ATTORNEY-GENERAL (SA) v SIMON TRINCHINI [2026] SASC 9

Applicant: ATTORNEY-GENERAL (SA) Counsel: MR B GRANT - Solicitor: CROWN SOLICITOR (SA) Respondent: SIMON TRINCHINI Counsel: MR T BLAKE - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 19/02/2025, 23/07/2025, 29/10/2025, 21/11/2025 File No/s: SCCRM-25-006163 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Application) 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. ATTORNEY-GENERAL (SA) v TRINCHINI [2026] SASC 9 Reasons for Decision of the Honourable Justice Kimber 2 February 2026 CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER This is an application by the Attorney-General seeking an order that the respondent be subject to an extended supervision order (ESO) pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act). On 19 February 2025, pursuant to s 7(3) of the Act, the Court ordered that one or more prescribed health professionals examine the respondent and report to the Court on the results of the examination (the report). On 17 October 2025, the Attorney-General was advised that the report had been allocated but was not expected to be provided before the end of February 2026. The respondent does not oppose the making of an ESO and submitted that s 7(6) of the Act is to be construed as providing jurisdiction to make that order without the report. The Attorney-General submitted that the proper construction of s 7(6) prohibits the making of an ESO until the Court has been furnished with the report, and it has been considered. Held: 1. Section 7(6) of the Act is to be construed as prohibiting the making of an ESO without the report ordered pursuant to s 7(3) being provided and considered by the Court. 2. The discretion to make an ESO is not enlivened. 3. The application for an ESO is adjourned to 4 March 2026. -- 1 of 9 -- Criminal Law (High Risk Offenders) Act 2015 (SA) ss 3, 7, 9, 10, 12; Legislation Interpretation Act 2021 (SA) s 14(1), referred to. Project Blue Sky Inc v Australian Broadcast Authority (1998) 194 CLR 355; Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1; Attorney-General for the State of SA v Coulter (No 2) [2019] SASC 25, applied. -- 2 of 9 -- ATTORNEY-GENERAL (SA) v TRINCHINI [2026] SASC 9 Criminal: Application KIMBER J. 1 The issue the subject of this judgment is whether the Court may make an extended supervision order (ESO) pursuant to s 7(4) of the Criminal Law (High Risk Offenders) Act 2015 (SA) (the Act) without taking into consideration a report ordered pursuant to s 7(3) of the Act (the report). 2 I find that an ESO may not be made without the report. My reasons follow. Background 3 On 13 February 2025, the Attorney-General (the applicant) filed an application for an ESO (the application) with respect to Mr Simon Trinchini (the respondent). On 19 February 2025, pursuant to s 9 of the Act, this Court ordered that the respondent be subject to an interim supervision order (ISO). At the same time, pursuant s 7(3) of the Act, the Court ordered that one or more prescribed health professionals examine the respondent and report to the Court on the results of the examination. The application was adjourned to 25 June 2025 as it was thought the report would be available by that date. The request for the report, and the relevant documents, were provided to the ‘prescribed authority’ on or about 20 March 2025. The prescribed authority is the person ‘for the time being performing the duties, or holding or acting in the position, of the Clinical Director, Forensic Mental Health Service South Australia’ (the Clinical Director).1 4 At the end of May 2025, the report had not been allocated. On 24 June 2025, the application was adjourned to 23 July 2025 with the consent of both parties. On 23 July 2025, the report had not been allocated and the application was adjourned to 29 October 2025 with the consent of both parties. On 17 October 2025, the applicant was advised that the report had been allocated and that the examination of the respondent would not take place until 19 January 2026 with a report expected by the end of February 2026. It must be observed that will be more than 12 months after the report was ordered. 5 On 29 October 2025, the respondent advised the Court that he sought to submit that an ESO could be made without a report being considered. Submissions were heard on 21 November 2025. Delays 6 Before turning in more detail to the issue I must resolve, it is appropriate to observe that, anecdotally, significant delays in the provision of a report ordered 1 Criminal Law (High Risk Offenders) Act 2015 (SA) s 4 (definition of ‘prescribed authority’); Criminal Law (High Risk Offenders) Regulations 2015 (SA) reg 4. -- 3 of 9 -- [2026] SASC 9 Kimber J 2 pursuant to s 7(3) of the Act are common. In my experience, the usual approach is that the applicant asks for a period of six months for the report to be provided. It is common that a further adjournment is then requested. 