Attorney-General (SA) v Wikaire - [2017] SASC 58

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 and four months, backdated to commence 19 December 2013, after having been convicted of the offence of aggravated robbery contrary to section 137(1) of the Criminal Law Consolidation Act 1935 (SA). The date on which the term of imprisonment will be taken to be wholly satisfied is 18 April 2017 at which time the respondent will be entitled to be released from custody.
By application filed 15 February 2017, the Attorney-General for the State of South Australia has sought an “extended supervision order” pursuant to section 7(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (“the Act”) to take effect following the release of the respondent from custody. The making of such an order is opposed by the respondent. Section 7 of the Act is in these terms.
7—Proceedings
(1)The Attorney General may make an application to the Supreme Court for an extended supervision order to be made in respect of a person who is a high risk offender (the respondent).
(2)An application for an extended supervision order may only be made within 12 months of the relevant expiry date for the respondent.
(3)The Supreme Court must, before determining whether to make an extended supervision order, direct that 1 or more legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) examine the respondent and report to the Court on the results of the examination, including—
(a)     if the respondent is a serious sexual offender—an assessment of the likelihood of the respondent committing a further serious sexual offence; or
(b)     if the respondent is a serious violent offender—an assessment of the likelihood of the respondent committing a further serious offence of violence.
(4)The Supreme Court may, on application under this section, order that the respondent is to be subject to an extended supervision order if satisfied that—
(a)     the respondent is a high risk offender; and
(b)     the respondent poses an appreciable risk to the safety of the community if not supervised under the order.
(5)The paramount consideration of the Supreme Court in determining whether to make an extended supervision order must be the safety of the community.
(6)The Supreme Court must also take the following matters into consideration in determining whether to make an extended supervision order in respect of the respondent:
(a)     the likelihood of the respondent committing a further serious sexual offence or serious offence of violence (as the case may be) if not supervised under the order;
(b)     the reports of any medical practitioner (as directed and nominated under subsection (3)) furnished to the Court;
(c) any report prepared by the Parole Board under section 64(5) of the Correctional Services Act 1982;
(d)     any report required by the Court under section 20 (including the results of any statistical or other assessment furnished to the Court as to the likelihood of persons with histories and characteristics similar to those of the respondent committing a further relevant offence);
(e)     any relevant evidence or representations that the respondent may desire to put to the Court;
(f)    any treatment or rehabilitation program in which the respondent has had an opportunity to participate, including his or her willingness to so participate and the extent of such participation;
(g)     in the case of a respondent released on parole—the extent to which he or she has complied with the conditions of his or her release on parole;
(h)     in the case of a respondent subject to an existing extended supervision order—the extent to which he or she has complied with the terms of the order;
(i) in the case of a respondent who is a registrable offender (within the meaning of the Child Sex Offenders Registration Act 2006)—the extent to which he or she has complied with any obligations under that Act;
(j)    the circumstances and seriousness of any offence in respect of which the respondent has been found guilty according to his or her criminal history, and any pattern of offending behaviour disclosed by that history;
(k)     any remarks made by the sentencing court in passing sentence;
(l)    any other matter that the Court thinks relevant.
There is provision under the Act for an interim supervision order to be made in circumstances where, inter alia, a respondent’s term of imprisonment is likely to expire before an application for an extended supervision order can be determined. Section 9 provides:
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; and
(b) that the matters alleged in the material supporting the application would, if proved, justify the making of an extended supervision order.
(2)An interim supervision order takes effect on the making of the order until the application for the extended supervision order is determined.
It follows from the terms of section 7(1) that the Attorney-General may make an application for an extended supervision order only in respect of a person who is a “high risk offender” and from the terms of section 9(1) that the Supreme Court may make an interim supervision order only if an application for an extended supervision order has been made in relation to a “high risk offender”.
The making of an interim supervision order is also opposed and, as part of the Court’s consideration of that question, the respondent has raised a preliminary issue of statutory construction and application to the facts which, if decided in favour of the respondent, would mean that there is no statutory power in the circumstances of this case to make an extended supervision order or an interim supervision order. The respondent contends that he is not a high risk offender as defined.
In addition to hearing submissions from the parties with respect to the question of whether or not the respondent is to be characterised as a high risk offender, I heard submissions as to the merits of the application for an interim supervision order, that is, the requirement in section 9(1)(b).[1]
[1] It is common ground that section 9(1)(a) is satisfied.
The nature of the relevant offending
In order to support a finding that the respondent is to be characterised as a high risk offender, the applicant relies upon the respondent having committed the offence of aggravated robbery on 7 May 2011. The circumstances of that offending, as described in the sentencing Judge’s remarks, were as follows.
[The respondent] jumped the counter of [a suburban] IGA supermarket. [The respondent was] holding a screwdriver and ... demanded money from the sales assistant. [The respondent] stole $700 worth of cash and cigarettes.
