Attorney-General (SA) v WOODS-PEARCE - [2021] SASC 77

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)

ATTORNEY-GENERAL (SA) v WOODS-PEARCE
[2021] SASC 77
Ruling of the Honourable Justice S David
16 June 2021
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - OTHER MATTERS
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
The respondent was convicted of serious sexual and violent offences when he was a youth. He was sentenced as an adult in the District Court to a term of imprisonment for seven years with a non-parole period of four years, commencing on 17 June 2014. The head sentence expires on 16 June 2021.
The Attorney-General made an application for an extended supervision order in respect of the respondent pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’).
The respondent contended that the HRO Act excludes the respondent from the operation of the Act due to his age at the time of the offending.
Held, per David J:
1. The respondent was a youth when he was convicted of the relevant offences and accordingly s 6(1) of the HRO Act removes the respondent from its operation.
2. The application is dismissed.
Criminal Law Consolidation Act 1935 (SA) ss 24, 39, 48 & 63A; Criminal Law (High Risk Offenders) Act 2015 (SA) ss 3, 4, 5, 6, 7 & 9; Young Offenders Act 1993 (SA) ss 4 & 29, referred to.
Attorney-General (SA) v Smith [2020] SASC 108, applied.
R v A2 (2019) 93 ALJR 1106, considered.

ATTORNEY-GENERAL (SA) v WOODS-PEARCE
[2021] SASC 77
DAVID J:

On Wednesday 16 June 2021, I dismissed an application by the Attorney-General for an Extended Supervision Order (‘ESO’). These are my reasons for doing so.
Background
On 3 December 2014, the respondent was convicted of the following offences:
1. Aggravated kidnapping contrary to s 39(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’);
2. Aggravated causing harm contrary to s 24(1) of the CLCA; and
3. Rape contrary to s 48(1) of the CLCA.
The respondent committed the offences on 17 June 2014, when he was aged 17 years old. The respondent was tried in the Youth Court and committed to the District Court for sentence pursuant to s 29 of the Young Offenders Act 1993 (SA). He was sentenced to imprisonment for seven years with a non-parole period of four years to commence from 17 June 2014. The head sentence expires on 16 June 2021.
On 11 May 2021, the Attorney-General made an application for an ESO against the respondent. On 18 May 2021, noting that the expiry date was likely to occur before the ESO application could be determined, the applicant sought an Interim Supervision Order (‘ISO’) pursuant to s 9(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’). In support of the application for an ESO, the Attorney-General relies upon the affidavit of Jocelyn Veronica Redden…

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.

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Details

Case: [2021] SASC 77
Decision Date: 16 June 2021

CaseChat Overview and Summary

The case of Attorney-General (SA) v Woods-Pearce concerned an application by the Attorney-General for an Extended Supervision Order against the respondent, who had been convicted of aggravated kidnapping, aggravated causing harm, and rape. The application was made shortly before the respondent’s release from prison, with the Attorney-General also seeking an Interim Supervision Order. The respondent opposed the application, arguing that he was a youth at the time of his offending and therefore excluded from the operation of the Criminal Law (High Risk Offenders) Act 2015 (SA). The court had to decide whether the respondent, having been a youth at the time of his offending, was excluded from the operation of the Act and therefore ineligible for an Extended Supervision Order.

The court considered the relevant provisions of the High Risk Offenders Act and the reasoning of Justice Lovell in a previous case, Smith. The Attorney-General argued that there was a sound basis to depart from the reasoning in Smith, but the court found the reasoning in that case persuasive. It concluded that the respondent was a youth when he was convicted of the offences, which met the definition of ‘serious sexual offences’ and ‘serious violence offences’, and accordingly s 6(1) of the High Risk Offenders Act removed the respondent from its operation. The court dismissed the application for an Extended Supervision Order.

The court ordered that the respondent was a youth when he was convicted of the relevant offences and, accordingly, s 6(1) of the High Risk Offenders Act removes the respondent from its operation. The application for an Extended Supervision Order was dismissed.

