OFFORD v ATTORNEY-GENERAL (SA) [2026] SASCA 64

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE B DOYLE) SCCRM-25-049734 Appellant: DAVID MAURICE OFFORD In Person Respondent: ATTORNEY-GENERAL FOR THE STATE OF SOUTH AUSTRALIA Counsel: MS E FERGUSON - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 03/06/2026 File No/s: SCCRM-26-006861 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. OFFORD v ATTORNEY-GENERAL (SA) [2026] SASCA 64 Judgment of the Court of Appeal (The Honourable Chief Justice Stein, the Honourable Justice David and the Honourable Justice Stanley) 11 June 2026 CRIMINAL LAW - APPEAL AND NEW TRIAL - INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS This is an appeal against a decision of a Supreme Court Judge ordering an interim detention order under s 57(5) of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) against the appellant pending determination of an application for an extended order under s 57(3) of the Act. The appellant raises two grounds of appeal. First, that the judge erred in making an assessment of whether the appellant was incapable of controlling, or unwilling to control, his sexual instincts by considering his charged and uncharged history of non-sexual violent offending (Ground 1); and secondly, that the judge erred in having regard to considerations not properly arising from the legislation before him (Ground 2). Held, per the Court, granting an extension of time to file the notice of appeal but dismissing the appeal: 1. As to Ground 1, the judge has not erred by taking into account the appellant’s non-sexual violent offending when assessing whether he is incapable of controlling, or unwilling to control, his sexual instincts. 2. As to Ground 2, the judge has not erred by having regard to extraneous or irrelevant matters when reaching his conclusion that an interim detention order was appropriate. -- 1 of 8 -- 3. In the circumstances of this case, the making of the interim detention order was not plainly unjust or unreasonable. Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 9; Sentencing Act 2017 (SA) s 57; Supreme Court Act 1935 (SA) s 50, referred to. Attorney-General v DO [2026] SASC 10, applied. House v The King (1936) 55 CLR 499, considered. -- 2 of 8 -- OFFORD v ATTORNEY-GENERAL (SA) [2026] SASCA 64 Court of Appeal: Criminal – Stein CJ, David and Stanley JJA 1 THE COURT: This is an appeal against a decision of a Supreme Court Judge ordering an interim detention order under s 57(5) of the Sentencing Act 2017 (SA) (‘the Sentencing Act’) against the appellant pending determination of an application for an extended detention order under s 57(3) of the Act. 2 The appellant raises two grounds of appeal. First, that the judge erred in making an assessment of whether the appellant was incapable of controlling, or unwilling to control, his sexual instincts, by considering his charged and uncharged history of non-sexual violent offending (Ground 1); and secondly, that the judge erred in having regard to considerations not properly arising from the legislation before him (Ground 2). 3 The appellant seeks an order setting aside the interim detention order and allowing for his release into the community. 4 For the reasons which follow, we dismiss the appeal and confirm the interim detention order. Procedural history 5 On 5 December 2025, the Attorney-General filed an application for an indefinite detention order under s 57 of the Sentencing Act against the appellant, and in the alternative, an application for an extended supervision order under s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the HRO Act’). There were associated orders sought for the appellant’s interim detention under s 57(5) of the Sentencing Act, or in the alternative for his interim supervision under s 9 of the HRO Act. 6 Through his counsel, the appellant consented to the making of an interim supervision order but opposed the order seeking his interim detention. 7 On 24 December 2025, the matter was administratively adjourned and listed for hearing on 21 January 2026 in relation to the application for an interim detention order. Following a further adjournment, the matter was re-listed for argument on 2 February 2026 (the hearing the subject of this appeal). 8 The appellant was represented at the hearings on 21 January 2026 and 2 February 2026, and appeared by way of AVL. The Attorney-General sought to rely upon two affidavits filed referable to the application for an enduring detention order, being an Affidavit of Catherine Nolan sworn on 5 December 2025 and an Affidavit of Catherine Nolan sworn on 30 January 2026. 9 On 2 February 2026, the appellant’s counsel raised no objection to the judge receiving those affidavits on the basis that he did not concede that any use could -- 3 of 8 -- [2026] SASCA 64 The Court 2 be made of the unproved or uncharged offending referred to in the affidavits. Both parties made oral submissions with judgment delivered ex tempore. The judge granted an interim detention order. 10 In his published reasons, the judge outlined the relevant principles applicable to determining whether an interim detention order should be made pursuant to s 57(5) of the Sentencing Act. 11 The judge then referred to the evidence contained in the two affidavits tendered by the Attorney-General including the appellant’s personal circumstances, the index offending, the appellant’s prior offending history, the evidence of uncharged or unproven offending, the treatment and risk assessments undertaken by the appellant, and the fact he had not successfully completed a sex offender treatment program. 