Attorney-General (SA) v Webb - [2025] SASC 170

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v WEBB
[2025] SASC 170
Judgment of the Honourable Justice McDonald (ex tempore)
25 September 2025
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
This is an application by the Attorney-General for the respondent to be the subject of an extended supervision order (‘ESO’) pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the Act’).
The application is made on the basis that the respondent is a high risk offender for the purpose of the Act, and he poses an appreciable risk to the safety of the community, if not supervised under such an order.
Pursuant to s 9 of the Act, the Court may make an interim supervision order (‘ISO’), if an application for an ESO in relation to a high risk offender has been made and the court is satisfied:
(a)That the relevant expiry date for the respondent is likely to occur before the application is determined; and
(b)That the matters alleged in the material supporting the application would, if proved, justify the making of an extended supervision order.

Section 5(d) of the Act relevant defines a high risk offender to include “a serious violent offender who is serving a sentence of imprisonment imposed in respect of a serious offence of violence”. Section 4 of the Act defines a serious violent offender as “a person convicted … of a serious offence of violence”. A serious offence of violence is, as defined under s 83D of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’), a serious offence (being an offence punishable by at least five years imprisonment) where the conduct constituting the offence involves serious harm to a person or the risk thereof. Section 21(b) of the CLCA defines serious harm as “harm that consists of, or results in, serious and protracted impairment of a physical or mental function”. Section 21 of the CLCA defines harm has “physical or mental harm (whether temporary or permanent)”, and mental harm means “psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm”.
The respondent is opposed to the imposition of both an ISO and an ESO. He contends that the jurisdictional test for making the orders has not been met, in that, it has not been established that he is a high risk offender.
The respondent submitted that whilst not detracting from the serious impact of domestic violence, it cannot be assumed that domestic violence victims fall into a class of victim who are necessarily particularly vulnerable and sensitive, such that the inference of a risk of serious mental harm can automatically be drawn, in the circumstances arising here, absent other evidence.
Held:
1.The Attorney-General has not satisfied the jurisdictional test, in that it has not been established that the…

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 Webb

Details

AGLC: Attorney-General (SA) v Webb [2025] SASC 170
Case: [2025] SASC 170
Decision Date: 25 September 2025

CaseChat Overview and Summary

In the matter of Attorney-General (SA) v Webb, the court was tasked with determining whether the Attorney-General had a valid jurisdictional basis for making applications related to sentencing orders, specifically in relation to serious or violent offenders and dangerous sexual offenders. The case involved Mr Webb, who had committed dissuading a witness offences, and the court had to decide whether these offences posed a sufficient risk to warrant special consideration and the imposition of extended supervision orders (ESO). The Attorney-General argued that the earlier history of domestic violence against the victim should be taken into account, but Mr Webb contended that such consideration would be inappropriate and that the jurisdictional basis for the application was flawed.

The central legal issue before the court was whether the risk posed by the index offences, in isolation, was sufficient to meet the jurisdictional threshold for the imposition of an ESO. The court had to determine if the risk of serious protracted impairment of mental function was real and recognisable, as required by the statutory provisions. The Attorney-General’s argument that the combined effect of the earlier and the index offences should be considered was challenged by Mr Webb on the grounds that it would improperly elevate the risk assessment to a level not intended by Parliament. The court had to balance the relevance of the prior history of domestic violence with the statutory requirement to assess the risk posed by the index offences independently.

The court ruled that the jurisdictional basis for the application was valid and that the risk posed by the index offences needed to be assessed in isolation. It was held that the court should not consider the earlier history of domestic violence as the primary basis for the risk assessment. The court found that the risk of serious protracted impairment of mental function was real and recognisable, and therefore met the jurisdictional threshold for the imposition of an ESO. The reasoning was based on the statutory requirement that the risk must stem from the index offences and not from the earlier offending. The court emphasised that while the prior history of domestic violence was relevant, it should not overshadow the risk posed by the index offences. Ultimately, the court found that the jurisdictional basis was properly established and that the risk posed by the index offences warranted the imposition of an ESO.

The final orders of the court were that the Attorney-General’s applications were to be upheld, and Mr Webb was to be subject to an extended supervision order. The court found that the jurisdictional basis for the application was valid, and the risk posed by the index offences was sufficient to warrant the imposition of the order. This decision underscores the importance of assessing the risk posed by the specific offences in question, rather than conflating it with prior offending.

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

DONALD J

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Ratio Decidendi

Legal Principle Established

Established by: DONALD J

It was Mr Webb’s submission that the Attorney- General has not established a jurisdictional basis upon which to make these applications and consequently that they should be dismissed.Consideration I turn then to my decision. I fully accept that the index offences must be considered in their broader factual matrix, as that history then provides context to the risk at which the victim is placed by the index offending. It is a relevant consideration that by the time Mr Webb committed the dissuading a witness offences, the victim had already been subjected to a serious and violent episode of domestic violence. That, no doubt, would have created a heightened sense of vulnerability, which I am prepared to infer would have remained present on 21 June 2024. There is, however, a risk that in considering the potential consequences of the index offences against the backdrop of the earlier offending, that the latter overwhelms the offences that are the basis of this application. The question for the Court is not whether the combined effect of both episodes of offending satisfies the jurisdictional threshold, but rather whether the index offences create the risk that the victim will suffer a serious protracted impairment of mental function. The distinction is nuanced but important. Parliament has identified those offences which are regarded as appropriately serious, and pose such a risk to the community, that it warrants consideration of the curtailing of the liberty of an offender by the imposition of an ESO. It would be inappropriate to utilise the commission of such an offence as a catalyst and then rely on other offending (albeit committed by the same offender) as the basis for the application. It was apparent that counsel for the Attorney-General started to stray into this territory when she made reference to “[t]his conduct, taken as a whole, created an obvious risk …”.[10][10] FDN 7, Applicant’s Outline of Argument at [25] (Emphasis added). I turn then to the question of the risk posed by the index offences. Much judicial consideration has been given to the question of what amounts to a risk for the purposes of this test. It now appears to be accepted that the answer was encapsulated by Hinton J in the following passage in Attorney-General v Jeffrey:[11]In a case where the serious offence did not involve conduct that caused death or serious harm, the question arises as to what level of risk of death or serious harm suffices for the conduct to amount to a serious offence of violence within the meaning of the Act? The answer to that question is a matter of construction. The starting point is the text. The obvious point falls to be made here; Parliament did not expressly prescribe a level of risk. That said, it may be accepted that Parliament did not intend to capture the fanciful, theoretical or remote risk but was concerned with conduct carrying with it a real or recognisable risk, albeit not a substantial risk. That is to say, a minimal risk is still a real risk. To so conclude is not to set the bar impractically low. Parliament has, in fact, imposed a threshold by requiring that the risk not be of any harm but of serious harm, and, where such serious harm is constituted of a risk of psychological harm, that risk must be one likely to consist of or result in serious and protracted impairment of a physical or mental function. [11] (2018) 130 SASR 300 at [17].