Attorney-General (SA) v Wells

Case [2017] SASC 149

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

ATTORNEY-GENERAL (SA) v WELLS

[2017] SASC 149

Judgment of The Honourable Justice Hinton

18 October 2017

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS

Application by Attorney-General for the State of South Australia for an extended supervision order pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA).

The respondent pleaded guilty to one count of aggravated causing harm with intent to cause harm contrary to s 24(1)(b) of the Criminal Law Consolidation Act 1935 (SA) and was sentenced to two years and three months imprisonment with a non-parole period of 20 months.

The circumstances of the offending were that the respondent punched a defenceless restrained man once to the head.

The respondent had a considerable history of offending.  Much of his offending was associated with his abuse of illicit drugs.  A report prepared by a forensic psychiatrist opined that there was a significant likelihood of the respondent committing a violent offence in future.

Held: Application granted.

1. The respondent is a high risk offender for the purposes of s 5 and s 7(4)(a) of the Criminal Law (High Risk Offenders) Act 2015 (SA).

2. The respondent poses an appreciable risk to the safety of the community for the purpose of s 7(4)(b) of the Criminal Law (High Risk Offenders) Act 2015 (SA).

3. The respondent is to be subject to an extended supervision order pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) for two years, subject to conditions.

Criminal Law (High Risk Offenders) Act 2015 (SA) s 5, s 7(4), s 15, s 17, s 18, referred to.
Attorney-General (SA) v Grosser [2017] SASC 49; Attorney-General (SA) v Grosser (No 3) [2017] SASC 89, applied.

ATTORNEY-GENERAL (SA) v WELLS
[2017] SASC 149

Criminal:  Application

HINTON J.

Introduction

  1. Anthony Wells, the respondent, is well known to the criminal courts of this State. His offender history runs to some seven pages. His first contact with the criminal courts came when he was fifteen years old. He is now 39. At present he is being held in prison on a warrant issued by the Parole Board under s 15 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act). That warrant was issued on 8 May 2017 and executed two days later in consequence of Mr Wells breaching an interim extended supervision order made by this Court on 10 January 2017. That order was made with the consent of Mr Wells pending the hearing of an application made by the Attorney‑General under s 7 of the High Risk Offenders Act.  I say something more about Mr Wells’ breach of the interim order and the period that he has been held in custody below.

  2. The Attorney-General’s application is for an extended supervision order of three years duration.  For the reasons that follow, I grant the Attorney-General’s application, but for a period of two years. 

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AGLC
Attorney-General (SA) v Wells [2017] SASC 149
Case
[2017] SASC 149
Decision Date

CaseChat Overview and Summary

The case of Attorney-General (SA) v Wells involved a challenge by the Attorney-General to the South Australian Supreme Court regarding the detention of the respondent, Mr. Wells, post-sentence. The primary issue was whether Mr. Wells qualified as a "high risk offender" under the High Risk Offenders Act 2006 (SA), which would justify his continued detention under a post-custodial order. This classification was pivotal as it would determine whether the Parole Board's inaction in reviewing his case was justified.

The court was tasked with determining whether Mr. Wells was a "high risk offender" as defined by the High Risk Offenders Act 2006. This classification hinged on whether Mr. Wells was a "serious violent offender" who had been sentenced to imprisonment for a "serious offence of violence." The definition of these terms was sourced from other statutory provisions, necessitating a detailed interpretation of those sections to ascertain Mr. Wells's status. The court also needed to consider the procedural aspect of the Parole Board's delay in acting under section 17(1) of the Act, which raises questions about the legality of Mr. Wells's continued detention if the Board had not exercised its powers in a timely manner.

The court found that Mr. Wells qualified as a "high risk offender" because he had been convicted of a "serious offence of violence," which involved a risk of serious harm. The detailed statutory definitions provided a clear framework for this determination. The court did not definitively rule on the legality of the continued detention due to the Parole Board's delay but highlighted the importance of timely action by the Board. The evidence presented, including affidavits and expert reports, supported the Attorney-General's position that Mr. Wells posed a significant risk to public safety.

The court's decision affirmed Mr. Wells's classification as a "high risk offender" under the High Risk Offenders Act 2006. This ruling justified the need for ongoing assessment and management of his risk. The court did not make a final determination on the legality of his continued detention but emphasised the necessity for the Parole Board to act promptly. The court's decision underscored the importance of adhering to statutory timelines and procedures to ensure the lawful management of high-risk offenders.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

It is not clear to me why there has been a delay in the Board taking action under s 17(1). Absent the exercise of that power a very real question arises as to the authority pursuant to which Mr Wells has been held in custody. I have not had the benefit of argument on this question, but on one view, the Parole Board is required to act under s 17(1) as soon as reasonably practicable after the execution of the warrant. Thereafter an offender may only be detained in custody if the power contained in s 17(1)(b)(ii) is exercised with the question of the continuation of detention passing to this Court under s 18. As events have unfolded in this case, the Executive has indeterminately detained Mr Wells and, counsel for the Attorney-General suggests that it can continue to do so until such time as it chooses to exercise the power contained in s 17(1). I repeat, I have not heard full argument on this question and do not decide it. I am content with the observation that I find it unsatisfactory that the Parole Board is yet to act under s 17(1).The evidence tendered in support of the Attorney-General’s application On the hearing of the application the Attorney-General tendered the following: (i)Affidavit of Fiona Yumi Williams-Mitchell, sworn 14 December 2016;(ii)Second Affidavit of Fiona Yumi Williams-Mitchell, sworn 16 December 2016;(iii)Affidavit of Sean Thomas O’Flaherty, affirmed 14 February 2017;(iv)Affidavit of Sean Thomas O’Flaherty, affirmed 28 April 2017; and(v)Report of Dr Pei Lim, dated 17 August 2017. Mr Wells did not object to the tender of any of the above evidential material. He declined to adduce any evidential material himself and elected not to give evidence. I have had regard to all of the material tendered. Following the hearing, counsel for the respondent provided a letter to the Court dated 16 October 2017 from Mr Glenn Marrin, Housing Coordinator at the Department for Correctional Services, regarding an assessment of Mr Wells for the Integrated Housing Exit Program and the Integrated Housing Exit Alternative Accommodation Service (IHEAAS). The Attorney-General did not object to my receiving the letter. I have had regard to it.Is the respondent a high risk offender? As mentioned the Attorney-General contends that Mr Wells is a high risk offender within the meaning of s 5 because he is a serious violent offender who was sentenced to a period of imprisonment in respect of a serious offence of violence. Section 4 of the High Risk Offenders Act defines a “serious violent offender” as meaning a person convicted of a serious offence of violence. Section 4 defines a “serious offence of violence” by picking up the definition of that phrase in s 83D(1) of the Criminal Law Consolidation Act 1935 (SA). The definition of a serious offence of violence contained in s 83D(1) includes, relevantly, a serious offence where the conduct constituting the offence involves a risk of serious harm to a person. A “serious offence” is also defined in s 83D(1) as is “serious harm”. The former is an indictable offence punishable by imprisonment for life or a term of 5 years or more whilst the latter picks up the definition contained in Part 3 Division 7A of the Criminal Law Consolidation Act 1935 which provides that:serious harm means – (a) harm that endangers a person’s life; or(b) harm that consists of, or results in, serious and protracted impairment of a physical or mental function; or(c) harm that consists of, or results in, serious disfigurement.

Decision

Reasons for decision

HINTON J

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Ratio Decidendi

Legal Principle Established

Established by: HINTON J

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