ATTORNEY-GENERAL (SA) v TIKAH AMARA [2024] SASC 122

Applicant: ATTORNEY-GENERAL (SA) Counsel: MS A MARSH - Solicitor: CROWN SOLICITOR (SA) Respondent: TIKAH AMARA Counsel: MR T BLAKE - Solicitor: LEGAL SERVICES COMMISSION (SA) Hearing Date/s: 30/09/2024 File No/s: SCCRM-24-006113 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 AMARA [2024] SASC 122 Judgment of the Honourable Justice Hughes 23 October 2024 CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-CUSTODIAL ORDERS - COMMUNITY BASED ORDERS CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - SERIOUS OR VIOLENT OFFENDER The Attorney-General applied for an extended supervision order (ESO). The respondent contends that he is not a “high risk offender” within the meaning of that term in the Criminal Law (High Risk Offenders) Act 2015 (HRO Act). The respondent was sentenced for entering a home in possession of a gel blaster whilst the occupants were present, intimidating the occupants and shutting them in a small shed, and stealing items from the house. This offending was committed in the company of two other offenders. The respondent was sentenced to a period of imprisonment. Near the expiry of his non-parole period, the applicant made an application for an ESO. In the course of argument regarding for the imposition of an interim supervision order pending the determination of the ESO, the respondent contended that he was not a “serious violent offender”. A serious violent offender is one who has been sentenced to a period of imprisonment for a “serious offence of violence”. Kourakis CJ found that the respondent was a serious violent offender and imposed the interim order on 4 April 2024. On the subsequent hearing of the ESO application, the respondent raised a new argument that the respondent does not come within the meaning of “serious violent offender”. The respondent submitted that the HRO Act defines a “serious violent offender” as one who has committed a “serious offence of violence”, where a “serious offence of violence” is defined as having the same meaning as that term is given in s 83D(1) of the Criminal Law Consolidation Act 1935 (CLCA). Section -- 1 of 12 -- 83D(1) provides that a serious offence of violence is one that causes or creates a risk of “serious harm” to the victim. “Serious harm” is defined as having “the same meaning as in Part 3 Division 7A of the Criminal Law Consolidation Act 1935”. “Serious harm” is defined in s 21, which is an interpretation provision at the commencement of Part 3 Division 7A, relevantly provides that “harm” means physical or mental harm. “Mental harm” is defined, relevantly, to mean psychological harm but does not include emotional reactions unless they result in psychological harm. “Serious harm” is relevantly defined to include “harm that consists of, or results in, serous and protracted impairment of a physical or mental function”. Section 22 of the CLCA, also within Part 3 Division 7A, describes conduct that is excluded from the operation of the Division, and in so doing, excludes conduct that has an effect that is confined to mental harm mental harm, unless certain circumstances (agreed not to be applicable to the present proceedings) apply. It was the respondent’s case that the respondent’s offending created only mental harm in circumstances in which it was excluded from the operation of Division 7A, and thereby excluded from the definition of. The applicant submitted that s 22 of the CLCA does not operate on the definition of “serious harm” which is to be read as a complete definition used in isolation, when construing the meaning of the terms “serious harm”, “serious offence of violence” and “serious violent offender” for the purposes of the HRO Act. Held: - Section 21 of the CLCA is an interpretation section and not a substantive provision. Section 22 of the CLCA is a substantive provision, qualifying the operation of sections 23-25 inclusive. The terms from the interpretation section are used in s 22. Section 22 does not further define ‘harm’ and ‘serious harm’ for the purposes of the application of s 21 to the meanings of those terms in the HRO Act. - The respondent is a “high risk offender” for the purposes of the extended supervision order. Criminal Law (High Risk Offenders) Act 2015 (SA) ss 5, 7, 9; Criminal Law Consolidation Act 1935 (SA) ss 5AA, 19AAB, 21, 22, 23, 24, 25, 83D; Road Traffic Act 1961 (SA) s 21, referred to. Attorney-General (SA) v Gillard [2022] SASC 104; Gibb v Federal Commissioner of Taxation Barwick CJ (1996) 118 CLR 628; Kelly v R (2004) 218 CLR 216, discussed. Attorney-General for State of South Australia v Gates [2017] SASC 154, considered. -- 2 of 12 -- ATTORNEY-GENERAL (SA) v AMARA [2024] SASC 122 Criminal: Application 1 HUGHES J: This decision concerns the question of whether the respondent, Mr Tikah Amara, is a person in relation to whom an extended supervision order may be made under the Criminal Law (High Risk Offenders) Act 2015 (“the HRO Act”). 