Attorney-General (SA) v Pearson - [2023] SASC 120

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v PEARSON
[2023] SASC 120
Judgment of the Honourable Justice McIntyre
16 August 2023
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
The applicant seeks a variation to a continuing detention order be granted. The applicant submits that the respondent still poses a high risk to the community due to his non completion of the Aboriginal Men’s Family Violence Program, albeit through no fault of the respondent.
The respondent contends that the applicant has not proven that the community can only be protected from the respondent through his continued detention. The respondent made further submissions that there is no guarantee that, at the completion of the program, the respondent’s risk to the safety of the community will be ameliorated.
Held:
1. Application granted – continuing detention order varied to expiration of extended supervision order on 13 December 2023 as to facilitate necessary rehabilitation.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 5(a), s 7, s 18, s 19; Criminal Law Consolidation Act 1935 (SA) s 56; Sentencing Act 2017 (SA) s 57, referred to.
R v Schuster (2016) 125 SASR 388; Attorney General (SA) v Grosser [2016] SASC 49; Attorney General (SA) v Drion [2020] SASC 120; Attorney-General (SA) v Brandon [2019] SASC 85, considered.

ATTORNEY-GENERAL (SA) v PEARSON
[2023] SASC 120
Criminal: Application
McIntyre J

The respondent, Chris Pearson, was made subject to an Extended Supervision Order (“ESO”) on 14 September 2022 for a period of 15 months. That ESO expires on 13 December 2023.
On 5 April 2023, a Continuing Detention Order (“CDO”) was made under s 19 of the Criminal Law (High-Risk Offender) Act 2015 (“HRO Act”) to expire on 21 July 2023.
By application dated 5 July 2023, the applicant, the Attorney General for South Australia applied to vary the CDO, applying to extend the CDO until the expiration of the extended supervision order on 13 December 2023. The matter was argued before me on 19 July 2023. Owing to the urgency of the matter I delivered a ruling at the conclusion of submissions granting the application and ordering that the CDO made on 5 April 2023 be varied so that the respondent is detained in custody until the expiration of the ESO on 13 December 2023. These are my reasons for that decision.
Background
On 14 July 2021, the respondent was made subject to an ESO for a period of nine months (the first ESO). A second ESO was made on 14 September 2022. That ESO is not due to expire until 13 December 2023. Prior to the making of both the first ESO and the second ESO the respondent was made subject an Interim Supervision Order (“ISO”).
The first ESO was made on the basis that the respondent is a high-risk offender under s 5(a) of the HRO Act, and that he is a serious sexual…

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 Pearson

Details

AGLC: Attorney-General (SA) v Pearson [2023] SASC 120
Case: [2023] SASC 120
Decision Date: 16 August 2023

CaseChat Overview and Summary

The case of Attorney-General (SA) v Pearson involved an application by the Attorney General for South Australia to extend a Community Detention Order (CDO) against the respondent, who had previously been subject to Extended Supervision Orders (ESO). The Attorney General sought to extend the CDO until the expiration of the ESO on 13 December 2023. The application was made due to the respondent's history of breaching parole conditions and his status as a high-risk offender and serious sexual offender. The matter was heard and determined by the court on 19 July 2023, with the judge granting the application and extending the CDO.

The primary legal issue before the court was whether the Attorney General had demonstrated sufficient grounds to extend the CDO. This required the court to assess the respondent's history of non-compliance with parole conditions, the risk he posed to the community, and whether extending the CDO was necessary for public safety. The court had to consider the statutory criteria under the relevant legislation, particularly whether the respondent's actions warranted continued detention to protect the community.

The court found that the respondent's repeated breaches of parole conditions, including failing to report for supervision, committing new offences, and changing his residence without approval, demonstrated a pattern of non-compliance. Given his history of serious sexual offending and the risk he posed if not supervised, the court concluded that extending the CDO was necessary to ensure public safety. The urgency of the application and the respondent's continued risk to the community supported the granting of the extension. Consequently, the court ordered that the CDO be varied to keep the respondent in custody until the ESO expires on 13 December 2023.

Orders

Orders of the court

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Background

Background to the litigation

By application dated 5 July 2023, the applicant, the Attorney General for South Australia applied to vary the CDO, applying to extend the CDO until the expiration of the extended supervision order on 13 December 2023. The matter was argued before me on 19 July 2023. Owing to the urgency of the matter I delivered a ruling at the conclusion of submissions granting the application and ordering that the CDO made on 5 April 2023 be varied so that the respondent is detained in custody until the expiration of the ESO on 13 December 2023. These are my reasons for that decision. Background On 14 July 2021, the respondent was made subject to an ESO for a period of nine months (the first ESO). A second ESO was made on 14 September 2022. That ESO is not due to expire until 13 December 2023. Prior to the making of both the first ESO and the second ESO the respondent was made subject an Interim Supervision Order (“ISO”). The first ESO was made on the basis that the respondent is a high-risk offender under s 5(a) of the HRO Act, and that he is a serious sexual offender who was sentenced to a period of imprisonment in relation to an indecent assault contrary to s 56 of the Criminal Law Consolidation Act 1935 (the index offending). The Court was satisfied that the respondent posed an appreciable risk to the safety of the community if not supervised under an ESO. The circumstances of the index offending were that, on 20 June 2018, the respondent walked up to a 16-year-old girl and hugged and kissed her on the neck, collar bone and cheek. He then grabbed her and licked her face. He was sentenced to imprisonment for four months and one week for that and other offending. The sentence was suspended upon his entering into a bond to be of good behaviour for a period of 18 months. He subsequently breached the bond by committing a further series of offences including driving whilst disqualified, serious criminal trespass, theft, breach of bail and stating false personal details. He was required to serve his sentence for the index offending in prison. The respondent’s compliance with the first and second ISO and the first and second ESO was poor. He was remanded in custody on multiple occasions under Parole Board warrants. A summary of those breaches was attached to the applicant’s outline of argument.[1][1] FDN7. After the second ESO was made on 14 September 2022, the respondent was arrested on a Parole Board warrant on 1 October 2022 for alleged breaches of the second ESO. On 15 September 2022, the Parole Board interviewed the respondent and found that he had breached several conditions of the ESO.[2] Specifically: ·the “not commit offence condition” by being charged with assault against his wife and failing to report for his post custodial review in breach of his ANCOR obligations on 23 September 2022; ·the “obey reasonable directions of Community Corrections officer condition” by failing to report for supervision on 20 September 2022 and 23 September 2022; and ·the “reside at an address approved by his Community Corrections officer condition” by changing his residence without prior written approval of his Community Corrections officer on 14 September 2022. [2] Affidavit of Angus Michael Santostefano sworn on 2 February 2023 (Exhibit AMS-2).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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