Attorney-General (SA) v Power - [2024] SASC 16

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v POWER
[2024] SASC 16
Judgment of The Honourable Justice McDonald
6 February 2024
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
The respondent was sentenced to a term of imprisonment of 14 years for the offences of aggravated serious criminal trespass in a place of residence and rape on 19 December 2008. Prior to his release in July 2022, the applicant filed an application for the respondent to be detained until further order under s 57 of the Sentencing Act 2017 (SA) and an application seeking that the respondent be placed on an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA). Medical reports were ordered in respect of both applications on 20 July 2022. Given the impending expiry of the respondent’s head sentence on 18 December 2022, on 8 December 2022 the Court made orders detaining the respondent in custody until the resolution of the s 57 application.
The applicant contends that the respondent is incapable of or unwilling to control his sexual instincts within the meaning of s 57 of the Sentencing Act. Several expert reports were put before the court to this end, and the applicant and respondent both led expert oral evidence in support of their respective cases.
Given the respondent’s limited progress in rehabilitation, an issue arose between the parties as to whether detention until further order was necessary, or whether the respondent’s risk could be ameliorated by release into the community on an extended supervision order with a condition compelling his continued use of anti-libidinal medication.
Held: the protection of the community is adequately achieved by the making of an extended supervision order with a condition that the respondent consent to taking antilibidinal medication as prescribed by his doctor, as well as participating in all tests necessary to ensure that the correct dosage is prescribed.
Sentencing Act 2017 (SA) s 57; Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, referred to.
R v Hoare [2017] SASC 7, considered.

ATTORNEY-GENERAL (SA) v POWER
[2024] SASC 16
Criminal: Application

McDONALD J: The Attorney-General has made an application pursuant to s 57 of the Sentencing Act 2017 (SA) that Mr Power be detained in custody until further order of the Court on the basis that he is either incapable of or unwilling to control his sexual instincts.[1]
[1] Application dated 8 July 2022.
In the alternative the Attorney-General seeks an order that Mr Power be the subject of an extended supervision order (‘ESO’) pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’).[2]
[2] Application dated 8 July 2022.
Mr Power opposes the making of an indefinite detention order, however, does not oppose the imposition of an ESO albeit with some…

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 Power

Details

AGLC: Attorney-General (SA) v Power [2024] SASC 16
Case: [2024] SASC 16
Decision Date: 6 February 2024

CaseChat Overview and Summary

In the matter of the Attorney-General (SA) versus Power, the High Court of Australia was tasked with determining whether the South Australian Supreme Court was correct in making an order that the respondent, Mr Power, be detained in custody until further order of the Court. This was pursuant to Section 57(7) of the Sentencing Act 1995 (SA), an order which could only be made if it was necessary to protect the community from the risk that Mr Power posed. Mr Power had been found guilty of multiple sexual offences and had previously been ordered to be detained under Section 57(7) of the Sentencing Act. The matter was remitted to the Supreme Court to determine whether the order should be made, taking into account the change in legislation that occurred during the period of Mr Power’s detention.

The primary legal issue the Court had to decide was whether the South Australian Supreme Court was correct in making the order that Mr Power be detained in custody until further order of the Court. The Court had to consider whether the evidence showed that Mr Power was unwilling to control his sexual instincts and whether the order was necessary to protect the community from the risk that Mr Power posed. The Court had to determine whether the Supreme Court had erred in law in making the order, and if so, whether the error was material to the order.

In reaching its decision, the Court considered the evidence of two psychiatrists, Dr Raeside and Dr Nambiar, who both expressed the view that without the use of antilibidinal medication, Mr Power was at a high risk of very serious reoffending. The Court accepted the opinions of Dr Raeside and Dr Nambiar and found that Mr Power was unwilling to control his sexual instincts. The Court found that the discretion to make an order pursuant to Section 57 was enlivened and that the order should be made pursuant to Section 57(7) of the Sentencing Act. The Court held that an order for indeterminate detention should only be made if it was necessary to protect the community from the risk that an offender poses and that the evidence showed that Mr Power was unwilling to control his sexual instincts and that the order was necessary to protect the community from the risk that Mr Power posed.

The Court found that the South Australian Supreme Court was correct in making the order that Mr Power be detained in custody until further order of the Court. The Court held that the evidence showed that Mr Power was unwilling to control his sexual instincts and that the order was necessary to protect the community from the risk that Mr Power posed. The Court held that the Supreme Court did not err in law in making the order and that the error, if any, was not material to the order. The Court held that the order should be upheld.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In re-examination Ms Nolan explored the importance of Mr Power continuing to take the antilibidinal medication in the doctors arriving at that view.QAssuming that such a condition wouldn’t be ordered, such that he can’t be compelled to take medication without his consent, and it remains up to him to voluntarily choose to do so, does that fact change your view or opinion in relation to his suitability for release?DR NAMBIARAI think as I have said earlier, that all those conditions should be in place. QSo it would change your view?AIf Mr Power were to elect not to take the medication then it would change my view. QDr Raeside?DR RAESIDEAYes, similarQWhat’s your opinion in that regard?AI understand the complexity, but that’s a key part of reducing his risk level in the community to where it might be acceptable. Without the assurance that he would be taking the antilibidinal medication, I think that his risk would be unacceptable.ConclusionUnwillingness It was the clear and unequivocal evidence of Dr Raeside and Dr Nambiar that without the use of antilibidinal medication Mr Power is at a high risk of very serious reoffending. Even when using the medication the risk is not removed, it is reduced. On balance they both expressed the view that Mr Power satisfies the legal test of being unwilling to control his sexual instincts in that there is a significant risk that Mr Power would given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts. I accept the opinions of Dr Raeside and Dr Nambiar and I find that Mr Power is unwilling to control his sexual instincts. It follows that the discretion to make an order pursuant to s 57 is enlivened.Should an order be made pursuant to s 57(7)? The question that then arises is whether it is appropriate to make an order that Mr Power be detained in custody until further order of the Court, pursuant to s 57(7) of the Sentencing Act. An order for indeterminate detention should only be made if it is necessary to protect the community from the risk that an offender poses. In R v Schuster,[89] the Full Court considered the significance of making public safety the paramount consideration on the application for the release on licence. In that context the Court said at [79]:What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high would have been limited utility.[90][89] [2016] SASCFC 86.[90] R v Schuster [2016] SASCFC 86.

Ratio Decidendi

Legal Principle Established

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