Attorney-General (SA) v Pennington - [2019] SASC 180

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v PENNINGTON
[2019] SASC 180
Reasons for Decision of The Honourable Justice Kelly
25 October 2019
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
Application by the Attorney-General (SA) for an extended supervision order (ESO) pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the HRO Act) in respect of the respondent for a term of three years.
The respondent was found guilty at trial of aggravated recklessly causing serious harm and was ultimately sentenced to imprisonment for five years. He has been subject to an interim supervision order since his release from custody on 18 September 2018.
The respondent concedes that he is a high risk offender pursuant s 5 of the HRO Act and does not oppose the making of an ESO provided that the terms of the order permit him to depart from South Australia and not be subject to the effect of the ESO unless he returns to the state of South Australia during the period of the ESO.
The applicant contends that the terms of the ESO as proposed by the respondent are outside the scope of the Court’s jurisdiction, would render effective supervision of the respondent impossible when he is absent from South Australia, and would not effectively protect the safety of the community.
Held:
1. The application for an extended supervision order is granted for a term of 12 months.
2. The respondent is a high risk offender who poses an appreciable risk to the safety of the community if not supervised under the order.
3. To make an ESO in the terms requested by the respondent would be outside the scope of the Court’s jurisdiction and would render effective supervision of the respondent impossible when he is absent from South Australia.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, s 5, s 9, s 10, referred to.

ATTORNEY-GENERAL (SA) v PENNINGTON
[2019] SASC 180
Criminal: Application
KELLY J.

The Attorney-General for the State of South Australia has applied for an extended supervision order in respect of the respondent, Jason Pennington.
The application is brought pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the HRO Act).
The applicant seeks an extended supervision order (ESO) for a period of three years on the basis that the respondent is a high risk offender who poses an appreciable risk to the safety of the community if not supervised under such an order. The respondent conceded that some form of an ESO should be made, however the main issue in contention between the parties is as to the nature of the terms and conditions of the ESO, with particular reference to the conditions which relate to whether or not the respondent is restrained from…

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 Pennington

Details

AGLC: Attorney-General (SA) v Pennington [2019] SASC 180
Case: [2019] SASC 180
Decision Date: 25 October 2019

CaseChat Overview and Summary

The case of Attorney-General (SA) v Pennington was heard in the Supreme Court of South Australia. The respondent, who has a history of serious criminal offending, particularly violent offences against women, was found guilty of aggravated recklessly causing serious harm. The application at hand was for a declaration under the High Risk Offender Act 2015 (SA), that the respondent is a serious or violent offender. The court was required to determine whether the respondent qualified as a serious or violent offender under the Act, considering his criminal history and the nature of his current offence.

The primary legal issue was whether the respondent’s criminal history and the nature of his current offence warranted a declaration under the High Risk Offender Act 2015 (SA) that he is a serious or violent offender. The court needed to assess if the respondent’s past and present criminal behaviour sufficiently aligned with the criteria for being classified as a serious or violent offender, as defined by the Act. This involved a detailed examination of the respondent's criminal record, the seriousness of his past offences, and the specific circumstances of the index offence.

The court concluded that the respondent's history of serious criminal offending, including violent acts against women, and the nature of the index offence, which involved a violent assault on his partner resulting in serious physical harm, justified the declaration that he is a serious or violent offender. The court found that the respondent’s criminal conduct demonstrated a propensity for violent behaviour, making him a significant risk to the community. Consequently, the court granted the application and declared the respondent to be a serious or violent offender.

The final orders of the court were that the respondent is declared to be a serious or violent offender under section 7 of the High Risk Offender Act 2015 (SA).

Orders

Orders of the court

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Background

Background to the litigation

In order to understand the issue, it is necessary to set out the respondent’s background and history.Factual background and history On 24 November 2014, the respondent was found guilty of aggravated recklessly causing serious harm. That offence, committed on 2 August 2013, constitutes the index offending to which the ESO application relates (the index offending). On 23 December 2014, he was sentenced to eight years’ imprisonment with a non‑parole period of five years for the index offending. Eventually, after an appeal to the Court of Criminal Appeal, he was resentenced to five years’ imprisonment with a three-year non-parole period, backdated to 19 September 2013, when he was initially taken into custody. The respondent has a history of serious criminal offending, particularly violent offending against women, the majority of which has occurred in Western Australia. In 2001, he was sentenced in respect of three offences of sexual penetration without consent and an offence of robbery whilst armed to a total term of imprisonment of 10 years. In 2005, he was convicted of the offence of aggravated unlawful wounding and offences of possessing a weapon with intent to cause injury and possessing a weapon with intent to cause fear and was sentenced to a total term of imprisonment for six months. Between 2007 and 2011, the respondent’s offending primarily related to the use of a motor vehicle and included offences of dangerous driving occasioning grievous bodily harm and driving under the influence of alcohol. In December 2012, he was convicted of the offence of unlawful assault causing bodily harm in circumstances of aggravation and breaching protective bail conditions. The victim of that offending was the respondent’s domestic partner at that time, who was also later the victim of the index offending in 2013. The respondent was sentenced to a total term of imprisonment of eight months which was suspended. It was against this background, and while subject to the suspended sentence imposed for the December 2012 conviction, that the respondent was sentenced for the index offending, which comprised a physical assault against his then partner on 2 August 2013. The circumstances of that offending were that the respondent and his then partner had been drinking during the day. At some stage in the evening, they both arrived at the home of a mutual friend where they continued drinking and began arguing loudly. The respondent took out a steak knife from a drawer and stabbed the victim in the back as she sat on a couch in the lounge room. He then fled the house without rendering any assistance to the victim. The victim suffered serious physical harm in the form of a penetrated chest cavity and a punctured lung. The extent of the injuries was such that had she not been airlifted to Adelaide and received medical intervention, she may have died within hours. Against that background, the applicant filed an application for an ESO under the terms of the HRO Act on 30 August 2018.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

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Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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