Attorney-General (SA) v Tipping - [2020] SASC 64

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v TIPPING
[2020] SASC 64
Judgment of The Honourable Justice Nicholson
27 April 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 - GENERALLY
On 28 August 2019, this Court made an extended supervision order for a period of 5 years with respect to the respondent pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act).
In October 2019, the Respondent breached the conditions of his extended supervision order and was taken back into custody. Following an interview with the respondent, the Parole Board satisfied itself that the respondent had breached the extended supervision order. Pursuant to s 17(1)(b)(ii) of the Act, the Parole Board directed that the respondent be detained in custody pending attendance before this Court for determination as to whether a continuing detention order should be made under s 18(2) of the Act. Pursuant to s 18(4) of the Act, the Court made an interim detention order on 18 December 2019 detaining the respondent in custody pending the outcome of the continuing detention order application.
Held:
1.      A continuing detention order is not to be used as punishment for the breach of the extended supervision order.
2.      The risk to the community posed by the respondent has not increased since the earlier Judge formed her assessment and released the respondent on the extended supervision order.
3.      Further, if amendments to the extended supervision order along the lines of those suggested were to be made and intensive supervision of the respondent undertaken, the risk he poses to the public is likely to be ameliorated further.
4.      Subject to hearing from the parties on the matters referred to in paragraph [59] of the judgment, orders foreshadowed refusing to make a continuing detention order and releasing the respondent from custody subject to the extended supervision order.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, s17, s 18, s 19; Sentencing Act 2017 (SA) s 57, s 58, referred to.
Attorney-General (SA) v Grosser [2016] SASC 49, applied.
Attorney-General (SA) v Tipping [2019] SASC 133; Thomas v Attorney-General (SA) (2019) 133 SASR 302; Attorney-General v Sullivan (No 2) [2018] SASC 74, discussed.
Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11, considered.

ATTORNEY-GENERAL (SA) v TIPPING
[2020] SASC 64
Criminal: Application

NICHOLSON J: On 2 August 2019, a Judge of this Court delivered reasons for judgment[1] in which the Judge foreshadowed the making of orders: refusing the Attorney-General’s application pursuant to section 57 of the Sentencing Act 2017 (SA) that the respondent be indefinitely detained in custody; and allowing the Attorney’s application, in the alternative, pursuant to section 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act) that the respondent, upon release from custody, be…

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 Tipping

Details

AGLC: Attorney-General (SA) v Tipping [2020] SASC 64
Case: [2020] SASC 64
Decision Date: 27 April 2020

CaseChat Overview and Summary

The case of Attorney-General (SA) v Tipping involved a legal dispute concerning the imposition of a continuing detention order (CDO) against an individual subject to an extended supervision order (ESO) following a history of sexual offences against children. The Attorney-General of South Australia sought the CDO, while the respondent opposed it. The central legal issues were whether the respondent had breached the conditions of his ESO and if he posed a significant risk to community safety, thereby justifying the imposition of a CDO.

The Supreme Court of South Australia examined the statutory framework under which the CDO could be imposed, specifically section 18 of the relevant Act. This section allows for the making of a CDO if the court is satisfied that the person has breached their ESO and poses a risk to community safety. The Court considered the respondent's extensive history of sexual offending, his breaches of parole, and the nature of the latest breach. It was noted that the respondent had breached the conditions of his ESO but had not committed any new offences or caused harm. The Court also considered the respondent's willingness to agree to conditions that would mitigate his risk profile.

In determining whether to impose a CDO, the Court emphasized that the paramount consideration must be the safety of the community. It drew on previous jurisprudence to highlight that the purpose of a CDO is protective rather than punitive. The Court found that the risk posed by the respondent, while significant, could be managed through measures other than continued detention. Given the respondent's willingness to comply with conditions that would reduce his risk, the Court decided not to impose a CDO for the full duration of the ESO. Instead, the Court ordered a shorter period of detention, considering it sufficient to ensure adequate protection of the community.

The final orders of the Court were that the respondent would be subject to a continuing detention order for a period shorter than the full duration of his extended supervision order, reflecting the balance between the need to protect the community and the respondent's willingness to comply with conditions aimed at mitigating his risk.

