Attorney-General (SA) v Lawrie - [2020] SASC 216

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v LAWRIE
[2020] SASC 216
Judgment of The Honourable Justice Livesey
4 November 2020
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
Pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“the Act”) the Attorney-General made an application for the respondent to be subject to an extended supervision order for a period of two years. On 5 September 2020 the respondent was released from prison after having served a sentence of imprisonment for a number of offences including aggravated drive dangerously to escape police pursuit. Since then he has been subject to an interim supervision order made pursuant to s 9 of the Act.
The respondent conceded that he is a high risk offender within the meaning of the Act and that he poses an appreciable risk to the safety of the community if not supervised under an extended supervision order. The respondent’s opposition centred on particular conditions of the Applicant’s proposed order.
Held, allowing the application:
1. the respondent is to be subject to an extended supervision order for a period of two years commencing on 14 October 2020 with conditions including that he be subject to a curfew and electronic monitoring for a period of six months.
2. the condition preventing contact or association with any member of an outlaw motorcycle club is varied to exclude a particular person who appears to be the respondent's only community support, where there is no evidence of any encouragement to engage in unlawful activity, and only positive interaction and support.
Criminal Law Consolidation Act 1935 (SA) s 19AC, s 21, s 83D, s 134, s 270A; Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, s 9, s 10; Motor Vehicles Act 1959 (SA) s 91, referred to.

ATTORNEY-GENERAL (SA) v LAWRIE
[2020] SASC 216
Criminal: Application

LIVESEY J: The Attorney-General has applied for an extended supervision order with respect to the respondent, Charles Ronald Lawrie, pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act or the Act).
On 5 September 2020 Mr Lawrie was released from prison after having served a sentence of imprisonment of two years, one month and 10 days for aggravated drive dangerously to escape police pursuit, assault causing harm, two counts of driving whilst disqualified, two counts of theft and attempted theft. Since his release from prison, Mr Lawrie has been subject to an interim supervision order made pursuant to s 9 of the Act. He was subsequently returned to prison on a Parole Board warrant after breaching his interim supervision order.
Whilst Mr Lawrie initially opposed the making of an extended supervision order, his opposition was subsequently confined to only some of the conditions sought.
On 14…

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.

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Details

Case: [2020] SASC 216
Decision Date: 4 November 2020

CaseChat Overview and Summary

In Attorney-General (SA) v Lawrie, the applicant sought an extended supervision order under the Criminal Law (High Risk Offenders) Act 2015 (SA) in respect of the respondent. The primary legal issue before the court was whether the respondent, Mr Lawrie, qualified as a "high risk offender" and whether he posed an appreciable risk to the safety of the community if not supervised under an extended supervision order. The court had to consider the relevant statutory provisions, the evidence presented, and the factors outlined in the legislation.

The court considered the evidence presented, including the Parole Board's report and Dr Raeside's assessment, which indicated that Mr Lawrie had experienced significant early life trauma and had been involved in domestic violence incidents. However, the court also noted that Mr Lawrie had no prior criminal history, and his interactions with an outlaw motorcycle club member, who was his primary support, had been constructive. The court further examined the statutory requirements for imposing an extended supervision order, focusing on the definition of a "high risk offender" and the need to balance the safety of the community with the individual's circumstances.

After careful consideration of the evidence and the statutory provisions, the court determined that Mr Lawrie qualified as a "high risk offender" due to his conviction for aggravated drive dangerously to escape police pursuit, which constituted a "serious offence of violence." The court found that Mr Lawrie posed an appreciable risk to the safety of the community if not supervised under an extended supervision order. However, considering Mr Lawrie's lack of prior criminal history and the constructive nature of his interactions with his support person, the court decided to exclude him from the condition precluding contact with members of outlaw motorcycle clubs.

The court imposed an extended supervision order for a period of two years, with typical conditions, including a curfew for the first six months and electronic monitoring for six months unless otherwise determined by the Parole Board. This decision balanced the need to protect the community with the respondent's individual circumstances and the potential benefits of his support network.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

A report from the Parole Board dated 5 March 2020 indicated that the Board supported this Court making an extended supervision order with respect to Mr Lawrie. Among other things, it was recommended that Mr Lawrie be subject to conditions that he abstain from drinking alcohol, that he follows the direction of his Community Corrections Officer in relation to the people with whom he associates with and that he be subject to a 9 pm to 6 am curfew. A number of conditions directing that Mr Lawrie participate in counselling, treatment programs and the like in relation to substance abuse and domestic violence were also recommended.The medical evidence As mentioned earlier in these reasons, Dr Raeside provided this Court with reports and gave evidence on the hearing of the application. He interviewed Mr Lawrie on 8 July 2020 in relation to the Attorney’s application, giving particular attention to his likelihood of committing a serious offence of violence. At the outset of his report dated 8 July 2020, Dr Raeside stated that he had previously assessed Mr Lawrie’s mother for the provision of a psychiatric report to the District Court in relation to the charge of manslaughter. In that report he said:Ms Wanganeen’s son was electrocuted two years ago when he climbed to the top of a power pole and touched wires. Consequently his father returned to Adelaide and broke her nose, before leaving. He came back to visit his son again. On this occasion Ms Wanganeen reported that he sexually assaulted her in front of him. … Previously he had always wanted his parents to get back together, but since that incident he expressed considerable hatred towards his father. Mr Lawrie said that had been assaulted several times in his childhood. He said that these past traumas “used to play on my mind, but whatever, it was time to move on” and he did not believe these matters adversely affected him anymore. Nevertheless, Dr Raeside said that it was apparent that Mr Lawrie was subjected to quite significant early life trauma which had had an adverse impact on his developing personality. Mr Lawrie denied any significant past psychiatric symptoms such as mood disturbance, anxiety or psychotic symptoms. However, the doctor noted that Mr Lawrie had previously been assessed as being in the borderline intellectual range and his presentation was consistent with this. He said that he had never received any psychiatric or psychological treatment or psychiatric medication. Dr Raeside said that Mr Lawrie appeared to have developed some insight into the overall adverse impact of illicit drugs, including developing an understanding as to why it had been problematic. Dr Raeside then turned to previous domestic violence offences where it had been alleged that Mr Lawrie had damaged his partner’s mobile phone, threatened to kill her and burn her house down. Mr Lawrie explained that they had a major argument, a verbal one, whilst on the phone. He said, “[I] said some things I shouldn’t have said, threatened her, she rang the cops, so it was not a physical assault, but a verbal assault”. Mr Lawrie added that this was the first time that he had ever been charged with any “domestics”. Whilst the charges were not proceeded with, an intervention order was put in place. He told the doctor that it was his understanding that he could contact his ex-partner but not threaten or abuse her. Mr Lawrie said that he was not aware of any other allegations of domestic violence.

