Attorney-General (SA) v McCann - [2023] SASC 5

Supreme Court of South Australia
(Criminal: Application)

ATTORNEY-GENERAL (SA) v MCCANN
[2023] SASC 5
Judgment of the Honourable Justice McDonald
17 January 2023
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
On 21 December 2020, the respondent was sentenced to a head sentence of two years and one month imprisonment for the offence of causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA). The offending in question involved the respondent engaging in an altercation with the victim in the city in the early hours of the morning whilst intoxicated. This resulted in the respondent running at the victim and punching him to the jaw, causing the victim to fall and strike his head on the ground, rendering him unconscious, with a fractured skull and bleeding to the brain.
The respondent pleaded guilty. As a result of this offending, the respondent breached a good behaviour bond which resulted in him becoming liable to serve a sentence of 16 months imprisonment. This resulted in a total head sentence of three years and five months. A non-parole period of 22 months was fixed to commence on 27 August 2019.
The Attorney-General made an application for an Extended Supervision Order (ESO) in respect of the respondent, pursuant to section 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’) on the basis that the respondent is a serious violent offender who was sentenced to a period of imprisonment in respect of a serious offence of violence, and who is currently serving that sentence. A further application was made that the respondent be the subject of an Interim Supervision Order (ISO) pursuant to s 9(1) of the HRO Act until such time the ESO application is determined. Both applications were opposed by the respondent.
Held:
1. The respondent is a high risk offender who poses an appreciable risk to the safety of the community if not supervised under an ISO.
2. Pursuant to s 9(1) of the HRO Act, the respondent is to be subject to an ISO pending the determination of the application for the ESO.
Criminal Law Consolidation Act 1935 (SA) ss 21, 24, 83D; Criminal Law (High Risk Offenders) Act 2015 (SA) ss 3, 5, 7, 9; Sentencing Act 2017 (SA) s 114, referred to.
Attorney-General (SA) v Adams [2020] SASC 58; Attorney-General (SA) v Gillard [2022] SASC 104; Attorney-General (SA) v Grosser [2016] SASC 49; Attorney-General (SA) v Jeffery [2018] SASC 1; Attorney-General (SA) v Karpany [2020] SASC 219; R v Kimmins [2016] SASC 176, considered.

ATTORNEY-GENERAL (SA) v MCCANN
[2023] SASC 5
Criminal: Application
McDONALD J:
Introduction

This is an application made by the Attorney‑General for Mr McCann to be the subject of an extended supervision order (‘ESO’) pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’). A further application is made that Mr McCann be the subject of an interim supervision order (‘ISO’) pursuant to s 9(1) of the HRO Act until such time the principle application is determined.
Mr McCann opposes the making of both the ISO and the ESO. He does so on the basis that he contends that he is not a high risk offender and further that he does not pose an appreciable risk to the safety of the community.
Whilst there are applications for both an ISO and an ESO, the first application in time that calls for consideration is the application for the ISO. In the circumstances of this case however, it follows that if the Attorney‑General is unsuccessful in the application for an ISO, it necessarily means that an application for an ESO will also be unsuccessful. For those reasons, at this stage, I propose to limit my consideration to whether to make an ISO.
The relevant provisions in the HRO Act and the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’)
The object of the HRO Act is set out in s 3. It provides:
The object of this Act is to provide the means to protect the community from being exposed to an appreciable risk of harm posed by serious sexual offenders and serious violent offenders.
Section 7(1) of the HRO Act provides:
The Attorney General may make an application to the Supreme Court for an extended supervision order to be made in respect of a person who is a high risk offender (the respondent).
Such an application may only be made in relation to an offender who is serving a period of imprisonment or who is already subject to an ESO. It is the former that is relevant to the current application. The application can only be made within 12 months of the date on which the term of imprisonment being served expires.[1]
[1] Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(2).
