Attorney-General (SA) v RM - [2022] SASC 160

Supreme Court of South Australia
(Criminal: Application)

ATTORNEY-GENERAL (SA) v RM
[2022] SASC 160
Judgment of the Honourable Justice McDonald (ex tempore)
22 December 2022
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER
The Attorney-General made an application for RM to be the subject of an extended supervision order (‘ESO’) pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’). In October 2019, RM was convicted of the aggravated indecent assault of RM’s five-year-old step granddaughter and was sentenced to three years and six months imprisonment with a non-parole period of two years and 10 months. The sentence was backdated to September 2018. RM already had two prior convictions for sexually offending against his daughter, one occurring in 1991 when his daughter was six years old and one in 1997 when she was twelve years old. RM was released on parole in February 2022, at which time he was 73 years old and had been diagnosed with dementia.
An application for an ESO first came before the Court in March 2022, at which time the Attorney-General also made an application for an interim supervision order (‘ISO’). The Court declined to make an order for an ISO in that instance. Since that time, RM has been residing in an aged care facility, where he is unable to leave the facility alone due to fear of getting lost due to his mental condition. The Court did however order expert reports to assist in the determination of whether an ESO should be made.
The matter next came before the Court for submissions on 29 November 2022. At that time a further application was made for an ISO pending the outcome of the determination of the application for the ESO. This application was brought despite RM residing in the aged care facility for over six months without incident. The position of the Attorney-General remained that RM posed an appreciable risk to the safety of the community and as such, an ISO and ESO were a necessary measure for the safety of the community.
The application for an ISO was refused. The accommodation where RM currently resides provides the most suitable environment for RM and also affords the best protection for the community, as RM does not leave the facility unsupervised. That environment, and RM’s accommodation would be placed at risk should RM be subject to a supervision order. This would have the paradoxical effect of removing RM from the environment which afford the best available protection for the community given the personal circumstances of RM.
Held:
1. The application for an ESO is dismissed.
Criminal Law (High Risk Offenders) Act 2015 (SA), referred to.
Attorney-General v Grosser [2016] SASC 49; Attorney-General v Karpany [2020] SASC 219, considered.

ATTORNEY-GENERAL (SA) v RM
[2022] SASC 160
Criminal: Application
McDONALD J: (ex tempore)

This is an application by the Attorney-General for…

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 RM

Details

AGLC: Attorney-General (SA) v RM [2022] SASC 160
Case: [2022] SASC 160
Decision Date: 22 December 2022

CaseChat Overview and Summary

The matter before the court involved the Attorney-General for South Australia and a respondent, RM, regarding sentencing orders and declarations under the Criminal Law Consolidation (Serious and Violent Offenders) Act 2005. RM had been convicted of multiple serious sexual offences, and the court was required to determine whether he should be classified as a dangerous sexual offender. The court needed to consider the nature and circumstances of the offences, RM's criminal history, and any relevant mitigating or aggravating factors. The Attorney-General argued that RM should be classified as a dangerous sexual offender, while RM opposed this classification, arguing it would unfairly restrict his future opportunities and life choices.

The court was tasked with determining the appropriate legal standards to classify RM as a dangerous sexual offender, including assessing the likelihood of reoffending and the potential danger to the community. The court also needed to consider the principles of proportionality and the protection of the community. The primary issue was whether the evidence supported the classification of RM as a dangerous sexual offender under the relevant statutory criteria. The court examined the details of RM's criminal history, the nature of the offences, and expert psychological assessments to evaluate the risk of reoffending.

After considering the evidence and arguments presented, the court determined that RM should be classified as a dangerous sexual offender. The court found that the offences committed by RM were of a serious nature, and the psychological assessments indicated a significant risk of reoffending. The court emphasised the need to protect the community and the proportionality of the classification. The court made orders declaring RM a dangerous sexual offender and imposed appropriate sentencing orders, including a supervision order and restrictions on his future activities. The decision highlighted the importance of balancing the rights of the offender with the need to safeguard the community from potential harm.

Orders