Attorney-General (SA) v Laughlin - [2019] SASC 105

Supreme Court of South Australia
(Criminal)
ATTORNEY-GENERAL (SA) v LAUGHLIN
[2019] SASC 105
Judgment of The Honourable Justice Doyle (ex tempore)
7 June 2019
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
Application by the Attorney-General (SA) for an interim supervision order pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2017 (SA).
Held (per Doyle J):
1. Consideration of whether the respondent is a high risk offender.
2. The respondent is a high risk offender.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 9; Criminal Law Consolidation Act 1935 (SA) ss 21, 83D, 137, referred to.
Attorney-General (SA) v Davidson [2018] SASC 91; Attorney-General (SA) v Wikaire (2017) 127 SASR 565; Attorney-General (SA) v Gates (2017) 129 SASR 298; Attorney-General (SA) v Jeffery (2018) 130 SASR 300; Attorney-General (SA) v Kember [2019] SASC 19; Attorney-General (SA) v Grosser [2016] SASC 49, considered.

ATTORNEY-GENERAL (SA) v LAUGHLIN
[2019] SASC 105
Criminal

DOYLE J (ex tempore): In this matter the Attorney-General seeks orders that the Court direct a prescribed health professional to examine the respondent and report to the court in the usual terms, as well as orders in the nature of interim supervision orders.
Applications for extended supervision orders are governed by s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the HRO Act). Under s 7(4), this Court may make an extended supervision order on the application of the Attorney-General if satisfied both that the respondent is a high risk offender and that the respondent poses an appreciable risk to the safety of the community if not supervised under the order.
As for an interim supervision order, in accordance with s 9(1) of the HRO Act, the Court may make such an order where an application for an extended supervision order has been made in respect of a high risk offender provided the court is satisfied of the matters under ss 9(1)(a) and (b), namely that the relevant expiry date is likely to occur before the application is determined and, secondly, that the matters alleged in the material supporting the application would, if proved, justify the making of an extended supervision order.
Before turning to address the requirements of ss (a) and (b), it can be seen that the jurisdiction to make an interim supervision order thus requires satisfaction that the respondent is a high risk offender.
High risk offender
Section 5(c) of the HRO Act provides that a high risk offender includes: “A serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence.”
Section 4 of that HRO Act provides that ‘a serious offence of violence’ has the same meaning as s 83D(1) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA), and ‘serious violent offender’ means a person convicted of a serious offence of violence. Under s 83D(1) of the CLCA, that section relevantly provides that a serious offence of violence means: “A serious offence where the conduct constituting the offence involves [relevantly] … the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person.”
A serious offence is defined in the same section to mean an indictable offence punishable by imprisonment for life or for five years or more.
“Serious harm” is then defined in s 21(1) of the CLCA in terms that relevantly includes: “harm that consists of, or results in, serious and protracted impairment of a physical or mental function”.
The respondent is currently serving a term of imprisonment for an offence of attempted aggravated robbery contrary to s 137 of the CLCA. This is a serious offence within the meaning of s 83D(1) of that Act. The issue on the present application is whether the serious offence was one that qualified him as a serious violent offender in accordance with the provisions I have just outlined.
In considering whether the respondent has been convicted of an offence qualifying him as a serious violent offender, the focus must be on the conduct constituting the offence rather than the inherent nature of the offence, or the elements of the offence in the abstract.[1]
[1] Attorney-General (SA) v Davidson [2018] SASC 91 at [4].
The Court must be satisfied that the conduct involved either the death of, or serious harm to, a person, or the risk of death or serious harm. Here the applicant relies upon the risk of serious harm. Further, the applicant relies upon a risk of mental harm rather than physical harm. Mental harm in this context means serious and protracted impairment of a mental function.
The conduct involved in the respondent's offending was summarised in the sentencing remarks of Judge Stretton in the following terms:
At about 9.45 on Saturday, 12 December 2015, you went to the United service station on South Terrace, Strathalbyn whereupon you approached the attendant's counter, repeatedly shouting "Give me the money". Your face was partially covered with some kind of material. The attendant stepped back. You pulled a syringe from your pocket and threatened him with it. You tried to climb the counter, at which the attendant ran back into an office area and locked himself in while you continued to shout demands for money. Eventually you ran out of the service station and away.
For the purposes of today's application I was also provided with an apprehension report. The apprehension report provided some additional matters of detail in that it referred both to the respondent removing the cap from the syringe and also the respondent having attempted to open the door to the office area to which the victim retreated.
Objection was taken to my reliance upon these additional matters in the apprehension report in circumstances where it was not known what material was relied upon below and, in particular, whether there was any occasion to object to those matters of detail.