Under s 7(4) of the HRO Act the Court may, on the application of the Attorney‑General pursuant to s 7(1), make an extended supervision order if satisfied that the respondent to the application is a high risk offender within the meaning of s 5 of the HRO Act and that the respondent poses an appreciable risk to the safety of the community. That is, the power to make the order is only enlivened if the Court is first satisfied that the respondent is a high risk offender and, in addition, it is established that he poses an appreciable risk to the safety of the community if not supervised pursuant to an order.
Section 5 of the HRO Act sets out the definition of a high risk offender:
5—Meaning of high risk offender
For the purposes of this Act, a high risk offender is—
(a)a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence; or
(b)a person referred to in paragraph (a) who is serving a sentence of imprisonment any part of which is in respect of any of the following offences:
(i) an offence under section 58 or 63A of the Criminal Law Consolidation Act1935;
(ii) an offence under section 44, 45, 65 or 66N(2) of the Child Sex Offenders Registration Act 2006;
(iii) an offence under section 99I of the Summary Procedure Act 1921;
(iv) an offence prescribed by the regulations for the purposes of this paragraph; or
(c)a serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence; or
(ca)a terror suspect who is serving a sentence of imprisonment; or
(d)a person who is subject to an extended supervision order.
In this case, the Attorney‑General relies on s 5(c). That is, that Mr McCann is a serious violent offender who was sentenced to a period of imprisonment in respect of a serious offence of violence.
The HRO Act provides that a “serious offence of violence” has the same meaning as in s 83D(1) of the CLCA. Within s 83D(1) a ‘serious offence’ is defined as “an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more”. The same section also relevantly provides the definition of a ‘serious offence of violence’:
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;
…
Section 83D(1) further provides that ‘serious harm’ bears the same meaning as set out in Part 3, Division 7A of the CLCA. ‘Serious harm’ is defined in that Part within s 21(1) of the CLCA to mean:
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.
Section 21(1) of the CLCA also sets out the meanings of other relevant terms. ‘Harm’ is defined to mean “physical or mental harm (whether temporary or permanent)”. ‘Mental harm’ is defined to mean “psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm”. ‘Physical harm’ “includes unconsciousness, pain, disfigurement and infection with a disease”.
There is provision under the HRO Act for an interim supervision order to be made in circumstances where a respondent’s term of imprisonment is likely to expire before an application for an extended supervision order can be determined. Section 9 provides:
9—Interim supervision order
(1)The Supreme Court may make an interim supervision order if an application for an extended supervision order in relation to a high risk offender has been made and the Court is satisfied—
(a) that the relevant expiry date for the respondent is likely to occur before the application is determined; and
(b) that the matters alleged in the material supporting the application would, if proved, justify the making of an extended supervision order.
(2)An interim supervision order takes effect on the making of the order until the application for the extended supervision order is determined.
It follows from the terms of s 7(1) of the HRO Act that the Attorney‑General may make an application for an ESO only in respect of a person who is a “high risk offender” and from the terms of s 9(1) the Supreme Court may only make an interim supervision order if an application for an extended supervision order has been made in relation to a ‘high risk offender’. In considering an application for an ISO the Court must approach the application on the basis that the matters alleged in the materials relied upon by the Attorney‑General if proved would justify the making of an ESO. It follows that the test in determining whether an ISO should be made is not as demanding as that applicable to the making of an ESO. The distinction between the tests is an important one, because at the stage of giving consideration to the imposition of an ISO, the Court is required to make an assumption of the accuracy of the materials that have been filed and generally does so without the benefit of a recent report from an appropriately qualified health professional.[2]
[2] Section 7(3) of the HRO Act requires that before making a determination about whether to make an ESO the Supreme Court must “direct that 1 or more prescribed health professionals examine the respondent and report to the Court on the results of the examination, including –
…
(b)if the respondent is a serious violent offender—an assessment of the likelihood of the respondent committing a further serious offence of violence; or
…”
The sentence imposed
On 21 December 2020 Mr McCann was sentenced to a head sentence of two years and one month imprisonment for the offence of causing harm with intent to cause harm contrary to s 24(1) of the CLCA (‘the index offence’). The maximum penalty for this offence is 10 years imprisonment. Mr McCann pleaded guilty. As a result of this offending Mr McCann breached a good behaviour bond. That breach resulted in Mr McCann becoming liable to serve a sentence of 16 months’ imprisonment. There was no suggestion that there were “proper grounds”[3] to excuse the breach or “special circumstances”[4] that would result in a reduction of the suspended term of imprisonment. Consequently, the cumulative effect of the two sentences was a head sentence of three years and five months. A non‑parole period of 22 months was fixed to commence on 27 August 2019. It follows that the head sentence is due to expire on 26 January 2023.