The sentencing Judge further observed that the respondent had been under the influence of alcohol and possibly other substances and that little planning went into the event. Further, on the evening prior to the offending, the respondent had been on an alcohol binge resulting in significant memory loss until part way through the robbery.
The sentencing Judge characterised the victim impact statement as illustrating “the traumatic and lasting effects of [the] offending”. The victim impact statement prepared by the sales assistant identified the following as having been suffered as a result of the crime:
·loss of sleep for days following the incident;
·nightmares;
·occasional flashbacks;
·unable to eat for a couple of days afterwards;
·easily startled since the incident;
·anxiety when walking alone or when people walk directly towards the victim;
·social isolation; and
·unable to work for one month after the incident.
The victim impact statement was provided to the Court at or about the time of sentencing (7 July 2014) that is, some three years after the event in question. However, a number of the concerns or complaints were expressed in the present tense. Apart from this, there is no indication from the victim impact statement or any of the other materials before the Court as to the duration of the various complaints or concerns identified by the victim which resulted from the traumatic experience suffered by her.
Is the respondent to be characterised as a “high risk offender”?
The following definitions or aspects of definitions contained within relevant legislation are pertinent.
(i)For the purposes of the Act, a high risk offender is relevantly defined as:
(c)A serious violent offender who was sentenced to a period of imprisonment in respect of the offence of violence.[2]
[2]    Criminal Law (High Risk Offenders) Act 2015, section 5(c).
(ii)The Act defines a serious violent offender as “a person convicted (whether before or after the commencement of this Act) of a serious offence of violence”.[3]
[3]    Criminal Law (High Risk Offenders) Act 2015, s 4.
(iii)The Act provides that a “serious offence of violence” has the same meaning as in section 83D(1) of the Criminal Law Consolidation Act.[4]
[4]    Criminal Law (High Risk Offenders) Act 2015, s 4.
(iv)Section 83D(1) of the Criminal Law Consolidation Act defines a serious offence of violence (relevantly) as:
A serious offence where the conduct constituting the offence involves ... serious harm, to a person or a risk of ... serious harm to, a person ...
(v)Section 83D(1) of the Criminal Law Consolidation Act defines a “serious offence” to be an indictable offence punishable by imprisonment for life or for a term of five years or more.
(vi)Section 83D(1) of the Criminal Law Consolidation Act also provides that the term “serious harm” has the same meaning as it has for the purposes of Part 3, Division 7A of the Criminal Law Consolidation Act. The relevant definition is in these terms:[5]
(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.
(vii)“Harm” for this purpose is itself defined to mean “physical or mental harm (whether temporary or permanent)”[6] and “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”.[7]
[5]    Criminal Law Consolidation Act 1935, s 21.
[6]    Criminal Law Consolidation Act 1935 (SA), s 21.
[7]    Criminal Law Consolidation Act 1935 (SA), s 21. The term "psychological harm" is not defined.
The offence of aggravated robbery, contrary to section 137 of the Criminal Law Consolidation Act, is an indictable offence the maximum penalty for which is imprisonment for life. The respondent was sentenced to a period of imprisonment with respect to that offence. Accordingly, the respondent committed a serious offence for which he was imprisoned. Ultimately, the question of whether or not the respondent is to be characterised as a high risk offender will turn on whether or not the offence he committed is to be characterised as “a serious offence of violence” in accordance with the interlocking definitions set out above.
The respondent contends that on the facts of the offending, the harm that was caused to the victim does not amount to “serious harm” as that term is defined. No physical harm was caused to the victim. Such “harm” as was caused, even if capable of being characterised as “psychological harm”, should not be characterised as “harm that consists of, or results in, serious and protracted impairment of a ... mental function”. The respondent contends that the requirement of a serious and protracted impairment of a mental function suggests the need for a recognised psychiatric illness and that the harm suffered by the victim in this case fell well short of that.
I will assume without deciding that the harm, in fact, suffered by the victim did fall short of “harm that consists of, or results in, serious and protracted impairment of a ... mental function”. However, in my view, this is not sufficient to decide the point in favour of the respondent.
The definition of “serious offence of violence” requires the Court to consider more than simply any actual harm, in fact, suffered as a result of the conduct constituting the offence in question. The definition also captures the case where the conduct constituting the offence “involves ... a risk of serious harm to a person”, such as where it involves a risk of harm that consists of, or results in, serious and protracted impairment of a mental function.
In my view, the focus of the enquiry is not to be confined to the consequences of the offending conduct but extends to the nature or character of the offending conduct itself. The definition of “serious offence of violence” requires the finding of a “serious offence” but one “where the conduct constituting the offence” is of a particular character. A major purpose underpinning the power conferred on the Court to make an extended supervision order is to assist in the protection of the public from being exposed to an appreciable risk of harm. Section 3 of the Act sets out the “Object of [the] Act”:
The object of this Act is to provide the means to protect the community from being exposed to an appreciable risk of harm posed by serious sexual offenders and serious violent offenders.
