Attorney-General (SA) v Wen - [2025] SASC 113

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v WEN
[2025] SASC 113
Reasons for Decision of the Honourable Justice Kimber
15 July 2025
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 - SERIOUS OR VIOLENT OFFENDER
This is an application by the Attorney-General seeking an order that the respondent be subject to an extended supervision order pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). Given the timing of the application, the Attorney-General is seeking an interim supervision order against the respondent pursuant to s 9(1) of the Act.
Among other things, the jurisdiction of the Court to make an interim supervision order demands that the Attorney-General establish on the balance of probabilities that the respondent is a high-risk offender as defined in the Act. In deciding this application, the issue is whether the Attorney-General has established, on the balance of probabilities, that the conduct constituting the offence involved a risk of serious and protracted impairment of a mental function. The respondent submitted that, at best, there was a risk of harm but, assuming that was so, that was not sufficient to discharge the burden.
Held:
1.The Attorney-General has not established on the balance of probabilities that the respondent is a high-risk offender as defined in the Act. Jurisdiction does not exist to make an order pursuant to s 9 of the Act.

Criminal Law Consolidation Act 1935 (SA) ss 20AA, 21, 83D; Criminal Law (High Risk Offenders) Act 2015 (SA) ss 4, 5, 7, 9, referred to.
Attorney-General (SA) v Adams [2020] SASC 58; Attorney-General (SA) v Jeffery (2018) 130 SASR 30; Attorney-General (SA) v Laughlin [2019] SASC 105; Attorney-General (SA) v Wikaire (2017) 127 SASR 565, applied.
Attorney-General (SA) v Gates (2017) 129 SASR 298, considered.

ATTORNEY-GENERAL (SA) v WEN
[2025] SASC 113
Criminal: Application
KIMBER J:

Pursuant to s 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act), the Attorney-General seeks an order that Ms Elena Wen (the respondent) be subject to an extended supervision order. Given the timing of the application, the Attorney-General seeks an interim supervision order pursuant to s 9(1) of the Act.
Among other things, the jurisdiction of the Court to make an interim supervision order demands that the Attorney-General establish on the balance of probabilities that the respondent is a high-risk offender as defined in the Act. The issue is whether the Attorney-General has met that burden.
I find that the Attorney-General has not met his burden, and jurisdiction does not exist to make an interim supervision order pursuant to s 9 of the Act. My reasons follow.
The Act
The jurisdictional facts of which I must be satisfied to make an interim supervision order are set out in s 9(1) of the Act:
9—Interim supervision orders
(1)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 Wen

Details

AGLC: Attorney-General (SA) v Wen [2025] SASC 113
Case: [2025] SASC 113
Decision Date: 15 July 2025

CaseChat Overview and Summary

In the case of Attorney-General (SA) v Wen, the court was called upon to decide whether the respondent, Wen, qualified as a high-risk offender under the relevant legislation, warranting the imposition of a post-custodial supervision order. This decision was necessary to determine if Wen should be subject to additional monitoring and supervision following the completion of her custodial sentence. The case hinged on whether Wen posed a significant risk to the community due to her past conduct and mental health conditions.

The primary legal issue before the court was whether the respondent's risk of reoffending was high enough to justify the imposition of a post-custodial supervision order under the applicable legislation. The court had to consider the evidence presented regarding Wen's mental health, her history of violent conduct, and the nature of the offence for which she was convicted. Specifically, the court needed to determine if there was a serious and protracted impairment of a mental function and if this risk was sufficient to classify Wen as a high-risk offender.

In reaching its decision, the court meticulously examined the evidence and submissions provided. It noted that while Wen had a personality disorder and a history of violent conduct, the specific offence for which she was convicted did not clearly demonstrate a serious and protracted impairment of a mental function. The court concluded that, based on the material before it and focusing on the conduct constituting the offence, it was not satisfied on the balance of probabilities that Wen posed a significant risk to the community. Consequently, the court found that the jurisdiction to make an order pursuant to the relevant section of the Act was not activated.

The court dismissed the application of the Attorney-General, ruling that the respondent did not qualify as a high-risk offender under the legislation. Therefore, no post-custodial supervision order was to be imposed on Wen following her release from custody.

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

As mentioned, it is the case that persons subject to violence can suffer an impairment of a mental function which is serious and protracted. Further, as mentioned, given the respondent has a personality disorder and given her past conduct, there is a very real risk that in the future she will act in a way which poses a risk to others. It may be that if more was known about the offence, that the jurisdiction to make the order would exist. Nevertheless, on the material before me, and as I must focus on the conduct constituting the offence, on the balance of probabilities, I am not satisfied that the risk of an impairment of a mental function, which was both serious and protracted, was anything more than remote. Conclusion For the reasons set out above, the Attorney-General has not established on the balance of probabilities that the respondent is a high-risk offender. I find that the jurisdiction to make an order pursuant to s 9 of the Act is not enlivened. The application of the Attorney-General is dismissed.

Ratio Decidendi

Legal Principle Established

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