2 The respondent was convicted of the following offences: a. Aggravated serious criminal trespass (s 170(1) Criminal Law Consolidation Act 1935 (“CLCA”)); b. Two counts of aggravated robbery (s 137(1) CLCA); and c. Aggravated theft (s 134 CLCA). 3 The offending took place on 14 November 2019. The respondent and two co- offenders entered a premises in Flinders Park following an exchange with the victim on Gumtree about the sale of an Apple iPhone. The respondent was in possession of a gel blaster which had the appearance of a rifle which was used to intimidate those at the premises.1 The respondent directed the two victims to follow his instructions, eventually leading them to be shut in a small shed. This provided the respondent and co-offenders an opportunity to steal a number of items from the premises consisting of phones, laptops, clothing and personal documents. 4 On 1 December 2020, the respondent was sentenced to imprisonment for four years, four months and 25 days, with a non-parole period of two years and five months. The sentence was backdated to 14 November 2019 when the respondent was taken into custody. 5 On 16 February 2024, some weeks before the end of the respondent’s sentence, the Attorney-General brought an application seeking that the respondent be made subject to an extended supervision order (ESO) under the HRO Act. 6 It was common ground that for the application to be granted, the Attorney- General was required to establish that the respondent is a “serious violent offender” within the meaning of the HRO Act, who posed “an appreciable risk to the safety of the community if not supervised under such an order”.2 The HRO Act defines a serious violent offender as one who has committed a serious offence of violence, where a “serious offence of violence” is defined as having the same meaning as that term is given in s 83D(1) of the CLCA. 1 Sentencing Remarks, Affidavit ACM-1. 2 Criminal Law (High Risk Offenders) Act 2015, s 7(4)(b). (“HRO Act”) -- 3 of 12 -- [2024] SASC 122 Hughes J 2 7 Section 83D(1) of the CLCA provides, relevantly for the respondent, that a serious offence of violence means a serious offence where the conduct constituting the offence involves the death of, or serious harm to, a person or a risk of the death of, or serious harm to, a person. 8 An ESO may not be imposed without the Court having the benefit of an opinion of a prescribed medical practitioner as to whether the respondent is likely to commit a further serious offence of violence.3 Because the time frame between the bringing of the application and the respondent’s pending release, the Attorney- General sought an interim supervision order (ISO). An interim supervision order may be imposed when: a. the relevant expiry date for the respondent is likely to occur before the application is determined; and b. the matters alleged in the material supporting the application would, if proved, justify the making of an extended supervision order. 9 An ISO operates until an ESO is imposed or such other order is made.4 10 For the purposes of determining the ESO, a report was sought as to whether the respondent was likely to commit a further serious offence of violence if not supervised. The respondent opposed the imposition of the ISO. He disputed that he posed a risk as a “serious violent offender” within the meaning of the HRO Act. 11 Kourakis CJ heard argument and imposed an ISO on 4 April 2024. It was common ground on that occasion that if the respondent could be found to have committed a serious offence of violence, it was because the offence involved the risk of serious harm to the victim(s). 12 His Honour was satisfied that the respondent is a serious violent offender within the meaning of that term under the HRO Act. The Attorney-General contended that “harm” in this context is defined to include mental harm. 13 Kourakis CJ said, … [F]or the purposes of determining whether or not Mr Amara’s conduct carried that risk, I take the position that his conduct includes not just physical act he himself committee, but extends to the acts of his accomplices; his conduct for those purposes relevantly being his conduct in joining that criminal enterprise. … 3 Ibid, s 7(3)(b). 