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.
In a case such as the present, whether or not the conduct constituting the offence, in fact, caused serious harm to another may well have been a matter of happenstance dependent on a number of variables including, in particular, how robust the particular victim in question might have been. However, this is not to deny the intrinsic risks to be associated with conduct in the nature of that engaged in by an offender who commits an aggravated robbery such as in the present case.
The short point is that the respondent’s conduct in jumping over the counter and threatening the attendant with a screwdriver, particularly, when under the influence of alcohol or an illegal drug[8] was conduct constituting the offence which involved an obvious risk that a particular victim of the offence might suffer significant psychiatric sequelae sufficient to give rise to serious and protracted impairment of a mental function, that is, serious harm. Such potential sequelae would include conditions such as post-traumatic stress disorder or an adjustment disorder with anxiety state.
[8] Given the potential for disinhibition and reduced physical control.
In addition, a victim of such conduct in the position of the sales assistant in this case might have a physical weakness such as a serious heart condition. Ordinarily, an offender must take their victim as they find them, at least for causation purposes. The shock and fear caused to such a victim might trigger a life threatening or seriously disabling heart attack.
During argument, I heard brief submissions from the parties as to whether the Act ought to be considered as either a “penal” or a protective and “remedial” statute and as to the proper approach to its construction to be adopted in each case. It is unnecessary for me to determine this issue. I find the relevant provisions when considered in the context of the Act as a whole to be clear and unambiguous. I have endeavoured to adopt and apply the ordinary and natural meaning of the language used by the legislature.
I am satisfied that the respondent in this case is to be characterised as a high risk offender for the purposes of both sections 7 and 9 of the Act. Accordingly, and provided that the other essential requirements are established, the Court does have power to make an extended supervision order and an interim supervision order with respect to this respondent.
Is an interim supervision order justified?
In order to have an interim supervision order made, the respondent must demonstrate that the matters alleged in the material supporting its application would, if proved, justify the making of an extended supervision order.[9] In order to justify the making of an extended supervision order, the applicant must satisfy the Court that the respondent poses an appreciable risk to the safety of the community if not supervised under the order.[10] When considering that issue, the Court must take into consideration the matters identified in section 7(5) and (6) of the Act.
[9] Criminal Law (High Risk Offenders) Act 2015, s 9(1)(b).
[10] Criminal Law (High Risk Offenders) Act 2015, s 7(4)(b).

In the present case, there are, as yet, no reports available that would fall within paragraphs (b), (c) and (d) of section 7(6) and the matters identified in paragraphs (g), (h) and (i) do not apply.
Two affidavits by Fiona Williams-Mitchell, a solicitor for the applicant, both affirmed on 15 February 2017, were read in support of the application. Exhibited to the affidavits are a number of reports and assessments. The respondent has not, as yet, adduced any evidence.
The respondent’s prior criminal history, according to his offender history report, includes the aggravated robbery already described, together with a number of relatively minor public disorder, motor vehicle and driving offences. The only term of imprisonment imposed, suspended or immediate, has been that imposed for the aggravated robbery.
In a report dated 2 August 2012 and prepared for sentencing purposes, Dr Jack White described the respondent’s psychological profile as indicating “an unstable personality make up” with an inclination “to reckless dysfunctional behaviour” under stressful conditions. According to Dr White’s then assessment, the applicant was experiencing problems in the areas of mental health, substance abuse, anger and aggressive behaviour. Dr White recommended referral to, inter alia, a suitable anger management program.
According to the author of a pre-sentence report prepared on or about 8 June 2014, the respondent, if released into the community, would require a high level of supervision to address his criminogenic factors.
On 12 February 2015, whilst the respondent was in custody for the aggravated robbery offence, Ms Sylvia Lowczak, a senior psychologist with the Department of Correctional Services, prepared a report based on a lengthy in custody assessment. She found the respondent to be “at high risk of violent reoffending” and to be “suitable for program involvement”. She listed a number of recommended interventions, with a violence prevention program as first priority. According to a Departmental Minute prepared by Ms Katherine Short, Manager Rehabilitation Programs Branch, on 1 February 2017, the respondent was assessed for the Department’s Violence Prevention Program and found to be a suitable candidate in February 2015. He was approached for his consent to be included in the 2015-2016 round of such programs. However, on 1 July 2015, a consent form was received which indicated his unwillingness to participate. Given the expiration date of his sentence, there has been insufficient time for the respondent to complete a program in the 2016-2017 round.
The applicant needs to show that, on the material before the Court, the respondent when released will “[pose] an appreciable risk to the safety of the community if not supervised under [an extended supervision] order”. In Attorney-General v Grosser,[11] Stanley J provided an explanation of the term “appreciable risk” in terms with which I, respectfully, agree.
