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…

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 Kember

Details

AGLC: Attorney-General (SA) v Kember [2019] SASC 19
Case: [2019] SASC 19
Decision Date: 27 February 2019

CaseChat Overview and Summary

The case of Attorney-General (SA) v Kember involves the appellant, Kember, who was sentenced for serious criminal offences. The primary issue before the court was the imposition and legality of various post-custodial orders following Kember's release from prison. The court was tasked with determining whether these orders were within the statutory authority of the sentencing court and whether they constituted an unlawful punishment for the same offence. The appeal centred on the interpretation and application of sentencing provisions, particularly those concerning post-custodial orders for serious or violent offenders.

The court considered the legal framework governing post-custodial orders and the distinction between punitive measures and rehabilitative conditions. It examined whether the orders imposed on Kember were punitive in nature, which would render them invalid under the sentencing act, or if they were rehabilitative and therefore permissible. The court explored the purpose of such orders and whether they were reasonably necessary to protect the community and ensure the offender's reintegration. The appeal raised significant questions about the boundaries of judicial discretion in imposing conditions following a custodial sentence.

In its reasoning, the court concluded that some of the orders imposed on Kember were punitive and thus beyond the authority of the sentencing court. The court held that these orders constituted additional punishment for the same offence, which is impermissible under the applicable legislation. The court also noted that while certain rehabilitative orders could be valid, they must be reasonably necessary and proportionate. The appeal was allowed in part, and certain post-custodial orders were quashed.

The final orders of the court included the quashing of specific post-custodial orders found to be punitive. The court upheld other orders deemed to be rehabilitative and reasonably necessary. This decision underscores the importance of distinguishing between punitive and rehabilitative measures in the context of post-custodial orders and highlights the need for sentencing courts to carefully consider the purpose and necessity of such conditions.

Orders