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 Supreme Court may make an interim supervision order if an application for an extended supervision order 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 or has already occurred; and
(b) that the matters alleged in the material supporting the application would, if proved, justify the making of an extended supervision order.
Plainly enough, one of the essential jurisdictional facts is that the respondent is a high-risk offender.
Section 5(d) of the Act provides that a high-risk offender includes a ‘serious violent offender’ who was sentenced to a period of imprisonment in respect of the ‘serious offence of violence’. - co_footnote_1488803~FULLTEXT~FTNT.!5 Section 4 of the Act provides that a ‘serious violent offender’ means a person convicted of a ‘serious offence of violence’ and that a ‘serious offence of violence’ has the same meaning as set out in s 83D(1) of the Criminal Law Consolidation Act 1935 (SA) (CLCA). - co_footnote_1488803~FULLTEXT~FTNT.!6 Relevant to this application, s 83D(1) of the CLCA provides that a:
serious offence of violence means a serious offence where the conduct constituting the offence involves—
(a) the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person.
A ‘serious offence’ is defined within s 83D(1) of the CLCA to mean ‘an indictable offence that is punishable by imprisonment for life or for a term of five years or more’. In this case, death was not caused, and it is not submitted that the conduct constituting the offence upon which the Attorney-General relies involved a risk of death. It follows that the issue in this application is whether the respondent committed a ‘serious offence’ where the ‘conduct constituting the offence’ (the conduct) involves ‘serious harm’ to a person or a risk of ‘serious harm’ to a person. Section 83D(1) of the CLCA also provides that ‘serious harm’ bears the same meaning as set out in Part 3 Division 7A of the CLCA. ‘Serious harm’ is defined in that Part and within s 21(1) of the CLCA to mean:
(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.
Section 21(1) of the CLCA also sets out the meanings of other terms with potential relevance. ‘Harm’ is defined to mean ‘physical or mental harm (whether temporary or permanent)’. - co_footnote_1488803~FULLTEXT~FTNT.!9 ‘Mental harm’ is defined to mean ‘psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm’.
The issue
As mentioned, the issue in this application is whether the respondent is a high-risk offender.
The offence relied upon by the Attorney-General is an offence of Assaulting a Prescribed Emergency Worker contrary to s 20AA(3) of the CLCA (the offence). There is no dispute that the offence is a serious offence as defined in s 83D(1) of the CLCA. On the hearing of the application, the Attorney-General did not seek to establish that any form of serious harm had been caused, nor was it submitted that any risk of serious harm was relevant, other than serious and protracted impairment of a mental function. As a result, the issue is whether it has been 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 conduct constituting the offence
I accept the matters set out below which, for the most part, are drawn from a Police Apprehension Report. I have some reservations about acting on such a document as it is not uncommon that facts set out in such a document are not later proven. However, on the hearing of the application, the respondent did not dispute the matters set out below.
At about 4:30pm on 20 January 2025, the respondent entered a police station at Netley and asked to speak to a police officer in private. The respondent and the victim went into an interview room and sat at a table within that room. The dimensions of that room are not known, but given that it is described as an interview room, it is likely to have been a relatively small room. The respective positions of the victim and the respondent at the table are not known. There is no information about the distance between the victim and the respondent, nor about whether the table was between them. Once seated, the respondent unzipped a bag she was wearing across her body and produced what is described as an ‘oyster knife’. The knife is not otherwise described so its dimensions are not known. Given the description as an oyster knife, it may be assumed that it was a knife of a type ordinarily used to open an oyster. Given the absence of any additional information, and the onus upon the Attorney-General, it is appropriate to conclude that the knife may have been relatively small.
Having produced the knife, the respondent stood up and pointed the knife at the victim. The victim directed the respondent to put the knife down on at least two occasions, but the respondent did not do so. The victim left the room and was able to secure the respondent in the room. Once alone in the room, the respondent continued to point the knife at the victim who was outside the room but looking through a window, presumably in the door. It may be assumed that once outside the room, the victim was no longer at risk of physical harm.
The room having been secured, police detained the respondent under the Mental Health Act 2009 (SA). The respondent was taken by ambulance officers for a mental health assessment. Having been arrested, the respondent was interviewed later that night. The respondent said that she had taken the knife to the police station as she wanted to hurt someone. The respondent said that she had been having homicidal thoughts for a while and just wanted to hurt someone.
The Attorney-General did not submit that the victim was aware of the comments made by the respondent when she was interviewed. It follows that those comments cannot have impacted the victim. If those comments have any relevance, it might be to inform the attitude of the respondent while in the interview room with the victim. In that limited sense, the comments can inform the risk posed.
After the incident, the victim reported that fear was experienced when the respondent produced the knife. Nevertheless, there is nothing before me which informs whether that fear was anything other than temporary. There is also nothing before me to suggest that the victim felt any response other than fear.
