Attorney-General (SA) v Smallbone

The Attorney-General for South Australia applied for an extended supervision order under the High Risk Offenders Act 2009 (SA) against Mr Smallbone, a convicted sex offender. The application was made under section 23 of the Sentencing Act 1995 (SA) based on Mr Smallbone’s unwillingness to control his sexual instincts. The matter was heard in the Supreme Court of South Australia, where the court was required to determine if Mr Smallbone posed an appreciable risk to the community if not supervised and whether it was appropriate to make an order for his detention under section 23(4) of the Sentencing Act.

The primary legal issue before the court was whether Mr Smallbone was unwilling to control his sexual instincts within the meaning of section 23(1) of the Sentencing Act. The court considered evidence from two forensic psychiatrists, Drs Raeside and Nambiar, who both concluded that Mr Smallbone had the capacity to control his sexual instincts but was unwilling to do so. The court accepted this evidence and found that Mr Smallbone posed a significant risk to the community if not supervised. The court further determined that Mr Smallbone’s history of offending, conduct in prison, and limited insight into his offending behaviour indicated a high risk that he would reoffend if released without supervision. Consequently, the court was satisfied that it was appropriate to make an order for Mr Smallbone’s detention under section 23(4) of the Sentencing Act.

The Supreme Court of South Australia dismissed the Attorney-General’s application under the High Risk Offenders Act, finding that an extended supervision order was not necessary. Instead, the court made an order for Mr Smallbone’s detention under section 23(4) of the Sentencing Act. The court noted that if it was wrong in its determination, it would have imposed an extended supervision order for five years with specific conditions. The court concluded that Mr Smallbone’s history of offending and lack of insight into his behaviour indicated a considerable risk that he would reoffend if not supervised, justifying the detention order.