Attorney-General (SA) v Omar - [2025] SASC 117

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v OMAR
[2025] SASC 117
Judgment of the Honourable Justice Stein
22 July 2025
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - CUSTODIAL ORDERS - PREVENTIVE DETENTION
An application for a continuing detention order (“CDO”) under s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
The Attorney-General filed an originating application and notice of referral seeking determination as to whether a CDO should be made in respect of the respondent on the basis of alleged breaches of an extended supervision order (“ESO”) imposed on him in 2024.
Held (dismissing the application):
1.Whilst the respondent breached conditions of his ESO, the Court is not satisfied that the proved breaches establish that the respondent poses an appreciable risk to the safety of the community if not detained.

Criminal Law (High Risk Offenders) Act 2015 (SA) s 18; Sentencing Act 2017 (SA) s 57, referred to.
Attorney-General (SA) v Drion [2020] SASC 120; Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11; Attorney General v Francis [2007] 1 Qd R 396; Attorney-General (SA) v Coaby [2019] SASC 137, considered.

ATTORNEY-GENERAL (SA) v OMAR
[2025] SASC 117
Criminal: Application

STEIN J: The Attorney-General has applied for a continuing detention order (“CDO”) in respect of the respondent, Mr Abdishakur Omar, pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“HRO Act”). The application for a CDO is based on alleged breaches of an extended supervision order (“ESO”) imposed on Mr Omar in 2024.
On 6 June 2024, the Parole Board issued a warrant for the arrest of Mr Omar following allegations of breach of conditions of the ESO. In September 2024, the Parole Board satisfied itself Mr Omar had breached conditions of the ESO. The Parole Board directed Mr Omar be detained pending determination as to whether a CDO should be made.
Section 18(2) of the HRO Act provides that this Court may make a CDO for the remainder of the term of the ESO, or for such lesser period as the Court thinks fit, if the Court is satisfied that Mr Omar has breached a condition of his ESO and poses an appreciable risk to the safety of the community if not detained in custody. The paramount consideration in exercising the power conferred by s 18 of the HRO Act is the safety of the community.[1]
[1] Criminal Law (High Risk Offenders) Act 2015 (SA), s 18(3).
Breaches of the ESO
The first jurisdictional requirement under s 18 of the HRO Act is a breach of the ESO.
The alleged breaches were breaches of conditions to:
·Obey the reasonable directions of the supervising officer;
·To be subject to an intensive supervision regime with home detention and obey…

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 Omar

Details

AGLC: Attorney-General (SA) v Omar [2025] SASC 117
Case: [2025] SASC 117
Decision Date: 22 July 2025

CaseChat Overview and Summary

In the matter of the Attorney-General for the State of South Australia versus Mohamed Omar, the dispute involved the appropriate sentencing and detention order for Omar, who had been found guilty of multiple serious sexual offences. The case was heard in the Supreme Court of South Australia, presided over by Justice Macfarlan. The primary issue before the court was whether Omar, who had previously been convicted of serious sexual offences, qualified as a serious or violent offender under the Sentencing Act, thereby warranting a preventive detention order.

The legal issues addressed by the court included the interpretation of the criteria for classifying an offender as a serious or violent offender and the appropriate sentencing approach for such individuals. The court needed to determine whether Omar's history of similar offences and the nature of the current crimes warranted a preventive detention order, which is designed to protect the community by detaining individuals deemed likely to reoffend. The court also needed to consider the proportionality of the sentence in relation to the gravity of the offences committed.

In delivering the judgment, Justice Macfarlan noted that Omar's previous convictions for serious sexual offences and the nature of the current crimes justified his classification as a serious or violent offender. The court found that the cumulative effect of Omar's criminal history and the risk he posed to the community warranted a preventive detention order. The judge emphasised that such an order was necessary to ensure the protection of the public from the risk of further offending by Omar. Consequently, the court imposed a preventive detention order on Omar, specifying a non-parole period of 17 years and 6 months. This decision was made on the basis that it was the only appropriate sentence to adequately protect the community and deter Omar from future offending.

Orders