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…

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 McCann

Details

AGLC: Attorney-General (SA) v McCann [2023] SASC 5
Case: [2023] SASC 5
Decision Date: 17 January 2023

CaseChat Overview and Summary

In the matter of Attorney-General (SA) v McCann, the Supreme Court of South Australia was tasked with determining the appropriate post-custodial orders for the appellant, Mr McCann. The central dispute centred on the severity of the assault committed by Mr McCann and whether he constituted a high-risk offender warranting specific post-custodial measures. The victim in this case suffered significant head injuries, including an eye injury, following an unprovoked assault by Mr McCann while the latter was intoxicated.

The primary legal issues before the court were the appropriate force of the blow delivered by Mr McCann and whether his conduct qualified him as a high-risk offender necessitating stringent post-custodial orders. The court had to weigh the evidence of the injury against the circumstances of the assault to determine the force of the blow, and assess Mr McCann's risk profile based on his conduct and its potential to endanger the victim's life.

In its reasoning, the court found that the nature of the injury alone could not conclusively determine the force of Mr McCann's blow, given the lack of clarity on the exact point of impact and the mechanism of injury. However, the court identified that Mr McCann's conduct, fuelled by alcohol and involving an unprovoked assault, posed a significant risk to the victim's life. This conclusion was supported by the violent and unrestrained nature of the attack, which demonstrated Mr McCann's intent to inflict maximum force. Consequently, the court held that Mr McCann met the criteria of a high-risk offender.

The court's final orders reflected its findings, imposing stringent post-custodial measures on Mr McCann to manage his risk profile and protect the community.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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