Attorney-General (SA) v Tipping - [2019] SASC 133

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v TIPPING
[2019] SASC 133
Judgment of The Honourable Justice Kelly
2 August 2019
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 - DANGEROUS SEXUAL OFFENDER - GENERALLY
Application by the Attorney-General for an indefinite detention order pursuant to s 57 of the Sentencing Act 2017 (SA).
Application by the Attorney-General for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (HRO Act) in the alternative.
The respondent concedes the application pursuant to s 7 of the HRO Act.
Held:
1.       The respondent is unwilling to control his sexual instincts.
2.       The respondent’s risk of reoffending does not appear to have been substantially reduced by the extensive treatment he has already received in prison.
3.       The risk to the community posed by the respondent can be adequately addressed by the respondent being subjected to strict home detention and electronic monitoring conditions as part of an extended supervision order.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7; Sentencing Act 2017 (SA) s 57, referred to.
Thomas v Attorney-General (SA) [2019] SASCFC 21, applied.

ATTORNEY-GENERAL (SA) v TIPPING
[2019] SASC 133
Criminal: Application
KELLY J.
Introduction

Two applications are brought by the Attorney-General for the State of South Australia against the respondent, Gary John Tipping. The first is an application pursuant to s 57 of the Sentencing Act 2017 (SA) (“Sentencing Act”) that the respondent be detained in custody indefinitely. The second application, which is brought in the alternative, is an application pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“HRO Act”) that the respondent be subject to an extended supervision order.
In support of the Attorney-General’s primary application for an order of indefinite detention, the applicant submitted that there are four main grounds justifying why such an order should be made in relation to the respondent. The first ground is based on the respondent’s criminal history of sexual offences (against four boys aged between eight and 15) and his prior inability to obey the supervisory conditions of a suspended sentence bond, of parole, and of a paedophile restraining order. The second ground relies on the expert evidence of two psychiatrists, Drs Nambiar and Haeney, who both addressed the issue of the respondent’s inability or unwillingness to control his sexual instincts. The third ground relies on evidence tendered before the Court which, the Attorney‑General submits, demonstrates that in the past the respondent has been deceitful, manipulative and lacking in any insight into the risk he poses to children. The final ground is effectively a submission by the Attorney‑General that, even with strict electronic monitoring and home detention conditions of the type usually involved when extended supervision orders are made…

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 [2019] SASC 133
Case: [2019] SASC 133
Decision Date: 2 August 2019

CaseChat Overview and Summary

The Attorney-General of South Australia applied for a declaration that the respondent, who had been convicted of serious sexual offences against children, was a dangerous sexual offender, and for an order for his continuing detention. The respondent opposed the application. The South Australian Supreme Court considered whether the respondent was a dangerous sexual offender and whether his continuing detention was warranted. The court needed to determine if the respondent's history of reoffending, particularly after completing prison sentences and being subject to post-custodial orders, demonstrated that he was a dangerous sexual offender who posed a significant risk to the community. The court also had to decide if, given the respondent's history of reoffending, his continuing detention was necessary to protect the community.

The court found that the respondent's history of reoffending, particularly after being released from prison and subjected to post-custodial orders, indicated that he was a dangerous sexual offender. However, the court concluded that the risk to the community could be adequately managed by subjecting the respondent to strict home detention and electronic monitoring conditions as part of an extended supervision order. The court was not persuaded that the risk could not be managed in this way, especially given the limitations of assessing behaviour in a prison environment and the absence of previous opportunities for the respondent to comply with strict conditions. The court decided to decline to make an order for continuing detention and instead intended to hear the parties regarding appropriate conditions for an extended supervision order.

The court foreshadowed its intention to decline the application for continuing detention and to instead release the respondent on an extended supervision order with strict conditions. The court intended to hear the parties regarding the appropriate conditions for such an order. The court also noted the need to finalise the terms of the extended supervision order and make arrangements for appropriate accommodation for the respondent to facilitate his release from custody.

The final orders of the court will reflect the decision to decline the application for continuing detention and to release the respondent on an extended supervision order with strict conditions, subject to the court hearing the parties on the appropriate terms.

Orders

Orders of the court

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Background

Background to the litigation

Before turning to the issues which arise, it is necessary to set out in some detail the factual and procedural background giving rise to these applications.Factual background 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).[2][2] The sentencing remarks of his Honour Judge Wilson refer to s 99AA of the ‘Summary Offences Act’, however paedophile restraining orders at the time were in fact imposed in accordance with s 99AA of the Summary Procedure Act 1921 (SA). The Summary Procedure Act 1921 (SA) became the Criminal Procedure Act 1921 (SA) on 5 March 2018. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

KELLY J

I have taken into account the same concerns expressed by the Court in Thomas, particularly in relation to the effect of treatment in prison alone and the limitations of assessment about a person’s behaviour in the artificial environment of a prison. Without the respondent having previously had the opportunity to comply with such strict conditions, I am not persuaded at this stage that the risk to the community posed by the respondent cannot be adequately addressed by the respondent being subjected to strict home detention and electronic monitoring conditions as part of an extended supervision order under the HRO Act. Conclusion At the hearing on 8 May 2019, counsel for the applicant made the submission that, if it was decided that the application for indefinite detention ought to be refused and that the respondent should instead be released on an extended supervision order, I should not formally determine the matter in that manner without first foreshadowing to the parties my intention to do so. This is because the respondent is currently detained on an interim detention order pursuant to s 57(5), which will immediately cease upon the final determination of the s 57 application. Postponing the final determination of each application, counsel for the applicant submitted, will enable the appropriate practical matters to be put in place to facilitate the respondent’s release from custody. These practical matters include the finalisation of the terms of an extended supervision order and the need to make arrangements for appropriate accommodation for the respondent. Therefore, for the reasons I have outlined above, I foreshadow my intention to decline to make an order for continuing detention in relation to the respondent. I will hear the parties as to appropriate conditions of an extended supervision order.

Ratio Decidendi

Legal Principle Established

Established by: KELLY J

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