ATTORNEY-GENERAL (SA) v GS [2025] SASC 29

Applicant: ATTORNEY-GENERAL (SA) Counsel: MS H LEAHEY - Solicitor: CROWN SOLICITOR (SA) Respondent: GS Counsel: MS S REID - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 11/03/2025 File No/s: SCCRM-25-007293 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 GS [2025] SASC 29 Ruling of the Honourable Justice Stein 13 March 2025 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 The applicant brought applications for an indefinite detention order and an interim detention order pursuant to s 57 of the Sentencing Act 2017 (SA) and separately for an extended supervision order and an interim supervision order pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA). The respondent opposed the making of the interim detention order (the “IDO”) pending determination of the application under s 57(7). The applicant contended the IDO was necessary to protect the safety of the community and that the evidence supported a finding that the respondent was unwilling to control his sexual instincts on the basis there was a significant risk he would, if given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts. The respondent submitted there was insufficient evidence to make findings regarding his innate mental characteristics and on whether they would render him incapable of control of his sexual instincts and contended the risk posed could be appropriately managed in the community under strict interim supervision order conditions. Held (refusing the application): 1. The evidence before the Court is not sufficient to warrant the making of an IDO. In any event, the Court would refuse to exercise the discretion to make an IDO on the basis other measures are apt to address the risk posed by the respondent, in particular, the making of an interim supervision order including electronic monitoring, home detention and non-contact conditions. -- 1 of 12 -- 2. Potential uncertainty regarding the Court’s jurisdiction to make an order under s 57(7) of the Sentencing Act 2017 (SA) in the event an IDO is not made is not a sound basis to make an IDO when considered against the matters which militate in favour of refusing this application. Consideration of the implications of delay in filing an application for an interim detention order pursuant to s 57 of the Sentencing Act 2017 (SA). Sentencing Act 2017 (SA) s 57; Criminal Law (High Risk Offenders) Act 2015 (SA), referred to. Attorney-General (SA) v Colangelo [2025] SASC 2; R v F, JM [2015] SASC 99; Attorney-General v Tipping [2019] SASC 7; Driver v Attorney-General (SA) [2022] SASCA 13; R v Hoare [2017] SASC 7; R v Stevens [2015] SASC 79; R v England (2004) 87 SASR 411; R v Ainsworth (2008) 100 SASR 238, considered. -- 2 of 12 -- ATTORNEY-GENERAL (SA) v GS [2025] SASC 29 Criminal: Application 1 STEIN J: On 25 February 2025, the Attorney-General filed an application for an extended supervision order and interim supervision order pursuant to the Criminal Law (High Risk Offenders) Act 2015 (SA) (the “HRO Act”) and a separate application seeking an extended detention order and interim detention order pursuant to s 57 of the Sentencing Act 2017 (SA) (the “Sentencing Act”). 2 The applications were listed for hearing in the high risk offender list on 5 March 2025. On that occasion, both applications were adjourned to 11 March 2025 to enable GS’s solicitors to obtain his instructions. 3 On 7 March 2025, the parties advised that GS would consent to the orders sought under the HRO Act. GS also consented to an order that the Court direct at least two legally qualified medical practitioners examine the respondent and report to the Court with an assessment whether the respondent is incapable of controlling or unwilling to control their sexual instincts to enable determination of the s 57(7) application. However, GS opposed the order that he remain in custody pending determination by the Court whether to make an order under s 57 that he be detained in custody until further order. 4 For the reasons that follow I have determined to refuse the application for an interim detention order pending determination of the s 57(7) application. Background 5 GS was sentenced on 29 September 2017 in the District Court to nine years imprisonment with a non-parole period of seven years backdated to 13 March 2016. Accordingly, GS’s head sentence will expire on 13 March 2025. Consequently, the applications had to be addressed as a matter of urgency. 6 GS was sentenced following his conviction by a jury of unlawful sexual intercourse, two counts of gross indecency and attempting to obstruct or pervert the course of justice. The offences involved GS’s intellectually disabled daughter who was 15 years old at the time but had been assessed as having the mental age of an average six year old. The sentencing remarks of Judge Rice describe the circumstances of the offence of unlawful sexual intercourse as involving penile- vaginal sexual intercourse. In relation to the counts of gross indecency, the first related to GS ejaculating on the victim’s leg and the second related to GS providing the victim with a vibrator. 