7 This is plainly unsatisfactory. Among other reasons, it has the consequence that respondents are subject to interim supervision orders, often placing substantial limits upon their freedoms, for a prolonged duration before the applicant needs to meet the burden of establishing that an ESO should be made. In my view, this consequence is unsurprising given the number of applications for extended supervision orders is significantly greater than anticipated when the Act came into force and, through no fault of the Clinical Director or the health professionals, it is significantly beyond the capacity of the health professionals willing and able to prepare such reports to do so in a timely fashion. 8 Before the Act was introduced, the then Attorney-General predicted that there might be no more than about 10 applications for an ESO each year, possibly less.2 That prediction may be contrasted with information provided to me which suggests that, in the 12 months from 1 July 2024, there were about 90 applications for an ESO. In applications where the circumstances warrant the making of an ISO, the Act also demands that an order for the report pursuant to s 7(3) be made. In most applications, if not all, the written material that the health professional must peruse is considerable. There is also the time that is necessary for examination and the writing of the report. It is common that the report is in excess of about 20 pages. I anticipate that there is a limited number of health professionals capable and prepared to undertake the work. 9 When consideration is given to whether an application for a supervision order should be made with respect to a specific respondent, I am not in a position to know whether regard is had to the capacity of available health professionals to provide reports in a timely fashion. However, I am in a position to predict that the delays are only likely to increase. Even if the number of applications for a first ESO do not increase, it is very common that there is application for a subsequent ESO. When that occurs, s 7(3) demands that a further report be ordered. 10 As mentioned, interim supervision orders pursuant to the Act commonly impose substantial limits upon the freedoms of respondents before the applicant is equipped with the report and able to meet the burden of establishing that the discretion to make an ESO should be exercised. It is undesirable that persons subject to an ISO should be subject to substantial delays and substantial limits upon their freedoms while awaiting a decision about whether an ESO should be made. Nevertheless, where the fault, if any, lies for the delays and the solution, if any, are matters for others. 2 South Australia, Parliamentary Debates, House of Assembly, 17 March 2015, 532 (John Rau, Attorney-General). -- 4 of 9 -- [2026] SASC 9 Kimber J 3 Section 7 of the Act 11 Section 7 of the Act relevantly provides: 7—Proceedings (1) The Attorney-General may make an application to the Supreme Court for an extended supervision order to be made in respect of a person who is a high risk offender (the respondent). (2) An application for an order under this section may only be made within the 12 months preceding the relevant expiry date for the respondent. (3) The Supreme Court must, before determining whether to make an extended supervision order, direct that 1 or more prescribed health professionals examine the respondent and report to the Court on the results of the examination, including— (a) if the respondent is a serious sexual offender—an assessment of the likelihood of the respondent committing a further serious sexual offence; or (b) if the respondent is a serious violent offender—an assessment of the likelihood of the respondent committing a further serious offence of violence; or (c) if the respondent is a terror suspect—an assessment of the likelihood of the respondent committing a terrorist offence, or otherwise being involved in a terrorist act, or committing a serious offence of violence; or (d) if the respondent is a person referred to in paragraph (g) of the definition of high risk offender in section 5 (or was such a person when first subjected to an extended supervision order)—an assessment of the likelihood of the respondent committing any prescribed offence. (4) The Supreme Court may, on application under this section, order that the respondent is to be subject to an extended supervision order if satisfied that— (a) the respondent is a high risk offender; and (b) the respondent poses an appreciable risk to the safety of the community if not supervised under the order. (5) The paramount consideration of the Supreme Court in determining whether to make an extended supervision order must be the safety of the community. (6) The Supreme Court must also take the following matters into consideration in determining whether to make an extended supervision order in respect of the respondent: (a) the likelihood of the respondent committing offences of a kind assessed under subsection (3)(a), (b), (c) or (d) (as the case may be) if not supervised under the order; (b) the reports of any prescribed health professional (as directed under subsection (3)) furnished to the Court; -- 5 of 9 -- [2026] SASC 9 Kimber J 4 (c) any report prepared by the Parole Board under section 64(5) of the Correctional Services Act 1982; (d) any report required by the Court under section 20 (including the results of any statistical or other assessment furnished to the Court as to the likelihood of persons with histories and characteristics similar to those of the respondent committing a further relevant offence); (e) any relevant evidence or representations that the respondent may desire to put to the Court; (f) any treatment or rehabilitation program in which the respondent has had an opportunity to participate, including his or her willingness to so participate and the extent of such participation; (g) in the case of a respondent released on parole—the extent to which he or she has complied with the conditions of his or her release on parole; (h) in the case of a respondent subject to an existing extended supervision order— the extent to which he or she has complied with the terms of the order; (i) in the case of a respondent who is a registrable offender (within the meaning of the Child Sex Offenders Registration Act 2006)—the extent to which he or she has complied with any obligations under that Act; (j) the circumstances and seriousness of any offence in respect of which the respondent has been found guilty according to his or her criminal history, and any pattern of offending behaviour disclosed by that history; (k) any remarks made by the sentencing court in passing sentence; (l) any other matter that the Court thinks relevant. … Section 10 of the Act 12 Section 10 of the Act provides that a supervision order must contain mandatory conditions and may contain other conditions. Section 10 relevantly provides: 10—Supervision orders—terms and conditions (1) The following conditions apply in relation to an extended supervision order: (a) a condition that the person subject to the order not commit any offence; (b) a condition that the person subject to the order is prohibited from possessing a firearm or ammunition (both within the meaning of the Firearms Act 2015) or any part of a firearm; (c) a condition prohibiting the person subject to the order from possessing an offensive weapon unless the Supreme Court permits the person to possess such a weapon and the person complies with the terms and conditions of the permission; -- 6 of 9 -- [2026] SASC 9 Kimber J 5 (d) a condition that the person subject to the order— (i) be under the supervision of a community corrections officer; and (ii) obey the reasonable directions of the community corrections officer; and (iii) submit to such tests (including testing without notice) for gunshot residue as the community corrections officer may reasonably require; (da) a condition that the person subject to the order is prohibited from leaving the State without the permission of the Supreme Court or the Parole Board, which may be subject to the terms and conditions that the Court or the Parole Board (as the case requires) thinks fit; (e) any other condition that the Court thinks fit and specifies in the order (including any condition the Parole Board is able to impose under section 11(1)); (f) any condition imposed by the Parole Board under section 11. (2) The conditions referred to in subsection (1)(a) to (e) (inclusive) apply in relation to an interim supervision order. The submissions 13 The respondent submits that s 7 of the Act should be construed as permitting an ESO to be made without the report ordered pursuant to s 7(3) of the Act. The respondent submits that a matter to be taken into account is the willingness of the respondent to participate in rehabilitation programs and the extent of such participation. That being so, the applicant submits that a purpose of an ESO is rehabilitation, a purpose that he submits is consistent with the object of the Act as set out in s 3 which provides: 3—Object of Act The object of this Act is to provide the means to protect the community from being exposed to an appreciable risk of harm posed by various serious offenders. 14 The respondent submits that while s 7(3) makes it mandatory to order the report, the proper construction of s 7(6)(b) does not prevent the making of an ESO until the report is furnished and then considered by the Court. The respondent submits that the Court should construe s 7(6)(b) as limiting the obligation to take the report into account to circumstances in which the report exists and is provided in a timely fashion. 15 The applicant submits that the proper construction of s 7(6)(b) is that it prohibits the making of an ESO until the Court has been furnished with the report, and it has been considered. The applicant emphasises that s 7(6) uses the word ‘must’ and that sub-s (6)(a) and (b) (and also (g)-(j) where relevant) use the definitive article ‘the’ which connotes a mandatory consideration. The applicant submits that the use of the definitive article can be contrasted with the use of ‘any’ -- 7 of 9 -- [2026] SASC 9 Kimber J 6 elsewhere within s 7(6). The applicant submits that, had the report been an optional consideration, then Parliament would have used the word ‘any’ in s 7(6)(b) as it did in other parts of s 7(6) of the Act. Consideration 16 In Project Blue Sky Inc v Australian Broadcast Authority, McHugh, Gummow, Kirby and Hayne JJ stated that:3 … the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision. 