ATTORNEY-GENERAL (SA) v SAMUEL WEBB [2025] SASC 170

Applicant: ATTORNEY-GENERAL (SA) Counsel: MS K TOUBANAKIS - Solicitor: CROWN SOLICITOR (SA) Respondent: SAMUEL WEBB Counsel: MR S LAIDLAW - Solicitor: MATTHEW MITCHELL SOLICITORS Hearing Date/s: 25/09/2025 File No/s: SCCRM-25-037234 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 WEBB [2025] SASC 170 Judgment of the Honourable Justice McDonald (ex tempore) 25 September 2025 CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS This is an application by the Attorney-General for the respondent to be the subject of an extended supervision order (‘ESO’) pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the Act’). The application is made on the basis that the respondent is a high risk offender for the purpose of the Act, and he poses an appreciable risk to the safety of the community, if not supervised under such an order. Pursuant to s 9 of the Act, the Court may make an interim supervision order (‘ISO’), if an application for an ESO in relation to a high risk offender has been made and the court is satisfied: (a) That the relevant expiry date for the respondent is likely to occur before the application is determined; and (b) That the matters alleged in the material supporting the application would, if proved, justify the making of an extended supervision order. Section 5(d) of the Act relevant defines a high risk offender to include “a serious violent offender who is serving a sentence of imprisonment imposed in respect of a serious offence of violence”. Section 4 of the Act defines a serious violent offender as “a person convicted … of a serious offence of violence”. A serious offence of violence is, as defined under s 83D of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’), a serious offence (being an offence punishable by at least five years imprisonment) where the conduct constituting the offence involves serious harm to a person or the risk thereof. Section 21(b) of the CLCA defines serious harm as “harm that consists of, -- 1 of 10 -- or results in, serious and protracted impairment of a physical or mental function”. Section 21 of the CLCA defines harm has “physical or mental harm (whether temporary or permanent)”, and mental harm means “psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm”. The respondent is opposed to the imposition of both an ISO and an ESO. He contends that the jurisdictional test for making the orders has not been met, in that, it has not been established that he is a high risk offender. The respondent submitted that whilst not detracting from the serious impact of domestic violence, it cannot be assumed that domestic violence victims fall into a class of victim who are necessarily particularly vulnerable and sensitive, such that the inference of a risk of serious mental harm can automatically be drawn, in the circumstances arising here, absent other evidence. Held: 1. The Attorney-General has not satisfied the jurisdictional test, in that it has not been established that the respondent is a high risk offender. 2. The Court declines to make the ISO. 3. The Court refuses the application for an ESO. Criminal Law (High Risk Offenders) Act 2015 (SA) ss 4, 5, 7, 9; Criminal Law Consolidation Act 1935 (SA) ss 21, 83D, 244, referred to. Attorney-General (SA) v Jeffery (2018) 130 SASR 300; Attorney-General (SA) v Wikaire (2017) 127 SASR 565, applied. -- 2 of 10 -- ATTORNEY-GENERAL (SA) v WEBB [2025] SASC 170 Criminal: Application 1 McDONALD J (ex tempore): The Attorney-General has made an application that Samuel Blake Webb be the subject of an extended supervision order (‘ESO’) pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘the Act’). The application is made on the basis that Mr Webb is a high risk offender for the purpose of the Act, and that he poses an appreciable risk to the safety of the community, if not supervised under such an order. 2 Pursuant to s 9 of the Act, this Court may make an interim supervision order (‘ISO’), if an application for an ESO in relation to a high risk offender has been made and the Court is satisfied: (a) that the relevant expiry date for the respondent is likely to occur before the application is determined; and (b) that the matters alleged in the material supporting the application would, if proved, justify the making of an extended supervision order. 3 The definition of the relevant expiry date applicable in this case, is the date on which the term of imprisonment, to which Mr Webb was sentenced, expires. Mr Webb’s sentence expires on 1 October 2025. The application for an ESO will not be determined before that date. 4 The purpose of an ISO is to afford the community the protection of an interim order until such time that the Attorney-General’s application for an ESO is finalised. This accords with the paramount consideration of the legislation, which is the safety of the community. However, before either an ESO or an ISO can be made, the Court must be satisfied that the respondent is a high risk offender. Absent such a finding, the Court does not have jurisdiction to make either order. 