7 After his arrest, GS was released subject to bail conditions which included a non-contact clause. Approximately a year later, the victim retracted her earlier allegations. When re-interviewed about four months thereafter, she said in effect that GS had made her retract her allegations and that she stood by her earlier -- 3 of 12 -- [2025] SASC 29 Stein J 2 account. That conduct gave rise to the attempt to obstruct or pervert the course of justice charge. 8 The Judge sentenced GS on the basis that the offences occurred against a backdrop of some ongoing sexual contact and were not opportunistic or isolated. 9 In April 2010, GS was sentenced in the District Court to a charge of unlawful sexual intercourse with a person under the age of 14 for offending in 2009. For the 2009 offending, GS was sentenced to a head sentence of three years imprisonment with a non-parole period of 18 months. He received a discount as a result of a guilty plea. 10 The sentencing remarks for the 2009 offending observed that GS was 28 and the victim was 13 at the time of the offending. GS met the victim by chance and they developed a friendship. On 12 January 2009, GS telephoned the victim and met her at the shops. They walked towards the victim’s house and then, on the way, had sexual intercourse under a bridge over a dry creek bed. GS then ceased contact with the victim. 11 GS was released on parole in 2011. However, parole was later cancelled because GS failed to comply with reporting obligations under the Child Sex Offenders Registration Act 2006 (SA) because he failed to report that he had access to the internet, his internet access details or that he had grown a beard. 12 GS has a history of other offending, including assault, aggravated assault, breaching bail and breaching community service orders. 13 In 2011, a psychologist, Ms Bruggemann, assessed GS for suitability for the Owenia House program. The psychologist undertook a risk assessment examining both static and dynamic factors. Ms Bruggemann considered GS was an appropriate candidate for treatment at Owenia House with dynamic needs that could benefit from treatment. 14 On 29 June 2018, a Department for Correctional Services (“DCS”) assessment report recommended GS undertake the sexual behaviour clinic (“SBC”). The report noted that, on the basis of a screener risk assessment conducted via phone link, GS was estimated to be at moderate-high risk of sexual re-offending without treatment and therefore was considered suitable for the SBC. 15 GS was assessed for SBC suitability by Ms Feliciotto, senior clinician of the Rehabilitation Program Branch of DCS, on 6 November 2023. The assessment combining static and dynamic variables assessed GS’s risk of sexual re-offending to be above average range and equivalent to a moderate-high risk of sexual re- offending without treatment. 16 GS began the SBC program in custody in January 2024. Concerns were identified with GS’s participation including that GS maintained he was innocent. In April 2024, GS withdrew from the SBC. -- 4 of 12 -- [2025] SASC 29 Stein J 3 17 On 9 May 2024, Ms Feliciotto, prepared a report which, among other things, noted that GS had previously declined to participate in the SBC in November 2022, stating he was innocent. During the interview, GS said he was unwilling to accept responsibility for his index offending as he would risk being labelled as a sexual predator. A number of treatment needs were identified. The report noted that the index offending made GS eligible for ESO and s 57 consideration and recommendations would be detailed after program completions. 18 On 13 August 2024, the Rehabilitation Programs Branch prepared a minute to the Sentencing Management Unit of the Parole Board. The report referred to GS’s denial of his index offending. The report noted that should GS be released into the community, the level of input from support services would need to match his high level of need given his risk of sexual re-offending remained unaddressed. The report contained recommendations including referral to Owenia House, community-based referrals and close monitoring of GS’s domestic relationships post-release with notification to SAPOL of any concerns regarding the safety of his former partners and children. The report stated that consideration had been given to applications for an ESO and under s 57. The report stated that GS’s index offences made him eligible for ESO and s 57 consideration and if an ESO was implemented the focus for supervision