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

1. 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 to control, his sexual instincts.

2. On 15 August 2018, a Judge of this Court adjourned both applications to 7 November 2018 to allow sufficient time, based on estimates given by counsel for the Attorney-General, to obtain the medical reports required by the applicable statutory provisions. The order the Attorney-General sought, pursuant to s 57 of the Sentencing Act, could not be made without this Court first directing two medical practitioners to examine and report on whether Mr Tipping was incapable of controlling, or unwilling to control, his sexual instincts pursuant to s 57(6) of the Sentencing Act. Pursuant to s 7(3) of the High Risk Offenders Act, this Court must direct at least one medical practitioner to examine the respondent to the application, and report on the risk of re-offending.

3. The applications were called on on 7 November 2018 but no reports had yet been obtained.  The applications were adjourned to 16 January 2019 when they were called on before me.  I was informed that a report of Dr Nambiar had been obtained and his report was provided to the Court.  I refer to its contents below.

4. The Court was also told that the prescribed authority, who has the statutory function of assigning the report writing to a medical practitioner, had not been able to identify a medical practitioner to whom he could assign the writing of the second report for the purposes of s 57 of the Sentencing Act. I held the matter over to today, 17 January 2019, to allow counsel for the Attorney-General an opportunity to obtain instructions on from whom, and by when, the second report might be obtained. I did so because Mr Tipping’s impending release on 19 January 2019 raised the prospect that this Court would be asked to make an interim detention order when a second medical practitioner, who could examine and report on Mr Tipping, was yet to be found.

5. Today Mr Garnaut, appearing for the Attorney-General, informed me that the prescribed authority had appointed, or was about to appoint, Dr Heaney to provide the second report for the purposes of s 57(6) of the Sentencing Act. It was estimated that Dr Heeney would provide that report within three months.

6. Mr Garnaut also informed me of the following instructions which had been given by the Attorney-General concerning steps which had been taken to expedite the provision of reports for the purposes of the High Risk Offenders Act, s 57 of the Sentencing Act and other statutory provisions:

   … I'm instructed that there has been substantial work underway in relation to addressing this capacity issue in relation to forensic psychiatrists and their ability to provide reports, not just under s 57 of the Sentencing Act and s

   7 of the Criminal Law (High Risk Offenders) Act but also part 8A of the Criminal Law Consolidation Act. For example, I'm told that there's been previously some amendments to the part 8A regime to attempt to reduce the number of reports and the attorney-general has already directed that the department, that is, the Attorney-General's Department work with the other relevant government authorities being the Department of Health and Ageing and also the Court Admin Authority to design what's terms the Forensic Court Assessment and Diversion Service. There had been significant progress in negotiations between the Attorney-General's Department and Forensic Mental Health on operational policy and other issues pertaining to the provision of these medical reports and I understand that there's a further meeting scheduled next week between representatives including Dr Nambiar to advance these discussions further.

7. Mr Garnaut accepted, in my view correctly, that 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 to make an interim detention order. Undue delay in obtaining medical reports is an unnecessary denial of a defendant’s personal liberty and may result in the Court declining to make an interim detention order if the risk to the community is not high. If interim detention orders were routinely made, despite dilatory or other improper conduct by the executive government, the Supreme Court may come to be seen as an instrument of executive oppression.

8. Obviously enough the protection of the community is of paramount consideration in the exercise of the powers conferred by s 57 of the Sentencing Act and the High Risk Offenders Act. However, that does not mean that it is the conclusive consideration. There may be cases in which undue or unnecessary delay in the obtaining of reports will be decisive in refusing an interim detention order, depending on the level of protection which can be assured by electronic monitoring.

9. Mr Garnaut made the point that there is a distinction in terms of legal personality between the Attorney-General and the prescribed authority who has the statutory function of assigning cases to medical practitioners for examination and report. True it is that there is distinction in terms of legal identity, but there is no substance in that distinction for the purpose of the exercise of the discretion to which I referred. For the purposes of s 57 of the Sentencing Act, the Attorney-General is the representative of the executive. The executive provides the funds required by the prescribed authority to obtain medical reports. If insufficient funds are provided such that the prescribed authority finds it difficult to secure reports from medical practitioners, in a timely manner, then that inadequate funding will affect the balance of considerations in the way I have described.

10. Whilst dealing with s 57 of the Sentencing Act, there is a further matter of construction which should be mentioned. Section 57(3) of the Sentencing Act provides:

    57(3)If a person has been convicted of a relevant offence, the Attorney-General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section.

11. It will be noticed that on its terms, it is simply the application which must be made whilst the respondent remains in prison serving a sentence of imprisonment. On its terms the application could then be made even though the ultimate order, pursuant to s 57(7) of the Sentencing Act is not made until a later time.

12. Mr Garnaut has put the submission that there may be some doubt about that construction and has referred me to R v F, JM.[1]

    [1] [2015] SASC 99.

13. On the basis of the decision in R v R, JM, Mr Garnaut argues that if an interim detention order is not made and Mr Tipping were to be released into the community, this Court may not be empowered to make an order pursuant to s 57(7) of the Sentencing Act. On the other hand, Mr Garnaut contends that this Court will retain this power if an interim detention order is made. I doubt that construction of s 57 of the Sentencing Act.

