EX-CON ALLEGES THAT SHE IS NOT A HIGH-RISK OFFENDER AND SEEKS FOR THE REVOCATION OF THE INTERIM SUPERVISION ORDER
ATTORNEY-GENERAL (SA) v TMS [2021] SASC 6 (5 February 2021)
This is an application by the respondent to revoke an interim supervision order made and a determination whether the respondent is a high-risk offender.
Facts:
The respondent was sentenced to 10 years’ imprisonment with a non-parole period of six years and eight months following her guilty pleas to two counts of aggravated acts endangering life and three counts of aggravated acts creating risk of serious harm. The respondent was released on parole on 9 May 2019 and the sentence expired on 5 October 2020.
Prior to the expiry of the sentence the Attorney-General made an application (“the application”) seeking that the respondent be subject to an extended supervision order (“ESO”) for a period of up to five years pursuant to S.7(1) of the Criminal Law (High Risk Offenders) Act 2015(“the HRO Act”) as she is, pursuant to s.7(4), a high-risk offender and poses an appreciable risk to the safety of the community if not supervised under an ESO and that the respondent be subject to an interim supervision order (“ISO”) from the date of making the interim order pursuant to s.9(1) of the HRO Act until the application for the ESO is determined.
The Attorney contends that the ISO was properly made because the offending involved five serious offenses of violence and the documentation in support of the application would, if proved, demonstrate that the respondent poses an appreciable risk to the safety of the community if not supervised.
The respondent argues that her offending involved crimes of neglect and such offending was not intended to be subject to the HRO Act which provides for supervision of those convicted of sexual offenses, violent crimes, and terrorism offenses. The respondent then sought permission to make an application for revocation or variation of the ISO. In seeking revocation of the ISO, the respondent points out that the object of the HRO Act is to protect the community from being exposed to an appreciable risk of harm posed by serious sexual offenders and serious violent offenders. She argues that the HRO Act is not enlivened as she is not a high-risk offender as prescribed by it.
Issue: Is the respondent considered as a high-risk offender and be subject to an ISO?
Law:
- Criminal Law (High Risk Offenders) Act 2015 SS.3, 4(1), 5(c), 7, 9(1)
Analysis:
The offending involved serious offenses of violence being serious offenses where the conduct constituting the offenses involved a risk of the death, or serious harm to, a person. That is the conduct endangered the lives of and, therefore, involved a risk of death to the two children who were the subjects of the counts of aggravated acts endangering life. Further, the conduct created a risk of serious harm to the three children the subjects of counts of aggravated acts creating risk of serious harm.
The respondent’s convictions were imposed in respect of five offenses that were serious offenses of violence. As such, the respondent is a serious violent offender as defined by the HRO Act and the Court’s power to make an ESO under S.7 or an ISO under S.9 is enlivened.
As the HRO Act is enlivened, it is necessary the respondent undergo assessment by a prescribed health professional pursuant to S.7(3) of the HRO Act who will report to the Court detailing that assessment and the likelihood of the respondent committing a further serious offense of violence. Once in receipt of that report, the Court will determine in accordance with S.7 of the HRO Act whether the respondent is a high-risk offender who poses an appreciable risk to the safety of the community if not subject to an ESO. Accordingly, the ISO must remain in place pending determination of the application.
Conclusion: Hence, the respondent is a high-risk offender and orders that the application to revoke the interim supervision order be dismissed.