17 In Australian Education Union v Department of Education and Children's Services, French CJ, Heydon, Kiefel and Bell JJ said:4 The process of construction begins with a consideration of the ordinary and grammatical meaning of the words of the provision having regard to their context and legislative purpose. 18 Section 14(1) of the Legislation Interpretation Act 2021 (SA) provides: 14—Interpretation best achieving purpose or object (1) In interpreting a provision of an Act or a legislative instrument, the interpretation that best achieves the purpose or object of the Act or the instrument (whether or not that purpose or object is expressly stated in the Act or instrument) is to be preferred to any other interpretation. 19 I am unable to construe s 7(6) as permitting the making of an ESO without the report ordered pursuant to s 7(3) of the Act. I find that the natural reading of s 7(6)(b) is that an order cannot be made without considering the report furnished to the Court. I agree with the submission of the applicant that there is significance in the use of the definitive article ‘the’ in s 7(6)(b) and the use of ‘any’ elsewhere within s 7(6). If Parliament had intended that an ESO could be made without the report being considered, it is unlikely to have used the definitive article and more likely to have used the word ‘any’. Read in context, the use of the definitive article is a strong textual indicator that an ESO cannot be made before the report is furnished and without it being considered. 20 Further, in my view, this construction is consistent with other aspects of the Act and given the matters the report will address, the report informs other aspects of the Act which are intrinsically connected with the object of the Act. Section 12 of the Act provides that an ESO can be made for a period of up to five years. Section 10(1)(e) provides that the Court may impose ‘any… condition that the Court thinks fit’. The report is likely to be important to whether the ESO should be made. Section 7(4)(b) provides that before making an ESO, the Court must be 3 Project Blue Sky Inc v Australian Broadcast Authority (1998) 194 CLR 355, 384 [78]. 4 Australian Education Union v Department of Education and Children's Services (2012) 248 CLR 1, 13 [26]. -- 8 of 9 -- [2026] SASC 9 Kimber J 7 satisfied that the respondent poses an appreciable risk to the safety of the community if not supervised under the order. Given the matters the report will address (i.e. – as set out in s 7(3) of the Act), the report is likely to directly inform whether the Court should be satisfied of that jurisdictional fact. The report is also likely to inform the appropriate duration of any order and what, if any, discretionary conditions are appropriate to impose pursuant to s 10 of the Act. This assessment of appreciable risk and the means in which the community should be protected are intrinsically connected with the object of the Act. As his Honour was then, Hinton J observed in Attorney-General for the State of SA v Coulter (No 2):5 If an extended supervision order is made it remains in force for a period of five years or such lesser period as is determined by the Court and specified in the order.6 If an extended supervision order of less than five years in duration is made it will be because the Court considers it likely that at the end of the period nominated the appreciable risk that the offender poses will have abated to the extent that the order will no longer be necessary for the protection of the community. An opinion that the risk posed by a high risk offender will abate within a particular period of time will often be based on the likely success of treatment or education programs undertaken by the high risk offender during the period of the extended supervision order. Often these programs will have been suggested, as they were in this case, by the psychologists and psychiatrists from whom reports are obtained. In such circumstances, the prediction involved in determining the length of an extended supervision order requires a consideration of the gains it is anticipated the offender will make as a consequence of his or her participation in treatment or education programs and whether those gains will be lasting. Obviously the opinions of psychologists and psychiatrists as to the likelihood of the high risk offender responding, the gains to be expected and the need for ongoing maintenance will be important to determining the length of an extended supervision order. 21 For the above reasons, I find that s 7(6) is to be construed as prohibiting the making of an ESO without the report pursuant to s 7(3) being furnished and considered by the Court. It follows that despite the willingness of the respondent to be subject to an ESO, the Court cannot order an ESO at this time. 22 In the absence of any other application by the respondent, of which there is currently none, and noting the report is expected by the end of February 2026, I order that the application for an ESO be adjourned to 4 March 2026. 5 [2019] SASC 25, [51]. 6 Criminal Law (High Risk Offenders) Act 2015 (SA) s 12(1)(b). -- 9 of 9 --