of the chase, they saw him throw the knife away.
When Mr Kamara was eventually caught by police, he was obviously extremely intoxicated, he was also belligerent and uncooperative.
Did Mr Kamara’s conduct give rise to the risk of a serious and protracted mental impairment?

In Attorney-General (SA) v Wikaire,[8] Nicholson J was required to give consideration to the question of whether the conduct of the respondent in that case had the capacity to give rise to the risk of a serious and protracted mental impairment. Mr Wikaire had been convicted of the offence of aggravated robbery,[9] for which the maximum penalty is life imprisonment. He had jumped over the counter of a suburban IGA supermarket holding a screwdriver and demanded money from the victim. At the time Mr Wikaire was under the influence of alcohol and possibly other substances. Although there were victim impact statements before Nicholson J setting out matters such as anxiety, social isolation and an inability to work for one month after the incident, at least arguably they did not establish a serious and protracted mental impairment. It was therefore necessary for his Honour to consider whether the conduct constituting the offence involved a risk of serious harm to another.
[8] (2017) 127 SASR 565.
[9] Criminal Law Consolidation Act 1935 (SA) s 137.
In considering this question, Nicholson J explained:[10]
… 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 a 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.
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.
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.
[10] Attorney-General (SA) v Wikarie (2017) 127 SASR 565 at [14]-[18].
In Jeffery it was also necessary for Hinton J to consider whether the respondent’s conduct created a risk of mental harm as defined by the Act. In that case the predicate offence was attempted aggravated robbery and the weapon of choice was a stick. Mr Jeffery had entered a grocery store brandishing the stick and demanded money and cigarettes. He approached the female victim and lifted the stick in a threatening manner. Mr Jeffery opened the door to the till area and entered. He was angry and threatening, and continued to demand money. The husband of the female victim made his way from the back of the shop, by which time Mr Jeffery was behind the counter, hitting the cash register with the stick. The male victim armed himself with an umbrella and then a broom and succeeded in fending Mr Jeffery off by striking him a number of times. That had the desired effect of causing Mr Jeffery to make his escape from the shop.
As in Wikaire, the information contained in the victim impact statements was insufficient to establish a mental impairment of the requisite type. In considering the question of whether the offending involved a risk of serious mental harm to the victims, Hinton J noted:[11]
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 m in length, approximately 5 cm 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.
[11] (2018) 130 SASR 300 at [57]-[60].
Hinton J went on to consider the common experience of the criminal courts in routinely hearing of the impact of such offending on its victims, which will often be dependent on the fortitude of the individual in question. In considering whether on the facts of the case before him, a risk of serious harm had been established, his Honour said:[12]
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.
[12] Ibid at [63].
More recently, in determining an application for an ISO, Kourakis CJ also made some observations about the experience of the criminal courts of the impact that violent offences has on individuals. The context of those observations was that the respondent had been convicted of the offence of robbery with violence by attending at the door of the victims’ home, in the company of others armed with gel blasters, which had the appearance of firearms. The offenders entered the premises, issued commands to the victims to lie down and ransacked the house.
In that matter, as in the application before me, there was no evidence of the impact of the offending on the victims. In that context, and with reference to Wikaire, Kourakis CJ said the following:[13]
On the basis of my experience of human affairs, informed as it is by extensive work in the criminal jurisdiction of the courts of this State, and by reading and hearing victim impact statements, I accept that it was a risk arising from the conduct of Mr Amara that one or more of the victims, might develop a post-traumatic stress disorder.
I might say that such consequences of offending of this kind are also often seen in the criminal injuries compensation jurisdiction of this court. More broadly, the existence of psychological conditions of that nature have become better known generally throughout the community, and in my view are matters of which I can take judicial notice.
[13] Attorney-General (SA) v Amara (Supreme Court of South Australia, Kourakis CJ, 4 April 2024).
His Honour found that post-traumatic stress disorder is a psychological condition which carries with it the risk of serious protracted impairment of mental functioning which extends beyond emotional reactions like fear and distress.
