Attorney-General (SA) v Owen (No 1)

[2018] SASC 199

Supreme Court of South Australia

(Criminal: Application)

ATTORNEY-GENERAL (SA) v OWEN (No 1)

[2018] SASC 199

Determination of The Honourable Justice Hughes (ex tempore)

7 December 2018

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS

Application by the Attorney-General (SA) for an interim supervision order (ISO) pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA).

Held (per Hughes J):

In the circumstances it is appropriate the respondent be subject to an ISO pending the determination of an Extended Supervision Order.

Criminal Law (High Risk Offenders) Act 2015 s 9, s 10, referred to.

ATTORNEY-GENERAL (SA) v OWEN (No 1)
[2018] SASC 199

1. HUGHES J (ex tempore):  

2. The order sought by the Attorney-General is that the respondent be subject, pursuant to s 9 and s 10(2) of the Criminal Law (High Risk Offenders) Act 2015, to an interim supervision order. I have considered the five written submissions of the Attorney-General, the oral submissions of counsel, and the contents of the affidavits of Michelle Sutcliffe dated 28 and 29 November and 5 December 2018.

3. In order to make such an order the court must be satisfied in accordance with s 9(1) of the Act that, firstly, the relevant expiry date for the respondent is likely to occur before the application is to be determined, and I am satisfied that is the case. The relevant expiry date for the application is, indeed, 8 December 2018. The court also must be satisfied that the matters alleged in the material supporting the Attorney-General's application would, if proved, justify the making of an extended supervision order.

4. As to whether or not the material provided by the Attorney-General in support of her application would so satisfy the court, I find that the respondent is a high risk offender for the purposes of the Act. I find that he is a serious violent offender and that the conduct constituting the offence involved actual serious harm and a risk of serious harm to his victim. I am satisfied also that the evidence of his past offending, of the psychological assessments that have been undertaken in relation to him, and his compliance history are such to support the finding that Mr Owen presents an appreciable risk to the safety of the community if not supervised, and therefore I will impose an interim supervision order.

5. I will order reports in terms of the minutes of order handed up by the Crown Solicitor for the Attorney-General that there be one or more legally qualified medical practitioners to be nominated by the Clinical Director, Forensic Mental Health Service, South Australia, examine the respondent, Mr Wayne Anthony Owen, and to report to the court on the results of the examination. Those reports are to include an assessment of the likelihood of the respondent committing a further serious offence of violence and a further serious sexual offence. I will order that the respondent be subject to an interim supervision order pursuant to s 9 and s 10(2) of the Act in terms of the draft interim supervision order filed in this matter, until the date of making the determination of the application of the extended supervision order, subject to the following: in the draft order that was submitted to the court, para 2.17 shall be struck out. In other respects the order will be made in the terms advanced, including a term requiring electronic monitoring of the respondent.

6. Section 10(4) of the Act requires that the court must, on the making of an order, take all reasonable steps to explain to the person who is the subject of the order the terms and conditions of the order and, in particular, the person's obligations under the order, and the consequences that may follow from a failure to comply with the order, and to provide a copy to the Parole Board.

7. The circumstances today are that the order is made in the absence of the respondent and that is most unfortunate. That has been brought about by virtue of a lockdown at Yatala Labour Prison, combined with an inability on the part of the Court to safeguard the community by determining the application for an extended supervision order because the relevant expiry date is tomorrow.

8. Accordingly, in addition to Mr Owen receiving a copy of this order, I am going to suggest to counsel that they each respond to the Court's suggestion that Mr Owen be brought back before the Court at the next convenient time, which is likely to be next Wednesday at 9.00 am before Justice Kelly, for the purpose of having the conditions of the order explained to him.