4 Ibid, s 9(2), -- 4 of 12 -- [2024] SASC 122 Hughes J 3 I accept that a post-traumatic stress disorder is a psychological condition, which therefore, carries with it the risk of protracted impairment of mental functioning, including cognitive functioning. It plainly extends beyond emotional reactions like fear and distress.5 14 Kourakis CJ was satisfied that the respondent’s conduct gave rise to a serious risk that the victim(s) would suffer mental harm in the form of protracted impairment of mental functioning, such that if the Attorney-General proved those circumstances, the imposition of an ESO would be justified. His Honour imposed the ISO. 15 At the end of his non-parole period, the respondent was released on the terms of the ISO. Subsequently, the Department for Correctional Services formed the view that the respondent had breached the terms of his ISO by testing positive for oral amphetamine type substances and oral buprenorphine.6 The Parole Board issued a warrant for his arrest. The respondent is currently in custody in respect of the alleged breaches of the ISO. 16 The expert report ordered by Kourakis CJ was received on 9 September 2024. In it, Mr Williams states: … Mr Amara has a history of serious violent offending, having received numerous convictions or findings of guilt for violent and weapons related offences as a juvenile and adult. He has demonstrated poor previous compliance with supervision as evidenced by numerous breaches of bail and recent breaches of his ESO. Whilst he has completed a VPP ME programme, he was assessed as remaining at high risk of violent reoffending following participation. Accordingly, it is my opinion that Mr Amara is at high risk of committing another serious violence offence and will continue to pose an appreciable risk to the community safety if not appropriately supervised. 17 The report having been received, the Attorney-General’s application for an ESO came back on for determination on 11 September 2024 and after a short adjournment for instructions, on 25 September 2024. Notwithstanding Kourakis CJ’s finding that, if proved, the circumstances of the respondent’s conduct would justify the imposition of an ESO, the respondent sought to relitigate the question of whether the respondent is a high-risk offender. Counsel for the respondent submitted that, on a proper construction of the relevant provisions not put before the Chief Justice, the respondent is not eligible to have an ESO imposed upon him. I heard argument on 30 September 2024 and reserved my decision. Legislative framework 18 The relevant category of “high risk offender” under the HRO Act in relation to the respondent is that contained in section 5(c), namely a serious violent offender who was sentenced to a period of imprisonment in respect of the serious offence of violence. As set out above, the above definition contains the defined 5 FDN13 6 Third Affidavit of Angela Catherine March sworn on 10 September 2024, Exhibit ACM-19. -- 5 of 12 -- [2024] SASC 122 Hughes J 4 term “serious offence of violence”. It is defined by reference to s 83D(1) of the CLCA. Section 83D(1) in turn contains the defined term “serious harm”. The question for determination is whether the conduct for which the respondent was convicted is properly described as involving a risk of serious harm to a person. Respondent’s submission 19 The respondent’s argument centres upon the definition in s 83D(1) of “serious harm” as having “the same meaning as in Part 3 Division 7A of the Criminal Law Consolidation Act (1935).” 20 Part 3 of the CLCA concerns offences against the person. Division 7A of Part 3 is concerned with a cohort of offences under the broad class of “causing physical or mental harm”. Division 7A commences with section 21which is an interpretation section that applies to Division 7A. Section 21 provides: In this Division— "harm" means physical or mental harm (whether temporary or permanent). "mental harm" means psychological harm and does not include emotional reactions such as distress, grief, fear or anger unless they result in psychological harm; physical harm includes— (a) unconsciousness; (b) pain; (c) disfigurement; (d) infection with a disease; "serious harm" means— (a) harm that endangers a person’s life; or (b) harm that consists of, or results in, serious and protracted impairment of a physical or mental function; or (c) harm that consists of, or results in, serious disfigurement. 21 The basis upon which Kourakis CJ determined that the respondent’s conduct involved a risk of serious harm was by reference to the definition of “serious harm” above, and in particular, by reference to harm that results in serious and protracted impairment of a mental function. 