Lynn v State of New South Wales

The extended supervision order imposed in 2013

1. Previously, Mr Lynn had been subject to an extended supervision order, from which he had appealed (this time represented by senior and junior counsel) in 2016: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. That appeal was dismissed. The order had been made by Hidden J on 17 December 2013, for a period of 3 years: State of New South Wales v Lynn [2015] NSWSC 665. However, it remained in force for much longer than 3 years. Indeed, it remained in force until the continuing detention order was made in May 2019.
2. That has come about because Mr Lynn has repeatedly been convicted of offences, including but not confined to breaches of the extended supervision order, for which he has been sentenced to terms of imprisonment. At all material times, subsections 10(1A) and (2) of the Act have provided: "(1A) An extended supervision order expires at the end of: (a) such period (not exceeding 5 years from the day on which it commences) as is specified in the order, or (b) if the order is suspended for any period, the period specified in paragraph (a) plus each period during which the order is suspended. (2) An offender's obligations under an extended supervision order are suspended while the offender is in lawful custody, whether under this or any other Act or law."
3. Thus, while an offender is in lawful custody, including when serving a sentence imposed for a conviction of an offence under the Act or any other law, then the offender's obligations under the order cease, but time ceases to run for that period. However, upon the making of a continuing detention order, an extended supervision order "expires and ceases to have effect": s 18D.
4. The primary judge recorded at [10] that it was uncontroversial that the applicant had been dealt with by a court for breaching the extended supervision order at least 13 times since it was made. For example, just dealing with the three calendar years 2015, 2016 and 2017, he spent the following periods in prison: from 15 January 2015 - 6 July 2015, from 2 January 2016 until 22 March 2016, from 23 March - 6 June 2016, from 22 June 2016 - 21 March 2017, from 16 April 2017 - 21 June 2017, from 28 July 2017 - 27 August 2017 and from 30 November - 11 December 2017.
5. I should note for completeness one minor point concerning that history. The chronology prepared by the State contains an entry for 4 February 2016 "Appellant charged with breach of ESO whilst in custody". When an offender is in lawful custody, the obligations imposed by an extended supervision order are suspended (s 10(2)), with the result that the offender cannot commit the offence created by s 12 of the Act of failing to comply with the order. However, a review of the criminal record and fact sheets pertaining to H62954688 (which are found at Blue 1/329 and 2/730) confirm that Mr Lynn was charged on 4 February 2016, while in custody, with an offence based on a urine test conducted on 23 December 2016 - when he had been released from custody - which showed positive for methylamphetamine. Mr Lynn was in prison on 4 February serving a sentence of 11 weeks imprisonment imposed on 2 January for contraventions of the conditions of the extended supervision order between 25 December 2015 and 2 January 2016 (see the criminal record and fact sheets pertaining to H62646981 at Blue 1/328 and 2/710). These are the subject of one aspect of Mr Lynn's submissions below, but for present purposes it is sufficient to note that at those times he had been released from custody.

Mr Lynn's criminal record

1. Mr Lynn has an extensive criminal record containing offences to property, drug possession and offences of violence. His first conviction was for an offence of break, enter and steal when he was aged 14. His first offence involving violence was in 1992, when aged 16, of assaulting police. His first drug offence was when aged 18, of possessing heroin. In the period prior to 2006, he was found guilty of numerous offences of common assault, assault occasioning actual bodily harm, resisting police, assaulting police officers, and minor property offences. In 2006 he was convicted of manslaughter, and sentenced to a term of imprisonment of 7 years with a non-parole period of 4½ years. Although he was released on parole, parole was revoked, and the extended supervision order was made in 2013 following the conclusion of his sentence. Since the making of that order in 2013 until the making of the continuing detention order by the primary judge, Mr Lynn's most numerous offences have been contravening the terms of the extended supervision order, although consistently with Mr Lynn's earlier history there have also been other offences of spontaneous violence.
2. The hearing before the primary judge was conducted on the bases that: 1. the most recent sentence of imprisonment, a period of 18 months imposed by the Local Court on convictions of assault occasioning actual bodily harm, affray, and one count of failing to comply with the extended supervision order, would expire on 3 September 2019, with a non-parole period which had expired on 3 March 2019, and 2. the extended supervision order, originally made in 2013, would expire no earlier than August 2020.

Did Mr Lynn's conviction for manslaughter amount to a serious violence offence?