Orders

Orders of the court

1. The respondent was a youth when he was convicted of the relevant offences and accordingly s 6(1) of the HRO Act removes the respondent from its operation.

2. The application is dismissed.

Background

Background to the litigation

On Wednesday 16 June 2021, I dismissed an application by the Attorney-General for an Extended Supervision Order (‘ESO’). These are my reasons for doing so.Background On 3 December 2014, the respondent was convicted of the following offences:1. Aggravated kidnapping contrary to s 39(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (‘CLCA’);2. Aggravated causing harm contrary to s 24(1) of the CLCA; and3. Rape contrary to s 48(1) of the CLCA. The respondent committed the offences on 17 June 2014, when he was aged 17 years old. The respondent was tried in the Youth Court and committed to the District Court for sentence pursuant to s 29 of the Young Offenders Act 1993 (SA). He was sentenced to imprisonment for seven years with a non-parole period of four years to commence from 17 June 2014. The head sentence expires on 16 June 2021. On 11 May 2021, the Attorney-General made an application for an ESO against the respondent. On 18 May 2021, noting that the expiry date was likely to occur before the ESO application could be determined, the applicant sought an Interim Supervision Order (‘ISO’) pursuant to s 9(1) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’). In support of the application for an ESO, the Attorney-General relies upon the affidavit of Jocelyn Veronica Redden affirmed on 10 May 2021 and filed on 11 May 2021. The respondent opposes the making of an ESO on the basis that he was a youth at the time of his offending, and that s 6 of the HRO Act excludes the respondent from the operation of the Act. The HRO Act Under the HRO Act, the Attorney-General may make an application to the Supreme Court for an ESO in respect of a person who is a high risk offender[1] and whose relevant expiry date will occur within 12 months.[2] The Supreme Court must, before determining whether to make an ESO, order a prescribed health professional examine the respondent and produce a report assessing the likelihood of the respondent committing further sexual and/or violent offending.[3] The Supreme Court’s discretion to make an order is only enlivened if satisfied that the respondent is a high risk offender and poses an appreciable risk to the safety of the community if not supervised under the order.[4] Once enlivened, an exercise of the discretion is subject to the requirements that the paramount consideration must be the safety of the community[5] and specified factors must be taken into account.[6][1] Section 7(1) of the HRO Act.[2] Section 7(2) of the HRO Act.[3] Section 7(3) of the HRO Act.[4] Section 7(4) of the HRO Act.[5] Section 7(5) of the HRO Act.[6] Section 7(6) of the HRO Act. Section 5 of the HRO Act defines a ‘high risk offender’. That section relevantly provides:For the purposes of this Act, a high risk offender is— (a) a serious sexual offender who was sentenced to a period of imprisonment in respect of the serious sexual offence; or...(c) a serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence; or…

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The applicant contends there is a sound basis to depart from the reasoning in Smith and find that the respondent is an adult who is not excluded from the operation of the HRO Act by s 6(1). Conclusion The submissions put by the Attorney-General in support of this application were all before the Court in Smith. Justice Lovell considered those matters in some detail. After applying the principles of legality and the authority of R v A2,[9] his Honour reached the conclusion that s 6(1) of the HRO Act applies to exclude a youth from the operation of the HRO Act. His Honour reasoned that if the respondent was a youth when convicted of a serious sexual offence, the respondent is excluded from the operation of the HRO Act by virtue of s 6(1). [9] (2019) 93 ALJR 1106. Whilst there is force in the submissions made by the applicant, particularly as to the broader contextual argument which supports the contrary interpretation of the operation of s 6(1) of the HRO Act, the reasoning in Smith is persuasive and, in those circumstances, I am not prepared to depart from it. In this matter, the respondent was a youth when he was convicted of the offences which meet the definition of ‘serious sexual offences’ and ‘serious violence offences’, and accordingly s 6(1) of the HRO Act removes the respondent from its operation. I dismiss the application dated 11 May 2021 for an ESO in respect of the respondent.

Ratio Decidendi

Legal Principle Established

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