12 After reviewing all the tendered material, and considering the oral submissions of counsel, the judge found that there was a serious question to be tried as to the appellant being unwilling to control his sexual instincts in the relevant sense. His Honour found that the appellant presented as an appreciable risk of harm to the safety of the community, and that the terms of an interim supervision order would not provide an adequate measure of community protection. 13 The judge concluded that ‘… in view of the paramount consideration of community safety … the risk posed by the [appellant’s] release even under strict supervision justifies the loss of the [appellant’s] liberty’.1 14 The judge made the interim indefinite detention order in the terms sought by the Attorney-General. His Honour then listed a further hearing in relation to directions concerning orders under s 57(6) of the Sentencing Act and s 7(3)(a) of the HRO Act, as to whether medical practitioners could place any reliance on unproven allegations when preparing their reports under both legislative schemes. The hearing did not proceed until 2 April 2026, at which time the appellant appeared unrepresented. His Honour found that evidence of unproven allegations may be relevant to the inquiry or examination to be undertaken by the medical practitioners, whether or not the allegations are, or will be, ultimately established. His Honour held that it was inappropriate to direct that the medical practitioners not be informed of the allegations. 15 No appeal has been filed against this decision. 16 The substantive proceedings have been adjourned to 2 September 2026. 1 Attorney-General (SA) v DO [2026] SASC 10 at [42] (B Doyle J). -- 4 of 8 -- [2026] SASCA 64 The Court 3 Relevant appeal provisions 17 The appeal is brought pursuant to s 50 of the Supreme Court Act 1935 (SA). Under ss 50(4) and (5), permission to appeal is not required. 18 To the extent that an extension of time to file the notice of appeal is required, there is no opposition by the Attorney-General, and an extension of time is granted. 19 The appeal is against the exercise of the judge’s discretion to order an interim detention order on 2 February 2026. As a result, it is governed by the principles in House v The King.2 Accordingly, the appellant must demonstrate a specific material error of the kind contemplated in House v The King. The appeal grounds 20 The appeal grounds were drafted and filed by the appellant’s former counsel in the following terms: 1. The judge erred in making an assessment of whether the appellant was incapable of controlling, or unwilling to control, his sexual instincts, by considering [his] charged and uncharged history of non-sexual violent offending (Ground 1); and 2. the judge erred in having regard to considerations not properly arising from the legislation before him (Ground 2). 21 The appellant (now unrepresented) in his written submissions does not appear to address either of these grounds of appeal. Ground 1(a): Reliance upon uncharged history of non-sexual violent offending (unproven allegations) 22 Under this appeal ground, the appellant contends that the judge erred by taking into account his uncharged history of alleged non-sexual violent offending and uncharged allegations of sexual and violent conduct. 23 It is evident from the judge’s reasons that his Honour explicitly did not take into consideration unproven allegations when deciding the application for an interim detention order. His Honour said:3 I consider that I am in a position to decide this application without placing any positive reliance upon unproven allegations, although, as I will explain, I consider that the extent and nature of the allegations is relevant to meet, or at least neutralise, a submission made by the [appellant’s] counsel. (citations omitted.) 2 House v The King (1936) 55 CLR 499. 3 Attorney-General (SA) v DO [2026] SASC 10 at [30] (B Doyle J). -- 5 of 8 -- [2026] SASCA 64 The Court 4 24 His Honour also said (in relation to the weight to be placed on various risk assessments of the appellant):4 … In that regard, I note the [appellant’s] counsel’s submission that one of the risk assessments referred to was not a formal assessment and that both of the most relevant assessments referred to by the [Attorney-General] had regard to unproved allegations. I accept that it would be dangerous at this stage to place substantial reliance on those assessments … 25 By way of background, counsel for the appellant made submissions to the effect that apart from the index offending, the appellant has no convictions for sexual offending. It was put that the appellant was ‘48 years old at the time of the index offending’ and that ‘if [he] were unwilling or unable to control his sexual instincts one would expect a man of 48 years of age to have other instances of related offending’. It was when addressing this submission that his Honour found that the uncharged and unproven allegations were relevant as tempering the weight which could be accorded to this submission. His Honour explained:5 … That is not to accept the allegations as proved. It is simply to exercise caution in relation to a submission that is proposed to be countered by evidence in due course. 26 While the fact that allegations were unproved remained relevant, it was nonetheless appropriate for the judge to rely on those allegations to the extent of exercising caution when considering the appellant’s submission that there were no other allegations of a sexual nature. 27 There was no error in the judge’s approach. Ground 1(b): Reliance upon charged history of non-sexual violent offending 28 This aspect of the first appeal ground complains that the judge erred by taking into account the appellant’s non-sexual violent offending when assessing whether the appellant was incapable of controlling, or unwilling to control, his sexual instincts. 