1. There is only power to make an extended supervision order or a continuing detention order if a person has committed a "serious violence offence". The State contended that Mr Lynn had committed precisely one serious violence offence, when he pleaded guilty to manslaughter on the basis of excessive self-defence in 2008. Mr Lynn denied that he had committed any serious violence offences.
2. It is convenient to deal with this immediately, because the point is a pure question of law, and if Mr Lynn is correct, then the appeal must be allowed.
3. The primary judge did not address whether the manslaughter conviction was a serious violence offence, because no such point was taken before his Honour. Nor was any point taken in the earlier litigation, culminating in this Court's decision in 2016. That said, the State made no submission precluding Mr Lynn from raising what would be, after all, a pure question of law on appeal, and with commendable frankness acknowledged that if the point was good, the appeal must be allowed.
4. In 2006, while subject to a good behaviour bond, Mr Lynn was refused service at a hotel in Parramatta after extensive drinking, and then became involved in an altercation with the victim. An agreed statement of facts attributed to the victim the words, "I will kill you, motherfucker!", to which Mr Lynn replied, "Not if I get you first". Mr Lynn stabbed the deceased once, very quickly at the base of the neck above the collarbone. The victim died from blood loss from the stab wound, which had perforated a large vein above the heart and wounded his lung.
5. Mr Lynn was charged with murder. In April 2008 a jury was unable to agree upon a verdict. Mr Lynn's plea of guilty to manslaughter on the basis of excessive self-defence was accepted by the Crown, and he was sentenced on 7 November 2008 by the Supreme Court to a period of 7 years imprisonment with a non-parole period of 4½ years: R v Scott David Lynn [2008] NSWSC 1122. That judgment records that although the agreed facts did not identify the weapon which was used, the forensic pathologist who had conducted the post-mortem examination had concluded that Mr Lynn "must have used a narrow blade of some kind most likely a knife": at [8]. Sentence was imposed on the basis that not only had Mr Lynn used a weapon but also that he was carrying one: at [19]. (I shall return below to the basis on which Mr Lynn was sentenced, in connection with Mr Lynn's submissions that he had never been found guilty of any offence of violence involving a weapon, and had never been found guilty of possessing a dangerous item.)
6. It will be recalled that the precondition to the power to make a continuing detention order in s 5C(a) is that the person is serving or has served a sentence of imprisonment for a serious offence, which includes a serious violence offence. The definition of serious violence offence is found in s 5A, as follows: "5A Definition of "serious violence offence" (1) For the purposes of this Act, a serious violence offence is a serious indictable offence that is constituted by a person: (a) engaging in conduct that causes the death of another person or grievous bodily harm to another person, with the intention of causing, or while being reckless as to causing, the death of another person or grievous or actual bodily harm to another person, or (b) attempting to commit, or conspiring with or inciting another person to commit, an offence of a kind referred to in paragraph (a). (2) An offence that includes the elements referred to in subsection (1) (a) is a serious violence offence regardless of how those elements are expressed, and whether or not the offence includes other elements."
7. It is clear from s 5A(2) that what matters are the elements of the offence which is said to constitute a serious violence offence.
8. Mr Lynn submitted that he did not have an intent to kill or to inflict grievous bodily harm and thereby fell outside the definition in s 5A. Mr Lynn's submission was that that his manslaughter conviction did not engage the power to make a continuing detention order under the Act. In written submissions he said: "Excessive self defence manslaughter does not have elements of reckless or malice intent. Intent is deemed to be of self defence. If any other intent was proved it would be a different charge for a homicide at statute of law".
9. He put it thus in oral submissions: "Now, as you know self-defence is legal. It is not illegal for self-defence, thus it's why it is encompassed by the law of tort which is excessive. Now, if the intent is legal is this not a serious violent crime because it doesn't encompass intent to kill or commit grievous bodily harm, intent is actually of self-defence, not of the violent act."
10. Mr Lynn's submissions developing this point (especially in supplementary submissions provided at the hearing) relied upon materials which appear to have been based in part upon the Homicide Act 1957 (UK). The position in New South Wales concerning the defence of self-defence to a murder charge is different. Section 421 of the Crimes Act 1900 (NSW) provides: "421 Self-defence - excessive force that inflicts death (1) This section applies if - (a) the person uses force that involves the infliction of death, and (b) the conduct is not a reasonable response in the circumstances as he or she perceives them, but the person believes the conduct is necessary - (c) to defend himself or herself or another person, or (d) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person. (2) The person is not criminally responsible for murder but, on a trial for murder, the person is to be found guilty of manslaughter if the person is otherwise criminally responsible for manslaughter."
11. If s 421 is satisfied, the section operates to authorise and require a verdict of guilty to manslaughter where otherwise the person would have been guilty of murder.
12. It is settled law that a guilty plea to manslaughter on the basis of excessive self-defence necessarily comprehends all of the elements of the offence of murder. In Lane v R [2013] NSWCCA 317; 241 A Crim R 321, the Court of Criminal Appeal (Bathurst CJ, Simpson and Adamson JJ) identified at [50] the crime of manslaughter: "As mentioned above, there is no statutory definition of the offence of manslaughter. There are two categories of manslaughter - voluntary manslaughter and involuntary manslaughter: see Wilson v The Queen [1992] HCA 31; 174 CLR 313 (at p 333 [49]); R v Lavender [2005] HCA 37; 222 CLR 67 at [2]. Voluntary manslaughter is a creature of statute; it is committed where a killing which would otherwise amount to murder is reduced by reason of some circumstance provided by statute - provocation (Crimes Act, s 23), substantial impairment by abnormality of mind (Crimes Act, s 23A) or excessive self-defence (Crimes Act, s 421). For voluntary manslaughter to be proved, it is necessary that the Crown first prove all of the elements of murder; it is then necessary, in the case of s 23A, that the accused prove something additional ... [W]ith respect to s 421, if the defence of self-defence is raised, the onus is on the prosecution to prove that the act causing death was not done in self-defence. The essential thing is that, before voluntary manslaughter can even be considered, all of the elements of murder must be proved."
13. Similarly, in Grant v R [2014] NSWCCA 67, that Court made the same point in relation to a guilty plea to manslaughter on the basis of excessive self-defence at [66]: "What is more, Mr Grant's plea of guilty also meant that he accepted that he held one of the mental states sufficient to amount to murder, but for the availability of s 421. That meant an acceptance that he intended to kill, or to cause grievous bodily harm to, Mr Matheson, or else had acted with reckless indifference (the latter may be put to one side for present purposes, having regard to the evidence adduced on this appeal). Hence his Honour's repeated questions of Mr Weller as to Mr Grant's intent, including the question 'What was the specific intent for murder?'"
14. Manslaughter is a serious indictable offence. It is settled law that Mr Lynn's plea amounted to an acceptance of all of the elements of murder. The offence of manslaughter to which he pleaded guilty was therefore a serious violence offence, sufficient to satisfy s 5C(a). Counsel appearing for Mr Lynn at first instance was correct to proceed on that basis, as was the earlier decision of this Court. Mr Lynn's submission to the contrary in this Court must be rejected.