A risk of a serious and protracted impairment of a mental function
As mentioned, the Attorney-General seeks to establish that the respondent is a high-risk offender on the ground that the conduct constituting the offence involved a risk of a serious and protracted impairment of a mental function.
‘Mental function’ is not defined in the CLCA, but the meaning is informed from the context in which it appears. Within s 21, ‘mental harm’ is defined to mean ‘psychological harm’ which does not include emotional reactions such as distress, grief, fear or anger, unless they result in psychological harm. There is no definition of psychological harm.
As mentioned, there is no suggestion that serious harm was caused by the respondent. However, that does not mean that there cannot be satisfaction of a relevant risk. As observed by Nicholson J in Attorney-General (SA) v Wikaire:[1]
Whether or not an offender has, in fact caused serious harm (physical or mental) is an important consideration but whether or not such a person poses the risk of causing such serious harm is no less important a consideration.
[1] (2017) 127 SASR 565, [15].
In my view, I must be satisfied that the conduct the subject of the offence involved a risk of a serious and protracted impairment of a mental function, being more than emotional reactions such as distress, grief, fear, or anger.
In determining whether the conduct of the respondent involved the risk just identified, I must make an evaluative judgment. That judgment must be reflective of common human experience.[2] The relevant risk must be more than fanciful, theoretical or remote.[3] As observed by Hinton J in Attorney-General (SA) v Jeffery, while the risk must be ‘real or recognised’, it need not be substantial. A minimal risk is still a real risk.[4]
[2] Attorney-General (SA) v Jeffery (2018) 130 SASR 30 (Attorney-General (SA) v Jeffrey), [13].
[3] Ibid, [18]; Attorney-General (SA) v Adams [2020] SASC 58, [13].
[4] Attorney-General (SA) v Jeffery, [17].
The submissions of the parties
The respondent submitted that the relevant risk had not been established. The respondent submitted that, at best, there was a risk of harm but, assuming that was so, that was not sufficient.
In submitting that the existence of the relevant risk should be found, the Attorney-General directed attention to the knife having been produced in what was likely a room of modest size; the weapon; the weapon having been pointed at the victim; and that the respondent did not put the knife down, having been asked to do so. I would add that the victim felt the need to leave the room and that the respondent continued to brandish the knife while the victim was looking into the room from the outside. There is also that the nature of the conduct in the room may be informed by the later statements of the respondent, albeit that those statements cannot be treated as having any impact upon the state of mind of the victim.
Those things said, as mentioned, there is nothing before me about the knife, other than its description as an oyster knife; no suggestion that the victim had difficulty in leaving the room; no indication of how long passed between the production of the knife and the victim leaving the room; no suggestion that, having left the room, the victim was concerned that the respondent might leave the room while still armed; and nothing to suggest that the fear experienced by the victim was anything other than temporary.
It might be observed, respectfully, that when advancing an application which, if successful, would see a person placed on a supervision order pursuant to the Act – an order that commonly substantially restrains the freedoms people enjoy when in the community – at least some of the matters just mentioned might have been placed before the Court. It can be noted that the Act has recently been amended to permit the making of an interim supervision order after the relevant expiry date has already occurred.[5] This includes, as in this case, after the term of imprisonment expired.[6] It follows that the expiry date was not an impediment to obtaining information beyond that which appears in the Police Apprehension Report.
[5] Criminal Law (High Risk Offenders) Act 2015 (SA), s 9(1)(a).
[6] Ibid, s 4.
It also might be observed, respectfully, that apparently through no fault of her own, the respondent appears to be a person of very significant vulnerability. The respondent is 27 years of age. Her primary diagnosis is borderline personality disorder, but there have also been diagnoses of autism spectrum disorder, attention deficit hyperactivity disorder, chronic suicidal ideation and complex post‑traumatic stress disorder. The respondent has an NDIS plan with supports totalling more than $220,000 per annum. It has been reported that she has been involved with mental health services since she was 15 years of age and between 2012 to 2024 required 37 admissions to mental health services and a further 10 admissions to the psychiatric intensive care unit. Between January 2023 to August 2024, the respondent spent about 19 months as a resident at the Glenside Inpatient Rehabilitation Services. She has been assessed as having limited ability to maintain self-care. It has been reported by the Department of Correctional Services that the respondent requires support to live safely in the community, is not suited for independent living and should have support 24 hours a day, 7 days a week at a ratio of 1:1.
I do not mention the above to suggest that an order, such as that sought by the Attorney-General, can never be appropriate for a person with a history and vulnerabilities like that of the respondent, nor that they weigh against a finding that the respondent is a high-risk offender. Subject to other matters being established, the Act demands that whether the finding that a person is a high-risk offender should be made must focus on the conduct involved in the offence. Respondents with personality disorders, psychiatric conditions and/or other vulnerabilities will be among those with respect to whom orders pursuant to the Act must be made. Indeed, subject to jurisdiction existing, an order pursuant to the Act might be particularly appropriate for a person with a personality disorder and/or psychiatric disorder which heightens the risk of violent conduct. However, it is also the case that persons like the respondent may be subject to several serious disadvantages. For example, they can find it difficult to engage with the legal system; they can find it difficult to understand the importance of obligations that are imposed by courts; they can find it difficult to comply with such obligations; and can find it difficult to fully appreciate the consequences of non-compliance. Such difficulties have the potential to increase in frequency and severity when legal proceedings are complex and the obligations sought to be imposed are numerous, particularly restrictive and long lasting.