[3] Sentencing Act 2017 (SA) s 114(3).
[4] Sentencing Act 2017 (SA) s 114(5).
From that brief recital of the history of the sentence imposed, it is apparent that Mr McCann was sentenced for a “serious offence” with a maximum penalty of greater than five years imprisonment (as required by s 83D(1) of the CLCA) and the relevant expiry date of 26 January 2023 is likely to occur before the application for the ESO is determined (as required by s 9(1)(2) of the HRO Act).
The question of whether or not to impose an ISO turns then on whether Mr McCann’s offending is to be characterised as “a serious offence of violence”, and whether he poses an appreciable risk to the safety of the community if the order is not made.
The nature of the relevant offending
The only material that I have before me that assists in determining the nature and circumstances of the offending are the sentencing remarks. I make the observation that in some circumstances the sentencing remarks may, standing alone, form an adequate basis for a finding that the offending is sufficient to qualify a respondent as a high risk offender. In others it may be necessary for the Court to be provided with additional materials, particularly in circumstances in which there is opposition to the making of the order. In this case, I would have been assisted by the provision of further materials, for example, medical reports containing additional details of the nature and extent of the injuries, of the treatment received by the victim and any period of hospitalisation that was required. I would expect that such documents would be readily available from the prosecution file.
Having said that, the remarks of the sentencing Judge are sufficiently detailed and have provided a reasonable basis upon which to determine whether Mr McCann’s conduct amounted to a serious offence of violence.
The relevant offending occurred in the city during the early hours of the morning of 21 July 2019. At the time, Mr McCann was intoxicated and in the company of friends. The sentencing Judge provided the following description of the circumstances in which the offending occurred:[5]
…You engaged in a verbal exchange with your victim and exposed yourself. You then ran at him and punched him to the jaw. He posed no threat to you. Your punch caused him to fall and to strike his head on the ground.
While you were intoxicated, you appreciated what you had done. You did not remain to help your victim. You, and the others with you, fled.
You later got into a taxi, and by changing clothes, took some steps to change your appearance.
I do not sentence you on the basis that you intended to cause anything more than harm, but it is appropriate to take into account the full extent of the injuries suffered by your victim. Those injuries were very significant. Your victim was rendered unconscious, perhaps as a result of his head striking the ground. His skull was fractured. He suffered bleeding to the brain. Since the incident, he has suffered persistent headaches and tinnitus. There has been an adverse impact upon his sleep and energy levels. He has suffered anxiety and has found himself unable to attend public events.
[5] Sentencing Remarks of Kimber DCJ in R v McCann (District Court of South Australia, DCCRM-20-906, DCCRM-20-1084, 21 December 2020) (‘Sentencing Remarks’) at 1.
The sentencing Judge characterised this offence as serious and observed the community concerns about indiscriminate acts of street violence of this nature.[6]
[6] Sentencing Remarks at 2.
Is Mr McCann a high risk offender?
Counsel for the Attorney‑General, Ms Christaki‑Hedrick, submitted that Mr McCann met the definition of a high-risk offender in that he is a serious violent offender who was sentenced to a term of imprisonment in respect of a serious offence of violence. There was no dispute that Mr McCann had committed a serious offence given the maximum penalty of 10 years imprisonment.
