Attorney-General v Grosser

Case [2016] SASC 49

SUPREME COURT OF SOUTH AUSTRALIA

(Criminal: Application)

ATTORNEY-GENERAL v GROSSER

[2016] SASC 49

Reasons for Decision of The Honourable Justice Stanley

14 April 2016

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST PEACE AND PUBLIC ORDER - OFFENSIVE WEAPONS - FIREARMS - DISCHARGING FIREARMS

CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS

In 2002 the respondent, Tony Douglas Grosser, was found guilty of one count of attempted murder and five counts of endangering life.  This followed a shootout with police at the property he occupied in the Barossa Valley in 1994 which resulted in a police officer, Derrick McManus, being shot by the respondent and severely wounded.  During a 40-hour siege the respondent fired hundreds of rounds of ammunition at police.  The respondent was sentenced to 22 years imprisonment with a non-parole period of 18 years.  The term of imprisonment commenced on 5 May 1994.  By reason of remissions, his sentence will be complete on 18 April 2016. 

By an application made on 30 March 2016, pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA), the Attorney-General applied to the Court for a direction that one or more legally qualified practitioners examine the respondent and report to the Court with an assessment whether there was a likelihood of the respondent committing a further serious offence of violence and that the respondent be subject to an extended supervision order for a period of five years. As it was likely the application would not be determined prior to the respondent’s release date on 18 April 2016, an interim supervision order was sought from the date of the making of the order until the application for the extended supervision order was determined. The application was opposed by the respondent.

Held (per Stanley J):

1.  That a legally qualified medical practitioner examine the respondent and report to the Court on the results of the examination, including an assessment of the likelihood of the respondent committing a further offence of violence (at [36]).

2. That the respondent is subject to an interim supervision order pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (at [36]).

Criminal Law (High Risk Offenders) Act 2015 (SA) s 3, s 4, s 7(3), s 7(5), s 9; Criminal Law Consolidation Act 1935 (SA) s 83D(1), referred to.

ATTORNEY-GENERAL v GROSSER
[2016] SASC 49

Application

STANLEY J:

Introduction

  1. In 2002 the respondent, Tony Douglas Grosser, was found guilty of one count of attempted murder and five counts of endangering life.  This followed a shootout with police at the property he occupied in the Barossa Valley in 1994 which resulted in a police officer, Derrick McManus, being shot by the respondent and severely wounded.  During a 40-hour siege the respondent fired hundreds of rounds of ammunition at police.  The respondent was sentenced to 22 years imprisonment with a non-parole period of 18 years.  The term of imprisonment commenced on 5 May 1994.  By reason of remissions, his sentence will…

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Attorney-General v Grosser [2016] SASC 49
Case
[2016] SASC 49
Decision Date

CaseChat Overview and Summary

In the matter of Attorney-General v Grosser, the respondent, Tony Douglas Grosser, was convicted in 2002 for attempted murder and multiple counts of endangering life. His conviction stemmed from a 1994 shootout with police during a 40-hour siege at his Barossa Valley property, in which he shot and severely wounded a police officer, Derrick McManus. Grosser was sentenced to 22 years imprisonment with a non-parole period of 18 years. His sentence was to commence on 5 May 1994, and due to remissions, it was expected to be complete by 18 April 2016. The case before the court involved whether Grosser should be subject to an interim supervision order under the Criminal Law (High Risk Offenders) Act 2015 (SA) and, if so, what the terms of such an order should be.

The primary legal issue the court had to decide was whether the matters alleged in the materials supporting the application for an extended supervision order, if proved, would justify the making of such an order. The court also had to determine whether the respondent should be required to wear an electronic monitoring device and provide his residential address to the authorities as part of the interim supervision order. The court's decision hinged on the risk to community safety posed by Grosser if he were to be released from prison, and the need to mitigate this risk through appropriate post-custodial measures.

The court found that the first condition precedent for making an interim supervision order was satisfied, as Grosser's expiry date was likely to occur before the application for an extended supervision order was determined. The court then considered whether the second condition precedent was met, which required the court to assess the likelihood of Grosser committing a further serious offence of violence if the allegations in the supporting materials were proven. The court reviewed various documents, including offender history reports, parole submissions, and psychiatric assessments, and concluded that the materials supported the making of an interim supervision order. The court also determined that requiring Grosser to wear an electronic monitoring device and provide his residential address were necessary measures to ensure community safety and to deter Grosser from engaging in activities that might threaten public safety.

