Attorney-General (SA) v Kember - [2019] SASC 19

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v KEMBER
[2019] SASC 19
Judgment of The Honourable Justice Kelly
27 February 2019
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
Application by the Attorney-General (SA) for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
The respondent was found guilty at trial of one count of aggravated robbery. The respondent had followed the victim, an 84 year old man using a walking frame, out of a railway station and threatened him before taking his wallet. In the struggle, the victim fell to the ground. The respondent was sentenced to a term of four years imprisonment which expired on 23 July 2018.
The Attorney-General (SA) contends that the original offence was a “serious offence of violence” and that the respondent is liable to be subject to an extended supervision order. The respondent opposes the application on two grounds: he denies that he is properly categorised as a high risk offender, and; even if deemed to be a high risk offender, he denies that he poses an appreciable risk to the safety of the community if not supervised by the order.
Discussion of the meaning of “risk of serious harm” and “appreciable risk”.
Held, per Kelly J:
1. The application for an extended supervision order is granted.
2. The respondent is a high risk offender who poses an appreciable risk to the safety of the community if not supervised under the order.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 4, 5, 7(1), 7(3), 7(4), 9, 17(1)(b)(ii); Criminal Law Consolidation Act 1935 (SA) s 21, 83D(1), referred to.
Attorney-General v Grosser [2016] SASC 49 ; Attorney-General v Kimmins [2016] SASC 176, applied.
Attorney-General for the State of South Australia v Gates [2017] SASC 154; (2017) 129 SASR 298; Attorney-General (SA) v Wikaire [2017] SASC 58; (2017) 127 SASR 565, distinguished.

ATTORNEY-GENERAL (SA) v KEMBER
[2019] SASC 19
KELLY J:
Introduction

The applicant (the Attorney-General for the State of South Australia) applies for an extended supervision order in respect of the respondent, Frank Michael John Kember.
The application is brought pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“the Act”). Subsection 7(4) of the Act permits this Court to order that the respondent be subject to an extended supervision order if satisfied that the respondent (a) is a high risk offender and (b) poses an appreciable risk to the safety of the community if not supervised under the order. The paramount consideration of the Court in determining whether to make an extended supervision order is the safety of the community.
Before dealing with the issues which arise on the application, it is necessary to set out the factual background and procedural history relating to the respondent.
On 27 May 2014, the respondent was found guilty by jury verdict of one count of aggravated robbery. On 16 July 2014, he was sentenced in the District Court to four years imprisonment to be served cumulatively on a previous sentence of 10 months and 14 days imposed in the Magistrates Court. A deduction of 8 months to account for time in custody and on bail resulted in the respondent being sentenced to a total head sentence of 4 years 2 months and 14 days with a non-parole period of 2 years and 1 month. Both the head sentence and the non-parole period were backdated to the date on which the Magistrate sentenced him on 7 May 2014.
On 5 July 2018, the applicant filed an application for an extended supervision order under the terms of s 7 of the Act. On 11 July 2018, Vanstone J made an interim supervision order under s 9 of the Act and, subject to its conditions, the respondent was released on 23 July 2018.
Unfortunately, on 3 August 2018, the Parole Board issued a warrant for the respondent’s arrest, suspecting that he had breached the interim supervision order, and he was arrested on 4 August 2018.
On 29 August 2018, the Parole Board found the alleged breaches proven, based in the main on the respondent’s admissions at interview. The Board added a condition to the interim supervision order that he be subjected to an intensive supervision regime. He was then released subject to the varied interim supervision order’s conditions on 6 September 2018.
Unfortunately, again, suspecting that the respondent had breached the varied interim supervision order, the Parole Board issued another warrant for the respondent’s arrest on 8 October 2018. He was arrested pursuant to that warrant on 11 October 2018. On 4 December 2018, the Board found itself satisfied that the respondent had breached the order. On 20 December 2018, the Board directed that the respondent be detained in custody under the provisions of s 17(1)(b)(ii) of the Act and referred the respondent to this Court to decide whether a continuing detention order should be made.