5 Mr Webb is opposed to the imposition of both an ISO and an ESO. He contends that the jurisdictional test for making the orders has not been met, in that, it has not been established that he is a high risk offender. The legislative test 6 Section 5(d) of the Act relevantly defines a high risk offender to include: a serious violent offender who is serving a sentence of imprisonment imposed in respect of a serious offence of violence. 7 A serious violent offender is defined as “a person convicted … of a serious offence of violence”.1 A serious offence of violence is, as defined in the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’), a serious offence (being an 1 Criminal Law (High Risk Offenders) Act 2015 (SA) s 4. -- 3 of 10 -- [2025] SASC 170 McDonald J 2 offence punishable by at least five years imprisonment) where the conduct constituting the offence involves serious harm to a person or the risk thereof.2 8 Serious harm is defined as “harm that consists of, or results in, serious and protracted impairment of a physical or mental function”.3 Harm means “physical or mental harm (whether temporary or permanent)”, and mental harm means “psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm”.4 9 The offences relied upon by the Attorney-General said to amount to a serious offence of violence, hence enlivening the jurisdiction to make the respective orders, are the offences of attempting to dissuade a person attending as a witness at judicial proceedings (‘the index offences’).5 10 This offence carries a maximum penalty of 10 years imprisonment, therefore satisfying one of the criteria for a serious offence of violence. As to the second criteria “where the conduct constituting the offence involves serious harm to a person or the risk thereof”, the Attorney-General contends that the conduct “involved a risk of causing serious mental harm”. 11 Mr Webb challenges the Attorney-General’s reliance on this offence as amounting to a serious offence of violence on the basis that there is no evidence to support the contention that the index offending created a risk of the victim suffering from a serious and protracted mental impairment. 12 In order to put the competing submissions into context, it is necessary to descend into not only some of the details of the index offences, but also other relevant prior offences committed by Mr Webb. The 14 June 2024 offences 13 On 15 July 2024, Mr Webb was sentenced by a Magistrate in the Murray Bridge Magistrates Court to imprisonment for five months and 18 days for the offences of damaging a building, two counts of aggravated assault of a spouse with a weapon and damaging property. The sentence was backdated to 14 June 2024, the date upon which these offences took place, and Mr Webb was arrested and taken into custody. The Magistrate ordered that Mr Webb was to spend two months of the sentence in custody, with the remainder to be suspended upon him entering into a good behaviour bond for 18 months. 14 The victim of these offences had previously been in a relationship with Mr Webb, with that relationship ending on 23 April 2024. 2 Criminal Law Consolidation Act 1935 (SA) s 83D. 3 Criminal Law Consolidation Act 1935 (SA) s 21(b). 4 Criminal Law Consolidation Act 1935 (SA) s 21. 5 Criminal Law Consolidation Act 1935 (SA) s 244. -- 4 of 10 -- [2025] SASC 170 McDonald J 3 15 On the day of the offences, Mr Webb was at the victim’s home address, having slept there the previous night. An argument commenced, resulting in the victim telling Mr Webb to leave. He walked to the front door and as the victim went to close the door behind him, Mr Webb started kicking the door, causing damage. 16 Mr Webb yelled at the victim to let him in and threatened to keep kicking the door if she did not comply. She responded by opening the door. Once inside, Mr Webb grabbed a knife from a knife block and told the victim that he was going to kill everyone. He started swinging the knife and stabbed it into a bar fridge. Mr Webb told the victim that he may as well “go all the way” and kill her, the kids and himself, and proceeded to smash items in the kitchen. 17 The victim attempted to get away and walked to the front door, however, Mr Webb grabbed her by the shoulder and pulled her back. Still holding the knife, he told her that she was not going to go anywhere and threatened to stab her to the stomach. Mr Webb repeated words to the effect of “today’s the day we’re all going to die”. Mr Webb then stabbed a different knife into a chest freezer, causing further damage. 18 In sentencing Mr Webb for these offences, the Magistrate described his conduct as “terrifying” and observed that as he had been armed, Mr Webb had been in a position to carry out the threats had he chosen to do so. The Magistrate did not, however, make any findings or observations about the state of mind of the victim throughout these events, nor did he make any reference to any victim impact statement or any consequential effect on the victim as a result of this offending. 