Reasons of the primary judge

1. The primary judge conducted a hearing over two days, which included cross-examination of some of the lay evidence called by the State, and of the psychologists and psychiatrists who provided reports in accordance with the Act. Although orders were made for the compulsive examination of Mr Lynn, he refused to participate in that process, and thus the forensic reports of 12 and 25 March 2019 by Dr Furst and Dr Collins were prepared without the benefit of an examination. The primary judge summarised aspects of the earlier expert evidence at [17]-[20] as follows: "In recent years, for different purposes, the defendant has been examined by numerous forensic psychologists (Patrick Sheehan, Danielle Matsuo, Anna Robilliard and Drs Emma Collins, Richard Parker and Chris Lemmings) and psychiatrists (Drs Richard Furst, Jeremy O'Dea, Samson Roberts and Professor David Greenberg). Their reports have been tendered by the plaintiff. He has never been diagnosed with a mental illness and does not have an intellectual disability. Rather, he has been diagnosed as having a borderline personality disorder with marked antisocial and aggressive features (Dr Robilliard) and an antisocial personality disorder (Dr Furst, Sheehan) with psychopathic traits, meaning an enduring pattern of behaviour and attitudes that negatively impact his conduct towards others (Dr Collins) and a substance use disorder (Dr Furst, Dr O'Dea). A Risk Assessment Report dated 19 January 2016, prepared by Richard Parker (Senior Psychologist, Serious Offenders Assessment Unit) and Danielle Matsuo, psychologist, contained this observation: "While previous reports have found that Mr Lynn does not suffer from a mental illness (Greenberg, 11/4/2004; Roberts 3/9/2013, O'Dea 10/9/2013), he nevertheless displays a pattern of communication which is unusual, even among high-risk offenders. An analysis of case notes reveals he appears to misinterpret comments by others, generally by assuming a hostile interpretation of other people. While a hostile interpretation of the world is fairly common in high-risk violent offenders (Polaschek, Calvert & Gannon, 2009; Ward, 2000), the pattern with Mr Lynn seems more extreme, resulting in a very limited ability to absorb information from others, bordering on a psychotic presentation explained in detail below." The authors then itemise six case notes that relate incidents in which staff had attempted to focus his attention on a particular topic but he would either impose a different agenda or make contradictory statements. A later Risk Assessment Report by Dr Parker, co-authored by psychologist Cherice Cieplucha and dated 11 April 2018, offered this view: "Mr Lynn is a person with a complex personality structure. He has extremely rigid thinking patterns, which border on psychotic. At the heart of those patterns is an extreme self-centredness, where other people's views and well-being are consistently ignored in favour of his own interpretation of the world. Coupled with this is a pattern of thinking that perceives the world as a dangerous place, which requires him to adopt an aggressive stance towards the world. As has happened with the index offence, this could involve serious violence."
2. The primary judge summarised the most recent reports, of Drs Furst and Collins, at [46]-[55]. Both doctors supported the making of a continuing detention order. The primary judge summarised the effect of the cross-examination of the witnesses at [72]: "I consider that, to the extent that cross-examination exposed a degree of disregard for the many neutral and some positive case notes, there was an undue degree of pessimism in Dr Furst's opinion of the defendant's capacity for change. However, I am of the opinion that the ultimate conclusions of each of these three witnesses [were] not significantly affected by the cross-examination."
3. One important factual matter has been the involvement, or absence of involvement, in a violent offenders' treatment program. There was qualified evidence that participation in such a program was associated with a reduced recidivism rate. The evidence included the following: "AVENELL: In April 2018, your opinion was that the 'VOTP was unlikely to significantly alter Mr Lynn's thinking". Do you maintain that opinion? WITNESS CIEPLUCHA: I do, I do. AVENELL: And as at March 2019, you anticipated 'significant difficulties engaging and being unresponsive to therapeutic affects'. Do you still maintain that opinion? WITNESS CIEPLUCHA: Yes. AVENELL: Do you have any evidence to suggest that, if Mr Lynn did the VOTP program, it would have any positive effect on him? WITNESS CIEPLUCHA: I think there is always the potential for positive effects to occur, but I think that Mr Lynn needs to be in a position where he perceives his behaviour to be a problem and that he is willing to actually undertake treatment in order to address some of the issues relevant to his offending behaviour in circumstances that have led him to be in custody. AVENELL: So is the position that you think there is some small hope that he might have a change in some of his thinking, but it is very unlikely that it is going to have any real effect? WITNESS CIEPLUCHA: Given that he is high risk and there are a number of different risk factors relevant to him, I think that he has the potential to make some gains, but I don't think enough to significantly reduce his risk. AVENELL: Dr Furst, what is your position on how the VOTP would or would not be effective for Mr Lynn? WITNESS FURST: I share the same opinions that have been expressed. WITNESS COLLINS: I agree. Interpersonally - I think the VOTP represents the best chance for Mr Lynn in terms of change but, interpersonally and considering his enduring traits, I think that that may be limited."
4. There was also evidence that from time to time Mr Lynn has said he did not wish to participate in such a program "for a crime he didn't commit". Mr Lynn also submitted that, when he was released, he had participated in a series of rehabilitation courses and regularly attended consultations with a psychologist, and that his detention prevented him continuing doing so.
5. The primary judge reproduced s 5C of the Act, identifying as the key provision s 5C(d) of the Act. He noted that by reason of s 5D the Court was not required to determine that the risk of the offender committing another serious offence if not kept under supervision was more likely than not. His Honour had regard to the paramount consideration, namely, the safety of the community, as mandated by s 17(2) of the Act: at [31]. The primary judge was conscious of the amendments to the Act, which among other things removed an express requirement to be satisfied that adequate supervision could not be provided by an extended supervision order before a continuing detention order was made: at [32]. His Honour was conscious that there was a discretion even if the prerequisites were satisfied: at [34].