22 The respondent contends that Part 3, Division 7A of the Criminal Law Consolidation Act (1935) further defines the meaning of “harm” by declaring that certain conduct is not to be considered as causing harm for the purpose of the Division. Section 22 sets out the conduct that is excluded from the operation of Division 7A and at (5) provides: -- 6 of 12 -- [2024] SASC 122 Hughes J 5 If the defendant’s conduct caused only mental harm, this Division does not apply to the defendant’s conduct unless— a) the defendant’s conduct gave rise to a situation in which the victim’s life or physical safety was endangered and the mental harm arose out of that situation; or b) the defendant’s primary purpose was to cause such harm. 23 The respondent contends that his conduct did not endanger the victims’ life or physical safety as required for the application of Division 7A. Mr Blake submitted on behalf of the respondent that even if there were a risk of serious mental harm resulting from the respondent’s conduct, as found by Kourakis CJ, that conduct falls outside the ambit of the definition of harm when ss 21 and 22 are read together. Accordingly, the respondent is not a high risk offender. Notwithstanding that the respondent was found to be a high risk offender for the purposes of the ISO, the Court is required to revisit that question for the purposes of imposing the ESO. 24 The respondent contends that the Court’s attention was not drawn to s 22 of the CLCA when consideration was given to whether the respondent was a high risk offender for the purposes of the ISO, and that led the Court to make an erroneous factual finding. However, no appeal lies from the imposition of an ISO. (See the exhaustive appeal rights in s 22 of the HRO Act). 25 It is the respondent’s contention that the meaning of “serious harm” in the HRO Act, by referencing s 83D, which in turn references Part 3 Division 7A of the CLCA, signals Parliament’s intent to draw on the whole of the Division, and not simply section 21. If it had been intended to refer only to s 21, it would have been easy to have referred directly, and only, to s 21. 26 To amplify that point, the respondent directed the Court’s attention to Part 1, s 5AA of the CLCA regarding aggravated offences. That provision states that, in that section, “harm has the same meaning as in s 21”. Section 19, concerning unlawful threats, provides that in that section “harm, in relation to a person, has the same meaning as in s 21”. Finally, section 19AAB of the CLCA, concerning serious vehicle and vessel offences, provides that, in that Division, “harm, physical harm and serious harm have the same meanings as in section 21”. 27 The respondent also called in aid various references to the definition in s 21 in the Road Traffic Act 1961 where “harm” and “serious harm” are defined by reference to s 21 of the CLCA for the purposes of offences created under the Road Traffic Act 1961. 28 The respondent further submitted that the construction he argues for avoids various anomalies that would arise if s 21 is applied without the modification made by s 22. 29 For example, s 20AA CLCA concerns the offence of causing harm to or assaulting emergency workers. Section 20AA (9) provides that “harm” in section -- 7 of 12 -- [2024] SASC 122 Hughes J 6 20AA “has the same meaning as in Division 7A”. If “harm” in these provisions is understood by reference only to s 21 and not also to s 22, the same conduct would be an offence when directed at an “emergency service worker” but not against another individual. The respondent contends that this interpretation cannot have been Parliament’s intent. The Attorney-General’s submissions 30 The Attorney-General argues for a different construction of the interacting provisions in the HRO Act and CLCA. Ms Marsh for the Attorney-General submitted that s 22 is not part of the definition of “harm” but rather sets out various limitations or exclusions of particular conduct from the ensuing offences established by Division 7A. 31 The applicant contended that the term “serious offence of violence” in s 83D(1) of the CLCA is applied in other circumstances including within the provisions relating to criminal organisations as well as in the HRO Act, but that there was no basis for considering that provisions other than s 21 operate outside of Division 7A. Consideration as to the meaning of “serious harm” 32 Section 22 of the CLCA provides: Conduct falling outside the ambit of this Division (1) This Division does not apply to the conduct of a person who causes harm to another if the victim lawfully consented to the act causing the harm. (2) A lawful consent given on behalf of a person who is not of full age and capacity by a parent or guardian will be taken to be the consent of the person for whom the consent was given. (3) A person may consent to harm (including serious harm) if the nature of the harm and the purpose for which it is inflicted fall within limits that are generally accepted in the community. Examples— 1. A person may (within the limits referred to above) consent to harm that has a religious purpose (eg male circumcision but not female genital mutilation). 