The only issue in relation to this aspect of the test was whether the conduct constituting the offence involved “the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person”. The language in the definition of a serious offence of violence focuses not on the elements of the offence committed, but on the actual conduct underlying or giving rise to the charged offence. In this case, death was not caused so the issue is whether the offence resulted in serious harm or the risk of serious harm to the victim. Ms Christaki‑Hedrick submitted that both limbs of the test were satisfied.
There is no dispute that as a consequence of the punch to the jaw, the victim was rendered unconscious, his skull was fractured and he suffered bleeding to the brain. Further, since the incident he suffered persistent headaches and tinnitus as well as anxiety and adverse impacts upon his sleep and energy levels. Ms Christaki‑Hedrick submitted that consequently there were three routes open to a finding that Mr McCann had committed a serious offence of violence. These were that the victim had in fact suffered serious harm in that his physical injuries were such that his life had been endangered. Alternatively, that at the very least there had been a risk of both serious mental and physical harm as defined by the CLCA.
In support of her argument, Ms Christaki‑Hedrick relied on the judgment of Nicholson J in Attorney‑General (SA) v Adams.[7] In that matter, his Honour was also considering a contested application for an ESO. The offending there in question involved the respondent engaging in the offence of aggravated robbery with a group of young men and juveniles. The respondent had been involved in dragging, kicking and punching the victim in order to steal an amount of cash from him. Although the victim was found to have suffered physical harm, it was not of a nature that would be characterised as serious harm.
[7] [2020] SASC 58.
The issue for Nicholson J was whether he was satisfied that the conduct of the respondent was such that it involved at least “a risk of serious mental or physical harm”. In arriving at the view that the offending did involve such a risk, his Honour made the following observation:[8]
… On the facts of the present case the risk of serious harm was a real or recognisable one and not fanciful, theoretical or remote. There was a risk of serious physical harm. Kicks and punches have been known to result in very serious harm and sometimes death. Further, the assault took place in company at 2 am in an isolated location. Depending on the level of fortitude of a particular victim, such an event can result in serious mental harm.
[8] Attorney-General v Adams [2020] SASC 58 at [19].
Mr Kalali, who appeared for Mr McCann, submitted that it has not been established that Mr McCann has committed a serious offence of violence. In essence, it was his submission that whilst the offence of causing harm with intent to cause harm is capable of constituting a serious offence of violence, on the facts of this matter, the offence as committed by Mr McCann does not satisfy the test. Mr Kalali submitted that it was relevant that the conduct alleged was a single punch to the jaw that resulted in the head injuries that may have been caused when the victim’s head impacted with the ground, and consequently it could not be established that the punch was a direct cause of the injuries sustained.
During the course of his submissions, Mr Kalali placed considerable reliance upon the decision of Kimber J in Attorney-General (SA) v Gillard (‘Gillard’).[9] In that matter, his Honour declined an application by the Attorney‑General to make an ISO and an ESO. His Honour did so on the basis that it had not been established that the respondent was a high-risk offender as no serious offence of violence was found to have been committed. Given the extent to which Mr Kalali relied on Gillard and his submission that it could not be distinguished from this case, it is necessary to descend into the facts of that matter in some detail.
[9] [2022] SASC 104.

In Gillard the respondent had committed the offence of recklessly causing harm contrary to s 24(2)(a) of the CLCA. That offence carries with it a maximum penalty of imprisonment of five years. Kimber J relied on the following passage taken from the sentencing remarks as the factual basis of the offending:[10]
… on 23 March 2015 which is now over four years ago, you attended in the company of another person at the home of your victim’s mother at Beulah Park. You had convinced yourself that the victim, who was your then employee, had stolen money from you. While he had in fact used your credit card to withdraw a sum of money, he remined you that you had given him permission to withdraw that sum as his wages.
When you entered the house, you argued with him. His mother was present at the time. There was no doubt that you did make contact to the side of the victim’s head, and that he fell to the floor and sustained injuries to which I will refer.