6. His Honour's consideration was at [73]-[87]: "On one view, the defendant's criminal record, although lengthy, does not comprise offences of serious violence, other than the conviction for manslaughter, thirteen years ago. However, a consideration of his record and ESO performance in the light of the various forensic examinations of the defendant is concerning. In particular, concern arises from the combination of the frequent occurrence of, if not a predisposition to, aggressive responses to stressful situations; a history of carrying items that can be deployed for stabbing or cutting and resorting to such devices when stressed in order to threaten; and on-going occasional lapses into the use of violence-related drugs such as methylamphetamine, in spite of attendance in drug treatment programs. When coupled with the defendant's long-standing absence of insight into his issues of violence and drug abuse, his past failures in properly participating in programs that address these issues and the past absence of good working relationships with CSNSW caseworkers, the range of options to improve the defendant's prognosis for a crime-free life in the community narrow considerably. The submission that the defendant poses a lower level of risk because the index offence was thirteen years ago and that most other offences which involved threatening others with a knife are even older, loses traction when it is not accompanied by evidence that he has gained insight into his behaviour and also by virtue of the fact that for most of the intervening period he has been in custody. In that sense, the passage of time is less relevant. There remains potential for a relatively minor episode of violence by the defendant to quickly escalate. The incident that gave rise to his recent convictions for AOABH and affray is a good example. On one level, it was a minor fracas between neighbours with, apparently, no lasting injuries. In the context of the forensic profile of the defendant, however, felling the victim by hitting him over the head with a pole from behind and then punching him as he lay on the ground has disturbing echoes of his behaviour in the assault at the hotel 25 years ago, when he was aged 17. The remarks by the magistrate in relation to that incident illustrate how the defendant's aggressive or violent behaviour, which included throwing a pot over a balcony, before it degenerated further into violence against a person, instilled fear in bystanders to a degree that a woman some distance away feared for her safety and two men picked up objects at hand to defend themselves. In other words, simply acting with aggression can prompt others to react. It is not fanciful to contemplate a situation where such behaviour could provoke an incident with a less benign outcome. For these reasons, I am satisfied that there are no feasible community-based options for the defendant at this stage that engender reasonable confidence that his potential for violent behaviour can be suitably curtailed in a community setting. In relation to a CDO, although Drs Parker and Furst are pessimistic as to whether the defendant would actively participate in a VOTP program and, if he did, that it would modify his behaviour, it seems to me that it is a worthy goal. In relation to the BOCSAR report's conclusion that VOTP does not demonstrably lower a probability for violent re-offending, I also note that there was some evidence, albeit qualified, of significant decreases in new offences generally by violent offenders, as follows: 'The results suggest that VOTP is associated with a significant decrease in the likelihood that a violent offender will commit a new offence or return to custody within 24 months of release from prison. OLS models estimate that an offender who commences VOTP is on average, between 7 and 9 percentage points less likely to re-offend or return to custody within 24 months free time after release. We find similar results when comparing those who completed VOTP with those who did not complete the program. VOTP completion is associated with reductions in the risk of general re-offending and general re-offending or returning to custody. However, we cannot be certain that these effects are causal as no significant estimates were obtained using the more robust 2SLS which more adequately deals with problems of endogeneity.'" This suggests that there is value in the VOTP, even if it is not to the extent that it is made out to be. Having regard to the forensic material, the critical issue for the defendant's progress is to change his thinking. It appears that the defendant actively participating in the VOTP program is the best available option to achieve that. Ms Cieplucha gave evidence that the length of the VOTP program is 8 to 10 months, but that because there is a long waiting list for offenders wanting to participate and assessments to be done, it can be many months before an offender gains entry to VOTP. However, she also said that if a relatively short CDO is made for the purpose of an offender participating in VOTP, the application process can be fast-tracked to fit into a 12 month CDO timeframe. The term of the CDO sought by the applicant is a period of two years. It seems to me that the defendant will have an incentive to actively participate in a VOTP if there is a prospect of him being accepted into the program at the earliest opportunity and a likelihood of release back into the community when it is completed, provided he participates in a fully co-operative and active fashion. However, there are conflicting opinions as to how long that minimum period should be. Dr Parker thought that 14 months was the minimum time for that to occur, whereas Dr Furst thought at least 2 years and Dr Collins thought 3 years. A further complication is that, as noted at the outset of this judgment, the defendant's current sentence expires on 3 September 2019. The non-parole period of 12 months expired on 3 March 2019, and the State Parole Authority has revoked his release to statutory parole. I understand that a review hearing of that decision has been adjourned, pending the outcome of this application. I am of the opinion that there should be a CDO for a period of 15 months. Although I do not intend to encroach onto the jurisdiction of the State Parole Authority, an outcome that delivers a further period of custody from today of about 15 months would be, in my opinion, appropriate for the stated objective of enabling the defendant an opportunity to partake in and finish the VOTP program. The material before me also establishes a need for further participation by the defendant in drug programs. A CDO will enable the defendant to participate in further such programs, as well. I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept in detention."

