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 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
…
Section 6 provides:
(1) Subject to subsection (2), this Act does not apply in relation to a youth.
(2)This Act applies (with modifications prescribed by the regulations) in relation to a youth who is of or above the age of 16 years and is a terror suspect.
The respondent concedes that but for the operation of s 6 of the HRO Act, he meets the definition of a ‘serious sexual offender’ and ‘serious violent offender’ and accordingly meets the definition of a ‘high risk offender’.
Section 4 of the HRO Act defines ‘youth’ as having the same meaning as in the Young Offenders Act 1993. Section 4 of the Young Offenders Act 1993 defines youth as follows:
youth means a person of or above the age of 10 years but under the age of 18 years and, in relation to proceedings for an offence or detention in a training centre, includes a person who was under the age of 18 years on the date of the alleged offence.
Respondent’s submissions
The respondent contends that he was sentenced for the offending which enlivens the discretion of this Court to make an ESO when he was a youth (albeit, having been sentenced as an adult to a period of imprisonment). Thus, for the purposes of the HRO Act, the respondent is a youth and s 6(1) excludes him from the operation of the Act. In support of that contention, the respondent relies on the authority of Attorney-General (SA) v Smith.[7]
[7] [2020] SASC 108 (‘Smith’).
Smith
In Smith, the respondent had an extensive history of recurrent sexual offending beginning when he was 13 years old. In February 1996, the respondent committed the offence of unlawful sexual intercourse. No conviction was recorded and he was placed on a good behaviour bond for 12 months, with supervision. The respondent then committed two counts of rape and one count of threaten to cause harm when he was almost 16 years old, for which he was sentenced in in the Youth Court to a term of detention for one year and six months, suspended upon the respondent entering into a bond to be of good behaviour for six months. The bond was revoked in November 1999, and the respondent was ordered to serve nine months in detention. The respondent committed further sexual offending as an adult. In February 2010, he committed the offence of aggravated possessing child pornography and other offences for which he was sentenced to three years and four months imprisonment. In August 2013, the respondent, again, committed the offence of aggravated possession of child pornography, as well as one count of failing to comply with his reporting obligations for sex offender. He was sentenced to three months imprisonment, suspended upon him entering into a good behaviour bond with 100 hours of community service. In November 2016, the respondent committed the offence of indecent behaviour and was sentenced to two months imprisonment.
In that case, the Attorney-General submitted that the respondent was a high risk offender under s 5 of the HRO Act because he had been sentenced to a period of imprisonment in respect of a serious sexual offence (the two counts of rape for which he was sentenced in in the Youth Court to a suspended term of detention for one year and six months) and, at the time the application was made, he was serving a term of imprisonment for an offence contrary to s 63A of the CLCA.
In Smith, Lovell J held that in considering whether a person is ‘a serious sexual offender’ and a ‘high risk offender’, the operation of s 6 means that s 5(a) does not apply to offending committed when a person was a youth. His Honour said:
It is the operation of s 6 of the HRO Act which particularly concerns me. The HRO Act does not apply to a youth. Thus, when considering whether a person should be classed as a “high risk offender” under s 5(a) of the HRO Act, all youths are excluded as the HRO Act simply does not apply. So, at the time he committed the offence of rape as a youth, the respondent could not be deemed to be a “serious sexual offender” and therefore a high risk offender for the purposes of the HRO Act. The HRO Act simply did not apply to him.
However, when the respondent committed the offence breaching s 63A of the CLCA, the Attorney-General argued that, as he committed that offence as an adult, the rape conviction can now be used to establish that he is a “serious sexual offender” under s 4 of the HRO Act…It is the act of committing an offence as an adult that transmogrifies the respondent from a person to whom the HRO Act does not apply into a “serious sexual offender” as defined under the HRO Act. Unless these provisions are interpreted in this wider sense, it was submitted, the “reach” of the HRO Act would be restricted. The cohort of offenders, such as the respondent, to whom the HRO Act had no initial application, would not be subject to “supervision” and the safety of the community would be undermined.
