Police v Schmidt; Attorney-General (SA) v Schmidt - [2018] SASC 80

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
POLICE v SCHMIDT; ATTORNEY-GENERAL (SA) v SCHMIDT
[2018] SASC 80
Judgment of The Honourable Justice Hinton
8 June 2018
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - PAROLE - OTHER MATTERS
Mr Schmidt appeared in the Supreme Court for three purposes:
1. To determine whether a continuing detention order should be made against him under s 18 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act) (SCCRM-18-40);
2. To determine whether an extended supervision order should be made against him under s 7 of the High Risk Offenders Act (SCCRM-17-20); and
3. For sentence on offences he committed against the Child Sex Offenders Registration Act 2006 (SA), including:
• On SCCRM-18-142 (AMC-16-13142), two counts of failing to comply with reporting obligations contrary to s 44(1), one count of failing to comply with reporting obligations relating to reportable contact with a child contrary to s 44(1a) and one count of knowingly furnishing false information in relation to reportable contact with a child contrary to s 45(2);
• On SCRRM-18-136 (MCPAR-17-14904), six counts of failing to comply with reporting obligations relating to reportable contact with a child contrary to s 44(1a) and three counts of failing to tell an available responsible adult of particular matters contrary to s 66L(2).
Held:
As to SCCRM-18-40 and SCCRM-17-20:
1. Mr Schmidt is detained in custody pursuant to s 18(2) of the High Risk Offenders Act for fifteen months commencing 8 June 2018.
2.       Mr Schmidt is subject to an extended supervision order for a duration of three years commencing 8 June 2018.
As to SCCRM-18-142(AMC-16-13142)
3.       Mr Schmidt is sentenced to the rising of the Court.
As to SCCRM-18-136 (MCPAR-17-14904):
4.       Mr Schmidt is sentenced to a term of imprisonment of seven months and one week commencing 8 June 2018.
Criminal Law (High Risk Offenders) Act 2015 (SA), ss 7, 9 and 15; Child Sex Offenders Registration Act ss 44(1), 44(1a), 66L(2), referred to.
Police v Sullivan; Attorney-General (SA) v Sullivan [2018] SASC 11; Attorney-General (SA) v Sullivan (No 2) [2018] SASC 74, applied.

POLICE v SCHMIDT; ATTORNEY-GENERAL (SA) v SCHMIDT
[2018] SASC 80
CRIMINAL
HINTON J.
Introduction

David Schmidt comes before this Court for three purposes:
i. for sentence on:
a. two counts of failing to comply with reporting obligations, one count of failing to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse, and one count of knowingly furnishing false information in relation to reportable contact with a child. Those offences were committed contrary to ss 44(1), 44(1a) and 45(2) of the Child Sex Offenders Registration Act 2006 (SA) (the Child Sex Offenders Registration Act) respectively;[1] and
b. six counts of failing to comply with reporting obligations relating to reportable contact with a child, contrary to s 44(1a)…

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: [2018] SASC 80
Decision Date: 8 June 2018

CaseChat Overview and Summary

The case of Police v Schmidt; Attorney-General (SA) v Schmidt involved the sentencing of David Schmidt for various offences under the Child Sex Offenders Registration Act 2006 (SA) and the determination of whether he should be subject to an extended supervision order under the Criminal Law (High Risk Offenders) Act 2015 (SA). The legal issues before the court included the appropriate sentence for the offences committed by Mr Schmidt and the consideration of whether he should be subject to an extended supervision order and a continuing detention order due to breaches of an interim supervision order. The court had to balance the need for punishment, deterrence, and rehabilitation, while also considering Mr Schmidt's background, including his troubled childhood and the impact of his learning disabilities and poor education.

The court acknowledged Mr Schmidt's troubled upbringing and the difficulties he faced due to his learning disability, poor education, and history of being victimised and psychologically abused. Despite these challenges, the court noted that Mr Schmidt had failed to take responsibility for his actions and had breached his obligations under the Child Sex Offenders Registration Act on multiple occasions. The court considered the seriousness of the offences, the need to protect the community, and the risk of reoffending in determining the appropriate sentence and whether an extended supervision order was necessary. Ultimately, the court found that Mr Schmidt should be subject to an extended supervision order to ensure public safety and provide him with the necessary support and monitoring to reduce the risk of reoffending. The court also imposed a sentence of imprisonment and ordered that Mr Schmidt be subject to a continuing detention order due to his breaches of the interim supervision order.

The court ordered that David Schmidt be sentenced to imprisonment for a specified term and be subject to an extended supervision order for a specified period. Additionally, the court ordered that Mr Schmidt be subject to a continuing detention order due to his breaches of the interim supervision order. The specific terms of the sentences and orders were determined by the court based on the evidence presented and the legal principles applicable to the case. The outcome of the case reflects the court's commitment to balancing the need for punishment and rehabilitation with the protection of the community and the rehabilitation of offenders.