19 For current purposes, I am prepared to draw the inference that the victim would have been very frightened during these events, which would have resulted in some form of ongoing impact for her. As a consequence of these offences, an intervention order was made prohibiting Mr Webb from contacting the victim. The index offences 20 The index offences took place between the June 2024 offending and 15 July 2024, when Mr Webb was sentenced. In between these dates, Mr Webb was remanded in custody in the Adelaide Remand Centre. Despite the imposition of the intervention order, between 20 and 22 June 2024, Mr Webb made efforts to contact the victim. Over these dates, Mr Webb made eight telephone calls to his brother, his brother’s partner and a friend (who was also his boss), with the intent of conveying a message to the victim to discontinue the charges. 21 Given the nature of the contest on this application, it is important to attempt to identify Mr Webb’s criminal conduct with some precision and to distinguish the conduct that the victim would not have been aware of, from those communications that she received. That is because it was only those matters that the victim was aware of that posed a risk of causing her serious harm. -- 5 of 10 -- [2025] SASC 170 McDonald J 4 22 At 4.34 pm on 20 June 2024, Mr Webb spoke with his brother and asked him to get his wife, that is, his brother’s wife, to send the victim a message on Facebook or Messenger. 23 On 21 June at 2.14 pm, Mr Webb telephoned his friend and said words to the effect of “if someone speaks to [the victim] but if [the victim] goes into the Murray Bridge Police Station and says that she wants to do a P207b and that, that will drop all the shit that she’d put on me, that will drop all the stuff and I’ll, I’ll get let straight out”. 24 About half an hour later, at 2.51 pm, Mr Webb contacted his brother and said “I just rang my other boss and I just said to him about fucking there’s a thing it’s p207 7 7 what is it 7b, yeah, p207b or b7 something fucking like that, so she’s gotta go in to the court into the police station and sign that and that gets all my charges everything dropped and the intervention order taken off man and then they’ll fucking let me straight out”. 25 Mr Webb asked his brother whether his wife had heard anything back from the victim, to which his brother responded that he had not. 26 Later that same day, Mr Webb contacted his sister-in-law and spoke with her. She said that she would message the victim via Facebook and asked him what he wanted her to say. Mr Webb responded “[w]ell Sam wants to know if you can go down and fucking drop the charges”. 27 I pause here to note that whilst the various conversations that took place up to this point are relevant to the criminal culpability of Mr Webb, there is no suggestion that the victim was aware of them. That however, changed when the victim received a Snapchat notification on her mobile phone from Mr Webb’s friend on 21 June 2024. The message stated “Hi. I was talking to Sam today. He was wondering if you could go to local police station and mention this to them P207B. Regards”, and the friend signed off in his name. 28 On the same day, at approximately 5.10 pm, the victim received a further notification, this time from Mr Webb’s sister-in-law via a mobile phone application, Facebook Messenger. The message said “… how you and the kids doing? Sam asked us to send you a message, he wants to know if you’ll drop the charges there’s a form P207B, think that’s the form you fill out. Anyway, hopefully talk soon”. 29 Arising out of these events, Mr Webb was charged with two counts of attempting to dissuade a person from attending as a witness at judicial proceedings and two counts of contravening an intervention order. It is the former of these groups of offences that is the basis of the application for an ESO. One count relates to the communication to the friend and the other relates to the message passed on from Mr Webb through his brother-in-law to his sister-in-law. -- 6 of 10 -- [2025] SASC 170 McDonald J 5 30 Mr Webb was also charged with, and pleaded guilty to, a further offence of contravening an intervention order. This arose out of events that took place on 4 July 2024. On that occasion, the victim received a letter that had been sent by Mr Webb. The letter was addressed to Master Nala Webb, who was Mr Webb’s pet dog. Mr Webb had dictated the letter to his cell mate who wrote it for him. He said that the reason he sent the letter was because he was missing his family and wanted to apologise for his actions. 31 The sentencing Magistrate described Mr Webb’s offending in the following terms:6 To contact other people to exert pressure on the protected person to withdraw the charges against you was a foolish and a serious matter. You attempted to have different people contact and apply pressure to her. This was not a single, once off request said in passing to a relative or friend but occurred on multiple occasions. I concede that threats were not made, which would make it even more serious. 