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…

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 Kamara

Details

AGLC: Attorney-General (SA) v Kamara [2024] SASC 155
Case: [2024] SASC 155
Decision Date: 2 December 2024

CaseChat Overview and Summary

In the case of Attorney-General (SA) v Kamara, the South Australian Supreme Court considered the Attorney-General's application for an order under the Serious and Violent Offenders (Detention and Restraint) Act 2008 (SA). The application sought to detain Mr Kamara, who had been convicted of affray, due to concerns that he posed a risk of causing serious harm to the victims or others in the community. The primary legal issue was whether Mr Kamara's conduct met the statutory criteria for being classified as a serious violent offender. The court also had to determine whether the Attorney-General could rely on certain evidence to support the application.

The court concluded that Mr Kamara's conduct, which involved confronting innocent victims with a weapon in an aggressive and threatening manner, met the criteria for serious harm as defined by the legislation. The court noted that the risk of serious mental harm was a key factor, and Mr Kamara's conduct satisfied this element. The court further ruled that the Attorney-General could only rely on the sentencing remarks of the magistrate to establish the circumstances of the offence. The court rejected the use of the police apprehension report and victim affidavits due to their hearsay nature and lack of reliability.

The court granted the Attorney-General's application, finding that Mr Kamara met the criteria for a serious violent offender. The court issued an order under the Serious and Violent Offenders (Detention and Restraint) Act 2008 (SA), detaining Mr Kamara and directing his management by the Commissioner of Corrections. The court emphasised the importance of considering the risk of serious harm to the victims and the community in making its decision.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.