State of New South Wales v Barlow

Supreme Court of NSW|2022-08-02|Before: Button J, Cavanagh J

Introduction

This judgment brings to a conclusion the proceedings brought by the State of New South Wales (the plaintiff) against Mr Charles Cameron Barlow (the defendant) pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act).
In a nutshell, the plaintiff has sought a three year extended supervision order (ESO) with conditions against the defendant. The defendant, who was represented by solicitor and counsel, has not opposed the imposition of an ESO. It has been expressly conceded on his behalf that all statutory requirements for the making of such an order have been fulfilled, including the "fulcrum test" to be found in s 5B of the Act. Nor was it submitted that there was any basis upon which I would exercise my discretion not to impose such an order.
The only disputes between the parties requiring resolution are whether the ESO should extend for three years or, as submitted by the defendant, for no more than 18 months, and whether a handful of conditions should or should not be imposed. Having said that, of course all determinations are a matter for me.
The preliminary judgment in the matter was delivered by Cavanagh J, and it provides, with respect, a very useful summary of many aspects of the matter. It is available here.
For the reasons that follow, I accept the concession of the defendant; I agree that there is no discretionary basis for me to refuse to impose an ESO; and I am satisfied that all of the conditions that are not the subject of dispute are appropriate. In the circumstances, I shall be quite brief in resolving the disputes that remain.

Conditional liberty?

That is a sketch of the context in which I have reflected on this matter. As I have said, there was no dispute that all preconditions for the making of an ESO had been made out. I accept that concession, and, in particular, despite the commendable progress that has been made by the defendant, with love and support from others, I do think that, if he were to be entirely at liberty, there would be a high degree of probability that the defendant would pose an unacceptable risk of committing another serious offence. I say that because of: the patent gravity of the explosion of violence that he committed many years ago; the difficulties and damage that he endured in the two decades leading up to that lamentable event; the degree of isolation from ordinary community life and behaviour that he necessarily endured as a result of being incarcerated for over eight years; and the concern that the recent abuse of a prohibited drug could develop into something more serious - with catastrophic results, as demonstrated previously when the defendant was abusing a cocktail of drugs.
I am well satisfied that an ESO should be imposed upon this man, despite all that he has achieved since his release earlier this year.
I am also satisfied that there is no basis upon which I should exercise my discretion not to impose that form of conditional liberty.
As for its length, I shall not pause over that dispute for long, for the simple reason that, pursuant to statute, an ESO can be extended, or shortened, or renewed, with the result that any decision about the question I make in this judgment is hardly written in stone in any event.
Having said that, I respectfully think that, contrary to the submission of the plaintiff, conditional liberty for a full three years would be too lengthy, even appreciating that there can be a stepping down of its rigour during that time. On the other hand, I think that there are logistical reasons not to impose an ESO that is unworkably short. My evaluative judgment is that the ESO should be for two years.

Conditions?

Turning to the conditions, I have reflected upon all of those that are not opposed by the defendant, and regard them as appropriate.
As for those that were disputed, none of them were part of this man's parole, upon which he succeeded. Nor were any of them part of his ISO, upon which he has also succeeded. That in itself is a powerful overarching argument, I think, not to be regressive, literally and figuratively, whatever one may think of the intrinsic merit of the proposed disputed conditions, shorn of that important context.
Entirely separately, I think that to impose more restrictive conditions upon a person who is going well after a period of not being subject to such conditions could induce discouragement, if not resentment. Again, I would regard those outcomes as most undesirable.
Turning briefly to the inherent merits of the disputed conditions: conditions 5, 6, and 7 propose a so-called "dry" schedule of movements. But I am not satisfied that such conditions are necessary, not only in light of the good progress being made by the defendant, but also in light of the busy and structured life he will be leading: enjoying full-time employment, caring for his new baby, continuing his artwork, and being a loving support to his partner in her new motherhood. And in any event, other conditions that I shall impose by consent provide a sufficient restriction upon where the defendant can go, and when he can do so. Finally, of course it is open to him and his Departmental Supervising Officer (DSO) to work voluntarily together on schedules and other ways to bring more organisation to his life. But it is not to be forgotten that breach of a condition can lead to reincarceration; in other words, they are undoubtedly coercive, and should be imposed with caution by me.
For all of those reasons, I do not propose to impose conditions 5, 6, and 7.
The only other dispute was about conditions 32 and 41, which are to do with digital devices, and in particular imposing a prohibition on deleting digital material without the consent of his DSO.
Counsel for the plaintiff conceded that none of this man's offending, violent or otherwise, and including the offences of the utmost violence that led to him being imprisoned for many years, had anything to do with the Internet or any other aspect of the digital world. She explained that the conditions are really sought in order to ensure that the defendant does not return to the milieu of prohibited drugs, in light of his recent admitted use of cannabis, with potentially criminogenic consequences.
I understand that point. I also understand that life nowadays is very much lived online, so that not to be able to inspect the digital devices of a person may give a very incomplete picture of how they are actually living and conducting themselves. But to repeat myself a little: I think that there are serious risks in "going backwards" here and imposing a more rigorous regime on a person who has been proceeding surprisingly well. Furthermore, I think it more likely that the defendant has been obtaining small quantities of cannabis informally and in person, not through digital resources.
Finally, in light of all the other forms of progress that have been made, and the point he himself has made about drug testing at work, I am hopeful that, once the crisis to do with the health of his mother passes, he will be able to free himself from any desire to use cannabis.
For all those reasons, I shall also not impose condition 32 or condition 41.

Orders 1. Pursuant to ss 5B and 9(1)(a) of the Act, the defendant be subject to an extended supervision order ("the extended supervision order") for a period of two years from the date of the order; and 2. Pursuant to s 11 of the Act, the defendant, for the period of the extended supervision order, comply with the conditions annexed to this judgment. Barlow - Schedule of conditions (137507, pdf)

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