Attorney-General (SA) v TMS - [2021] SASC 6

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v TMS
[2021] SASC 6
Judgment of the Honourable Justice Bampton
5 February 2021
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
Application by the respondent pursuant to s 13 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“the HRO Act”) to revoke an interim supervision order made pursuant to s 9 of the HRO Act — whether the respondent is a high-risk offender pursuant to s 5 of the HRO Act — whether the respondent is a serious violent offender who committed a serious offence of violence — whether the conduct constituting the respondent’s offence constitutes a serious offence of violence — whether the interim supervision order should be revoked.
HELD: The respondent is a high-risk offender — application to revoke the interim supervision order dismissed.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 3, 4(1), 5(c), 7, 9(1); Criminal Law Consolidation Act 1935 (SA) ss 9(1), 21, S9, 83D, referred to.
Kelly v The Queen (2004) 218 CLR 216, applied.
R v Iannelli (2003) 56 NSWLR 247; R v Gibbins (1918) 13 C App R 134; R v [TMS] (2011) 110 SASR 274, discussed.
Bedi v The Queen (1993) 61 SASR 269; Attorney-General (SA) v Jeffrey (2018) 130 SASR 300, considered.

ATTORNEY-GENERAL (SA) v TMS
[2021] SASC 6
Criminal: Application

BAMPTON J: On 11 February 2011, the respondent was sentenced to 10 years’ imprisonment with a non-parole period of six years and eight months (“the sentence”) following her guilty pleas to two counts of aggravated acts endangering life[1] and three counts of aggravated acts creating risk of serious harm[2] (“the offending”). The respondent was released on parole on 9 May 2019 and the sentence expired on 5 October 2020.
[1] Contrary to s 9(1) of the Criminal Law Consolidation Act 1935 (SA).
[2] Contrary to s 29(2) of the Criminal Law Consolidation Act 1935 (SA).
Just prior to the expiry of the sentence the Attorney-General (“the Attorney”) made an application (“the application”) seeking the following orders and directions:
1.That the Court direct that one or more prescribed health professionals examine the respondent and report to the Court on the results of the examination, including an assessment of the likelihood of the respondent committing a further serious offence of violence.
2.That the respondent be subject to an extended supervision order (“ESO”) for a period of up to five years pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“the HRO Act”) as she is, pursuant to s 7(4), a high-risk offender and poses an appreciable risk to the safety of the community if not supervised under an ESO.
3.That the respondent be subject to an interim supervision order (“ISO”) from the date of making the interim order pursuant to s 9(1) of the HRO Act until the application for the ESO is determined.
The application is supported by an affidavit…

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 TMS

Details

AGLC: Attorney-General (SA) v TMS [2021] SASC 6
Case: [2021] SASC 6
Decision Date: 5 February 2021

CaseChat Overview and Summary

The case of Attorney-General (SA) v TMS involves the determination of whether the respondent qualifies as a high-risk offender under the High Risk Offender (HRO) Act. The respondent, who has a history of violent offences, was sentenced to imprisonment and subsequently subject to an interim supervision order. The crux of the dispute is whether the respondent's prior offences, which involved inaction leading to serious harm or risk thereof, satisfy the criteria for being classified as a high-risk offender under the HRO Act.

The legal issues central to this case revolve around the interpretation of the HRO Act and the definition of a "serious offence of violence." Specifically, the court had to determine if the respondent's prior convictions, which included instances where his inaction caused or risked serious harm, fall within the ambit of a "serious offence of violence" as defined in the Crimes Legislation (Consequential and Transitional Provisions) Act. The respondent contended that the definition should be narrowly construed to exclude omissions, whereas the Attorney-General argued that the definition should be broadly interpreted to include both acts and omissions that result in serious harm.

The court found that the definition of "serious offence of violence" under the HRO Act should be interpreted in the context of the Act itself, rather than in the context of the broader criminal law provisions. The court held that the definition encompasses both positive acts and omissions that lead to serious harm or risk thereof, thereby including the respondent's prior convictions. The court also rejected the respondent's argument that the definition should be limited to criminal gang violence, emphasising that the purpose of the HRO Act is to address serious violent offending more broadly.

In light of the findings, the application to revoke the interim supervision order was dismissed. The respondent was confirmed to be a high-risk offender under the HRO Act, thereby affirming the appropriateness of the interim supervision order.

Orders

Orders of the court

HELD: The respondent is a high-risk offender — application to revoke the interim supervision order dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

It is submitted that the imposition of a positive duty to act and the criminalisation of a failure to perform that act is an established, if rarely called on, part of the criminal law. It recognises that, in certain circumstances, the consequences of a person’s inaction can be catastrophic. Accordingly, it is submitted that there is no rational reason why the high-risk offender regime ought not apply to persons who through their inaction have offended in a manner that has caused death or serious harm or a risk of death or serious harm. The consequences of an omission in circumstances in which a person has a positive duty to act can be as harmful and catastrophic as the consequences of a positive or overt act. The criminal law recognises this category of offending and imposes criminal sanctions in respect of a failure to act in such circumstances. Consideration The HRO Act is enlivened if the respondent is a serious violent offender who was sentenced to a period of imprisonment in respect of a serious offence of violence. The HRO Acts imports the definition of serious offence of violence from s 83D(1) in Part 3B Division 1 of the CLCA which relevantly defines a serious offence of violence as a serious offence where the conduct constituting the offence involves the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person. Serious offence is defined to mean an indictable offence that is punishable by imprisonment for life or for a term of five years or more. Section 83D(1) also provides that harm has the same meaning as in Part 3 Division 7A and that serious harm has “the same meaning as in Part 3 Division 7A”. As set above, s 21 in Part 3 Division 7 defines serious harm. Section 29 in Part 3 Division 7A prescribes the offence of acts endangering life or creating risk of serious harm. Section 29(2) in prescribing the offence of acts creating risk of serious harm refers to serious harm. It provides that a person is guilty of an offence where the person, without lawful excuse, does an act or makes an omission knowing that the act or omission is likely to cause serious harm to another and intending to cause such harm or being recklessly indifferent as to whether such harm is caused. The definition of serious offence of violence does not require that the conduct constituting the offence consist of a positive or overt act. It focuses on the actual harm suffered as a result of the conduct constituting the offence as well as conduct constituting the offence which involves a risk of death or serious harm. The respondent argues that s 83D of the CLCA concerns criminal gangs and violence of the kind committed by participants in such gangs as it is in Part 3B Division 1—Participation in criminal organisations. I point out it is only the s 83D definition of serious offence of violence which is imported into the HRO Act together with the definitions of serious offence and serious harm that are required to interpret the definition of serious offence of violence. As contended by the Attorney, citing McHugh J in Kelly v The Queen:[17]… once it is clear that the definition applies, the better — I think the only proper — course is to read the words of the definition into the substantive enactment and then construe the substantive enactment — in its extended or confined sense — in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment.the relevant context and purpose of a serious violent offender is the context and purpose of the HRO Act, not the context and purpose of the Part 3B of the CLCA pertaining to criminal organisations. [17] (2004) 218 CLR 216 at [103].