Orders

Orders of the court

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Background

Background to the litigation

I received the following:·the affidavit of Joseph Nguyen, sworn 23 January 2017 (exhibit P1);·the affidavit of Samuel George Withers, affirmed 12 February 2018 (exhibit P2);·the second affidavit of Joseph Nguyen, sworn 19 February 2018 (exhibit P3);·the affidavit of Casey-Leigh Stephanee Austin, affirmed 1 May 2018 (exhibit P4);·the affidavit of Clark Sim, affirmed 7 May 2018 (exhibit P5);·the affidavit of Nickolas Fredella, sworn 7 May 2018 (exhibit P6);·the third affidavit of Joseph Nguyen, sworn 15 May 2018 (exhibit P7);·a report of Dr C Raeside, dated 2 April 2018 (exhibit P8);·a second report of Dr C Raeside, dated 11 May 2018 (exhibit P9);·the agreed factual basis for sentencing Mr Schmidt on SCCRM-18-142 (AMC-16-13142) (exhibit P10);·the agreed factual basis for sentencing Mr Schmidt on SCCRM-18-136 (MCPAR-17-14904) (exhibit P11);·the alleged breaches of the interim supervision order (exhibit P12);·a draft extended supervision order as proposed by the Attorney-General (exhibit P13);·two certificates of programs/course undertaken by Mr Schmidt in custody (exhibit P14);·Mr Schmidt’s antecedents (exhibit P15).Background Mr Schmidt was born at the Lyell McEwin Hospital on 11 July 1986. He is the eldest of three children born to his parents. His mother is a Pitjantjatjara woman and a member of the stolen generation. Mr Schmidt identifies as Aboriginal. Mr Schmidt has reported enjoying a good relationship with his father, but not a close relationship with his mother. He has described his parents as being “unhappily married”. As a child he was largely raised by his grandparents. He was always provided with the basic necessities but considered his grandparents physically punitive, authoritarian and intimidating. He has described his childhood as “a dodgy one. Just arguments and stuff, and just not feeling much loved when I was growing up”. Mr Schmidt attended seven different schools. It was common for him to be in trouble with his teachers. His grades were poor. He was a slow learner and was placed in a special education class for most of his education. He attended Parafield Gardens High School where he continued to get into trouble including fighting. He was suspended on in excess of 30 occasions. Ultimately Mr Schmidt was expelled whilst undertaking year 10 and did not return to the education system until he was in his twenties. Fighting others at school was a common occurrence for Mr Schmidt. It was largely the product of his being victimised because he had no friends, was overweight and had a learning disability. When he left school he was functionally illiterate and innumerate. It was whilst Mr Schmidt was in high school and 15 years old that he was sexually assaulted by an elderly adult male on a daily basis as he went to and from school over the course of a week. He told his father what had happened which resulted in a police investigation and the trial of the perpetrator. It was also around this time that Mr Schmidt began repeatedly running away from home, commenced using cannabis and engaged in binge drinking. Home life with his grandparents presented its own difficulties. He also reported being psychologically abused by an uncle who would refer to him as “basically hopeless, and stuff like he used to hit me and stuff like that”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

HINTON J

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Ratio Decidendi

Legal Principle Established

Established by: HINTON J

David Schmidt comes before this Court for three purposes:i. for sentence on:a. two counts of failing to comply with reporting obligations, one count of failing to comply with a reporting obligation relating to reportable contact with a child without a reasonable excuse, and one count of knowingly furnishing false information in relation to reportable contact with a child. Those offences were committed contrary to ss 44(1), 44(1a) and 45(2) of the Child Sex Offenders Registration Act 2006 (SA) (the Child Sex Offenders Registration Act) respectively;[1] andb. six counts of failing to comply with reporting obligations relating to reportable contact with a child, contrary to s 44(1a) of the Child Sex Offenders Registration Act, and three counts of failing to tell an available responsible adult that he was a serious registrable offender and what the offence or offences were that resulted in him being a serious registrable offender as soon as practicable after having contact with a child or forming the intent to have contact with a child, contrary to s 66L(2) of that same Act;[2] ii.for determination as to whether he should be subject to an extended supervision order under s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the High Risk Offenders Act); andiii.for determination as to whether he should be subject to a continuing detention order under s 18(2) of the High Risk Offenders Act in consequence of his having breached an interim supervision order.[1] AMC-16-13142; SCCRM-18-142.[2] MCPAR-17-14904; SCRRM-18-136. For the purposes of sentencing Mr Schmidt for the offences committed contrary to the Child Sex Offenders Registration Act I am to be understood as sitting as a Magistrate.[3][3] Judicial Administration (Auxiliary Appointments and Powers) Act 1988, s 5. Material received I received the following:·the affidavit of Joseph Nguyen, sworn 23 January 2017 (exhibit P1);·the affidavit of Samuel George Withers, affirmed 12 February 2018 (exhibit P2);·the second affidavit of Joseph Nguyen, sworn 19 February 2018 (exhibit P3);·the affidavit of Casey-Leigh Stephanee Austin, affirmed 1 May 2018 (exhibit P4);·the affidavit of Clark Sim, affirmed 7 May 2018 (exhibit P5);·the affidavit of Nickolas Fredella, sworn 7 May 2018 (exhibit P6);·the third affidavit of Joseph Nguyen, sworn 15 May 2018 (exhibit P7);·a report of Dr C Raeside, dated 2 April 2018 (exhibit P8);·a second report of Dr C Raeside, dated 11 May 2018 (exhibit P9);·the agreed factual basis for sentencing Mr Schmidt on SCCRM-18-142 (AMC-16-13142) (exhibit P10);·the agreed factual basis for sentencing Mr Schmidt on SCCRM-18-136 (MCPAR-17-14904) (exhibit P11);·the alleged breaches of the interim supervision order (exhibit P12);·a draft extended supervision order as proposed by the Attorney-General (exhibit P13);·two certificates of programs/course undertaken by Mr Schmidt in custody (exhibit P14);·Mr Schmidt’s antecedents (exhibit P15).Background Mr Schmidt was born at the Lyell McEwin Hospital on 11 July 1986. He is the eldest of three children born to his parents. His mother is a Pitjantjatjara woman and a member of the stolen generation. Mr Schmidt identifies as Aboriginal.