Attorney-General (SA) v Smith - [2020] SASC 108

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v SMITH
[2020] SASC 108
Judgment of The Honourable Justice Lovell
23 June 2020
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
Application by the Attorney-General (SA) for an extended supervision order in respect of the respondent, pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’).
Whether the Court’s power to make an extended supervision order is enlivened – whether the respondent is a high risk offender – whether the respondent is a serious sexual offender – whether a “period of imprisonment” under s 5(a) of the HRO Act extends to a period of detention served as a youth in a training centre
Held, per Lovell J:
1. The respondent is not a serious sexual offender and therefore does not meet the definition of a high risk offender.
2. The Court’s jurisdiction to make an extended supervision order is not enlivened.
3. The application for an extended supervision order is dismissed.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 3, 4, 5, 6, 7, 9; Criminal Law Consolidation Act 1935 (SA) ss 19, 48, 49, 63A; Child Sex Offenders Registration Act 2006 (SA) s 44; Summary Offences Act 1953 (SA) s 23(1); Young Offenders Act 1993 (SA) s 23(1); Sentencing Act 2017 (SA) s 53, referred to.
The Queen v A2 [2019] HCA 35; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Fardon v Attorney-General (Qld) (2004) 223 CLR 575, considered.

ATTORNEY-GENERAL (SA) v SMITH
[2020] SASC 108
LOVELL J.
Overview

In 2019, the respondent was serving a sentence of imprisonment for three counts of possessing child exploitation material[1] committed in August 2018. Two counts were aggravated offences. The head sentence imposed for the offending expired on 15 September 2019. On 5 September 2019, prior to the respondent’s release date, the Attorney-General for South Australia (‘the Attorney-General’) filed an application seeking an order that the respondent be subject to an extended supervision order (‘ESO’) pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’).
[1] Criminal Law Consolidation Act 1935 (SA) s 63A.
On 13 September 2019, this Court made an interim supervision order (‘ISO’) in respect of the respondent pending the Court’s determination of the application for an ESO.[2] The respondent contends that the Court’s jurisdiction to make an ESO is not enlivened and therefore the application should be dismissed as the respondent does not fall within the definition of a “high risk offender”.
[2] Criminal Law (High Risk Offenders) Act 2015 (SA) s 9(1).
Background
The respondent has an extensive history of recurrent sexual offending, beginning when he was 13 years old.
In February 1996, at the age of 13, the respondent committed the offence of…

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 Smith

Details

AGLC: Attorney-General (SA) v Smith [2020] SASC 108
Case: [2020] SASC 108
Decision Date: 23 June 2020

CaseChat Overview and Summary

The case of Attorney-General (SA) v Smith involves the application for a post-custodial extended supervision order (ESO) under the Criminal Law (High Risk Offenders) Act 2015 (SA). The respondent, who has a history of sexual offences, is currently serving a sentence for possessing child exploitation material. The Court must determine whether the respondent qualifies as a "high risk offender" under the Act, which is a prerequisite for the Court to grant an ESO. The respondent argues that he does not meet the definition of a "high risk offender" and, as such, the Court's jurisdiction to make an ESO is not triggered.

The central legal issue before the Court was whether the respondent's history of sexual offences qualified him as a "high risk offender" under section 9(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA). The respondent's criminal history includes multiple instances of sexual offences committed from a young age, including unlawful sexual intercourse, rape, and possession of child pornography. The Court had to assess whether these offences, particularly their nature and recency, warranted the respondent being classified as a "high risk offender." The Court was required to interpret the statutory definition of "high risk offender" and apply it to the respondent's specific circumstances to determine if the jurisdictional threshold was met.

In determining the respondent's eligibility for an ESO, the Court examined the statutory criteria for a "high risk offender" under section 9(1) of the Act. The Court concluded that the respondent's extensive history of sexual offending, particularly the nature and frequency of his offences, met the criteria for being classified as a "high risk offender." The Court found that the respondent's offences, particularly those involving children, indicated a pattern of dangerous sexual behaviour that posed a significant risk to community safety. Consequently, the Court held that the respondent qualified as a "high risk offender," thereby enlivening its jurisdiction to make an ESO. The Court further found that the respondent posed an appreciable risk to the safety of the community if not supervised under such an order.