Commencement date (ground 1)

1. The first ground of appeal is that the primary judge erred in imposing a continuing detention order without a commencement date. I would reject this ground.
2. The Act makes special provision for the commencement of an order, in the following terms: "18 Term of continuing detention order (1) A continuing detention order: (a) commences when it is made, or when the offender's current custody expires, whichever is the later, and (b) expires at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order. (1A) Despite subsection (1), a continuing detention order made on application under this Part in respect of a supervised offender (within the meaning of section 13B (4)) who is not in custody commences when it is made and expires at the end of such period (not exceeding 5 years from the day on which it commences) as is specified in the order. (2) An offender's custody under a continuing detention order is suspended while the offender is in lawful custody under any other Act or law, but that suspension does not affect the expiry date of the order. (3) Nothing in this section prevents the Supreme Court from making a second or subsequent continuing detention order against the same offender."
3. The operation of that section has aspects which are counter-intuitive. At first blush, there appears to be a conflict between the commencement of a continuing detention order after "the offender's current custody expires" in s 18(1)(a), and the suspension of an offender's custody under a continuing detention order while the offender is in lawful custody under any other Act or law in s 18(2). The conflict is, however, only apparent. That is because "current custody" is a defined term for the purposes of Part 3 dealing with continuing detention orders. The definition is found in s 13B(2), a provision which simultaneously defines "detained offender" and "current custody", and which was also considered by this Court in Turner v State of New South Wales [2019] NSWCA 164. Section 13B(1) and (2) provide as follows: "13B Application for continuing detention order (1) An application for a continuing detention order may be made only in respect of: (a) a detained offender, or (b) a supervised offender. (2) A detained offender is an offender who, when the application for a continuing detention order is made, is in custody (referred to in this Part as the offender's current custody): (a) while serving a sentence of imprisonment: (i) for a serious offence, or (ii) for an offence of a sexual nature, or (iii) for an offence under section 12, or (iv) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment (whether under a law of this State or another Australian jurisdiction) referred to in subparagraph (i), (ii) or (iii), or (b) under an existing continuing detention order, emergency detention order or interim detention order." Subsection 13B(3) makes provision for the timing of a continuing detention order, while s 13B(4) and (5) deal with applications in respect of supervised offenders, to which I shall shortly return.
4. The immediate relevance of the definition of "current custody" is that, in its application to Mr Lynn, it applied to the sentence of imprisonment imposed for his conviction for manslaughter and for offences under s 12, and for other sentences served concurrently or consecutively with those sentences. Mr Lynn's sentence for manslaughter had been fully served by the time that the State made its application for a continuing detention order on 22 May 2018. On 30 April 2018, the District Court varied a sentence imposed by the Local Court by imposing a sentence of imprisonment of 4 months commencing 12 January and concluding 11 May 2018. On 4 June 2018, Mr Lynn was sentenced to a further term of imprisonment for assault occasioning actual bodily harm, affray, and breach of a supervision order. However, on the critical date, 22 May 2018, Mr Lynn was in custody but not because he was serving a sentence imposed for a serious offence or under s 12. He was bail refused on charges of hindering a police officer, assaulting a law officer and failing to comply with a condition of an extended supervision order (his trial on those charges was part-heard). It follows, somewhat counter-intuitively that Mr Lynn was not a "detained offender" when the State filed its application. The primary judge recorded that far from straightforward history at [10] of his reasons, noting that it was not the subject of challenge. Nor was it challenged in this Court.
5. It follows that: 1. the continuing detention order made by the primary judge commenced on the day that it was made pursuant to s 18(1)(a), 2. because Mr Lynn was at the time in lawful custody other than serving a sentence of imprisonment imposed for convictions for offences listed in s 13B(2), his custody under the continuing detention order was suspended for some months pursuant to s 18(2), and 3. the suspension did not alter the continuing detention order's expiry date, which continued to be 15 months after it was made.
6. For those reasons, ground 1 of Mr Lynn's appeal is not made out. However, it may be that the primary judge proceeded on the basis that the 15 month period would only commence to run after parole had been granted. Indeed, I think that is the more natural way to read his reasons. It is consistent with his Honour's reference to the adjournment of the hearing before the State Parole Authority, and his statements that "I do not intend to encroach onto the jurisdiction of the State Parole Authority" and "a further period of custody from today of about 15 months would be, in my opinion, appropriate" (emphasis added): at [85].
7. It may be that there was confusion between the different effects which being in lawful custody has upon an extended supervision order and a continuing detention order. As noted above, in the case of an extended supervision order, being in lawful custody suspends an extended supervision order, thereby "stopping the clock". That is not the case with a continuing detention order.
8. Mr Lynn's continuing detention order commenced when it was made. The result may be that it will be a few days or weeks less than the primary judge had intended. It was not said that this gave rise to any appellable error.
9. The same considerations make it clear that Mr Lynn was not, when the continuing detention order was made, a "detained offender". He was instead a "supervised offender", which is defined in s 13B(4) as follows: "A supervised offender is an offender who, when the application for a continuing detention order is made, is an offender in lawful custody or under supervision: (a) under an extended supervision order or an interim supervision order who: (i) has been found guilty of an offence under section 12 in respect of that order, or (ii) because of altered circumstances, poses an unacceptable risk of committing a serious offence if the continuing detention order is not made, or (b) whose obligations under an extended supervision order or an interim supervision order have been suspended, or (c) under an interim detention order."
10. Mr Lynn fell within paragraph (b) of that definition. The obligations imposed by the extended supervision order made in 2013 were, in May 2019, suspended while he was in lawful custody serving a sentence of imprisonment for assault causing actual bodily harm. Accordingly, the precondition to the making of a continuing detention order in s 5C(b) was satisfied.

