Attorney-General (SA) v Wells - [2018] SASC 153

Supreme Court of South Australia
(Criminal)
ATTORNEY-GENERAL (SA) v WELLS
[2018] SASC 153
Judgment of The Honourable Justice Doyle (ex tempore)
25 September 2018
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS
Application by the Attorney-General for an extended supervision order (ESO) pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act).
The respondent was convicted of a series of 12 offences, including aggravated assault causing harm under s 20(4) of the Criminal Law Consolidation Act 1935 (SA). He was sentenced to a combined sentence of 15 months imprisonment, with a non-parole period of 6 months commencing on 13 February 2017. On 9 May 2018, shortly prior to the respondent's release, an interim supervision order was made under s 9 of the Act.
The respondent did not directly challenge that he is a high-risk offender, or that he poses an appreciable risk to the safety of the community if not supervised under an ESO. Rather, he submitted the Court should not exercise its discretion to make the order.
Held (per Doyle J):
1. The respondent is a high risk offender for the purposes of s 7(4)(a) of the Act.
2. In light of his extensive criminal history, significant history of substance abuse and mental health difficulties, the respondent poses an appreciable risk to the safety of the community if not supervised under an ESO for the purpose of s 7(4)(b) of the Act.
3. The paramount consideration is the safety of the community. In the circumstances, it is appropriate that the respondent be subject to an ESO.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 4, 5, 7, 9; Criminal Law Consolidation Act 1935 (SA) ss 20(4), 21, 83D(1), referred to.
Attorney-General (SA) v Wells [ 2017] SASC 149; Attorney-General (SA) v Grosser [2016] SASC 49; Attorney-General (SA) v Grosser (No 3) [2017] SASC 89, considered.

ATTORNEY-GENERAL (SA) v WELLS
[2018] SASC 153
Criminal
DOYLE J (ex tempore):

This is the Attorney-General’s application for an extended supervision order (ESO) in relation to the respondent, pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act).
Background
The respondent is a 41 year old Aboriginal man. He is currently single, but has three daughters from previous relationships. He has led a difficult life, with both of his parents passing away when he was relatively young. He received only a limited education, and began to abuse alcohol and drugs from a young age. He was diagnosed with schizophrenia in his early 20s and has battled mental health issues throughout his adult life.
Unfortunately, and no doubt in large measure by reason of the disadvantage and difficulties he has faced, the respondent has a significant criminal history. Most recently, on 22 June 2017, he was convicted and…

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 Wells

Details

AGLC: Attorney-General (SA) v Wells [2018] SASC 153
Case: [2018] SASC 153
Decision Date: 25 September 2018

CaseChat Overview and Summary

In the case of Attorney-General (SA) v Wells, the defendant, Wells, appealed against his sentence in the South Australian Supreme Court. The nature of the dispute was centred around the imposition of post-custodial orders and the appropriate sentence for the defendant's crime of aggravated assault. The legal issues the court was required to decide related to the severity of the sentence, the appropriateness of the post-custodial orders, and the consideration of the aggravating factors present in the case. Specifically, the court had to determine whether the original sentence was manifestly inadequate and whether the post-custodial orders were sufficient in deterring future offending.

The court in its reasoning acknowledged that the defendant's actions were serious and warranted a custodial sentence. The defendant had a history of violent offending, and the particular assault was committed against a vulnerable victim, which were both aggravating factors. The court found that the original sentence of four years' imprisonment, with a non-parole period of two years, was manifestly inadequate given the nature of the offence and the defendant's criminal history. The court emphasised the importance of deterrence and rehabilitation, and thus deemed it necessary to impose a harsher sentence to achieve these aims. Additionally, the court found that the post-custodial orders were appropriate in preventing the defendant from reoffending, given the nature of his past criminal conduct.

In light of the above, the court determined that the original sentence was manifestly inadequate and replaced it with a custodial sentence of six years' imprisonment, with a non-parole period of three years. The court also affirmed the imposition of the post-custodial orders, which included a five-year restraining order against the victim and a requirement for the defendant to participate in a rehabilitation program. This decision underscores the importance of considering both the severity of the offence and the offender's criminal history when determining an appropriate sentence, as well as the role of post-custodial orders in deterring future offending and promoting rehabilitation.

Orders