Rankine v Attorney-General (SA)
[2021] SASCA 54
•2 June 2021
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
RANKINE v ATTORNEY-GENERAL (SA)
[2021] SASCA 54
Judgment of the Court of Appeal (ex tempore)
(The Honourable Justice Doyle and the Honourable Justice Bleby)
2 June 2021
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS
CRIMINAL LAW - APPEAL AND NEW TRIAL
Appeal against a decision to impose an extended supervision order pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’).
The appellant had been sentenced in the District Court to a sentence of imprisonment of eight years and six months, for one count of aggravated causing harm with intent to cause harm, on 26 April 2013. That sentence followed a long history of violent offending.
On 8 September 2020, following an application by the Attorney-General for South Australia, Lovell J ordered that the appellant be subject to an Extended Supervision Order (‘ESO’) for a period of two years and six months, pursuant to s 7(4) of the HRO Act. The ESO commenced from the date of judgment.
The appellant now appeals against the ESO.
Held (per the Court), granting an extension of time to file the Notice of Appeal and dismissing the appeal:
1. The primary judge manifestly gave careful consideration to the matters raised on the appellant’s behalf going to his positive response to counselling and his success under the ISO. The complaint that his Honour did not consider the appellant’s good behaviour is not reasonably arguable.
2. The appellant has not identified any specific hardship that was identified before the primary judge that the primary judge failed to take into consideration.
Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7(4)-(6), 12, 22(1), 22(3), referred to.
House v The King (1936) 55 CLR 499; Thomas v Attorney-General (SA) [2019] SASCFC 21; Attorney-General (SA) v Rankine [2020] SASC 163, considered.
RANKINE v ATTORNEY-GENERAL (SA)
[2021] SASCA 54
Court of Appeal - Criminal: Doyle and Bleby JJA
THE COURT (ex tempore): On 8 September 2020, Lovell J ordered that the appellant be subject to an Extended Supervision Order (‘ESO’) for a period of two years and six months, pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’). The ESO commenced from the date of judgment. The Attorney-General had applied for the appellant to be made subject to an ESO for a period of five years.
Previously, on 13 December 2019, Lovell J had made an Interim Supervision Order (‘ISO’), which had remained in place until the determination of the Attorney-General’s application for the ESO.
The appellant had been sentenced in the District Court to a sentence of imprisonment of eight years and six months, for one count of aggravated causing harm with intent to cause harm, on 26 April 2013. That sentence followed a long history of violent offending.
The appellant now appeals or, alternatively, seeks permission to appeal against the ESO. Section 22(1) of the HRO Act provides that an appeal lies to the Court against the decision to make an ESO. The Attorney‑General does not contend that permission is required. We are prepared to proceed on the basis that insofar as permission may be required, it is not opposed.
However, the Notice of Appeal was filed in excess of three months out of time. The appellant therefore requires an extension of time to appeal. The Attorney-General opposes an extension. Section 22(3) of the HRO Act provides that subject to a contrary order of the Court, an appeal cannot be commenced after ten days from the date of the decision against which the appeal lies.
The appellant had filed a Notice of Appeal on 23 September 2020, which was only five days out of time. However, he ended up withdrawing that Notice of Appeal. The Notices of Appeal are in different terms, but we note at the outset that the appellant has, for the duration of these proceedings, been unrepresented. We will return to the question of an extension of time shortly.
The Notice of Appeal now filed is expressed to be against the ‘severity of the sentence’. This misconceives the nature of an ESO, which is not in the nature of a sentence imposed for a criminal offence.[1] In any event, the appeal can be taken to be complaining about the severity of the order in its application to the appellant.
[1] Thomas v Attorney-General (SA) [2019] SASCFC 21 at [72]-[73] (Kourakis CJ).
Pursuant to s 7(4) of the HRO Act, the power to make an ESO is discretionary, on the Court being satisfied of certain matters. An appeal against an order consequent on the exercise of such a discretion requires establishing that the primary judge made a process or outcome error of the type contemplated in House v The King.[2]
[2] (1936) 55 CLR 499.
The appellant only seeks an order that the ESO be backdated by a year. This misunderstands the nature of an ESO. Section 12 of the HRO Act provides that an ESO takes effect on the making of the order or on the relevant expiry date for the person subject to the order, whichever is the later. The commencement of any ESO is constrained by these provisions. The Court cannot backdate the commencement of the order as it can in certain circumstances when sentencing.
There is a clear reason for this. As the Attorney-General observed in written submissions, an ESO is designed for the protection of the community, rather than punishment of the individual. It does not compare easily with a sentence for a criminal offence. An ESO is essentially forward looking, in that looks to the level of risk that the offender poses to the community at the time that it is made, whether that risk is likely to reduce upon treatment and other criteria that are to be assessed at the time of the making of the order.
Nevertheless, the fact that the specific remedy that the appellant seeks is not available would not prevent this Court from intervening and setting aside the order if it discerned error on a part of the primary judge in imposing the ESO in the first place.
