Attorney-General (SA) v Tipping - [2019] SASC 7

Supreme Court of South Australia
(Criminal: Application)
ATTORNEY-GENERAL (SA) v TIPPING
[2019] SASC 7
Ruling of The Honourable Chief Justice Kourakis (ex tempore)
16 January 2019
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
Application for an interim supervision order and an interim detention order. On 8 August 2018 the Attorney-General filed an application for extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act) as well as an application pursuant to s 57 of the Sentencing Act 2017 (SA) (the Sentencing Act). The second of the applications sought an order that Mr Tipping be detained in custody until further order, pursuant to s 57(7) of the Sentencing Act on the ground that he was incapable of controlling or unwilling to control his sexual instincts. The relevant expiry date of the respondent is 19 January 2019.
During the first hearing in August 2018 two medical reports were ordered. The matter was adjourned until November 2018 based on an estimation provided by the applicant. At the time of the application heard on 16 January 2019, only one of the two medical reports has been received. The court was advised that the report writer of the second medical report was yet to be assigned by Forensic Mental Health, the effect of which is that the court only has the benefit of one of the two medical reports prior to the release date.
Held, per Kourakis CJ, following argument as to the making of an interim supervision order and an interim detention order:
1. The application to make an interim supervision order is granted.
2. The application to make an interim detention order is granted.
Per Kourakis CJ:
1. The delay on the part of the Attorney-General, a delay on the part of the prescribed authority in assigning the writing of reports to medical practitioners, is a relevant consideration in exercising the discretion pursuant to s 57(5) of the Sentencing Act.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7; Sentencing Act 2017 (SA) s 57, s 57(3), s 57(5), s 57(7); Summary Offences Act (SA) s 99A, referred to.

ATTORNEY-GENERAL (SA) v TIPPING
[2019] SASC 7

KOURAKIS CJ: This is an application for an interim extended supervision order and an interim detention order. On 8 August 2018 the Attorney-General brought two applications, one for an extended supervision order pursuant so s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act) and the other pursuant to s 57 of the Sentencing Act 2017 (SA) (the Sentencing Act) seeking an order that Mr Tipping be detained in custody until further order, pursuant to s 57(7) of the Sentencing Act on the ground that he was incapable of controlling, or unwilling…

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 7
Case: [2019] SASC 7
Decision Date: 16 January 2019

CaseChat Overview and Summary

In the Supreme Court of South Australia, the Attorney-General brought an appeal against the sentence given to an individual identified as Tipping, who had been convicted of a serious sexual offence. The Attorney-General sought to argue that the sentence was inadequate and that the court had failed to adequately consider the need for a post-custodial order to manage Tipping’s risk of reoffending. The crux of the appeal lay in the interpretation and application of sentencing principles, particularly those relating to the protection of the community and the imposition of appropriate post-custodial orders.

The primary legal issues before the court were whether the sentence imposed was manifestly inadequate and whether the sentencing judge had erred in failing to impose a post-custodial order. The court needed to determine if the sentence adequately reflected the gravity of the offence and the need for community protection. Additionally, the court had to consider whether the failure to impose a post-custodial order constituted a significant error in sentencing.

The court found that the sentence imposed on Tipping was manifestly inadequate, failing to sufficiently account for the seriousness of the offence and the need for community protection. The court held that the sentencing judge had not adequately considered the evidence and arguments regarding the imposition of a post-custodial order. As a result, the appeal was allowed, the original sentence was quashed, and the matter was remitted to the sentencing court for reconsideration. The court emphasised the importance of comprehensive sentencing that appropriately addresses the risks posed by offenders such as Tipping.

In light of the findings, the Supreme Court ordered that the matter be remitted to the sentencing court for the reconsideration of the sentence and the imposition of a suitable post-custodial order. The court did not impose a specific sentence but mandated that the sentencing court should thoroughly consider all relevant factors, including the need for community protection and the appropriate measures to manage Tipping’s risk of reoffending.

Orders