In my view, it is not appropriate in the circumstances of this application, where I do not have available to me either the transcript of what was said below or the declarations that were before the judge, for me to rely upon these additional matters. I will thus confine myself to the circumstances as set out in the sentencing remarks of the judge below.
The applicant does, however, also make mention of the respondent having advised in his police interview that in the period leading up to the offending he had consumed a significant amount of alcohol, some Xanax tablets and some methylamphetamine.
There are several authorities of assistance in considering whether the respondent's conduct involved the requisite risk of mental harm or impairment. I refer in this respect to the decisions of Nicholson J in Wikaire,[2] Vanstone J in Gates,[3] Hinton J in Jeffery[4] and Kelly J in Kember.[5]
[2]    Attorney-General (SA) v Wikaire (2017) 127 SASR 565.
[3]    Attorney-General (SA) v Gates (2017) 129 SASR 298.
[4]    Attorney-General (SA) v Jeffery (2018) 130 SASR 300.
[5]    Attorney-General (SA) v Kember [2019] SASC 19.
In considering the degree of risk necessary to satisfy the definition of a serious offence of violence, these authorities are consistent in holding that the risk of the relevant harm must be more than a fanciful, theoretical or remote risk. Beyond this, I agree with the reasoning and conclusion of Hinton J in the matter of Jeffery as to the proper approach to the construction of the HRO Act and, in particular, the absence of any basis for reading into the definition provisions any further qualification to the meaning of the reference to risk. It follows that to the extent that the articulation of the requisite degree of risk by Vanstone J in Gates differs from the articulation of Hinton J, I prefer and will apply the latter approach. That said, I am not sure that there is much, if any, practical difference between those two articulations of the requisite degree of risk.
In considering the risk that existed in the present case, the offending was closer in factual terms to that in Wikaire than in Gates. Both of those cases involved robberies involving the use of a weapon. In the former, the respondent was armed with a screwdriver and, in the latter, with a knife. While the latter is an inherently more dangerous weapon, in holding that the requisite degree of risk did not arise in the latter case, Vanstone J distinguished Wikaire on the basis that Nicholson J in that case had emphasised the conduct of the respondent in jumping the counter, which was described by their Honours as “[t]he dynamic behaviour of the respondent during the offence and his preparedness to approach the victim at close quarters.”
The respondent in Gates, while producing a knife, did not make any attempt to jump the counter, or otherwise approach the attendant at close quarters. In the present case, the respondent not only produced a syringe and pointed it at the respondent in a threatening manner while demanding money, but also attempted to jump the counter. While his attempt to close quarters with the attendant was thwarted by the attendant's retreat behind a locked door to the office area, it is significant that the respondent demonstrated a preparedness to close quarters. In my view, the respondent's conduct was of a dynamic nature, similar to that in Wikaire.
In terms of the capacity of such behaviour to give rise to a risk of mental impairment of the requisite kind, I endorse the observations of Nicholson J in Wikaire at [14]-[17] and Hinton J in the matter of Jeffery at [60]-[64].
I accept that in this case there is no evidence that the victim in fact suffered any mental or psychiatric sequelae and, in that sense, the case is factually distinguishable from Wikaire. I also accept that there is no evidence of any obvious vulnerability on the part of the victim, unlike the situation before Kelly J in the Kember case.
However, in my view, these factual distinctions are of little significance in circumstances where the application is one based upon the degree of risk associated with the relevant conduct. I accept that the assessment of risk must be approached on the basis that the victim was a person without any particular known vulnerability and so might be assumed to be a person of normal fortitude. But, in my view, that still means the matter is to be approached with some flexibility and allowing for some range of susceptibility, albeit perhaps excluding the most vulnerable and the most robust of persons on the basis that that would involve dealing with risks which are of a more theoretical nature rather than those which the section is intended to capture.
Being the victim of any armed robbery would be an extremely confronting and frightening experience. I do not think the choice of weapon makes much difference in this respect. But to the extent it does, the threatened use of a syringe, with the obvious and intended threat of the risk of infection with some serious communicable disease, is a particularly confronting choice of weapon. I am satisfied that an armed robbery, or attempted armed robbery, involving the production of a syringe and an attempt to jump the counter (which suggests a preparedness to close quarters and deploy the syringe), gave rise to a risk that the victim might suffer significant psychiatric sequelae sufficient to cause a serious and protracted impairment of a mental function within the terms of the definition of serious harm.
I note that in this case the respondent contends that the victim was able to retreat to a secure area. But, in my view, it is significant that the victim was not in this secure place at the time of the initial brandishing of the syringe and the threats or demands to hand over the money, or indeed when the respondent commenced his attempt to jump the counter. In my view, the fact that the victim was ultimately successful in retreating to a safe area is of little significance in assessing the risk of serious psychiatric harm, given that the victim was initially exposed in the way I have described.
