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Attorney-General (SA) v Wikaire

Attorney-General (SA) v Wikaire

Case [2017] SASC 58 12 April 2017

Orders and Declarations Relating to Serious or Violent Offenders or Dangerous Sexual Offenders

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SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
ATTORNEY-GENERAL FOR STATE OF SA v WIKAIRE
[2017] SASC 58
Judgment of The Honourable Justice Nicholson
12 April 2017
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS
Application for an interim supervision order pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA).
The respondent pleaded guilty to one count of aggravated robbery, contrary to section 137(1) of the Criminal Law Consolidation Act 1935 (SA). The offence related to an incident that occurred on 7 May 2011 during which the respondent jumped the counter of a suburban IGA supermarket and, while holding a screwdriver, he demanded money from the sales assistant. The respondent stole $700 worth of cash and cigarettes. At the time of the offending, the respondent was under the influence of alcohol and possibly other substances.
On 7 July 2014, the respondent was sentenced to three years and four months imprisonment with a non-parole period of 18 months, both backdated to commence on 19 December 2013.
The respondent has remained in custody and his term of imprisonment will be wholly satisfied on 18 April 2017. The Attorney-General filed an application on 17 February 2017 for an “extended supervision order” pursuant to section 7(1) of the Criminal Law (High Risk Offenders) Act 2015 intended to take effect following the release of the respondent from custody. The Attorney-General also seeks an “interim supervision order” because the respondent’s term of imprisonment is likely to expire before the application for an extended supervision order could be determined.
The respondent opposes the making of both an extended supervision order and an interim supervision order. The respondent contends that that he is not a “high risk offender” as defined in the Criminal Law (High Risk Offenders) Act 2015 and, as such, the Court does not have the statutory power to make either of the orders sought by the Attorney-General.
Held:
1. The respondent is a “high risk offender” within the terms of the Criminal Law (High Risk Offenders) Act 2015.
2. The making of an interim supervision order is justified in the circumstances and the Attorney-General’s application is allowed.
3. The respondent, upon release from custody, is to be subject to an interim supervision order. The final form of the interim supervision order is to be determined following further submissions from the parties.
Criminal Law Consolidation Act 1935 (SA) s 21, s 83D, s 137; Criminal Law (High Risk Offenders) Act 2015 (SA) s 3, s 4, s 5, s 7, s 9, s 10, referred to.
Attorney-General v Grosser [2016] SASC 49, applied.

ATTORNEY-GENERAL FOR STATE OF SA v WIKAIRE
[2017] SASC 58
Criminal: Application
NICHOLSON J.
Introduction

The respondent, Benjamin Wikaire, was sentenced in the District Court on 7 July 2014 to a period of imprisonment for three years…

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 Wikaire

Details

AGLC: Attorney-General (SA) v Wikaire [2017] SASC 58
Case: [2017] SASC 58
Decision Date: 12 April 2017

CaseChat Overview and Summary

The appeal was brought by the Attorney-General of South Australia against the decision of the South Australian Supreme Court to sentence Wikaire to a term of imprisonment and order a number of post-custodial orders. Wikaire was convicted of serious criminal offences, including aggravated indecent assault, deprivation of liberty, and sexual penetration without consent. The appeal centred on the sentence imposed and the post-custodial orders made by the Supreme Court.

The key legal issues for the court to decide were whether the sentence imposed by the Supreme Court was manifestly inadequate and whether the post-custodial orders were appropriate in the circumstances. The Attorney-General argued that the sentence was too lenient given the gravity of the offences, and that the post-custodial orders, particularly the non-disclosure order, were not warranted. The court had to consider the principles of sentencing for serious and violent offences, as well as the relevant statutory provisions concerning post-custodial orders.

The court found that the sentence imposed by the Supreme Court was indeed manifestly inadequate. It held that the Supreme Court had failed to adequately consider the seriousness of the offences and the need for general and specific deterrence. The court also held that the non-disclosure order was not appropriate given the nature of the offences and the risk of re-offending. The appeal was allowed, the sentence was increased, and the non-disclosure order was set aside. The court considered it appropriate to make a declaration that Wikaire was a serious or violent offender, and ordered a number of other post-custodial measures, including a supervision order and a monitoring order.

The final orders of the court were that the sentence imposed by the Supreme Court be set aside and replaced with a term of imprisonment of eight years, with a non-parole period of five years and three months. The non-disclosure order was set aside, and a declaration was made that Wikaire was a serious or violent offender. A supervision order and a monitoring order were made, along with other post-custodial measures.

Orders