The court ordered that Grosser be examined by a legally qualified medical practitioner and that an interim supervision order be made with specific conditions, including restrictions on possessing firearms and offensive weapons, prohibition from contacting the victim, mandatory supervision by a Community Corrections Officer, and the requirement to wear an electronic monitoring device. Grosser was also required to report his address and any changes to his Community Corrections Officer and not travel outside South Australia without prior notice. The court's decision underscored the importance of balancing the need for public safety with the respondent's rights, ensuring that appropriate measures were in place to monitor and control Grosser's activities post-release.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I am also satisfied that it is appropriate to require the respondent to wear an electronic monitoring device as required by his Community Corrections Officer. Given the nature of the risk to community safety posed by the respondent if the materials in support of the application are proved, it is critical that the authorities are able to monitor the movements of the respondent at all times so as to optimise the prospects of detention in the event that the respondent was to act in a manner that resulted in the risk to community safety he posed being realised. I also accept that the requirement to wear an electronic monitoring device might serve to deter the respondent from engaging in activity which threatens the safety of the community. Conclusion The Court orders:1.That a legally qualified medical practitioner (to be nominated by the person for the time being performing the duties, or holding or acting in the position, of the Clinical Director, Forensic Mental Health Service South Australia), examine the respondent and report to the Court on the results of the examination, including an assessment of the likelihood of the respondent committing a further offence of violence;2.That the respondent is subject to an interim supervision order pursuant to s 9 of the Criminal Law (High Risk Offenders) Act 2015 (SA); 3.The following conditions apply in relation to the interim supervision order:3.1 that the respondent not commit any offence;3.2 that the respondent is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 1977 (SA)) or any part of a firearm; 3.3 that the respondent is prohibited from possessing an offensive weapon;3.4 that the respondent be subject to the supervision of a Community Corrections Officer and obey the reasonable directions of that officer and submit to such tests (including testing without notice) for gunshot residue as the officer may reasonably require;3.5 that the respondent not approach, attempt to contact or associate in any way, whether directly or indirectly, with the victim of his offence, Mr Derrick McManus;3.6 that the respondent report to his Community Corrections Officer within 24 hours of leaving custody and provide to that officer his address and contact details;3.7 that the respondent wear an electronic monitoring device as required by his Community Corrections Officer; 3.8 that the respondent advise his Community Corrections Officer of any change of address or contact details; and3.9 that the respondent not travel outside of the State of South Australia without advising his Community Corrections Officer at least seven days prior to travel.

Ratio Decidendi

Legal Principle Established

Mr Koehn submits that if an interim supervision order is made it should not include the provisions sought by the Attorney-General requiring the wearing of an electronic monitoring device or the provision of his residential address to the authorities. The respondent is concerned that the public not know where he resides and the requirement that he wear an electronic monitoring device would represent a significant erosion of his liberty without adequate justification. Consideration There is no opposition to the application by the Attorney-General for an order that the Court direct a legally qualified medical practitioner (to be nominated by the prescribed authority for the purpose) examine the respondent and report to the Court on the results of the examination, including an assessment of the likelihood of the respondent committing a further serious offence of violence. Pursuant to Regulation 4 of the Criminal Law (High Risk Offenders) Regulations 2015 (SA) the prescribed authority is the person for the time being performing the duties, or holding or acting in the position, of the Clinical Director, Forensic and Mental Health Service South Australia. The matters I have to decide are whether an interim supervision order should be made and, if so, the terms of such an order. Whether an interim supervision order should be made is to be determined by reference to the provisions of s 9(1) of the Act. Section 9(1) confers a discretion in the court to make an interim order if two conditions precedent are satisfied. They are that the relevant expiry date for the respondent is likely to occur before the application for an extended supervision order is determined and that the matters alleged in the materials supporting the application for an extended supervision order would, if proved, justify the making of that order. I am satisfied that the first of those conditions precedent is satisfied. The relevant expiry date is 18 April 2016. Before I can determine whether to make an extended supervision order I must direct that one or more legally qualified medical practitioners examine the respondent and report to the Court on the results of that examination. I am yet to make that order. In the circumstances it is highly unlikely that the application for the extended supervision order will be determined before 18 April 2016. The real issue is whether the matters alleged in the materials supporting the application would, if proved, justify the making of an extended supervision order. Those materials are: ·SAPOL Offender History Report dated 2 March 2016; ·SAPOL Parole Submission dated 1 March 2012; ·Summary of telephone interception in prison dated between 27 June 2010 and 28 February 2012; ·Department of Correctional Services Special Purpose Presentence Report dated 18 October 2002; ·Department of Correctional Services Violence Prevention Program Screening Assessment Report dated 21 July 2009; ·Department of Correctional Services Assessment Report dated 12 October 2010; ·Department of Correctional Services Parole Report dated 5 March 2012;·Department of Correctional Services Minute re Movement / Separation of Mr Grosser within prison dated 10 July 2012 (including an attached Advertiser article dated 24 June 2012); ·Department of Correctional Services Minute regarding allegations made by members of the public about mistreatment of Mr Grosser within prison dated 8 August 2012; ·Department of Correctional Services Offender Plan dated 13 January 2012; ·Application for Release on Parole by the respondent dated 20 October 2011; ·Transcript of an interview conducted by the Parole Board with the respondent in relation to his application for parole on 12 November 2013; ·Reasons of the Parole Board for refusing to release the respondent on Parole dated 21 November 2013; ·Sentencing remarks of Justice Millhouse dated 23 December 1996; ·Court of Criminal Appeal judgment in relation to the respondent dated 23 July 1999; ·Sentencing remarks of Justice Duggan in relation to the respondent dated 13 November 2002; ·Court of Criminal Appeal judgment dated 14 August 2003;·Court of Criminal Appeal judgment dated 2 October 2003; ·Judgment of Magistrate Sheppard in relation to a restraining order applied for by Police in relation to Lorraine Braunack dated 22 July 2013; ·Letter from the respondent to the Parole Board dated 5 May 2012; ·Letter from the respondent to the Parole Board dated 26 September 2013; ·Report of Dr Jennings dated 23 July 2012; and·Report of Dr Tottman dated 6 August 2012.