2. A person may (within the limits referred to above) consent to harm that has a genuine therapeutic purpose (eg a person with 2 healthy kidneys may consent to donate 1 for the purpose of transplantation to someone with kidney disease). 3. A person may (within the limits referred to above) consent to harm for the purpose of controlling fertility (eg a vasectomy or tubal ligation). 4. A participant in a sporting or recreational activity may (within the limits referred to above) consent to harm arising from a risk inherent in the nature of the activity (eg a boxer may accept the risk of being knocked unconscious in -- 8 of 12 -- [2024] SASC 122 Hughes J 7 the course of a boxing match and, hence, consent to that harm if it in fact ensues). (4) If a defendant’s conduct lies within the limits of what would be generally accepted in the community as normal incidents of social interaction or community life, this Division does not apply to the conduct unless it is established that the defendant intended to cause harm (5) If the defendant’s conduct caused only mental harm, this Division does not apply to the defendant’s conduct unless— (a) the defendant’s conduct gave rise to a situation in which the victim’s life or physical safety was endangered and the mental harm arose out of that situation; or (b) the defendant’s primary purpose was to cause such harm. Examples— 1 An examiner fails a student in an examination knowing that the student has been diagnosed with schizophrenia and that failure to pass is likely to precipitate a schizophrenic episode. The student in fact suffers such an episode. 2 An employer legally terminates an employee’s employment knowing that the employee suffers from a mental illness and that the termination is likely to exacerbate the mental illness. The employee in fact suffers an exacerbation of the mental illness. In both the above examples, it is not sufficient for the prosecution to prove that the defendant acted intentionally knowing that harm would inevitably, probably or possibly result from his or her act. It would be necessary for the prosecution to establish that the defendant wanted to cause harm and that desire was the sole or a significant motivation for the defendant’s conduct. 33 In ss 23 to 25 inclusive, the CLCA sets out the offences of causing harm, causing serious harm and alternative verdicts that can be entered if the elements of causing serious harm are not established. 34 There are several drafting signals that militate against the respondent’s contentions. The first is that s 21 is an interpretation section and not a substantive provision. 35 In Gibb v Federal Commissioner of Taxation, Barwick CJ, McTiernan and Taylor JJ said:7 The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense – or are to be taken to include certain things which, but for the definition, they would not include. 36 This point was revisited by McHugh J Kelly v R,8 in which his Honour said: 7 (1966) 118 CLR 628, [10] (per Barwick CJ, McTiernan and Taylor JJ). 8 (2004) 218 CLR 216, [103] (per McHugh J). -- 9 of 12 -- [2024] SASC 122 Hughes J 8 … [T]he function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better — I think the only proper — course is to read the words of the definition into the substantive enactment and then construe the substantive enactment — in its extended or confined sense — in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment. 37 Section 22 is a substantive provision, qualifying the operation of ss 23-25 inclusive. The only available construction is that the use of the term “harm” in s 22 is by reference to s 21. Section 22 does not further define “harm” and “serious harm” but, as the Attorney-General contended, limits the conduct that is caught by the following substantive provisions in ss 23-25 inclusive. 38 The examples provided by the respondent to support of his construction depend on an assumption as to the Parliament’s intention that is not self-evident. The assumption that the offences against emergency workers in Division 7 must also be governed by s 22, and not merely s 21, is not one that is necessary for the provisions to operate. 39 It is true that s 83D could have referred to s 21 rather than Division 7A, and that on other legislative occasions a direct reference to s 21 has been used. But that does not alter the fact that the meaning of “harm” and “serious harm” is derived only from s 21. Section 22 does not give meaning to those terms, and it is the meaning that the interpretation section of the HRO Act picks up. Rather, s 22 directs when specified conduct must result in certain harm (as defined in s 21) to constitute the offences in that division. 