The competing arguments
It is convenient to start with the arguments made on behalf of Mr Kamara. The submissions made by Mr Edge, who appeared for Mr Kamara, in large part focussed on the nature of the offence of affray for which Mr Kamara had been convicted. It was correctly identified that in none of the authorities relied upon by the Attorney-General had the respondent been charged with affray, which is a summary offence with a maximum penalty of five years imprisonment.
It was submitted by Mr Edge that the qualifier of serious harm in the test must be given due weight, given that Parliament has seen fit to set the bar at that height. It was contended that “the large gulf between ‘normal’ harm and ‘serious’ harm, as defined, is important. Psychological harm that satisfies the definition of serious harm requires a significant degree of impairment, and the risk of such impairment will not always be easily inferred from the mere presence of violence or threats”.[14] Whilst Mr Edge accepted, for current purposes, that the Court’s experience of the impact of serious offending on victims will be relevant, he suggested that the offence of affray falls outside of that experience. That was said to be on the basis that the offence is summary and does not routinely come before the higher courts. Additionally, that the impact of the offence of affray is likely to be more variable as compared to more serious offences of violence.
[14] FDN 7, Summary of Argument of Respondent at [20].
It was submitted that the conduct engaged in by Mr Kamara is not in the same category of a serious offence such as an aggravated robbery. Further, that “facing a person who appears intoxicated or otherwise mentally unwell and is belligerent and threatening is, sadly, not uncommon. In this case, the victims were able to seek refuge in their home, and the respondent made no attempt to physically harm them or get into the home”.[15]
[15] Ibid at [26].
It was suggested that the chance of suffering a serious and protracted psychological condition is no more likely than the victims moving on from the offending, suffering no significant impact at all.
In making this submission, reliance was placed upon a number of the features of the offending. These were:
●there was no attempt to physically harm anyone;
●the family was in a position to relatively easily retreat to safety in the family home;
●the knife was not observed until the family were safely behind the locked door;
●no effort was made by Mr Kamara to gain access to the house once the family were inside; and
●there is no indication where the knife came from. It was suggested it could have been found on the drive, perhaps as a discarded gardening/weeding tool.
In concluding, it was contented by Mr Edge that:[16]
A finding that this offence satisfies the test for a risk of serious mental harm would be a significant lowering of the bar for inclusion into the High Risk Offender jurisdiction. Notwithstanding the protective object of the HRO Act, it remains a regime of preventative control and detention and one that should be reserved for the small number of offenders who meet stringent qualifying requirements.
[16] Ibid at [28].
It was the Attorney-General’s submission that the statutory test had been satisfied and that accordingly it would be appropriate to make the ISO.
Ms Dibden, who appeared for the Attorney-General, submitted that in considering the question of whether the risk of serious harm has been established it is important that the focus is on the nature and character of the conduct that is the subject of the charge and not the consequence of the offence. That approach is consistent with the objectives of the HRO Act, namely that the paramount consideration is the safety of the community.[17] Whilst a focus on the actual outcome of the offence is highly relevant for sentencing purposes, it is less relevant in a proceeding of this kind, where the underlying purpose is the protection of the community. It was the Attorney-General’s submission that the community equally requires protection from a person who commits conduct that in fact causes serious harm to another, and a person who commits the same conduct that does not result in serious harm.
[17] Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(5).
Ms Dibden relied on findings made by the Magistrate about the serious nature of the offending, as well as identifying features of Mr Kamara’s conduct that placed this offence in this category of seriousness. These were:
●The unprovoked and random nature of the conduct;
●The dynamic nature of Mr Kamara’s behaviour in his preparedness to approach the family at close quarters;
●The threats to stab the mother and son;
●The mother’s knowledge of Mr Kamara’s intoxication;
●The fact that it occurred at the victims’ home at which there were other children inside of the house;
●The son’s belief that Mr Kamara was in possession of a knife;
●That there was a physical component to Mr Kamara’s conduct in that a scuffle ensued; and
●The use of a knife by Mr Kamara.