In dispute at the trial was whether you had punched the victim once to the side of the head or hit him with an open hand. The jury verdict is opaque. (The Prosecutor) very properly submitted this morning that I do not need to make a specific finding as to whether it was an open hand or a punch. I must however determine, for the purpose of sentence, the facts consistent with the verdict of the jury.
I have no doubt at all that you did hit him with a hand and not a fist. However not much turns on that in the end because the injury which he sustained were caused by that hit to the side of the head.
[10] Attorney-General (SA) v Gillard [2022] SASC 104 at [13].
On that basis, Kimber J was satisfied that the relevant conduct comprised of a single blow to the side of the head with an open hand.
Kimber J was also entirely reliant upon the sentencing remarks for the details of the injuries sustained. As to matters relevant to physical harm, his Honour found:[11]
… the victim sustained ‘swelling and bruising to the right eye, broken bones in the right eye cavity and some injury to the right cheek’. An ambulance attended and the victim walked to that vehicle with assistance. The victim was taken to hospital. The Sentencing Judge said, ‘somewhat surprisingly, the victim discharged himself from hospital early in the morning’.
(Footnotes omitted)
[11] Attorney-General (SA) v Gillard [2022] SASC 104 at [16].
In terms of mental harm, Kimber J was again reliant upon a passage from the sentencing remarks:[12]
You may not have been previously aware of his (sic) victim’s unfortunate history. He explained that he had suffered the loss of his sister shortly before he met you. He was depressed because of that loss. He said because of that your conduct was devastating. He had come to regard you as a brother. He said he now lives in constant fear that he will be assaulted again. The fact remains that four years has passed by. He does not understand why you hit him.
[12] Attorney-General (SA) v Gillard [2022] SASC 104 at [17].
An important point of distinction between this case and Gillard is that in Gillard the Attorney‑General did not rely on any serious physical harm or the risk of any serious physical harm but instead made the submission that the ‘conduct constituting the offence’ involved harm that consisted of or resulted in serious and protracted impairment of a mental function or a ‘risk of harm’ consisting of or resulting in serious and protracted impairment of a mental function.
It should be observed however that although the Attorney‑General did not rely on serious physical harm or the risk of serious physical harm, Kimber J still gave consideration as to whether that limb of the test could be satisfied. In finding that it could not, his Honour set out his reasoning process:[13]
As set out above, the conduct was an open-handed blow and I am not satisfied it was to the eye. For that reason, I am not satisfied the conduct involved a risk of an eye injury (i.e. physical harm) which amounts to ‘serious harm’. I am satisfied that blow was a forceful one (at least causing the victim to fall to the ground). I accept the head can be a vulnerable part of the body and it is notorious that falls to the ground may cause very serious injury if the head strikes the ground (as may have occurred in this case). However, in evaluating the relevant risk, I must return to the conduct. I am only satisfied the conduct was a forceful blow to the side of the head with an open hand. I cannot quantify the degree of force, other than it was, at least, sufficient to cause the victim to fall to the ground. I am satisfied the conduct involved a ‘theoretical’ risk of ‘serious and protracted impairment of a physical function’, but I am not satisfied the risk was greater than that. I am not satisfied the necessary risk is ‘real or recognisable’.
[13] Attorney-General (SA) v Gillard [2022] SASC 104 at [29].
I take this passage to mean no more than that given the nature of the conduct, an open‑handed slap, the lack of clarity surrounding where the slap connected with the victim’s head and the absence of evidence about the mechanism required to cause such an injury to the eye, the fact of the injury alone could do little to assist in determining the force with which the blow was inflicted. In other words, it could not be reasoned backwards that because the victim sustained the eye injury the blow must have been of a particular force.
Consideration
I turn then to consider the question of whether Mr McCann is a high risk offender. Although the Attorney‑General relies upon three routes to arrive at such a finding, it is only necessary for me to find that one of the limbs of the test has been satisfied. It appears to me that on the facts of this case the most apposite is whether the conduct engaged in by Mr McCann resulted in the risk that the victim would suffer serious physical harm in that it exposed him to the risk of his life being endangered.