…
Section 6 of the HRO Act clearly states that the HRO Act does not apply to youths. The respondent could not be classified as a “serious sexual offender” at the time that he committed the offence as the HRO Act did not apply to him due to his age. He cannot suddenly retrospectively be classified as a “serious sexual offender” for his offending as a youth later in life simply because he has committed further offending as an adult. The use of the expression “sentenced to a period of imprisonment” as opposed to “detention” in
s 5(a) of the HRO Act is entirely consistent with the operation of s 6 of the HRO Act. In context, the definition of a “high risk offender” must only apply to those offenders who have served a period of imprisonment, not detention; the meaning of the words in ss 5 and 6 of the HRO Act are clear. To accept the argument of Mr Nguyen for the Attorney-General would require giving the expression “period of imprisonment” a wider meaning than is warranted when considering the purpose of the text in context. It is not a case of asking what Parliament would have intended in these circumstances. The proper question is: “Does the intended meaning of the words used by Parliament extend to these circumstances?”. The answer is clearly no. The HRO Act only applies to those persons who have been sentenced to a period of imprisonment, not detention.
The respondent in this case relied on the authority of Smith in support of their contentions. It can be seen that the case of Smith is factually different to the present application in two material respects. First, the respondent in Smith was sentenced as a youth to a period of detention whereas here, the respondent when aged 17 and a youth, was committed to the District Court for sentence as an adult and sentenced to a period of imprisonment. Secondly, the respondent in Smith was serving a sentence for further sexual offences committed as an adult which enlivened s 5(b) of the HRO Act, whereas in this application, the respondent has committed no further offences as an adult, and the Court’s jurisdiction to make the application is enlivened under ss 5(a) and (c) of the HRO Act.
Notwithstanding those differences to Smith, the respondent contends that the fact he was sentenced as an adult, and to a period of imprisonment rather than detention, does not detract from the application of the Lovell J’s reasoning in Smith as to the operation of s 6 to this application. As such, the respondent having been sentenced for offences when aged 17 and a youth is removed from the operation of the HRO Act.
Applicant’s submissions
The applicant acknowledges that the respondent’s interpretation of s 6 of the HRO Act, and its applicability to this matter, is consistent with the reasoning of Lovell J in Smith. However, the applicant submits that the interpretation of s 6 in Smith is in error and invites the Court to reconsider the effect of s 6 of the HRO Act. It is the applicant’s contention that the respondent is an adult who meets the definition of a ‘high risk offender’ and who is not excluded from the operation of the HRO Act by virtue of s 6(1).
The applicant submits that whether or not a person is a ‘youth’ for the purposes of the Young Offenders Act 1993 and therefore for the purposes of the HRO Act depends on the nature of the proceedings in which the question is being considered. The definition of ‘youth’ therein, which depends on the age of an offender when that person committed an offence, is limited in its application to two contexts: proceedings for an offence, or detention in a training centre. The current proceedings are not of either kind. Accordingly, the applicant submits the respondent is not a youth for the purposes of the HRO Act and s 6(1) has no application in respect of the respondent.
The applicant also relies on a broader contextual argument in support of the contention that s 6 does not apply to the respondent. The applicant submits that the word ‘apply’ in s 6(1) of the HRO Act means ‘operate in relation to’. In the context of an application for an ESO, the HRO Act must be capable of applying to the person who the Court finds before it, following the making of an application brought under s 7 in respect of that person. The object of the HRO 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.[8] The point in time at which that risk would be posed, but for the operation of the Act, is upon an offender’s return to the community following the expiry of a head sentence, or upon the finalisation of a period of release on parole, or upon the expiry of orders under an existing ESO.
[8] Section 3 of the HRO Act.
Before the jurisdiction to make any order is enlivened, the Court must be satisfied that the respondent poses an appreciable risk to the safety of the community if not supervised under the order. The HRO Act requires the Court to look at the person standing before it at this time and make an assessment about the risk posed to the community by that person absent an order. Thus, the applicant submits the operation of the HRO Act, and therefore its application, is not directed to the point in time that an offender committed an offence, it is directed towards the end of the sentence when an assessment of ongoing risk can be assessed, and conditions imposed for the protection of the community where a high risk offender poses an appreciable risk to the community in the future if not supervised. The applicant submits that it would be an error to use s 6 of the HRO Act to alter and confine the meaning of the definitions in ss 4 and 5 of the HRO Act because those definitions in themselves have no operative effect.
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.