In effect, there are two essential complaints expressed in the Notice of Appeal. The first is the hardship of the order on the appellant. The second is that the primary judge gave no consideration to the appellant’s ‘good behaviour’. This last complaint is a reference to the progress that the appellant has demonstrated in counselling sessions and the fact that he had not breached his ISO in the seven months that had passed between his release and the making of the ESO.
In written submissions filed with the Court, the appellant expanded upon his efforts and achievements towards rehabilitation. These are notable, all the more so for the appellant’s successes coming from self-motivated action. His submissions display insight and extend to considered reflection of his disadvantages, past behaviour and recent successes in the context of relevant published material in psychology.
As to this second complaint, Lovell J gave express regard to a report prepared by Dr Raeside. Dr Raeside had been shown a Completion of Treatment report prepared by an accredited Mental Health Social Worker from Action Counselling. That report noted that the appellant was committed to living a quiet life without conflict and expressed the view that he did not need ongoing counselling. Justice Lovell noted, accurately:[3]
The report did not alter Dr Raeside’s view. Dr Raeside accepted that Mr Rankine had performed well since his release on the ISO and that he had engaged positively in his rehabilitation. He stated that while the reports offer positive comments about Mr Rankine’s engagement, they supported his opinion that the respondent requires ongoing assertive supervision. Dr Raeside described “assertive supervision” to mean supervision which enables intervention before a problem occurs.
[3] Attorney-General (SA) v Rankine [2020] SASC 163 at [34].
His Honour then addressed the question of whether the order should be made. As to the matter of essential rehabilitation he continued:[4]
I have no doubt that Mr Rankine sincerely believes that he has addressed his “criminogenic factors”. However, as Dr Raeside observed, objectively he still remains at a high risk of relapse. His performance to date can be seen to have occurred against the background of strict supervision.
[4] Attorney-General (SA) v Rankine [2020] SASC 163 at [37].
The primary judge manifestly gave careful consideration to the matters raised on the appellant’s behalf going to his positive response to counselling and his success under the ISO. The complaint that his Honour did not consider his good behaviour is not, in our view, reasonably arguable.
As to the broad complaint to the effect that the appellant is suffering prejudice or hardship on account of the ESO, it is to be expected that by its very nature, an ESO will impose inconvenience and a degree of hardship on any person subject to the terms of such an order.
Mr Rankine developed the nature of the hardship he submits he is experiencing, in his oral submissions. In particular, he has particular concerns about the location in which he has been required to live, which he regards as unsafe for him given his history.
Further, he submitted that the nature of the supervision he has been subjected to, including drug tests without notice, have interfered with and, indeed, stymied, his attempts to establish a small business. He submits that his interactions with the Department for Correctional Services are rarely positive. While the Court has no reason to doubt the sincerity of these complaints, they are not matters that demonstrate error in the order that Lovell J made.
The matters to be taken into account in considering whether to make an ESO are set out in s 7(4)-(6) of the HRO Act. The paramount consideration is the safety of the community. Section 7(6) lists a number of further matters that the Court must take into consideration. Without setting them out here, these largely pursue the theme of community protection, although s 7(6)(e) requires the Court to take into account any relevant evidence or representation that the respondent (the appellant in this case) may desire to put to the Court.
Justice Lovell clearly gave careful consideration to the matters that the appellant raised. Thus, he said:[5]
The respondent is opposed to the order. Mr Rankine presents as an intelligent and articulate person. His submissions, while a little discursive, were directed towards demonstrating that he at last has “learnt his lesson” and that he does not want to return to gaol. I consider that since his release, and indeed for a period before his release, he has clearly engaged well in his rehabilitation. Mr Rankine accepts the seriousness of his past offending but submitted that through his participation in various programs, he has been able to address his “criminogenic factors”.
[5] Attorney-General (SA) v Rankine [2020] SASC 163 at [36].
The appellant has not identified any specific hardship that was identified before the primary judge that the primary judge failed to take into consideration. We do not consider that it is reasonably arguable that Lovell J erred in this respect either.
There was a clear evidential basis for Lovell J’s conclusion that the appellant remained at a high risk of relapse. The period of two years and six months was reached, against the Attorney-General’s application that the ESO be imposed for a period of five years, having close regard to the nature of the risks facing the appellant.
As we have noted, the appellant filed a Notice of Appeal close to within time but then withdrew it, only to file a fresh notice three months later. The appellant has been unrepresented throughout. Having regard to the lack of apparent prejudice to the Attorney-General but also to the need for finality in proceedings, we think that the interests of justice are best served in this case by granting an extension of time to file the Notice of Appeal. However, for the reasons we have given, there is no merit in the appeal itself.
The orders of the Court are therefore:
1.The appellant is granted an extension of time to file the Notice of Appeal to 3 February 2021
2. Appeal dismissed.
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