There are a number of features of Mr McCann’s offending that are relevant to an assessment of the risk that he exposed his victim to. At the time of the offending Mr McCann was a young man, fuelled by alcohol in the city in the early hours of the morning. The combination of intoxication and youth can lead to disinhibition. Disinhibition which in turn can turn into violence. That disinhibition manifested itself in Mr McCann entering into a verbal altercation with someone he did not know and who posed no threat to him. Mr McCann’s level of intoxication would appear to be reflected in the fact that during the verbal altercation he chose to expose himself to his victim. Subsequent to that, Mr McCann ran at his victim and punched him to the jaw causing him to fall and strike his head on the ground. This aspect of the description of Mr McCann’s conduct is particularly telling in that an act of running at someone and then punching them demonstrates an intent to exert a maximum amount of force without restraint. That is relevant to an assessment of the nature of the conduct.
As a consequence of this conduct, the victim did in fact suffer some significant head injuries of the very type that would be expected from an assault of this nature, which unfortunately has all too frequently led to serious ongoing injuries or death.
I do not accept Mr Kalali’s submission that the only difference between this case and Gillard is that one involved an open‑hand whilst the other involved a closed fist. That is of itself an important distinction but it overlooks the entirely different complexion of the two offences. In Gillard the offending was the escalation of an argument over money between two people known to each other. It occurred in a relatively controlled environment of the victim’s mother’s home, with the respondent making contact to the victim’s head with an open hand. The only other person present was the victim’s mother and there was no suggestion that alcohol or any other disinhibiting substance was in any way involved. This offending is of a different character to the alcohol fuelled, unbridled force used by Mr McCann against his victim.
Evaluation of the risk
For the purpose of meeting the definition of a serious offence of violence, it is necessary for the Court to be satisfied that the respondent’s conduct in committing the offence, involved at least a risk of serious harm. This requires the Court to make an evaluative judgment. Generally speaking, that will involve consideration of all of the relevant factors and then making an assessment of the probability that the act could result in serious harm. As Hinton J observed in Attorney‑General (SA) v Jeffery:[14]
… The question does not require a philosophical or scientific analysis of behaviour but a judgment reflecting common human experience.
[14] [2018] SASC 1 at [14].
His Honour went on to elaborate:[15]
In a case where the serious offence did not involve conduct that caused death or serious harm, the question arises as to what level of risk of death or serious harm suffices for the conduct to amount to a serious offence of violence within the meaning of the Act? The answer to that question is a matter of construction. The starting point is the text. The obvious point falls to be made here; Parliament did not expressly prescribe a level of risk. That said, it may be accepted that Parliament did not intend to capture the fanciful, theoretical or remote risk but was concerned with conduct carrying with it a real or recognisable risk, albeit not a substantial risk. That is to say, a minimal risk is still a real risk. To so conclude is not to set the bar impractically low. Parliament has, in fact, imposed a threshold by requiring that the risk not be of any harm but of serious harm, …
[15] Attorney-General (SA) v Jeffery [2018] SASC 1 at [17].
In my view, the risk that Mr McCann’s offending exposed the victim to was a real and recognisable risk. It was a risk that the victim’s life would be put in danger.
I find that Mr McCann is a high risk offender.
Does Mr McCann pose an appreciable risk to the community?
The next matter that requires consideration is whether Mr McCann poses an appreciable risk to the safety of the community if not supervised under the order.[16] Given that the application under consideration is for an ISO, this issue is also to be determined on the basis that the matters alleged in the materials supporting the application would, if proved, establish that Mr McCann would pose such a risk to the community.[17]
[16] Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(4).
[17] Criminal Law (High Risk Offenders) Act 2015 (SA) s 9(1)(b).