In due course, that application came on before Hughes J who, on 16 January 2019, without opposition from the Attorney-General, or the Board, declined to make a continuing detention order and the respondent was then released subject to the terms of the varied interim supervision order.
Pursuant to an order made by Vanstone J when making the interim supervision order on 11 July 2018, the respondent was examined by a forensic psychiatrist, Dr Owen Haeney. On 10 December 2018, Dr Haeney provided his report (dated 30 November 2018) pursuant to s 7(3) of the Act.
The respondent opposes the application of the Attorney-General and on 30 January 2019 the matter came on for hearing before me.
Discussion
The application by the Parole Board for an order of continuing detention having been dismissed by Hughes J on 16 January 2019, the only issue for this Court to determine is whether the Attorney-General’s application for an extended supervision order in respect of the respondent should be granted.
The respondent opposes the making of an order on two grounds. The first is that, relying on this Court’s decision in Attorney-General for the State of South Australia v Gates,[1] the respondent denies that he is properly categorised as a high risk offender within the meaning of s 5 of the Act. Secondly, even if he is deemed to be a high risk offender, the respondent denies that he poses an appreciable risk to the safety of the community if not supervised by an order.
[1] [2017] SASC 154; (2017) 129 SASR 298.
Legislation
Subsection 7(4) of the Act relevantly provides that, on application, this Court may order a person to be subject to an extended supervision order if the Court is satisfied that:
(a)The respondent is a high risk offender; and
(b)The respondent poses an appreciable risk to the safety of the community if not supervised under the order.
By subsection 7(5) of the Act, the paramount consideration for the Court in determining whether to make an extended supervision order must be the safety of the community.
The terms used in s 7 are defined elsewhere in the Act and in the provisions of the Criminal Law Consolidation Act 1935 (SA) (“the CLCA”).
The relevant definitions are set out below:
high risk offender is –
…
(c)a serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence;[2]
[2]    Criminal Law (High Risk Offenders) Act 2015 (SA) s 5.
serious violent offender means a person convicted (whether before or after the commencement of this Act) of a serious offence of violence;[3]
[3]    Criminal Law (High Risk Offenders) Act 2015 (SA) s 4.
serious offence of violence means 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 …[4]
[4]    Criminal Law Consolidation Act 1935 (SA) s 83D(1).
serious offence means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more;[5]
[5]    Criminal Law Consolidation Act 1935 (SA) s 83D(1).
The definition of serious harm bears the same meaning as it has in Division 7A of the CLCA: [6]
[6]    Criminal Law Consolidation Act 1935 (SA) s 83D(1), s 21.
serious harm means –
(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.
harm means physical or mental harm (whether temporary or permanent);
physical harm includes –
(a)unconsciousness;
(b)pain;
(c)disfigurement;
(d)infection with a disease;
mental harm means psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm.
Consideration
The offence of aggravated robbery, for which the respondent was convicted on 27 May 2014, was an offence punishable by imprisonment for life,[7] and was therefore a serious offence pursuant to s 83D(1) of the CLCA.
[7] Criminal Law Consolidation Act 1935 (SA) s 137.
Notwithstanding that, the respondent submits that his offending did not amount to a serious offence of violence as it did not involve a risk of serious harm to a person within the meaning of s 83D(1) of the CLCA.
The sentencing facts of Lovell J were before me in this action. His Honour found that on 4 July 2013 the respondent followed a man as they both exited a train at the Ovingham Railway Station. The victim was 84 years old and walked with the aid of a walking frame. The respondent approached the victim and threatened him before taking the victim’s wallet from his trouser pocket. In the struggle, the victim fell to the ground.
The respondent argued that the facts here are on all fours with the facts found by Vanstone J in Attorney-General for the State of South Australia v Gates.[8]In Gates, the respondent was convicted of the aggravated robbery of a service station attendant at knifepoint. The respondent entered the service station around dusk and approached the console operator holding a knife under his T-shirt. He produced the knife, brandished it towards the console operator and said, “Give me the money quickly or I’ll fucking kill you”. The console operator opened the till and gave him cash. The respondent then fled.
[8] [2017] SASC 154; (2017) 129 SASR 298.