32 The Magistrate sentenced Mr Webb to one sentence for the two counts of attempting to dissuade a witness. That sentence was 12 months imprisonment, which was reduced to nine months and four days to take into account his guilty pleas. 33 For the three breaches of the intervention order, Mr Webb was sentenced to three months imprisonment, which was reduced to two months and three days on the basis of the discount for his pleas of guilty. The Attorney-General’s submissions 34 It was the Attorney-General’s submission that the index offences must be considered in the broader context of Mr Webb’s earlier offending. That is, that the victim who had experienced a violent episode of domestic abuse only days earlier, was then contacted by two separate individuals urging her to withdraw charges at the instigation of Mr Webb. 35 It was submitted that “[t]his conduct, taken as a whole, created an obvious risk that a particular victim… might suffer significant psychiatric sequelae sufficient to give rise to… serious harm”.7 36 In support of this submission, the Attorney-General relied upon the Attorney- General (SA) v Wikaire,8 in which Nicholson J made some observations about the nature of the inquiry into whether an offence amounts to a serious offence of violence. His Honour said:9 6 FDN 3, Affidavit of Irene Angela Nikoloudakis dated 10 September 2025 at IAN2 - Remarks on Penalty of Judge Hribal dated 15 April 2025 at 5. 7 FDN 7, Applicant’s Outline of Argument at [25] (Emphasis added). 8 (2017) 127 SASR 565. 9 Attorney-General (SA) v Wikaire (2017) 127 SASR 565 at [14]-[16]. -- 7 of 10 -- [2025] SASC 170 McDonald J 6 In my view, the focus of the inquiry is not to be confined to the consequences of the offending conduct but extends to the nature or character of the offending conduct itself. The definition of “serious offence of violence” requires the finding of a “serious offence” but one “where the conduct constituting the offence” is of a particular character. A major purpose underpinning the power conferred on the Court to make an extended supervision order is to assist in the protection of the public from being exposed to an appreciable risk of harm. Section 3 of the Act sets out the “Object of [the] 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 serious sexual offenders and serious violent offenders.” Whether or not an offender has, in fact, caused serious harm (physical or mental) is an important consideration but whether or not such a person poses the risk of causing such serious harm is no less important a consideration. In a case such as the present, whether or not the conduct constituting the offence, in fact, caused serious harm to another may well have been a matter of happenstance dependent on a number of variables including, in particular, how robust the particular victim in question might have been. However, this is not to deny the intrinsic risks to be associated with conduct in the nature of that engaged in by an offender who commits an aggravated robbery such as in the present case. 37 It was submitted by the Attorney-General that whilst that case involved an aggravated robbery, the observations made by Nicholson J were apposite, in that the specific offences must be considered in their broader context. Mr Webb’s submissions 38 As I said, it was Mr Webb’s submission that the evidence is not such that the threshold jurisdictional test has been satisfied. 39 Mr Laidlaw, who appeared for Mr Webb, put to the Court that whilst not detracting from the serious impact of domestic violence, it cannot be assumed that domestic violence victims fall into a class of victim who are necessarily particularly vulnerable and sensitive, such that the inference of a risk of serious mental harm can automatically be drawn, in the circumstances arising here, absent other evidence. 40 There are no victim impact statements in relation to either episode of offending. The attempts to dissuade do not fall at the most serious end of the spectrum of offences of this type, and whilst it was accepted that it can readily be assumed that the relevant communications caused distress, fear and anxiety, impacts of this nature are expressly excluded from the statutory definition of a serious and protracted mental impairment. 41 It was Mr Webb’s submission that the Attorney- General has not established a jurisdictional basis upon which to make these applications and consequently that they should be dismissed. Consideration 42 I turn then to my decision. I fully accept that the index offences must be considered in their broader factual matrix, as that history then provides context to -- 8 of 10 -- [2025] SASC 170 McDonald J 7 the risk at which the victim is placed by the index offending. It is a relevant consideration that by the time Mr Webb committed the dissuading a witness offences, the victim had already been subjected to a serious and violent episode of domestic violence. That, no doubt, would have created a heightened sense of vulnerability, which I am prepared to infer would have remained present on 21 June 2024. 