There has been much judicial consideration of what amounts to “an appreciable risk to the safety of the community”. In Attorney‑General (SA) v Grosser,[18] Stanley J gave consideration to what amounts to an appreciable risk for the purposes of s 7(4)(b). His Honour said:[19]
I consider that an appreciable risk is 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 substantive 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. The extent of the appreciable risk is informed by the consideration that in determining whether to make an extended supervision order the safety of the community is paramount. I construe that requirement to mean that where a court considers that the question of whether to make an order is finely balanced, the protection of the community would favour making the order rather than declining to do so. …
(Footnotes omitted)
[18] [2016] SASC 49.
[19] Attorney-General (SA) v Grosser [2016] SASC 49 at [29].
In R v Kimmins[20] Stanley J revisited the topic of what amounts to an appreciable risk in the context of the policy considerations underpinning the legislation. He summarised the approach to be adopted by the courts in the following terms:[21]
The Act requires the Court to interfere with the liberty of the subject by making an extended supervision order only if it is satisfied that the respondent is a high risk offender and an order is necessary to ensure the respondent does not pose an appreciable risk to the safety of the community. The discretion to be exercised pursuant to s 7 of the Act, like the discretion conferred pursuant to s 24 of the Sentencing Act, demands a normative judgment which is quite different from traditional judicial discretions. The Court has been entrusted with a mandate to ensure public security by interfering with the right to liberty of a person who is a high risk offender and poses an appreciable risk to the safety of the community if not supervised. The discretion is to be exercised having regard to both the interests of the community and the interests of the respondent, but by according the consideration of public safety paramountcy. Here there are two competing considerations. On the one hand, the respondent to an application by the Attorney-General has completed his or her sentence. There is a common law rule that his personal liberty and freedom of movement will not be infringed absent clear, unambiguous lawful authority. On the other hand, there is the need to protect the community from the risk of him reoffending. In construing a statute which infringes those rights and freedoms the court will do so in a manner which limits the infringement to what is strictly required to effect the purpose of the statute. In this case, given the terms of this legislation, specifically the paramount consideration of public safety, in the exercise of the Court’s discretion relatively smaller degrees of risk will outweigh considerations which, even strongly, would militate against the making of an extended supervision order.
(Footnotes omitted)
[20] [2016] SASC 176.
[21] R v Kimmins [2016] SASC 176 at [38].
It is the Attorney‑General’s position that Mr McCann poses an appreciable risk to the community if not supervised under an ISO. In her submissions, Ms Christaki‑Hedrick relied on the nature and circumstances of the index offending, which breached a good behaviour bond. She also relied on Mr McCann’s significant criminal history which demonstrates that there has been an escalation in his offending behaviour as well as the fact that he has not received any treatment specifically targeting his criminogenic risk factors whilst in custody, and in particular, in relation to his history of substance abuse. Finally, Ms Christaki‑Hedrick referred to risk assessments that were conducted by the Department of Correctional Services in April and December 2021. In the April assessment Mr McCann was described as being at “a very high risk of recidivism”. At that time the areas of “drug and alcohol use, companions and pro‑criminal attitudes/orientation” were identified as criminogenic needs.[22] In the December 2021 report, Mr McCann was described as having been assessed to be at high risk of violent re‑offending should he not receive any appropriate treatment.[23] It was again identified that Mr McCann continues to have outstanding criminogenic treatment needs in the areas of the risk of violent re‑offending and substance abuse.
[22] Affidavit of Elena Christaki-Hedrick made on 28 November 2022 (FDN 3) at 31.
[23] Affidavit of Elena Christaki-Hedrick made on 28 November 2022 (FDN 3) at 25-27.
During the course of submissions reference was made to further serious offences with which Mr McCann has been charged and for which he is due to stand trial in October 2023. It is alleged that this offending occurred prior to the index offence. Mr McCann has been granted bail in relation to those charges. I make it plain that in considering this application I have placed no reliance on the new charges. As they have not been proven they remain as no more than allegations and can be put to one side for current purposes.