should include emphasis on sexual deviance, sexual compulsivity, emotional control and interpersonal aggression, cognitive distortions, and a lack of insight into his offending. The report did not expressly address or recommend an application pursuant to s 57 of the Sentencing Act. 19 On 9 October 2024, a DCS high risk offender review report was completed. The report noted GS for ESO consideration but not specifically for s 57 consideration.1 The recommendation stated: [GS] was estimated to be at Moderate-High risk of sexual reoffending and commenced the SBC program in January 2024 however withdrew himself from the program after two months. It was reported that he continued to maintain his innocence throughout the program and refused to contribute as he believed it was irrelevant. [GS] had insufficient time remaining on his sentence to be placed in a future SBC program … and as such, had outstanding treatment needs in relation to his risk of sexual reoffending. [GS] was assessed by Owenia House in August 2011 and commenced the program in February 2012. [GS] was incarcerated in May 2012 on a Parole Board Warrant. [GS] did not believe that he needed treatment and that he would never sexually reoffend … [GS] also had treatment needs in relation to his use of domestic and family violence and completed the DFVIP … The post-treatment report noted that [GS] minimised responsibility around his use of violence and viewed himself as a non-violent person. … he had minimal insight into his sexual offending and denied the index offending. If an ESO were made in relation to [GS], his compliance in the community would be overseen by an experienced Community Corrections Officer (CCO). [GS’s] CCO could support him in engaging in psychological intervention to address his outstanding treatment needs in relation to his risk of sexual reoffending and his use of domestic violence. [GS’s] CCO could also support him to abide by the conditions of his intervention order and comply 1 The pro forma report contains boxes to be marked for each of ESO and s 57 consideration. -- 5 of 12 -- [2025] SASC 29 Stein J 4 with his ANCOR reporting obligations addressing any issues as they arise. The CCO could also encourage the formation of pro-social relationships and encourage [GS] to engage with social supports. Section 57 20 GS has been convicted of a relevant offence as defined in s 57(1) of the Sentencing Act, in particular, unlawful sexual intercourse and gross indecency. 21 The application for an order under s 57 was filed while GS remained in prison and consequently s 57 applies to GS. 22 Section 57(5) of the Sentencing Act enables the Court to make an interim detention order pending the determination of an application for an indefinite detention order. 23 The Sentencing Act does not contain any express criteria for the exercise of the discretion under s 57(5) to make an interim order. 24 Section 57 of the Sentencing Act sets out the paramount consideration in the determination of applications pursuant to s 57 as the protection of the safety of the community. 25 The discretion is broad and should be exercised having regard to the purpose of s 57.2 26 An interim order will be made at a time the Court has not yet received all of the information required for the making of a final determination. 27 It has been conclusively determined whether the Court can make a final order under s 57(7) of the Sentencing Act if the respondent is released from prison.3 28 An indefinite detention order will be made under s 57(7) of the Sentencing Act where the Court finds the offender is unwilling to control or incapable of controlling his or her sexual instincts and it is appropriate for the Court to exercise the discretion to order indefinite detention.4 The purpose of such an order is to protect the community from sexual offenders where the risk posed is such that it is inappropriate they be released, even when they have completed their period of imprisonment. An order is protective and not punitive.5 The risk assessment addresses more than the conviction which enlivens the discretion to make an order and is informed by risk factors relevant to the particular risk posed by the offender.6 An order denying a person’s right to liberty will be made only where there is cogent 2 Attorney-General (SA) v Colangelo [2025] SASC 2 at [94] (McDonald J). 3 R v F, JM [2015] SASC 99 at [5] (Bampton J) referring to the previous, but equivalent, provisions under the Criminal Law (Sentencing) Act 1988 (SA); Attorney-General v Tipping [2019] SASC 7 at [13]-[14] (Kourakis CJ). 4 Driver v Attorney-General (SA) [2022] SASCA 13 at [14]. 5 Driver v Attorney-General (SA) [2022] SASCA 13 at [28], citing R v Hoare [2017] SASC 7 at [64] (Hinton J). 