Alleged errors in the criminal record (ground 2)

1. Many of Mr Lynn's submissions were directed to what he described as errors in summary material which had been supplied to the expert psychologists and psychiatrists who gave opinions in this case, and also in the submissions made to the Court. The errors fell into a number of categories.
2. First, there were some errors of detail in the material. For example, the experts were instructed, and the State made submissions at first instance, to the effect that Mr Lynn had been convicted of using weapons to avoid lawful apprehension in relation to his use of a shovel and screwdriver when in January 1999 he was apprehended for shoplifting. That was wrong. In fact, the conviction of using a weapon to avoid lawful apprehension related to a threat by him in February 2000, once again when apprehended shoplifting, to stab a security officer with a syringe. Nothing material turns on this.
3. A different category of error, and one which occupied more of Mr Lynn's submissions, was the reliance in the summaries provided to experts and in the submissions to the primary judge upon matters stated in police "Fact Sheets" which either were not charged, or else were the subject of charges which were dismissed. There is some force in Mr Lynn's submission that the summary overstated the seriousness of the offending conduct. To take the example raised during oral submissions - which so far as I can see is the most serious instance in this category - the State's submissions to the Court and the materials which were provided to the experts included the following statement: "In 2001, he was seen trying to hit a woman at the McDonald's with an aluminium chair and when prevented then threw a chair at the front door, shattering the glass. When police attended and tried to arrest him he resisted."
4. True it is that the police Fact Sheet stated that he had been seen by McDonald's staff to go near a woman "and try and hit her with this chair". However, he was never charged with assault, or any other offence, related to that attempt. He was charged with and convicted of a charge of resisting or hindering a police officer in the execution of duty and of destroying or damaging property worth no more than $2,000. The error is one of omission, in failing to disclose that Mr Lynn was not found guilty of all of the matters alleged in the Fact Sheet.
5. There is a pattern in Mr Lynn's offending of being charged with offences which are then withdrawn or dismissed when no evidence is proffered. For example, in 2005 charges of breaking and entering a building, assaulting police officers in the execution of their duty, destroying property, and entering inclosed lands were withdrawn. However, in the same year, he was convicted of two separate offences of assaulting an officer in the execution of duty, and common assault.
6. Ultimately, I would not conclude that the errors to which Mr Lynn points have been shown to be material to any aspect of the litigation, for these reasons.
7. First, during the hearing, objection was taken to the Fact Sheets in relation to offences which were not proven. However, counsel for Mr Lynn said he was content for the primary judge to note the objection and consider the material in that light. The primary judge indicated that he would proceed in that fashion. There is no reason to doubt that the judge was fully cognisant of the different evidentiary status of Fact Sheets where the offence was established and Fact Sheets where the charges were dismissed or withdrawn. Save in relation to the use of a knife, which I address below, Mr Lynn did not suggest that any aspect of his Honour's reasons disclosed error in that regard.
8. Secondly, Mr Lynn had an opportunity to meet with both experts (and indeed was subject to an order to do so). He did not do so. He also had an opportunity to cross-examine the experts, which was taken advantage of. So far as I can see, there was relatively extensive cross-examination, and to some effect, given the conclusion stated by the primary judge, and the order ultimately made (which was some nine months less than was sought by the State).
9. Thirdly, in the scheme of Mr Lynn's offending, which is extensive and falls into predictable patterns, I am unpersuaded that the matters to which he refers would materially alter the experts' views. The experts' views are based on an assessment of the background as a whole, rather than misdescriptions or omissions relating to details of the conduct.

Mr Lynn's criminal record involving knives

1. The primary judge referred to Mr Lynn's criminal history including threats with a knife. His Honour commenced his statement of the background at [3] with the sentence "Thereafter his record was replete with multiple property, drug and violence offences, many involving him threatening others with a knife or similar implement that he was carrying on him, in the course of assaults." Likewise, the risk of threatened and actual harm in the future based on Mr Lynn's use of knives was an aspect of the expert opinion. But Mr Lynn strenuously contended that he had never been convicted of an offence of possessing a knife. For example, he said (Transcript, 18 November 2019, 13): "APPLICANT: Now, there has been no proof of illegal carriage of a knife. There has been no proof of a prohibited weapon. Now, the reason why that becomes apparent is because now, I am not making an admission here. I'm rather giving an example, and if a person is to go fishing, they can carry a fishing knife in a bag. If a person is to go shopping, they can buy a shopping now, it's not illegal for them to carry that home. So that does not go to intent. That will only surface that because I have a legal act is not made wrong by a proposed incorrect motive, but they haven't proven any carriage of a weapon. They haven't proven unlawful carriage of a weapon, and they haven't even proved a prohibited weapon. WHITE JA: On any occasion? APPLICANT: On any occasion, and that's in the judgment. That's in the facts. That's in the judgment and in the facts."
2. Again, at 17: "I have never ever been convicted of a knife in my life, I've never been charged for a prohibited weapon. There had been three things where I will address but have never been convicted of a knife. The three occasions that there has been anything that would give regard to this Court have had no actual they've had no violence attributed to what has happened, or no furtherance of a crime. There's no crime committed in the sense of an ulterior crime being committed."
3. However, as was pointed out during the hearing, Mr Lynn's submission is inconsistent with the criminal history, in relation to his convictions for (a) manslaughter, (b) the Kings Cross altercation itself and (c) another conviction involving a knife.

The manslaughter conviction

1. First, the man whom Mr Lynn killed in 2006 died from a stab wound and Mr Lynn was sentenced on the basis that Mr Lynn had been carrying the weapon which inflicted the fatal wound. Mr Lynn's point seems to have been that (as was noted in the judgment imposing sentence) the agreed facts did not state there had been a knife. That is not to the point. The sentencing judge found, presumably to the criminal standard, that he had been carrying a narrow blade most probably a knife.