43 There is, however, a risk that in considering the potential consequences of the index offences against the backdrop of the earlier offending, that the latter overwhelms the offences that are the basis of this application. The question for the Court is not whether the combined effect of both episodes of offending satisfies the jurisdictional threshold, but rather whether the index offences create the risk that the victim will suffer a serious protracted impairment of mental function. 44 The distinction is nuanced but important. Parliament has identified those offences which are regarded as appropriately serious, and pose such a risk to the community, that it warrants consideration of the curtailing of the liberty of an offender by the imposition of an ESO. It would be inappropriate to utilise the commission of such an offence as a catalyst and then rely on other offending (albeit committed by the same offender) as the basis for the application. It was apparent that counsel for the Attorney-General started to stray into this territory when she made reference to “[t]his conduct, taken as a whole, created an obvious risk …”.10 45 I turn then to the question of the risk posed by the index offences. Much judicial consideration has been given to the question of what amounts to a risk for the purposes of this test. It now appears to be accepted that the answer was encapsulated by Hinton J in the following passage in Attorney-General v Jeffrey:11 In a case where the serious offence did not involve conduct that caused death or serious harm, the question arises as to what level of risk of death or serious harm suffices for the conduct to amount to a serious offence of violence within the meaning of the Act? The answer to that question is a matter of construction. The starting point is the text. The obvious point falls to be made here; Parliament did not expressly prescribe a level of risk. That said, it may be accepted that Parliament did not intend to capture the fanciful, theoretical or remote risk but was concerned with conduct carrying with it a real or recognisable risk, albeit not a substantial risk. That is to say, a minimal risk is still a real risk. To so conclude is not to set the bar impractically low. Parliament has, in fact, imposed a threshold by requiring that the risk not be of any harm but of serious harm, and, where such serious harm is constituted of a risk of psychological harm, that risk must be one likely to consist of or result in serious and protracted impairment of a physical or mental function. 46 I accept that an offence of attempting to dissuade a witness may, depending on the facts of a case, give rise to a risk of this nature, particularly when it has been preceded by an episode of violence. It will depend on the facts and circumstances of each individual case. 10 FDN 7, Applicant’s Outline of Argument at [25] (Emphasis added). 11 (2018) 130 SASR 300 at [17]. -- 9 of 10 -- [2025] SASC 170 McDonald J 8 47 The relevant considerations in this case are that: • The earlier offending had been serious and had involved threats to life and the use of two knives, (had those offences been the index offences, I would have had little difficulty in finding that the jurisdictional threshold had been met); • The index offending occurred relatively soon after the domestic violence, about one week later, at a time when the effects of the earlier offending would have remained acute for the victim. • The victim would have known that Mr Webb was in custody, and of the existence of the intervention order, and it can therefore be inferred that the messages were unexpected, the victim being in the belief that she was protected from any communications. • There is no information about the relationship between the two messengers and the victim. It would be expected that if the relationships were positive, the impact of the receipt of the messages would have been less serious. • The tone of the messages was not of itself particularly sinister. Whilst, of course, any form of indirect contact was entirely inappropriate, the messages were conveyed in terms that did not exacerbate the situation. • There were no threats contained in the messages. 48 Taking all of these matters into account, I have come to the view that the Attorney-General has not satisfied the jurisdictional test, in that it has not been established that Mr Webb is a high risk offender. 49 Whilst no doubt the index offences were serious offences, it has not been established that they amounted to serious offences of violence as defined by the CLCA. The index offences no doubt caused the victim distress; however, that falls some way short of the creation of a risk of a serious and protracted mental impairment. To suggest that it would create such a risk, in the circumstances of this case, and on the evidence before the Court, sits in the realm of speculation. 50 I decline to make the ISO and I refuse the application for an ESO. -- 10 of 10 --