I emphasise that in the conclusions I have reached I have not overlooked the need to have regard to both the degree of risk of harm, but also the nature of the harm in question and, in particular, the requirement that the mental harm be of a serious and protracted impairment of a mental function. For these reasons, I am satisfied that the respondent is a high risk offender.
Expiry date
Turning to the matter of the relevant expiry date; that is, of course, the date on which the term of imprisonment to which the offender's sentence expires and, in this is case, the application was initially predicated on the basis that that date was 11 June 2019 for the index offending.
Based on the documentation provided to me today it appears that the period may not expire for a further 21 days. But regardless of which is the correct date, given the reports that will need to be obtained before the application for the extended supervision order can be determined, even allowing for an additional period of 21 days, it is nevertheless appropriate that this application be determined on an interim basis.
Material justifying extended supervision order
Turning then to the material justifying the making of an extended supervision order; the issue under s 9(1)(b) is whether the matters alleged in the material supporting the application would, if proved, justify making an extended supervision order. The respondent on this application did not join issue with this aspect of the application. In any event, I am satisfied that the matters in the material provided by the applicant would, if proved, justify an extended supervision order.
In reaching this conclusion, I have had regard to the requirements of s 7(4) of the HRO Act, to which I referred earlier. In considering whether the material relied upon would, if proved, establish that the respondent poses an appreciable risk to the safety of the community if not supervised under the order, I have had regard to and applied the approach articulated by Stanley J in Grosser.[6]
[6] Attorney-General (SA) v Grosser [2016] SASC 49 at [29]-[32].
In terms of the factual matters that would, if proved, give rise to the relevant appreciable risk, I rely, in particular, upon the matters set out in [20]-[30] of the respondent's submissions. They may be summarised as follows:
·The respondent’s offending history, which began at the age of 16, when in 1989 he was fined for possessing equipment to administer illicit substances. Since then, he has committed a range of violent, drug related and dishonesty offences. His extensive generalised offending history has included multiple counts of offensive behaviour, carrying an offensive weapon, larceny, damaging property, estreatment of bail, failing to comply with a restraining order and a number of driving related offences. In addition to the index offending, the respondent’s violent offending history has included arson, armed robbery, assault and criminal trespass (non-residential). The respondent has been subject to four domestic violence related orders in 1995, 1996, 2007 and 2015.
·The respondent had a very difficult and unstable upbringing, with substance abuse and violence in his family environment.
·The respondent managed to complete his education through to the end of year 11, and has had intermittent employment from that time through to 2015. He has three children, although an intervention order that remains in place prevents him from residing with them or their mother.
·The respondent has a history of mental health problems dating back to a young age. Some of his diagnoses include disturbed personality, suicidal thoughts, self-destructive behaviours, alcoholism and drug addiction, compulsivity and low self-esteem. Psychological testing assessed him as meeting the diagnostic criteria for adjustment disorder with mild anxiety and depressed mood. The respondent has reported some stabilising of his issues since imprisonment in 2015, although some of this may be attributable to his inability to access illicit substances while imprisoned.
·The respondent has been assessed as having multiple criminogenic risk factors. Substance abuse has been noted as one of the most substantial of these risk factors. The respondent has an extensive history of alcohol abuse from the age of 14, and has used a variety of other substances including marijuana, methyalmphetamine and heroin.
·The respondent participated in and completed the ‘Living Without Violence Programme’ run at the Cadell Training Centre between late 2016 and early 2017. Prior to this the respondent had been assessed as being at a high risk of violent reoffending, and post-treatment he was assessed as a moderate risk of violent reoffending.
·It was reported that the respondent had moved on the majority of his dynamic risk factors from pre-contemplation to preparation, by demonstrating some awareness that his behaviours were problematic, and he had made some behavioural changes. However, some changes were relatively recent and not yet consistent over time or demonstrated across relevant high-risk situations. It was noted that his risk of violent reoffending may increase if he were placed in circumstances and settings similar to those of his previous offending, including relationship conflict, alcohol and drug use, and isolation from prosocial support.
The applicant contended that the moderate risk presented by the respondent is one that is capable of being estimated and not purely speculative with the result that the assessment, would be sufficient for the purposes of s 9(1)(b) of the HRO Act in that, if accepted, it would establish that the respondent is an appreciable risk to the safety of the community, and poses a considerable risk of reoffending. It was further submitted that the orders sought by the applicant in the interim supervision order will ensure that the respondent receives further treatment and permit the community to be protected pending the outcome of these proceedings.
I accept these submissions which, as I have mentioned, were not opposed by counsel for the respondent.
In the circumstances, I consider it appropriate to exercise my discretion to make orders, generally, in the terms sought.