Her Honour was not satisfied that the offending involved either serious harm or a risk of serious harm as defined in the Act. In the course of reasoning to that conclusion, her Honour considered the level of risk contemplated in s 83D(1) of the Act:
It is instructive to consider what level or quality of risk is contemplated in the use of that word at two points in the definition of “serious offence of violence” in s 83D(1) of the CLCA. Risks may be adjudged as anything from theoretical to substantial. Plainly the risk would need to be at least an appreciable one. It could not be enough that it be a speculative risk.[9]
[9] [2017] SASC 154; (2017) 129 SASR 298, at [9].
Her Honour concluded that the facts in Gates were distinguishable from the facts in Attorney-General (SA) v Wikaire[10] because of what she termed as “the dynamic behaviour of Wikaire during the offence and his preparedness to approach the victim at close quarters”.[11]
[10] [2017] SASC 58; (2017) 127 SASR 565.
[11] [2017] SASC 154; (2017) 129 SASR 298, at [8].
In reaching her conclusion, Vanstone J acknowledged that the assessment of the risk involves an evaluative judgment about the offence and there is often little material on which to base such a judgment. She also acknowledged that the difference in terms of a continuum between the facts in Gates and Wikaire might be very small.
In Wikaire, the offender had pleaded guilty to one count of aggravated robbery. In that case, while under the influence of alcohol, the offender jumped over the counter at a supermarket and threatened a store clerk with a screwdriver before demanding money and cigarettes. Another judge of this Court, Nicholson J, concluded that the offence amounted to a serious offence of violence as the offence did carry a risk of causing serious harm.
In my view, the facts here are plainly distinguishable from the facts in both Wikaire and Gates. Here, the respondent advanced upon and engaged with an 84-year old vulnerable man, who could only walk with the aid of a walking frame, and then involved himself in a struggle which resulted in the elderly man falling to the ground.
I consider those facts without more are sufficient to engage the section in that such conduct plainly involves – to a person as elderly and vulnerable as an 84-year old man with a walking frame – a very real risk of at least serious harm to that person. I add that plainly enough Vanstone J must have reached the same conclusion before making the interim supervision order in this matter on 11 July 2018.
Accordingly, I find that the offence committed here is a serious offence of violence and the respondent is a high risk offender, within the meaning of the Act.
The next issue which arises is whether the material supports the conclusion that the respondent does pose an appreciable risk to the safety of the community if not supervised under the order.
In Attorney-General v Grosser,[12] Stanley J explained in some helpful observations the meaning of ‘appreciable risk’ in the context of the Act.
[12] [2016] SASC 49.
At [29], His Honour opined the risk as:
…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 substantial 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.
As this Court observed in Attorney-General v Kimmins,[13] in terms of giving effect to the requirement that the safety of the public be given paramount consideration, “relatively smaller degrees of risk will outweigh considerations which, even strongly, would militate against the making of an extended supervision order”.
[13] [2016] SASC 176, at [38].
In my view, there is ample material before this Court to conclude that the respondent, if unsupervised in the medium term, does pose an appreciable risk to the safety of the community.
I have reached this conclusion based on Dr Haeney’s helpful report, an examination of the previous sentencing remarks and previous criminal history of the respondent and indeed the very recent history of the respondent’s breaches of the interim supervision order made on 11 July 2018.
In his report, which Dr Haeney expanded on in oral evidence before me, he expressed the opinion that the respondent was at least a moderate risk of further violent offending.
This is particularly so in light of the recent reversion to drug misuse, which seems to have been the reason for the breaches of the interim supervision order and the reason for the Parole Board issuing both warrants of arrest last year. Dr Haeney expressed the view that if the respondent continues to revert to drug use then his risk of further violent offending will rise sharply.
Given that the respondent’s criminal history demonstrates a regrettable pattern of the commission of robberies whilst intoxicated and the propensity to use violence in the course of committing those robberies, I consider that the risk the respondent poses if he remains unsupervised is a very real one.
For these reasons I grant the Attorney-General’s application for an extended supervision order. I will hear the parties now as to the precise terms of that order and its duration.