29 Section 57(5) of the Sentencing Act confers on the court a broad discretion to make an interim detention order detaining a person in custody pending determination of an application for an indefinite detention order. The Sentencing Act does not prescribe any criteria for the exercise of the discretion under s 57(5) to make an interim order, other than that an application has been made and the person is in custody serving a sentence of imprisonment. 30 An interim detention order may be sought in circumstances where a person’s sentence will expire before the application for an indefinite detention order can be determined, and the reports required to be directed pursuant to s 57(6) are not available for consideration before a person’s sentence has expired. 4 Attorney-General (SA) v DO [2026] SASC 10 at [38] (B Doyle J). 5 Attorney-General (SA) v DO [2026] SASC 10 at [36] (B Doyle J). -- 6 of 8 -- [2026] SASCA 64 The Court 5 31 Section 57(7) provides that such an order may be made where the Court is satisfied that it is ‘appropriate’. 32 The judge observed that the circumstances in which an indefinite detention order may be ‘appropriate’, and, relatedly, when an interim order should be made pending a determination of that issue, are informed by the text, context and purpose of the section. 33 The judge correctly proceeded on the basis that an interim order will only be appropriate where, in light of the material before the Court, it can be said that there is, or will be, a real question to be tried as to whether the appellant is incapable of controlling, or unwilling to control, his sexual instincts. If so, the Court must then consider whether the risk to the safety of the community makes the appellant’s detention for a period necessary for the determination of the indefinite detention order appropriate. 34 As the judge correctly observed, part of this inquiry requires the Court to consider whether, and to what extent, an interim supervision order under the HRO Act would provide a sufficient level of protection for the community such as to render the appellant’s interim detention inappropriate. Any deprivation of liberty beyond the term of a sentence imposed for a person’s proved wrongdoing must have a strong justification. The paramount consideration which guides the power to make an indefinite detention order remains the protection of the safety of the community. That consideration must also guide the discretion to make an interim order. 35 In determining whether there is, or will be, a real question to be tried as to whether the appellant is incapable of controlling, or unwilling to control, his sexual instincts, the judge relied on the following matters: • the circumstances of the index offending, and the appellant’s unpreparedness to accept responsibility for it; and • that the index offending was committed whilst on parole and was highly likely to result in detention and punishment which ‘… arguably bespeaks an unwillingness to control his sexual instincts’.6 36 It is apparent from the reasons that the judge did not place any reliance on the appellant’s history of convictions for violence when reaching this conclusion. 37 It was only when the judge came to consider whether the risk to the safety of the community could be adequately protected by an interim supervision order and whether it would be appropriate that the appellant be detained for the period necessary for the determination of the indefinite detention order, that his Honour had regard to the appellant’s history of non-sexual violent offending. Given the relevant conduct in this case included strangulation, detention, intimidation, 6 Attorney-General (SA) v DO [2026] SASC 10 at [37] (B Doyle J). -- 7 of 8 -- [2026] SASCA 64 The Court 6 coercion, forcibly injecting others with drugs, and sustained offending over a long period of time, that non-sexual violent conduct was relevant to an assessment of whether the appellant presented as an appreciable risk of harm to the safety of the community and to what extent an interim supervision order under the HRO Act would provide a sufficient level of protection for the community such as to render the appellant’s interim detention inappropriate. 38 There was no error in the judge’s reasoning. 39 We dismiss this ground of appeal. Ground 2: Regard to extraneous considerations 40 The appellant contends that the judge erred by having regard to extraneous factors which did not properly arise for his consideration. Separate to the issues raised under appeal Ground 1, the appellant does not identify the nature of those irrelevant or extraneous matters. 41 Upon our own consideration of the evidence and judge’s reasons, we do not consider his Honour erred by having regard to any extraneous or irrelevant matters when reaching his conclusion that an interim detention order in the terms sought was appropriate. 42 During oral submissions the appellant contended he was not present for the hearing of an application for interim detention, and his detention was thus unlawful. We reject this submission. As set out in the procedural history the first hearing was adjourned administratively, and the appellant was present via AVL for the subsequent hearings. 43 To the extent that the appellant, in his oral submissions, complained that the evidentiary materials did not support the threshold findings for the making of an interim detention order, we reject this contention. On our own consideration of the materials and the judge’s reasons, we are satisfied there was no implied error and the making of the interim detention order was not plainly unjust or unreasonable. 44 We dismiss the appeal and confirm the interim detention order. Orders: 45 We dismiss the appeal. -- 8 of 8 --