6 Driver v Attorney-General (SA) [2022] SASCA 13 at [30]. -- 6 of 12 -- [2025] SASC 29 Stein J 5 and acceptable evidence justifying the making of the order.7 In considering whether to exercise the discretion, the Court will consider the particular risk posed by the offender and whether indefinite detention is apt to protect the safety of the community, including the nature and gravity of the risk, the likelihood of it manifesting and whether other mechanisms with less impact on liberty, such as an extended supervision order, can adequately protect the community from the risk posed.8 Attorney-General’s submissions 29 I have not exhaustively summarised the parties’ submissions. 30 In essence, the Attorney-General submitted that it is necessary to protect the safety of the community for GS to be detained while the assessment of the potential risk and the appropriate response is investigated. The Attorney-General’s position was that the evidence supported a finding that GS is unwilling to control his sexual instincts, there is a risk he will commit a further relevant offence against children if released and the safety of the community cannot adequately be protected by an extended supervision order. 31 The Attorney-General contended GS should be regarded as unwilling to control his sexual instincts on the basis there is a significant risk he would, if given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts. The Attorney-General pointed to the fact GS is 44 years old, a serious sexual offender with a repeat history of sexual offending involving children, prior breaches of ANCOR reporting obligations, breaches of bail and community service orders and parole conditions and has not successfully completed a sex offender treatment program in custody or in the community. The Attorney-General submitted that an ESO does not provide sufficient protection in light of the seriousness of the prior sexual offending and escalation in offending despite previous incarceration. Counsel submitted the Court ought to be guarded about whether a condition to participate in treatment would sufficiently mitigate GS’s risk given his denial of the index offending. 32 The next community-based SBC program through Owenia House commences in 2026. Respondent’s submissions 33 GS takes the position that as the Attorney-General commenced the application while the respondent remained in prison serving a sentence of imprisonment, jurisdiction is satisfied. 7 R v Stevens [2015] SASC 79; R v England [2004] SASC 20; (2004) 87 SASR 411 at 423-4 (Bleby J); R v Ainsworth [2008] SASC 67; (2008) 100 SASR 238 at [56] (White J). All referring to the previous, but equivalent, provisions under the Criminal Law (Sentencing) Act 1988 (SA). 8 R v Hoare [2017] SASC 7 at [40]. -- 7 of 12 -- [2025] SASC 29 Stein J 6 34 GS submitted there was no evidence his innate mental characteristics render him incapable of control his sexual instincts. 35 GS’s position is the risk posed by him can be managed in the community under a strict regime of interim supervision order conditions. Counsel submitted the community protection will be best facilitated through proper rehabilitation and reintegration of GS into the community while subject to an interim supervision order. GS has volunteered to comply with any condition the Court is minded to impose and, to demonstrate his genuine commitment to rehabilitation, will agree to an extended supervision order of five years. GS was prepared to accept all of the supervision conditions in the draft order and to be subject to electronic monitoring and home detention. That factor was said to go a great way to ameliorating the significant risk an offender must pose before enlivening the powers in s 57. 36 GS could return to the community with the support of his mother and stepfather, the Justice Services Wing of SYC (a post-release support service) and SYC sourced accommodation. SYC has advised that GS has accommodation available and SYC will coordinate his transport from custody and his return to psychological and sexual behavioural counselling which he is said to eager to undertake. His mother and stepfather reside nearby and are described as prosocial supports. 37 GS submitted the Court has not yet received all of the information required to make a final determination and pointed to the decision in Attorney-General (SA) v Tipping9 in which consideration was given to the possible benefit of imposing a supervision order because, if breached, a continuing detention order could be made. GS contrasted this with the probable outcome of a detention order, noting the difficulties of satisfying s 58 of the Sentencing Act. Counsel submitted if GS is not given the opportunity to leave prison and demonstrate true rehabilitation, it will increase the probability he will be subject to detention for life. 38 GS submitted that the tardiness of the application caused prejudice to GS and constituted a failure to accord him procedural fairness. Consideration 39 The filed material established: • GS is a serious repeat offender. • GS had engaged in extremely serious sexual offending against children, firstly against a 13 year old (in 2009) and then against his 15 year old disabled daughter (in about 2015). 