If an interim supervision order is made, an order must be made that the respondent is to be examined by a prescribed health professional who then reports to the Court on the results of that examination.[7] The Court is then obliged to take that report into account in deciding whether to make an extended supervision order. In my experience, it is now common that a respondent will not have been examined as long as four to six months after an interim supervision order was imposed. That is no doubt the result of the considerable, and growing, number of persons subject to orders pursuant to the Act and the limited prescribed health professionals with the willingness, expertise and availability to conduct the examinations and to report to the Court. Even once examined, there will be further delay as a result of the need to prepare the report.
[7] Ibid, s 7.
Proceedings like this can be stressful and provoke feelings of considerable anxiety and uncertainty for respondents. This is perhaps even more so when, as in this case, through no fault of anyone, the expiry date for the respondent was a Monday, she was only served with the application on the Saturday immediately before the expiry date and while in custody, and her solicitor was only served with the application after hours on the Friday. Such circumstances prevented the respondent engaging with a solicitor before the matter was first listed before the Court. It is notorious that for people with vulnerabilities, like those borne by the respondent, stress, anxiety and uncertainty can increase the risk of erratic behaviour and psychiatric illness.
It should not be thought that I make the above observations as any criticism of the Attorney-General or his counsel. I do not. Counsel for the Attorney-General was only helpful, and I am not cognisant of all the information known to them. Further, it is likely that the information calling for consideration by the Attorney‑General of whether an application pursuant to the Act should be made only became known very shortly before the respondent was served. I make these observations only because, if an application of this type is to be made, given the importance for the community and for the respondent, there should be an expectation that it be supported by all the information which is reasonable to obtain.
Evaluation

The issue is not whether the respondent is at risk of engaging in violent conduct, including conduct involving a knife or other weapon. The respondent clearly poses that risk. The issue is whether, on the information available to me, the conduct constituting the offence involved a risk of a serious and protracted impairment of a mental function.
Nothing is known about the victim other than that they were a police officer and the conduct of the respondent caused them to experience fear. It follows that nothing is known about the whether the victim is particularly vulnerable. Given their work, it is sadly well known that police officers can experience serious mental illness. Nevertheless, I am not satisfied that it is appropriate to assume that a police officer is any more, or less, likely to experience a serious and protracted impairment of a mental function after an incident such as this compared to a person not engaged in such work.
As to the approach to be taken to the vulnerability of a victim, I agree with the approach of Doyle J in Attorney-General (SA) v Laughlin:[8]
… I accept that the assessment of risk must be approached on the basis that the victim was a person without any particular known vulnerability and so might be assumed to be a person of normal fortitude. But, in my view, that still means the matter is to be approached with some flexibility and allowing for some range of susceptibility, albeit perhaps excluding the most vulnerable and the most robust of persons on the basis that that would involve dealing with risks which are of a more theoretical nature rather than those which the section is intended to capture.
[8] [2019] SASC 105, [23].
I have considered several judgments of this Court which have discussed the risk of serious and protracted impairment of a mental function following violent conduct.[9] There should be no doubt that violent conduct can cause conditions such as post-traumatic stress disorder and adjustment disorders with anxiety state, and that such disorders are serious and can be protracted.
[9] Attorney-General (SA) v Jeffery; Attorney-General (SA) v Wikaire (2017) 127 SASR 565; Attorney‑General (SA) v Laughlin [2019] SASC 105; Attorney-General (SA) v Gillard [2022] SASC 104.
The outcomes in other matters are instructive, including in confirming that the relevant risk may be established without evidence of any lasting impact upon the victim and without expert evidence of the potential impact of being the victim of violent conduct, including a threat involving a weapon.
Ultimately, however, whether the Attorney-General has met his burden must be decided bearing in mind the facts of this case. That a weapon was produced, and was pointed at the victim; that the respondent can be assumed to have been behaving erratically given her conduct; that the victim experienced fear; and that it is known that victims who are subject to violent conduct can sometimes experience impairment of a mental function which is serious and protracted are all matters which weigh in favour of the outcome urged by the Attorney-General.
At the same time, nothing is known about the weapon other than that it is described as an oyster knife; nothing is known about how long the victim was in the room with the respondent before being able to leave; there is nothing to suggest that the victim had any difficulty in leaving the room; there is nothing to suggest that the victim experienced anything more than fear; nothing to suggest that the feeling of fear was anything other than temporary; and the victim is not to be treated as being in the class of persons who may be the most vulnerable.
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.