Mr Kalali submitted that even if Mr McCann was found to be a high risk offender on the material relied upon by the Attorney‑General, it could not be established that Mr McCann poses the requisite risk to the community. Mr Kalali identified a number of shortcomings in the risk assessment reports. The effect of his submission on this topic was that there is limited weight that can be placed on the risk assessments provided in those reports as a consequence of the authors of the reports taking into account irrelevant matters. In particular, Mr Kalali highlighted that in the December 2021 report, the author took into account an offence that was alleged to have occurred on 17 December 2015 that was subsequently dismissed and a further offence that was alleged to have occurred on 20 September 2013 that does not appear in Mr McCann’s antecedent report. Both the April and December reports make reference to the charges Mr McCann is yet to stand trial for.
Mr Kalali also relied on the fact that whilst in custody Mr McCann completed the Inside‑out program run by the Rehabilitation Program Branch in June 2022. Although not a criminogenic program it covered topics such as self‑efficacy, resilience and positive relationships. Mr Kalali submitted that it was also significant that Mr McCann had agreed to participate in the Violence Prevention Program however was unable to do so because of his dual status in custody. That is, that whilst he was serving a current term of imprisonment he was also on remand for the new offences. In those circumstances the Department for Correctional Services would not permit Mr McCann to commence the program.
The final matter that Mr Kalali relied on in opposition to the imposition of the ISO arose from some observations made by Livesey J in Attorney‑General (SA) v Karpany.[24] In that matter the Attorney‑General had also made an application for an ESO. The personal circumstances of Mr Karpany were very different to those of Mr McCann. Mr Karpany had sustained brain damage at the age of 14, had an intellectual disability and had been diagnosed with an anti‑social personality disorder and schizophrenia. He also had a history of chronic polysubstance abuse. As a consequence of this constellation of comorbidities at the time of the application for the ESO, various treatment and support options were being explored for Mr Karpany including the use of powers under the Guardianship and Administration Act 1993 (SA) and an extended admission to James Nash House. It was in that context that Livesey J made the following observation about s 7(4)(b) of the HRO Act:[25]
Nonetheless, if some other mechanism is available that presents a less intrusive imposition on personal liberty, and which will protect the community from the appreciable risk that the high risk offender poses, then again, the requirement “if not supervised under the order”, will not be satisfied. This accords with the general principle that “the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint”.
[24] [2020] SASC 219 at [18].
[25] Attorney-General (SA) v Karpany [2020] SASC 219 at [19].
Mr Kalali attempted to rely on this passage of the judgment in support of a submission that given that Mr McCann is currently the subject of bail conditions in respect of the new charges, those conditions are sufficient to protect the community and accordingly there is no need for an ISO.
There is an obvious and fundamental problem with that submission. Just as it is inappropriate for the Attorney-General to rely on charges that are still pending given that the outcome is unknown, it would be equally inappropriate to rely on bail conditions to protect the community that are dependent upon the outcome of those charges. At this point in time, it is unknown whether that matter will ultimately proceed to trial. It is to state the obvious to say that at any point in time between now and October the Director of Public Prosecutions may make the decision to discontinue the prosecution, at which time the bail conditions would no longer be in existence.
Consideration

There is some force to the submission made by Mr Kalali about the deficiencies of the risk assessment reports. On that basis, for current purposes, I do not propose to take them into account. They also do not progress the application very far beyond the nature of the index offending, Mr McCann’s criminal history leading up to that offending and his failure to undertake any programs or courses whilst in custody to address his criminogenic risk factors.
Mr McCann was convicted of his first criminal offence in 2014. Since that time he has continued to offend with some regularity. His offending history includes offences of dishonesty, property offences and serious driving offences that have put the public at risk. Of particular concern are Mr McCann’s obvious disregard for the orders of the Court with previous breaches of bonds and 30 convictions for breaching bail conditions.
Given Mr McCann’s history of offending, the serious nature of the index offence and the lack of any real steps towards rehabilitation, I consider Mr McCann poses an unacceptable risk to the community if not the subject of an ISO.
I am satisfied that the application for an ISO should be granted.