40 It follows that the meaning of “harm” and “serious harm”, for the purpose of determining whether a person is a serious offender, are as set out in s 21 without reference to s 22. Revisiting the question of the risk of harm that was posed by the respondent’s offending 41 The respondent further contends that, even if “harm” and “serious harm” have the meanings contended for by the Attorney-General, as I have found, the Court is required to give fresh consideration to that question and conclude that the respondent’s conduct did not create “a risk of serious mental harm” to the victim(s) of his offending. 42 The respondent submitted that “mental harm” was considered in Attorney- General (SA) v Gillard.9 Kimber J observed that “mental function” was not defined in the HRO Act, but in his view, its meaning was informed by the context in which 9 [2022] SASC 104. -- 10 of 12 -- [2024] SASC 122 Hughes J 9 it appeared. Section 21(1) of the CLCA provides that a serious and protracted impairment of a mental function was a form of “serious harm”, that that section set out that “harm” meant physical or mental harm and that “mental harm” meant psychological harm but did not include emotional reactions such as distress, grief, fear or anger unless they resulted in psychological harm.10 As “mental function” was not defined, and its meaning was to be construed from the context in which it appeared, Kimber J found that he had to be satisfied that the conduct caused a serious and protracted impairment of a mental function, being more than the emotional reaction of fear. Kimber J came to the conclusion that there was, in the circumstances of that case, a “theoretical” risk of a serious and protracted impairment of a mental function of the victim, but he was not satisfied that risk was “real or recognisable”, so he declined to make an extended supervision order. 43 The risk of causing serious harm needs to be at least an appreciable or obvious one.11 The respondent complained that there was no evidence placed before the Court defining what, if any, serious and protracted impairment of a mental function the respondent’s conduct had a risk of causing. It was submitted that such conditions are complex and not commonly understood by the unqualified. Without appropriate expert evidence such as to the aetiology of serious and protracted mental impairment, it was submitted the risk can only ever be theoretical, not real or recognisable, and therefore it is insufficient to classify the respondent as a high risk offender where his actions gave rise only to a risk of causing serious mental harm. 44 The Attorney-General relied on his submissions made to the Court in respect of the ISO. Those submissions referred to the “dynamic nature of the respondent’s conduct”, his preparedness to approach the victims at close quarters and threaten to use the imitation weapon that he was holding, in circumstances where he was in company. It was said that these features gave rise to a risk of the victim suffering significant psychiatric sequelae, i.e. serious and protracted impairment of a mental function or psychological harm. Consideration of the question of the risk of serious mental harm 45 Although the finding that the respondent’s conduct gave rise to a risk of serious mental harm is a jurisdictional fact that must be determined in relation to both on the ISO and the ESO applications, it does not follow that where a finding has been made on the ISO, and in the absence of fresh evidence, a fresh consideration of the existence of that jurisdictional fact entails a de novo approach. The findings leading to the ISO have been made within the same proceeding, and there would need to be some basis for disturbing them. 46 In the respondent’s case, Kourakis CJ gave consideration to the question of whether the respondent’s conduct could be said to create an appreciable risk of 10 At paragraph 24. 11 Attorney-General for State of South Australia v Gates [2017] SASC 154; at [9] and [11] per Vanstone J. -- 11 of 12 -- [2024] SASC 122 Hughes J 10 serious mental harm in the victim. His Honour was critical of the lack of evidence filed to assist the Court with that task. Nevertheless, Kourakis CJ concluded that the risk had been established to the requisite degree and the jurisdictional fact was proven. I see no reason to depart from the reasoning of the Chief Justice in the absence of any different basis being put before the Court as to the extent of the risk. I decline to do so. 47 Accordingly, I find that the respondent is eligible to have an ESO imposed upon him. The report of Mr Williams supports the need for such an order to manage the risk to the community. I will make an order. -- 12 of 12 --