I consider that an appreciable risk is one that is capable of being estimated, perceptible and sensible.[12] Necessarily, a risk must be anticipatory. An appreciable risk is a risk that is not purely speculative. It is founded in some evidence that provides a substantive basis for an apprehension that the respondent might conduct himself in future in a manner that poses a risk to the safety of the community. It is a question of degree. The extent of the appreciable risk is informed by the consideration that in determining whether to make an extended supervision order the safety of the community is paramount. I construe that requirement to mean that where a court considers that the question of whether to make an order is finely balanced, the protection of the community would favour making the order rather than declining to do so. I do not suggest that this consideration is exhaustive of the work to be performed by s 7(5) of the Act. The full extent of the operation of this provision falls to be considered on another occasion.
[11] [2016] SASC 49 at [29].
[12] Concise Oxford Dictionary.
After reviewing the material presently available and after having given consideration, in particular, to section 7(5) and paragraphs (a), (e), (f), (j) and (k) of section 7(6), I am satisfied that the respondent will pose such an appreciable risk. The evidence as it presently stands is to the effect that the respondent presents a high risk of “violent reoffending”, to use the term employed by Ms Sylvia Lowczak, and that he has not yet engaged in (indeed, at one stage declined to engage in) a rehabilitation program designed to address that risk.
One can never be satisfied that compliance with the terms of an extended supervision order, either interim or final, will eliminate any risk posed by a high risk offender. However, I am satisfied that, in this case, such would serve to significantly reduce, or ameliorate the consequences of, the risk posed by this respondent.
The applicant seeks an interim order in terms that adhere to the requirements provided for by section 10(1) and (2) of the Act but which also includes additional terms. The applicant also seeks an order that a further expert report, as required by section 7(3) of the Act be obtained. The orders proposed by the applicant are as follows.
1.The Court orders that a legally qualified medical practitioner (to be nominated by the Clinical Director, Forensic Mental Health Service South Australia) examine Benjamin Wikaire (“the Respondent”) and report to the Court with an assessment whether there is a likelihood of the Respondent committing a further serious violent offence.
2.The Court orders that the Respondent is subject to an interim supervision order pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015.
3.The Court orders that the following conditions apply in relation to the interim supervision order made pursuant to ss 10(1)(a)-(e) and 10(2) of the Criminal Law (High Risk Offenders) Act 2015:
3.1     the Respondent will not commit any offence;
3.2     the Respondent will not possess a firearm or ammunition or any part of a firearm;
3.3     the Respondent will not possess an offensive weapon unless the Supreme Court permits the person to possess such a weapon and the person complies with the terms and conditions of the permission;
3.4     the Respondent will be under the supervision of a Community Corrections Officer and will obey the reasonable directions of that officer;
3.5     the Respondent will submit to tests (including tests without notice) for gunshot residue as required by his Community Corrections Officer;
3.6     the Respondent will report to his Community Corrections Officer at the time of his release from custody;
3.7     the Respondent will attend for interviews as required by his Community Corrections Officer;
3.8     the Respondent will reside at a location approved by his Community Corrections Officer;
3.9     the Respondent will not change his place of residence without the approval of his Community Corrections Officer;
3.10   the Respondent will not depart or attempt to depart from the State of South Australia without obtaining the written approvals of his Community Corrections Officer at least 7 days prior to travel;
3.11   the Respondent will not use, possess or administer any illegal or prescription drug except in accordance with the directions of a legally qualified medical practitioner;
3.12   the Respondent will advise his Community Corrections Officer of any drug that has been prescribed to him by a legally qualified medical practitioner;
3.13   The Respondent will submit to drug, alcohol and urine testing (including testing without notice) as directed by his Community Corrections Officer and comply with the required process, including signing any documents necessary to enable samples for drug and alcohol testing to be analysed and to enable the results of such analysis to be provided to his Community Corrections Officer;
3.14   the Respondent will attend and satisfactorily complete counselling for drug and alcohol abuse and any other assessment, programs and interventions at the direction of his Community Corrections Officer;
3.15   the Respondent will attend at a psychologist and/or psychiatrist for assessment in relation to his mental health and the reduction of his risk of violent reoffending at the direction of his Community Corrections Officer,
3.16   the Respondent will attend and satisfactorily complete treatment as recommended in relation to his mental health and reduction of his risk of violent reoffending;
3.17   the Respondent will comply with directions from his Community Corrections Officer not to associate with any person identified by his Community Corrections Officer;
3.18   the Respondent will not consume alcohol; and
3.19   the Respondent will not enter or remain upon the premises of any licensed hotel, clubroom or licensed entertainment venue.
The application for an interim supervision order is allowed. I will hear the parties on the final form of orders.