Attorney-General (SA) v Pickering - [2023] SASC 110

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v PICKERING
[2023] SASC 110
Reasons for Decision of the Honourable Justice Kimber
26 July 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
Referral pursuant to s 18(1) of the Criminal Law (High Risk Offenders) Act 2015 from the Parole Board and an application by the Attorney-General for an extended supervision order pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015.
The extended supervision order application was made in November of 2022 and an interim supervision order was imposed in December of that year. In April of 2023, the Parole Board directed that the respondent be detained in custody as a result of breaches of the interim supervision order pending his attendance before this Court for the determination of whether or not a continuing detention order should be made.
The applicant submitted that a continuing detention order should be made until about the middle of 2024 to enable the respondent to complete the violence prevention program. The respondent did not dispute he had breached conditions of his interim supervision order. The respondent submitted that there is no certainty the violence prevention program will be made available in detention and submitted the discretion should not be exercised to grant a continuing detention order.
Held:
1.The application for a continuing detention order should be dealt with first with the application for an extended supervision order to be dealt with at a later time.
2.The respondent is a high risk offender and poses an appreciable risk to the safety of the community if not detained in custody.
3.The discretion should be exercised to order that the respondent be detained under a continuing detention order until 2 August 2023.

Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 9, 17, 18 and 19, referred to.
Attorney-General (SA) v Drion [2020] SASC 120; Attorney-General v Coaby [2019] SASC 137, applied.

ATTORNEY-GENERAL (SA) v PICKERING
[2023] SASC 110
Criminal: Application
KIMBER J:

On 31 May 2023, Mr Luke Pickering (the respondent) was the subject of two applications. First, a referral pursuant to s 18(1) of the Criminal Law (High Risk Offenders) Act 2015 (the Act) from the Parole Board (the application for a continuing detention order). Second, an application by the Attorney‑General for an extended supervision order pursuant to s 7(4) of the Act (the application for an extended supervision order).
I accepted the submission of the Attorney‑General that the application for a continuing detention order should be dealt with first. On 31 May 2023, I ordered the respondent be detained in custody for nine weeks. On the same day, I ordered the application for the extended supervision order be adjourned for eight weeks. These are my reasons.
Background
At the time of the hearing, the…

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 Pickering

Details

AGLC: Attorney-General (SA) v Pickering [2023] SASC 110
Case: [2023] SASC 110
Decision Date

CaseChat Overview and Summary

The case of Attorney-General (SA) v Pickering involves an application for a continuing detention order and an extended supervision order in relation to the respondent, Mr Pickering. The application was heard in the Supreme Court of South Australia. The respondent, Mr Pickering, does not dispute his status as a high-risk offender as defined in the relevant legislation, owing to his history of violent offences, including aggravated causing harm with intention to cause harm to his stepbrother, Mr Young. The severity of this incident, which required Mr Young to undergo surgery and suffer lasting injuries, underscores the respondent's high-risk status. Additionally, the respondent has a history of violent behaviour, including multiple convictions for aggravated assault and assault police, dating back to his youth.

The primary legal issues the court had to address were whether Mr Pickering should be subject to a continuing detention order and whether an extended supervision order should be imposed. The court needed to consider the risk Mr Pickering posed to the community, his history of violent conduct, and the likelihood of reoffending. The court also had to evaluate the effectiveness of potential orders in managing the respondent’s risk and ensuring public safety. Given the respondent's extensive history of violent behaviour, particularly against family members and law enforcement, the court was required to determine if continued detention and extended supervision were necessary to protect the community.

The court found that the respondent’s history of violent conduct and the severity of his most recent offence warranted the imposition of a continuing detention order. The court was satisfied that Mr Pickering posed a significant risk to the community and that extended supervision was necessary to manage this risk effectively. The court concluded that without these measures, the risk of Mr Pickering reoffending and causing harm to others would be unacceptably high. Therefore, the court granted the application for a continuing detention order and ordered an extended supervision order to be considered further after the specified adjournment period.

Orders

Orders of the court

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Background

Background to the litigation

I accepted the submission of the Attorney‑General that the application for a continuing detention order should be dealt with first. On 31 May 2023, I ordered the respondent be detained in custody for nine weeks. On the same day, I ordered the application for the extended supervision order be adjourned for eight weeks. These are my reasons. Background At the time of the hearing, the respondent did not dispute any of the following matters. On 27 April 2017, the respondent committed the offence of Aggravated Causing Harm with Intention to Cause Harm. Because of that offence, the respondent is a high risk offender as defined in the Act. That offence breached a bond and was committed in the following way. The respondent was living with his stepbrother, Mr Young. The respondent came home grossly intoxicated and after the respondent returned home, the respondent and Mr Young argued. The respondent came to be holding a large kitchen knife. The argument continued outside the front of the house. The respondent and Mr Young fought and the respondent stabbed Mr Young five times to his left shoulder and armpit. The blade penetrated the shoulder of Mr Young and resulted in him sustaining a neck wound and laceration to his trachea. The attack only concluded when another person intervened by striking the respondent with a golf club which enabled Mr Young to get away from the respondent. Mr Young was taken to the hospital where he required surgery for his injuries including an air leak from his neck wound. Mr Young remained in hospital for a few days. After his discharge, he continued to experience pain and stiffness in his arm relating to the wound. When arrested for the offence relating to Mr Young, the respondent resisted police violently. The respondent entered an early guilty plea. On 9 April 2018, the respondent was sentenced in the District Court to a head sentence of two years, eight months and 12 days. After sentences were imposed for the offending the subject of the bond, the total head was three years. A non‑parole period of one year seven months was imposed. The offences committed on 27 April 2017 are not the only occasions on which the respondent has been violent: 1.On 31 May 2014, the respondent was convicted of two counts of Aggravated Assault (no weapon) against a child or spouse committed on 1 November 2013 and 25 March 2014 and Assault Police committed on 8 January 2014. Those offences breached a bond; 2.On 26 September 2012, the respondent was convicted of Aggravated Assault (no weapon) against a child or spouse committed on 1 June 2010; 3.On 9 September 2002, the respondent was found guilty of three counts of Assault Police committed on 4 May 2002 when the respondent was a youth. No conviction was recorded; 4.On 28 August 2001, the respondent, as a youth, agreed in a family conference that he had committed a Common Assault on a person other than a family member and had assaulted police on 19 July 2001; and 5.On 1 November 2000, the respondent, as a youth, agreed in a family conference that he had committed Assault Occasioning Actual Bodily Harm on 28 August 2000.

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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