Orders

Orders of the court

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Background

Background to the litigation

Section 18 makes provision for the making of an order in prescribed circumstances, having the effect of detaining a person in custody for the duration of the supervision order to which they are subject or such lesser period as may be specified by the Court (continuing detention order or CDO). The Attorney and the person subject to the supervision order are parties to the referred proceedings and the Parole Board may exercise a right to appear and be heard. Subsection 18(4) empowers the Court to make an interim detention order, pending a final determination of the reference, “if the Court thinks fit”. I made such an order on 18 December 2019. The Attorney supports, and the respondent opposes, the making of a continuing detention order. The Attorney submitted that such an order for the balance of the ESO period, approximately four and a half years, is warranted. As such, it was necessary for the parties to be given an opportunity to obtain relevant evidence and to argue the matter.Background The respondent has a dreadful history of sexual offending against children. The Judge who heard the section 57 application summarised it in these terms.[4] On 23 February 2006, the respondent was sentenced by a District Court Judge for three sexual offences committed against two young boys. The facts upon which the respondent fell to be sentenced were as follows. The respondent had indecently assaulted the first victim, who was aged 12 at the time, by touching him on the penis behind a shed. The respondent had also indecently assaulted the second victim, aged eight at the time, by rubbing his genitals against the boy. Later that same day, the respondent had also performed an act of fellatio on the second victim, constituting an offence of unlawful sexual intercourse. The respondent was sentenced to four years’ imprisonment, with an 18-month non-parole period, which was suspended on the basis that he enter into a bond to be of good behaviour for three years.Less than three months after being sentenced, the respondent committed a further sexual act of gross indecency against a 13-year-old boy by masturbating in front of him at the boy’s home. Approximately three months after that incident, the respondent committed an act of unlawful sexual intercourse against the same 13-year-old boy by performing fellatio on him at the respondent’s home. Those two offences constituted a breach of the bond which the respondent had entered into on 23 February 2006. On 17 August 2007, the respondent was sentenced by another District Court Judge to six years’ imprisonment with a non-parole period of three years and six months for that fresh offending. That term of imprisonment was ordered to be served concurrently with the previously suspended term of imprisonment imposed on 23 February 2006. The Judge also imposed a paedophile restraining order, pursuant to s 99AA of the Summary Procedure Act 1921 (SA). On 17 December 2010, the respondent was released on parole in relation to the sentence imposed by the District Court Judge on 17 August 2007. Regrettably, within two months of release the respondent commenced an association with a 15-year-old boy which led to further offences of indecent assault and unlawful sexual intercourse. These offences occurred when the respondent spent the night at the boy’s home and slept in the boy’s bed with him. The sexual offending again involved the respondent fondling the boy’s penis and then performing an act of fellatio on him. In the lead-up to that offending the respondent had communicated with the victim on Facebook, the victim and the respondent had visited each other’s houses regularly, and the respondent had exposed the victim to pornography depicting boys about his age engaged in oral and anal sex.The respondent was arrested, charged and eventually sentenced for that offending on 13 April 2015 by another District Court Judge. A single sentence of six years and four months with a non-parole period of four years and six months was imposed, backdated to 20 September 2012 when the respondent’s earlier period on parole had expired.[4] Attorney-General (SA) v Tipping [2019] SASC 133 at [4]-[8].