9 Attorney-General v Tipping [2019] SASC 7. -- 8 of 12 -- [2025] SASC 29 Stein J 7 • GS was assessed in 2011 by a psychologist as of moderate-high risk of sexual reoffending should he not receive treatment. • In November 2023, Ms Feliciotto assessed GS as having a predicted sexual recidivism of 35.1 percent over five years in comparison to the normative sample for the relevant tool and offence type. That equates GS to being at moderate-high risk of sexual re-offending. • Ms Feliciotto’s report dated 9 May 2024 observed that denial of responsibility did not preclude engagement in a criminogenic program, but failure to discuss a range of areas relevant to behaviours can be considered a barrier to engagement. • GS commenced the SBC in January 2024. The SBC termination report recorded concerns with his participation, including that he maintained his innocence. • GS withdrew from the SBC, maintaining his innocence. • GS has unmet treatment needs. • The DCS recommended an application for an ESO. 40 The definition of unwilling in s 57(1) of the Sentencing Act is that a person will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of their sexual instincts. There are no reports of psychologists or psychiatrists which directly address GS’s unwillingness to control his sexual instincts within the meaning of s 57. 41 In the absence of expert opinion, for the purposes of considering an interim detention order, I am being asked to infer that GS is relevantly unwilling in essence from the nature of his index offending against his history of prior offending, escalation of offending, the assessment of his risk by the DCS clinician, GS’s failure to accept responsibility for his offending and his failure to complete the SBC. 42 However, the filed materials do not contain any recommendation by a DCS clinician for making an s 57 application. The risk assessment by DCS placed GS at moderate to high risk of reoffending with a predicted risk of recidivism of about 35 percent. While undoubtedly of concern, that it is not the highest level of risk which may otherwise accompany an assessment of unwillingness to control sexual instincts. 43 Since April 2024 there have been no significant events impacting on GS’s risk assessment. No steps were taken until a short time before the expiry of the head sentence to seek a s 57 order. While I accept the Attorney-General’s submission that an application for an order under s 57 can be made up until the -- 9 of 12 -- [2025] SASC 29 Stein J 8 expiry of the head sentence, delay can be a relevant consideration in the exercise of the discretion to make an interim detention order.10 In this case, the institution of an application less than 3 weeks prior to expiry of GS’s nine year head sentence has had the consequence of a lack of evidence which focusses on the criteria relevant to a decision about an indefinite detention order and thus the making of an interim order. While the order sought at present is an interim order, the Court is left in the unfortunate position of being asked to draw inferences from material which does not have as its primary consideration the relevant test for an order under s 57. 44 The filed material included a letter from the Parole Board dated 5 February 2025 supporting the making of an ESO and setting out proposed ESO conditions. The Parole Board letter referred to the fact GS’s sexual offending has not been addressed as a significant factor and supported the ESO to enable him to address that offending. Proposed conditions did not include some of the more stringent conditions sometimes sought, such as home detention or curfew. I accept that the position of the Attorney-General that the Parole Board’s support is not a mandatory consideration for the making of an order under s 57. I also accept that the Parole Board has not expressly addressed the question of s 57. On the other hand, the Parole Board letter does not refer to such an application and, relevantly, does not seek the most stringent of ESO conditions. It can reasonably be inferred from that that the Parole Board did not, in early February 2025, regard the risk posed by GS as requiring the most stringent of possible ESO conditions. This appears consistent with the level of risk assessed by DCS. 45 It follows that I am not persuaded that the evidence before me is sufficient to warrant making an interim detention order. However, in any event, I would refuse to exercise the discretion to make an interim order on the basis