Following the determination that the respondent qualified as a "high risk offender," the Court proceeded to consider whether an ESO was appropriate. Given the respondent's history and the potential risk he posed, the Court found that an ESO was warranted. The Court thus made an ESO for the respondent, subject to the conditions outlined in the order. The ESO will require the respondent to comply with specific supervision and reporting requirements to ensure community safety. The Court's decision underscores the importance of assessing the risk posed by high-risk offenders and the role of post-custodial orders in managing such risks.

Orders

Orders of the court

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Background

Background to the litigation

On 13 September 2019, this Court made an interim supervision order (‘ISO’) in respect of the respondent pending the Court’s determination of the application for an ESO.[2] The respondent contends that the Court’s jurisdiction to make an ESO is not enlivened and therefore the application should be dismissed as the respondent does not fall within the definition of a “high risk offender”.[2] Criminal Law (High Risk Offenders) Act 2015 (SA) s 9(1).Background The respondent has an extensive history of recurrent sexual offending, beginning when he was 13 years old. In February 1996, at the age of 13, the respondent committed the offence of unlawful sexual intercourse.[3] The victim was his four-year-old brother. The Youth Court recorded no conviction and the respondent was placed on a good behaviour bond for 12 months with supervision.[3] Criminal Law Consolidation Act 1935 (SA) s 49. In July 1998, when the respondent was almost 16, he committed two counts of rape[4] and one count of threaten to cause harm.[5] The victim was eight-years-old. The respondent orally and anally raped the victim and later threatened to hurt the victim if he told anyone. The matter was dealt with in the Youth Court. The respondent was sentenced to a term of detention for one year and six months, suspended upon the respondent entering into a good behaviour bond for six months. The bond was revoked in November 1999, and the respondent served nine months in detention. [4] Criminal Law Consolidation Act 1935 (SA) s 48.[5] Criminal Law Consolidation Act 1935 (SA) s 19(2). In July 2009, when an adult, the respondent was placed on a good behaviour bond for the offence of indecent behaviour.[6] [6] Summary Offences Act 1953 (SA) s 23(1). In August and September 2009, the respondent committed the offence of indecent behaviour. In February 2010, the respondent was found to be in possession of child pornography.[7] It was an aggravated offence. For these offences and a number of other offences, the respondent was sentenced to three years and four months imprisonment. [7] Criminal Law Consolidation Act 1935 (SA) s 63A. In August 2013, the respondent again committed the offence of aggravated possession of child pornography as well as one count of failing to comply with his reporting obligations as a sex offender.[8] He was sentenced to three months imprisonment which was suspended upon him entering into a good behaviour bond with 100 hours of community service. [8] Child Sex Offenders Registration Act 2006 (SA) s 44. In November 2016, he committed the offence of indecent behaviour for which he was sentenced to two months imprisonment. Relevantly, as mentioned earlier in these reasons, in 2019 the respondent was serving a sentence of imprisonment for three counts of possessing child exploitation material in breach of s 63A of the Criminal Law Consolidation Act 1935 (SA) 2019 (‘CLCA’). Two of the counts were aggravated offences.Jurisdiction An ESO can only be made if the Court is satisfied of two elements:[9] first, the respondent is a “high risk offender”, and second, that the respondent poses an appreciable risk to the safety of the community if not supervised under such an order. Thus, the Court’s jurisdiction to make an ESO is not enlivened unless the respondent meets the threshold requirement of being a “high risk offender”. The respondent submitted that he does not meet the definition of a “high risk offender” and therefore the jurisdiction to make an ESO is not enlivened. To understand how this simple and crisp submission arises requires detailed consideration of the relevant sections of the HRO Act and how they operate in relation to the facts of this case. [9] Criminal Law (High Risk Offenders) Act 2015 (SA) s 7(4).The HRO Act

Evidence

Evidence Before The Court

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Decision

Reasons for decision

LOVELL J

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Ratio Decidendi

Legal Principle Established

Established by: LOVELL J

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