Decision

Reasons for decision

In the circumstances, and not without some misgivings, I was prepared to exclude this person from the condition which otherwise prevented any contact or association with any member of an outlaw motorcycle club. In my view, that was appropriate where, on the information available to the Court, Mr Lawrie had no alternative means of support in the community.Conclusion and orders In the circumstances, I determined to impose an extended supervision order for a period of two years commencing on 14 October 2020 with what might be described as typical conditions, save that Mr Lawrie will be subject to a curfew for the first six months and, unless otherwise determined by the Parole Board, he will be subjected to electronic monitoring for a period of six months.

Ratio Decidendi

Legal Principle Established

A further issue that became clear during the course of the cross‑examination of Dr Raeside was that Mr Lawrie was interacting with a person who was known to be a member of an outlaw motorcycle club. Whilst the imposition of a term precluding contact or association with members of outlaw motor cycle clubs is typical and perfectly understandable, after Dr Raeside left the witness box Mr Lawrie explained that this person was his principal source of support and transport when reintegrating into the community. On the information available to Dr Raeside and the Court, Mr Lawrie’s interactions with this particular person had only been constructive.Consideration In Attorney-General (SA) v Humes I recently considered s 7 of the High Risk Offenders Act and said:[2]The two jurisdictional facts that the Attorney-General must prove to enliven this Court’s discretion to make an extended supervision order are set out in s 7(4) of the High Risk Offenders Act. They provide that the Court must first be satisfied that the respondent is a “high risk offender”[3] and secondly that he or she “poses an appreciable risk to the safety of the community if not supervised under the order”.[4]Section 7(5) makes clear that the paramount consideration of the Court in determining whether to make an extended supervision order is the safety of the community.Section 7(6) provides a non-exhaustive list of additional factors that the Court may take into account in determining whether to make an extended supervision order including the extent to which the respondent has complied with his or her parole conditions,[5] any treatment or rehabilitation programs he or she has undertaken,[6] and any relevant evidence or representations that the respondent puts before this Court.[7][2] Attorney-General (SA) v Humes [2020] SASC 123.[3] Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(4)(a).[4] Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(4)(b).[5] Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(6)(g).[6] Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(6)(f).[7] Criminal Law (High Risk Offenders) Act 2015 (SA), s 7(6)(e). Under s 5(c) a “high risk offender” is defined to include a “serious violent offender” who was sentenced to a period of imprisonment with respect to a “serious offence of violence”. The various interlocking definitions contained in the High Risk Offenders Act and the CLCA, which govern the question whether a respondent who has been sentenced to a period of imprisonment for a “serious offence of violence” (and is thus a “serious violent offender”),[8] have been discussed in many decisions of this Court.[9] These definitions need not be set out or discussed in detail. Before me, there was no dispute that Mr Lawrie satisfies the definition of “high risk offender” under s 5(c). That is to say, there was no dispute that the aggravated drive dangerously to escape police pursuit is a “serious offence of violence” which qualifies Mr Lawrie as a “serious violent offender”.[10][8] See s 4 of the Criminal Law (High Risk Offenders) Act 2015 (SA) and ss 21(1) and 83D(1) of the Criminal Law Consolidation Act 1935 (SA).[9] Attorney-General (SA) v Wikaire (2017) 127 SASR 565; Attorney-General (SA) v Wells [2017] SASC 149; Attorney-General (SA) v Jeffery (2018) 130 SASR 300; Attorney-General (SA) v Davidson [2018] SASC 91; Attorney-General (SA) v Laughlin [2019] SASC 105; Attorney-General (SA) v Kember [2019] SASC 19 and Attorney-General (SA) v Gates (2017) 129 SASR 298.[10] In R v Pedler (No 2) [2019] SASCFC 117, [34] Kourakis CJ, with whom Nicholson J and David AJ agreed, held that an application can be made under the Criminal Law (High Risk Offenders) Act 2015 (SA) within 12 months of the relevant expiry date of a single sentence of imprisonment or a series of consecutive sentences of imprisonment any part of which is imposed in respect of a serious sexual offence.