that the ESO conditions proffered by GS are apt to address the risk to the community in the sense required by the authorities. GS has offered to be subject to ESO conditions which include electronically monitored home detention. The Attorney-General submitted that home detention would not sufficiently address the risk GS poses as his index offending involved secrecy. I accept secrecy was an element of the index offending. However, in my view, strict home detention conditions with electronic monitoring including conditions precluding GS having contact with anyone under the age of 18 years together with other non-contact clauses and the other conditions proposed by the Parole Board and the Attorney-General will provide sufficient amelioration of the risks posed by GS. In reaching that conclusion I take into account the fact the ESO conditions will require GS to engage in counselling. While it is most unfortunate that the Owenia House program for 2025 has already commenced and the next program is not available until 2026, GS can be required to engage in one on one counselling as directed by DCS or the Parole Board. Any breach of any ESO condition, including proper engagement in counselling, would enable the Parole Board to return GS to custody pending an application for a CDO. This provides not only a measure of protection but also 10 Attorney-General v Tipping [2019] SASC 7 at [8] (Kourakis CJ). -- 10 of 12 -- [2025] SASC 29 Stein J 9 an incentive for GS to engage fully and genuinely in the full knowledge he faces an application for indefinite detention. 46 The fact the application has been made so late does not cause me to accept GS’s submission of a failure to accord procedural fairness because he has had the opportunity to receive the material and make submissions in opposition. However, I recognise that GS’s ability to do so has been restricted by the lateness of the application, including the ability of counsel to seek full and proper instructions. This is one of a number of unfortunate implications which result from late applications and which should be avoided. In R v Stevens,11 Bampton J articulated concerns with the making of applications for indefinite detention close to the expiry of a respondent’s sentence. In that case the observations were made in the context of an application for a final order. However, I respectfully agree with and adopt her Honour’s observations which remain apposite in the context of late applications for interim orders. 47 Expert reports are taking a significant time to produce, on average in excess of 5 months. An interim detention order will expose GS to a potentially lengthy period of incarceration beyond the expiry of his lengthy head sentence in circumstances which could have been averted by an earlier application. While in some cases a late application may be unavoidable, there is no evidence before me to indicate why an application could not have been made nearly a year ago after GS withdrew from the SBC course. The time frame in which GS may be exposed to ongoing incarceration and denial of personal liberty beyond his head sentence is relevant12 in the light of the authorities which refer to the draconian consequences of indefinite detention where an offender is incarcerated not for an offence but against a risk of future offending. 48 Both parties took the position that given the application was filed while GS was in custody, the Court will have jurisdiction to entertain an application for an indefinite detention order in due course. However, the Attorney-General submitted that in the absence of binding authority on the point, I could take potential uncertainty about jurisdiction into account. While I accept his Honour’s observations were obiter, I consider persuasive the reasoning of the Chief Justice in Attorney-General v Tipping13 to the effect that the Court has jurisdiction to make an order under s 57(7) if an application has been filed while the respondent is in custody. Possible uncertainty about that position does not cause me to form the view that I should exercise my discretion to make an interim detention order given the matters to which I have referred which militate in favour of refusing the application for an interim detention order. 11 R v Stevens [2015] SASC 79 at [8]-[13] (Bampton J), referring to the previous, but equivalent, provisions under the Criminal Law (Sentencing) Act 1988 (SA). 12 Attorney-General v Tipping [2019] SASC 7 at [7]-[8] (Kourakis CJ). 13 Attorney-General v Tipping [2019] SASC 7 at [13]-[14] (Kourakis CJ). -- 11 of 12 -- [2025] SASC 29 Stein J 10 Conclusion and orders 49 I refuse the application for an interim detention order. I will make an interim supervision order together with the other orders sought by the Attorney-General including ordering reports. -- 12 of 12 --