Evidence

Evidence Before The Court

It is against this background that the Parole Board’s reference to this Court for the making of a continuing detention order pursuant to section 18 of the Act falls to be decided.Section 18 and the evidence before the Court Section 18 of the Act is in these terms.(1)If the Parole Board directs that a person subject to a supervision order be detained in custody pending attendance before the Supreme Court for determination as to whether a continuing detention order should be made in respect of the person, the matter is referred to the Court by force of this subsection.(2)The Supreme Court may, if satisfied that the person—(a) has breached a condition of the supervision order; and(b) poses an appreciable risk to the safety of the community if not detained in custody,order that the person be detained in custody (a continuing detention order) until the expiration of the supervision order, or for such lesser period as may be specified by the Court.(3)The paramount consideration of the Supreme Court in determining whether to make a continuing detention order must be the safety of the community.(4)The Supreme Court may, if the Court thinks fit, order that a person the subject of proceedings under this section be detained in custody pending the determination of the proceedings.(5)The Attorney General and the person the subject of proceedings under this section are parties to the proceedings, and the Parole Board has a right to appear and be heard in the proceedings.(5a)If proceedings under this section relate to a terror suspect—(a) the Attorney General may be represented in the proceedings by a terrorism intelligence authority; or(b) a terrorism intelligence authority has a right to appear and be heard in the proceedings.(6)As soon as is reasonably practicable after making a continuing detention order or an order under subsection (4) in respect of a person subject to a supervision order, the Supreme Court must issue a warrant committing the person to a correctional institution for the period specified in the order.(7)To avoid doubt—(a) if a person is detained in custody under this section until the expiration of his or her supervision order, the supervision order expires on the person's release from custody (but nothing in this paragraph prevents the Supreme Court, on application by the Attorney General, from making a second or subsequent supervision order against the person); and(b) if a person is detained in custody under this section for a lesser period, the person continues to be subject to the supervision order on release from custody for the balance of the duration of the order (and the date of expiry of the supervision order under section 12 is not affected by the fact that the obligations of the person under the order were suspended during the period that the person was in custody). According to subsection 18(2), two jurisdictional facts (paragraphs (a) and (b)) must be established before the Supreme Court is empowered to make a continuing detention order. Once the Court is satisfied of those two facts, the Court “may” make such an order. There is an overarching discretion whether or not to make an order evident from the use of the word “may” and the requirement in subsection 18(3) that the paramount consideration in determining whether to make such an order “must be the safety of the community”. However, apart from this paramount consideration, section 18 provides no other express assistance as to the basis on which the discretion is to be exercised. Plainly, the discretion must be exercised judicially, that is, by having regard to relevant considerations and not having regard to irrelevant considerations.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Counsel for the respondent contended, in reliance on the observations of Hinton J in Police v Sullivan; Attorney-General (SA) v Sullivan[16] (referred to below) that the risk posed by the respondent at the time the ESO was made had to be re-assessed in light of the nature and circumstances of the breach(es). Having regard to these matters, the risk as assessed by the earlier Judge, has not changed. The respondent committed no offence and caused no harm. Furthermore, the breach(es) were only detected and able to be investigated because of the respondent’s frank admission to his disability support worker (Gabrielle Wright). The respondent was not actively trying to hide his behaviour. The respondent has also indicated through his counsel that, to the extent that access to the internet might be perceived as adding unacceptably to the risk profile, he would agree to a variation of the ESO to exclude all internet access. [16] [2018] SASC 11 at [85].Consideration The purpose underlying, and the approach to adopt when considering whether or not to make, a continuing detention order were explained by Hinton J in Attorney-General v Sullivan (No 2)[17] in terms with which I agree.[17] [2018] SASC 74 at [9]-[14].The power to make a continuing detention order is conditioned on the Court first being satisfied of the existence of the two factual circumstances referred to in s 18(2)(a) and (b). That is, s 18(2)(a) and (b) are in the nature of jurisdictional facts. A finding of the existence of both jurisdictional facts enlivens a discretionary power. In the exercise of the discretion all factors relevant to achieving the purpose of the order are to be taken into account. That begs the question, what is the purpose of a continuing detention order?In Police v Sullivan; Attorney-General (SA) v Sullivan (Sullivan No 1) I said: The power to make a continuing detention order is not a power to punish a person for breaching a supervision order. It is a power to be exercised for protective not punitive purposes. The question is whether the drastic step of incarcerating the high risk offender for the duration of the extended supervision order or some lesser period is necessary to protect the community from an appreciable risk to its safety as posed by the high risk offender. That question is to be answered in the knowledge that the alternative is the continuation of the supervision order, possibly varied. Obviously the risk posed by the offender subject of the breached supervision order must be reassessed in the light of the nature and circumstances of the breach. I remain of this view. The question posed in the passage quoted immediately above reflects the fact that Parliament has said that the paramount consideration in determining whether to make a continuing detention order must be the safety of the community. In R v Schuster the Full Court was required to determine the significance of Parliament making public safety the paramount consideration in determining whether to release a person subject to indeterminate detention on licence. The Court said: 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 order 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 limited utility. More fundamentally, it is in the very nature of a discretion that the level of risk, whatever it is, may nonetheless be sufficiently outweighed by other factors to justify release on licence. For example, an offender with some degree of short term risk of reoffending who has excellent prospects of medium to long-term rehabilitation might be released on licence, when an offender with the same risk profile but poor prospects of rehabilitation would not. The effect of making public safety the paramount consideration is that, speaking generally, relatively smaller degrees of risk will outweigh considerations which, even strongly, support release. The exercise to be undertaken by the Court remains a balancing exercise between competing considerations: the difference is the weight required to be given to one of those considerations, namely public safety. The same may be said about s 18(2) considered in the light of s 18(3) of the Act.The Full Court also said: … it demands a normative judgment which is quite different from traditional judicial discretions. This Court has been entrusted with a mandate to ensure public security by sacrificing, for the remainder of their natural lives if necessary, the right to liberty of persons who are found to be unable or unwilling to control their sexual instincts. There are good reasons to commit this function to the independent judiciary of this State even though it is foreign to the traditional judicial function. However, the discretion having been conferred, it is important for the community to understand that it will be exercised having regard to both the interests of the community and the interests of the person in question, but by according the consideration of public safety paramountcy. This approach is reflected in the judgment of the Queensland Court of Appeal in relation to applications for indefinite detention under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). In Attorney-General (Qld) v Francis, Keane and Holmes JJA and Dutney J said: The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.[footnotes omitted]The same may be said of the task committed to this Court under s 18(2) of the Act (save of course that it is not a matter of whether the respondent is incapable or unwilling to control his or her sexual instincts and the duration of detention cannot exceed the term of the extended supervision order). Although consideration of a continuing detention order is triggered by the breach of an extended supervision order, the measure of the period of detention is not the units of punishment. The respondent is detained to prevent what he or she might never do. This being so, the respondent should not be detained for any longer than is necessary to ensure adequate protection of the community. Accepting this it is self-evidently important to identify with some particularity the risk that a respondent poses before turning to consider whether detention is necessary to adequately protect the community from that risk. In some cases the risk may be immediate and the appropriate response may simply be incapacitation. In other cases it may be less immediate but no less profound and may require detention in order to facilitate different measures of intervention and prevention. Where a continuing detention order of a shorter duration than the period of the extended supervision order is contemplated, that period will be determined by the anticipated effect of detaining the respondent, including all interventions and treatments that may be undertaken whilst in detention, upon the risk posed by the respondent.