It was the Attorney-General’s submission that these matters gave rise to a risk of the victims suffering significant psychiatric sequelae. Further, that the fact that the victims had successfully retreated into their home does not diminish the seriousness of the conduct and the risk of the victims’ experiencing serious harm.
Consideration
Whilst I accept as a starting point that the offence of affray is generally a less serious offence than the offences of aggravated robbery or attempted aggravated robbery, as reflected in the maximum penalties, it is not the seriousness of the offence per se that creates the jurisdictional threshold. It is a finding that Mr Kamara’s conduct gave rise to a risk of serious mental harm that must be established. It is not the offence charged, but the conduct upon which the charge is based that will determine whether this test has been met.
The conduct of Mr Kamara bears many of the hallmarks of the conduct that judges of this Court were required to consider in Amara, Wikaire, and Jeffery. That is, it was intoxicated, disinhibited behaviour, involving Mr Kamara confronting entirely innocent victims. It was aggressive, belligerent, threatening behaviour, into which Mr Kamara introduced a weapon. It is behaviour that comes before the Courts all too frequently, charged as different offences based on the purpose behind the conduct and the outcome. The point is illustrated by the fact that whilst the prosecution chose to charge Mr Kamara with the offence of affray, arising from his conduct there were a number of alterative offences that could have been charged.
It is also not to the point that the victims did not see the knife until they were inside the house, and that they were successful in retreating to safety indoors. They had been accosted by an obviously intoxicated, disinhibited stranger who was prepared to enter their property and make unprovoked violent threats. Those threats were to stab both the mother and son. That of itself would be sufficient to found the belief that he was capable of carrying out the threats, however at least from the son’s perspective, it was confirmed by Mr Kamara keeping one hand behind his back.
The trauma caused by such an encounter would only have been heightened when suspicions were confirmed and the victims saw that Mr Kamara in fact had the means to carry out what he had threatened to do.
In my view, it has been established that the conduct of Mr Kamara created the risk of a serious and protracted mental impairment and he therefore qualifies as a serious violent offender as defined under the Act.
Mr Kamara’s alternative contention – statutory limitation on what can amount to serious mental harm
As previously set out, s 83D(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’) provides that the term ‘serious harm’ has the same meaning as in Part 3, Division 7A of the CLCA. Part 3, Division 7A ‘Causing physical or mental harm’ comprises sections 21 to 31 inclusive.
Mr Kamara contends that Part 3, Division 7A further defines the meaning of ‘harm’ by declaring that certain conduct is not to be considered as causing harm for the purpose of the division. Section 22 sets out the conduct that is excluded from the operation of Division 7A and relevantly s 22(5) provides:
(5)If the defendant’s conduct caused only mental harm, this Division does not apply to the defendant’s conduct unless—
(a) the defendant’s conduct gave rise to a situation in which the victim’s life or physical safety was endangered and the mental harm arose out of that situation; or
(b) the defendant’s primary purpose was to cause such harm.
It is submitted that Mr Kamara’s conduct did not endanger the victims’ lives, nor physical safety and, as such, even if there was a risk of serious mental harm resulting from Mr Kamara’s conduct, that conduct falls outside the ambit of the definition of harm as a consequence of s 22 of the CLCA.
This argument was rejected by Hughes J in Attorney-General (SA) v Amara.[18] In that judgment, her Honour found that s 21 is an interpretation section and not a substantive provision, qualifying the operation of s 23 to s 25 inclusive. The only available construction is that the use of the term ‘harm’ in s 22 is by reference to s 21. Section 22 does not further define ‘harm’ or ‘serious harm’, but limits the conduct that is caught by the following substantive provisions in s 23 to s 25.[19]
[18] [2024] SASC 122.
[19] Ibid at [37].
The decision of Hughes J is the subject of an appeal currently pending in the Court of Appeal.
For present purposes, given the status of that appeal, and the fact that this is an application for an ISO and not an ESO, it is sufficient that I indicate, without giving the matter concluded consideration, that I prefer the reasoning of Hughes J over the argument advanced by counsel for Mr Kamara. I would not narrow the definition of ‘serious harm’ by reference to s 22 of the CLCA.