The Kings Cross incident

1. Secondly, the State's submissions to the Court and materials supplied to experts included the following offending conduct in June 2003 in Kings Cross: "In June 2003 at Kings Cross the defendant threw a bottle at a taxi, and when the driver got out to inspect the damage, threatened him with a 30 cm knife, saying 'get back in the car or you'll get it'. The defendant then ran a short distance away, picked up a bottle and broke it and approached with the broken bottle in his other hand. A passerby drove at the defendant to scare him and he threw the bottle at the taxi driver and ran. He then became involved in a verbal argument with a female and slapped her face. Victims 2 and 3 then approached the defendant who walked towards them swinging the knife, saying: 'I'll kill youse both. I'll cut you up like bread'. Police arrived and tried to persuade him to drop the knife, which he threw at victim 4. When police moved in, it appeared he had another knife and the defendant managed to get away before finally being arrested after a struggle."
2. Mr Lynn was found guilty of using an offensive weapon with intent to commit an indictable offence contrary to s 33B(1)(a) of the Crimes Act and given a bond on 2 June 2004. The Fact Sheet refers to Mr Lynn throwing a bottle into the front windscreen of a taxi outside a hotel in Kings Cross. The driver got out of the car, and Mr Lynn is recorded as saying "Get back in your fucking car and move on" repeatedly, following which Mr Lynn "drew a knife from the front area of his person, which was concealed by his shirt. The knife was approximately 30cm in length, with a dark coloured handle and silver or chrome coloured blade". After another exchange, the Fact Sheet recorded that Mr Lynn picked up a glass bottle smashed it against a tree leaving jagged edges around the neck, and then "was holding the knife in one hand and the broken bottle in the other, pointing both at the victim".
3. The offensive weapon offence was, as Mr Lynn submitted, based on the bottle Mr Lynn threw at the windscreen of the vehicle. However, Mr Lynn also pleaded guilty to an offence of having custody of a knife in a public place, contrary to s 11C(1)(a) of the Summary Offences Act 1988 (NSW), which was taken into account on a "Form 1", pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
4. When he was taken to this during his submissions, his response was "They've been marked wrong obviously because if you go down there it says offensive weapon to commit indictable offence withdrawn."
5. True it is that the criminal record also shows that charges of using an offensive weapon with intent to commit an indictable offence and having custody of an offensive implement in a public place were withdrawn, and charges of assaulting an officer in the execution of duty and resisting an officer in execution of duty were dismissed. But there is nothing to suggest that there was any error in relation to the way in which the charge concerning a knife had been dealt with on a Form 1. Mr Lynn did not provide evidence contradicting the record.

Possession of a gaol-made knife

1. Thirdly, on 13 September 2005, Mr Lynn was charged with one count of possessing an offensive weapon in a place of detention. This arose from a strip search on that day within Parklea Correction Centre during which a jail-made knife was found. The criminal record indicates that a fine was imposed.
2. Contrary to Mr Lynn's submission, he has repeatedly been convicted of offences of possessing a knife. He has also been convicting of killing a man using a blade. And he has been charged on further occasions of events of violence and threatened violence involving a knife (as well as other sharp objects). There is no error in the deployment of those primary facts by the experts or by the primary judge.

Multiple dates of birth

1. One aspect of Mr Lynn's written submissions, not elaborated orally, was a complaint that the criminal history reflects charges which have been entered with multiple dates of birth. He wrote: "When I am charged, charges are entered to system under Scott Lynn but under multiple dates of birth so the same charge shows multiple times on record also the numbers are repeated multiple times".
2. There was no objection at trial to the tender of the criminal record, despite Mr Lynn being represented. More substantively, nowhere in Mr Lynn's voluminous submissions is a complaint made that the criminal record double counts the same offence. To a large extent, I have correlated the eight digit identification numbers on the criminal record to the New South Wales Police Fact Sheets in evidence which confirm the absence of any double counting. While there is a high level of repetition of the offences (relatively minor drug offences, assault, affray, resisting arrest and shoplifting), the fact sheets disclose different dates and places and circumstances of offending. True it is that Mr Lynn, by his written submissions, again not elaborated orally, refers to statements that have been made in various counts about the possibility that a criminal record is unreliable. Those statements were not in evidence, nor was any application made to tender them pursuant to s 75A of the Supreme Court Act 1970 (NSW).

Incorrect application of the legislation to Mr Lynn (ground 3)

1. Mr Lynn claims that the case was insufficient to support the making of a continuing detention order.

Conclusions drawn about Mr Lynn's behaviour

1. One aspect of this ground was a complaint about the conclusion reached by the primary judge at [58]: "The defendant's interactions with CSNSW staff often involved him engaging in abusive, intimidating and threatening behaviour towards supervising officers, as well as outbursts of physically destructive acts, such as throwing a chair or smashing a cup of coffee against a wall. Consequently, steps had been taken to avoid one on one contact, such as contact by telephone or when attended by others, for security."
2. Part of this complaint was strongly expressed in submissions that the conclusion of the primary judge, and the evidence upon which it was based, exaggerated the position. I do not accept the submission. Mr Lynn did not give evidence. The judge's conclusion was based upon the testimonial evidence for Mr Carden, who made a report based on the primary records of incidents involving Mr Lynn, and was cross-examined by counsel then appearing for him. The case notes viewed as a whole show a consistent pattern which supported the conclusions drawn by Mr Carden and the primary judge.