14. If an interim detention order were made pursuant to s 57(5) of the Sentencing Act, it is difficult to see how a respondent in Mr Tipping’s position could properly be described as serving a sentence of imprisonment. A sentence of imprisonment has a well understood meaning, it is the punishment imposed upon conviction which may be a defined term of imprisonment or may be an indeterminate term of imprisonment, for example, a life sentence. It is difficult to see how a person who is subject to an interim detention order, pending a determination under s 57(7) of the Sentencing Act, is serving a sentence of imprisonment.  Be that as it may, I do not need to finally determine that question for reasons that will become apparent in a moment.

15. I turn to the circumstances of Mr Tipping. On 13 April 2015, Mr Tipping was sentenced to a single term of imprisonment of six years and four months pursuant to s 18A of the Sentencing Act. A non-parole period of four years and six months was fixed. The sentence and the non-parole period were backdated to 20 September 2012. The offences for which Mr Tipping was sentenced on that occasion were offences of gross indecency, indecent assault, unlawful sexual intercourse and another count of indecent assault against a 15 year old boy (JT). The offending included fondling of JT's genitals, fellatio and other conduct.

16. The sentencing Judge described Mr Tipping's prior offending as disturbing. The sentencing Judge summarised that offending as follows.  First, Mr Tipping was sentenced on 23 February 2006 for sexual offences committed against two boys.  Mr Tipping himself was 18 at the time and the boys were 12 and eight years of age respectively.  The conduct included indecent assault by fondling of their genitals.  A judge of the District Court sentenced Mr Tipping to imprisonment for four years with a non-parole period of 18 months but suspended that sentence.

17. Within a few months of his release, a suspended sentence bond was breached by an act of gross indecency and an act of unlawful intercourse against a boy aged 13. The suspended sentence was revoked and Mr Tipping was sentenced to a further period of imprisonment. A restraining order was made against him pursuant to s 99A of the Summary Offences Act 19 53 (SA), restraining him from loitering at or near any school.

18. Mr Tipping was released on parole from that sentence on 17 December 2010 and within several months began to associate with JT, the victim of the offence for which Mr Tipping was last sentenced.   Whilst serving his current term of imprisonment Mr Tipping has undertaken the SBC-me course designed for offenders with limited intellectual capacity.  The summary of his participation notes that his participation and engagement fluctuated but there were some positive attitudinal and behavioural changes.

19. I mentioned earlier that Dr Nambiar has provided an assessment of Mr Tipping for the purposes of the Attorney-General’s applications.  Dr Nambiar noted that there was a significant history of sexual abuse against Mr Tipping in his childhood.  He has an extensive history of psychiatric intervention during his periods of imprisonment.  His intellectual disability has been assessed and confirmed in what is described as the mild impairment category.

20. Importantly, when questioned by Dr Nambiar, Mr Tipping denied any sexual attraction to young boys.   Mr Tipping minimised the offending for which he is currently serving a sentence.  Mr Tipping told Dr Nambiar that he did not believe that fellatio was sex.

21. Dr Nambiar's opinion is that Mr Tipping's offences are of a sexual nature primarily perpetrated against much younger boys of prepubescent or adolescent age.  Dr Nambiar was alarmed that nearly all of the offences occurred shortly after Mr Tipping was released from custody and when he was under supervision.  Dr Nambiar concluded that Mr Tipping poses a high risk to the safety of the community if not supervised and that he was unwilling to control his sexual instincts. 

22. Mr Lang submits that the risk to the community can be sufficiently ensured by subjecting Mr Tipping to an interim supervision order.  That interim supervision order could, of course, include detailed, close electronic monitoring.  I accept as a general proposition that such are the advances in electronic monitoring that a high degree of protection to the community can be achieved in that way.  Unfortunately, because of the urgency with which this application has had to be heard, and in part because of the delay in obtaining reports, I am not in a position to be satisfied to the requisite degree that an interim supervision order will, given Mr Tipping's prior history, provide that protection.  More evidential material is required.

23. The difficulty is, as I mentioned earlier, that if an interim detention order is not made, Mr Tipping must be released on 19 January. A proper assessment of the risk to the community if a closely supervised order was made under the High Risk Offenders Act cannot be made before then.

24. For those reasons I make an interim detention order pursuant to s 57(5) of the Sentencing Act. I note that that order is an order that Mr Tipping be detained in custody until further order. By reason of this Court's inherent power to revoke interim orders it makes, but also because s 57(5) itself contemplates a further order, the order I have made may be revoked if the Court is satisfied the public would adequately be protected by releasing Mr Tipping on an extended supervision order.

25. I give Mr Tipping liberty to apply for that purpose if he is so advised.  I indicate, in accordance with my earlier reasons, that any further delay in the obtaining of the psychiatric report will be a relevant consideration in the determination of any such application.

26. In the meantime, and because Mr Lang has accepted that in principle an extended supervision order would be made subject, of course, to some argument about its final terms, I will also make an interim supervision order pursuant to the High Risk Offenders Act in the terms proposed in the draft interim supervision order filed by the attorney together with the application for directions filed on 10 January 2019, I give liberty to the parties to apply at an appropriate time for any amendment to those conditions if and when it arises. Of course, unless, and until, any application to revoke the interim order is successful, that will be largely academic.