Thomas v Attorney-General (SA)

This case concerned an appeal by Mr Thomas against an order for his indefinite detention made by a judge of the Supreme Court of South Australia. The Attorney-General for South Australia was the respondent. The appeal was heard by Kourakis CJ, Nicholson and Parker JJ.

The legal issues before the Full Court were whether the judge erred in ordering Mr Thomas's indefinite detention under section 23 of the repealed Sentencing Act 2017, and whether an Extended Supervision Order (ESO) under the High Risk Offenders Act 2015 (HRO Act) would have been a sufficient alternative to protect the community. Specifically, the court considered whether the judge failed to properly consider the court's power under the HRO Act to order detention until completion of a sexual behaviour program if such a program was not completed in the community as a condition of an ESO.

The Full Court reasoned that the judge had erred by failing to adequately consider the court's powers under the HRO Act. While acknowledging the paramount consideration of community safety, the court noted that the HRO Act provided for the imposition of conditions on an ESO, including the possibility of detention if those conditions were breached. The court highlighted that if Mr Thomas failed to attend a program like Owenia House, he could be detained in prison until completion of a sexual behaviour program. The court found that the judge's decision to order indefinite detention, rather than an ESO with the potential for custodial detention upon breach, represented a failure to have regard to the full scope of the court's powers under the HRO Act.

The Full Court allowed the appeal, finding that the judge had erred in law. The court remitted the matter to the Supreme Court for redetermination, with directions to consider the making of an ESO under the HRO Act, including the potential for custodial detention as a consequence of non-compliance with program conditions.