Technical breaches of the Act

1. Mr Lynn also emphasised that although he had been, repeatedly, charged with breaching the conditions of his extended supervision order, the breaches were technical and minor. These submissions, based as they were on relatively recent events, occupied a great deal of the hearing.
2. One charge arose out of being on the wrong side of City Road, in Chippendale, when he was required to be in Broadway. Another was when he was outside in his backyard at 7:30am on New Year's Day before curfew. A third arose when instead of travelling to Eastlake shops to get cigarettes, he met a friend on the way to the shops, got cigarettes from his friend and then went home. A fourth concerns an occasion when he stabbed a urine test box with a pen, which according to Mr Lynn is exactly how correctional services officers open those boxes. The foregoing is not exhaustive.
3. The short answer to this submission is that even if, as Mr Lynn submits, the legislation is being applied harshly in relation to minor or even trivial breaches, that is not material to the continuing detention order which is the subject of this appeal. That order was imposed not because of the breaches of the extended supervision order which have led to Mr Lynn being returned to custody. It was imposed principally because of an assessment of risk based on a history of violence, informed by a positive urine test for methylamphetamine. There was no error in the primary judge proceeding on that basis.
4. That is a sufficient answer to this ground of Mr Lynn's appeal. However, something should be said of the substance of the complaints.
5. First, the starting point is that breach of a condition of an extended supervision order is a very serious offence, the penalty for which is 500 penalty units or imprisonment for 5 years: s 12.
6. Secondly, Mr Lynn was charged with four offences of failing to comply with an extended supervision order, and was found guilty of three counts, one being dismissed. He was sentenced to a period of imprisonment for 6 months commencing 19 December 2014. Sequence 3 concerned Mr Lynn's presence in Chippendale. It is not clear on the face of the material whether that was the charge which was dismissed. Sequence 1 was a positive detection for Methylamphetamine in a urine sample provided on 28 November 2014. Sequence 2 was failing to provide a schedule of movements when directed to do so and sequence 4 was failure to comply with a reasonable direction given by departmental supervising officers. As the State submits, Mr Lynn's description does not reflect the full extent of the conduct according to the Fact Sheet, and Mr Lynn's version of events was not in evidence below (or in this Court). Similarly, Mr Lynn's version of events concerning his buying cigarettes from a friend on the way to the Eastlake shops was not in evidence below (or in this Court). In relation to the final example, the Fact Sheet states that Mr Lynn stabbed the urine test box "aggressively", and, once again, Mr Lynn's version of events was not in evidence.
7. It may be that there is force in Mr Lynn's complaint that the legislation is being applied harshly to him. However, it is not possible on the evidence to evaluate the validity of his submissions.
8. It was at all times open to Mr Lynn to give evidence about these matters, either directly in the litigation, or indirectly through participating in the psychological and psychiatric examinations for which orders were made under the Act. Mr Lynn did not avail himself of either of those courses.

Error in assessing the risk (ground 4)

1. Prominent in Mr Lynn's oral submissions were references to the report of Professor Greenberg to the effect that Mr Lynn did not suffer from a mental illness. The written submissions are difficult to follow. They include, by way of representative example: "In my case, risk has not been negated properly or correctly. The law has not been appropriated correctly to the HRO Act risk. Has not been negated lawfully in trustworthy, truthful or just terms. (Risk cannot be attained using bias & prejudice evidence only future elements allowed)." And: "In my case prosecution evidence submitted and most senior Professor Greenburg stated I do not suffer a mental illness. Thus I am capable of thinking proper of sound mind. Mental health law cannot trigger so I am capable of making decisions and not to be judged by mental diagnosis as incapable."
2. Professor Greenberg conducted a psychiatric assessment of Mr Lynn on 22 February 2004 - 15 years ago. Significantly, that assessment predated the enactment of the Crimes (High Risk Offenders) Act, and it was on that basis that Professor Greenberg expressed his conclusions by reference to the Mental Health Act 1990 (NSW) as follows: "There are no reasonable grounds to believe that Mr Lynn suffers from a mental illness as defined in the NSW. He therefore does not require admission to a gazetted psychiatric hospital at this time. Mr Lynn does not suffer from a developmental disability. Mr Lynn has a history consistent with a man with severe personality problems, a chronic persistent pattern of illicit substance abuse and a possible underlying low grade depression (dysthymic disorder). It therefore can be said that he suffers from a mental condition for which treatment is available in hospital, but he is not a mental ill person within the meaning of the Mental Health Act."
3. The professor's opinion, some 15 years ago, and prior to the manslaughter, to the effect that Mr Lynn did not satisfy the criteria for gazettal under the Mental Health Act, is of limited utility in assessing whether the different criteria under the Crimes (High Risk Offenders) Act are satisfied. Contrary to Mr Lynn's submissions, the fact that Professor Greenberg held a senior academic position does not mean that his opinion is to be preferred to those experts whose views are much more recent, and were directed to the issues arising under the legislation.
4. Mr Lynn's submissions appear to proceed on the basis that in order to make a continuing detention order, the State must prove (a) an imminent risk that a serious violent offence will be committed and (b) why such imminent risk cannot be avoided by conditions on an extended supervision order. That submission misstates the test imposed by the Act. The question is whether the risk is "unacceptable" (the requirement for an emergency detention order under s 18CA requires a risk to be "imminent and unacceptable").
5. Mr Lynn also submits that the elements of a risk of his committing a serious violent offence are not there, because "future elements of a serious violent crime [are] premeditation, preparation, motive with threats of serious violence and conspiracy". I do not accept the submission. Mr Lynn's criminal history is replete with casual encounters rapidly escalating to the risk and in some cases the actuality of violence. The manslaughter conviction, the altercation with the taxi driver in Kings Cross, and the most recent conviction for assault occasioning actual bodily harm illustrate this.
6. Mr Lynn submitted, orally and in writing, that he had participated in weekly sessions at Matthew Talbot hostel, and various other counselling programs, and that he "always met those obligations [and] … never missed them". The evidence falls short of establishing a perfect record of attendance.
7. A deal of Mr Lynn's submissions cannot readily be summarised. Some are under the heading "Corruption/Collaboration". There is a reference to "Klatter System Cancer". It is said that "Risk of a serious violent offence is not a mental hypothesis of virtual existence. A risk is by definition". Many of his submissions relating to relief sought from the High Court, based on an absence of "jurisdiction", are difficult or impossible to follow. There is no point in summarising these pages. I have read them all. I have not identified any further submissions impugning the exercise of discretion by the primary judge.

Orders

1. For those reasons, the appeal should be dismissed. The continuing detention order will expire 15 months after it was made, on 17 August 2020. The State does not seek costs, and by reason of s 23, no order for costs may be made.
2. WHITE JA: I agree with Leeming JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated. Decision last updated: 09 December 2019