Attorney-General (SA) v V, ZR - [2019] SASC 1

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL (SA) v V, ZR
[2019] SASC 1
Judgment of The Honourable Justice Hughes
11 January 2019
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
CRIMINAL LAW - SENTENCE - PURPOSE OF SENTENCE - PROTECTION OF COMMUNITY
Application by the Attorney-General (SA) for an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) in action SCCRM-18-30. Referral of question of a continuing detention order pursuant to s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) in action SCCRM-18-370. Proceedings in the two actions heard together.
Pending the determination of the application for an extended supervision order, the Court made an interim supervision order in respect of the respondent on 28 February 2018. In October 2018, the Parole Board determined the respondent had breached the terms of his interim supervision order and the question of a continuing detention order was referred to the Court for determination.
Prior to the determination for an extended supervision order, the respondent was charged with a further three offences.
Held:
1. The respondent be subject to an extended supervision order for a period of two years pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
2. The referral for a continuing detention order be dismissed.
3. A continuing detention order endures only during the period of the supervision order in respect of which it is made. Interim and extended supervision orders are separate orders. A continuing detention order issued as a consequence of a breach of an interim supervision order ceases to operate upon the cessation of the interim supervision order, even if the interim supervision order is succeeded by an extended supervision order.
Criminal Law (High Risk Offenders) Act 2015 (SA) s 5, s 7, s 9, s 10, s 12, s 18; Criminal Law (Sentencing) Act 1888 (SA) s 23, s 24, referred to.
R v Kimmins [2016] SASC 176; Attorney-General v Grosser [2016] SASC 49; State of NSW v John Owen Conway [2011] NSWSC 976 (8 September 2011), applied.
R v Schuster [2016] SASCFC 86; (2016) 125 SASR 388, discussed.
State of NSW v Thomas [2010] NSWSC 677 (24 June 2010), considered.

ATTORNEY-GENERAL (SA) v V, ZR
[2019] SASC 1
Criminal: Application

HUGHES J: Two matters fall to be considered by the Court. One is an application by the Attorney-General for an extended supervision order in respect of ZRV. The other is the determination on a referral by the Parole Board as to whether the Court should issue a continuing detention order in respect of ZRV. Both matters arise under the Criminal Law (High Risk Offenders) Act 2015 (the ‘HRO Act’).
The Extended Supervision Order application
The extended supervision order application was brought by the Attorney-General pursuant to s 7(1)…

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.

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Details

Case: [2019] SASC 1
Decision Date: 11 January 2019

CaseChat Overview and Summary

The Attorney-General (SA) sought an extended supervision order and referred a question regarding a continuing detention order for a person identified as V, ZR, under the Criminal Law (High Risk Offenders) Act 2015 (SA). The application was heard in the Supreme Court of South Australia. The court had to decide whether the terms of the proposed extended supervision order were appropriate given the risk posed by the respondent. Additionally, the court needed to determine if a continuing detention order was necessary under the statute.

The court examined the risk posed by the respondent and the appropriateness of the proposed terms for the extended supervision order. It also assessed the evidence to determine if the conditions for a continuing detention order were met. The court concluded that the proposed terms for the extended supervision order were appropriate for managing the identified risk. It found that there was insufficient evidence to justify a continuing detention order.

The court found that the terms of the proposed extended supervision order were suitable to address the risk identified, and thus, ordered that the respondent be subject to such an order for a period of two years. The court did not make an order for continuing detention as it did not find the necessary conditions to be met. The extended supervision order was to commence from the date of the judgment and would last for two years.

No order for continuing detention was made. The extended supervision order was to remain in effect for two years from its commencement.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am satisfied that the terms as proposed are appropriate to address the risk that has been identified.Conclusion The respondent is liable to an order for extended supervision pursuant to s 7 of the HRO act, in the terms outlined in these reasons. The order endures for a period of two years from its commencement. No order for continuing detention arising from the referral under s 18(1) is made.

Ratio Decidendi

Legal Principle Established

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