In a summons filed 19 May 2017 the Plaintiff seeks an interim order pursuant to s 18B of the Crimes (High Risk Offenders) Act 2006 (NSW) that the Defendant be subject to an Interim Detention Order from 20 September 2017 until the proceedings are finally determined. In the alternative it seeks an order pursuant to s 10B of the Act that the Defendant be subject to an Interim Supervision Order from 20 September 2017. In either case the summons seeks an order pursuant to s 15(4) of the Act appointing two qualified psychiatrists to conduct separate psychiatric examinations and to report on the results of those examinations.
By an amended summons filed in Court today it is now sought that the Defendant be examined by a qualified psychiatrist and a registered psychologist. The basis for the orders is said to be that the Defendant is a high risk violent offender.
Section 5G of the Act provides:
5G Continuing detention orders for high risk violent offenders
(1) The Supreme Court may, on application under this Act, make an order for the detention of an offender if the offender is a high risk violent offender and the Supreme Court is satisfied that adequate supervision will not be provided by an extended supervision order.
(2) An order made under this section is a continuing detention order.
(3) A continuing detention order made under this section may also be referred to as a high risk violent offender continuing detention order.
Section 5E deals with high risk violent offenders. That section provides:
5E High risk violent offender
(1) An offender can be made the subject of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order as provided for by this Act if and only if the offender is a high risk violent offender.
(2) An offender is a high risk violent offender if the offender is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision.
(3) The Supreme Court is not required to determine that the risk of a person committing a serious violence offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious violence offence.
Section 5A defines a "serious violence offence". That section provides:
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.
(2A) A reference in subsection (1) (a) to:
(a) conduct that causes the death of another person with the intention of causing the death of another person includes a reference to murder by an act done (by a person or an accomplice) in an attempt to commit, or during or immediately after the commission of, a serious crime, and
(b) conduct that causes the death of another person while being reckless as to causing the death of another person includes a reference to manslaughter caused by an unlawful and dangerous act, and
(c) conduct that causes grievous bodily harm to another person includes conduct that causes the wounding of another person, but only if the conduct was engaged in with the intention of causing the death of another person or grievous bodily harm to another person.
(3) A serious indictable offence is:
(a) an offence committed in New South Wales that was a serious indictable offence (within the meaning of the Crimes Act 1900) at the time that it was committed, or
(b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be a serious indictable offence within the meaning of the Crimes Act 1900 at the time that it was committed, or
(c) an offence that, at the time that it was committed, was not a serious indictable offence but which was committed in circumstances that would make the offence a serious indictable offence if it were committed at the time an application for an order against the person is made under this Act.
An Interim Detention Order may be made in the circumstances set out in s 18B. Section 18B provides:
18B Interim detention order - high risk violent offender
The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court:
(a) that the offender's current custody (if any) will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order.
On 19 February 2015 the Defendant was sentenced after he pleaded guilty to recklessly inflicting grievous bodily harm in company. He was sentenced to a period of three years imprisonment commencing 21 September 2014 and concluding 20 September 2017 with a non-parole period of one year and nine months concluding on 19 June 2016. He was released to parole on 20 June 2016 but was returned to custody on 8 August 2016 after breaching his parole by committing a number of further offences. His sentence will expire on 20 September 2017.
The offence for which the Defendant was sentenced on 19 February 2015 was a serious violence offence.
The offence took place in the Junee Correctional Centre. The Defendant was at the time serving a sentence of imprisonment for 18 months for aggravated enter a dwelling with intent to inflict actual bodily harm. The victim of the offence in the correctional centre was another inmate who was serving a sentence for drug trafficking. The Defendant formed the view that the victim had committed a sexual offence against a ten year old girl. The victim had been charged with such an offence but had been found not guilty.
The Defendant and a co-offender armed themselves with wooden broom handles and attacked the victim using those weapons. The victim suffered a non-displaced fracture of the forearm, fractures of his nasal bones and a three centimetre laceration to the back of his head which was sufficiently deep to expose his skull. It required suturing. He also received multiple welts on his back. During his treatment he lost consciousness on a number of occasions.
As mentioned, the Defendant's sentence will expire on 20 September 2017. Arrangements have been made for the final hearing of the present proceedings to be heard prior to that date on 15 September. In those circumstances the Plaintiff does not seek an Interim Detention Order nor an Interim Supervision Order. Rather, the only order sought is one for the appointment of a psychiatrist and a psychologist to examine and report on the Defendant. This order is not opposed by the Defendant.
Because of the terms of s 15 of the Act an order for the appointment of psychiatrists and/or psychologists to examine and report on the Defendant can only be made if the Court is satisfied that the matters alleged in the supporting documentation would if proved justify the making of a Continuing Detention Order or Extended Supervision Order. Section 15 relevantly provides:
(3) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow.
(4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court must make orders:
(a) appointing:
(i) 2 qualified psychiatrists, or
(ii) 2 registered psychologists, or
(iii) 1 qualified psychiatrist and 1 registered psychologist, or
(iv) 2 qualified psychiatrists and 2 registered psychologists,
to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and
(b) directing the offender to attend those examinations.
The task of the Court and its purpose at the preliminary hearing stage is not to weigh up the documentation or to predict the ultimate result or to consider what evidence the Defendant might call at the final hearing. Rather the test to be applied is similar to the prima facie case test applied by magistrates as part of committal proceedings: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]; State of New South Wales v Manners [2008] NSWSC 1242 at [8]-[9]. Appropriate weight is to be given to risk avoidance: Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7]. It is appropriate to bear in mind that the "fundamental objective of the legislature is the protection of the public" and the safety of the community: State of New South Wales v Pacey [2015] NSWSC 1983; Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [21].
What is meant by "a high degree of probability" in s 5E(2) was dealt with in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. What amounts to an "unacceptable risk" in the same section was explained in Lynn v State of New South Wales [2016] NSWCA 57 at [50]-[51], [55], [57]-[59] and [148].
The Defendant was examined by Mr Samuel Ardisinski, the senior psychologist at the Serious Offender's Assessment Unit in January 2017. Part of Mr Ardisinski's Executive Summary of his lengthy report reads as follows:
Mr Briar is a 23-year old Aboriginal Australian man who committed a serious violence offence at Junee Correctional Centre in 2012. He has been in custody for that offence of Recklessly Cause Grievous Bodily Harm (GBH) since being returned on a parole breach for further offending in mid-2016. It was noted that while Mr Briar's only act of 'serious violence' was perpetrated in custody, his criminal violence has been continuing relatively unabated since he was a juvenile. His current sentence expires on 21/9/2017. [I note that is an error.] He is currently housed in maximum security custody. Mr Briar had a lengthy history of violence prior to the index offence, including assaults, AOABH convictions and several occasions challenging Police to fight him. He is assessed as falling in the High risk category for violent reoffending, compared with other male violent offenders. Mr Briar's behaviour in custody has also been somewhat difficult to manage, with his being charged with institutional misconducts on a regular basis since being returned to custody, accruing a total of 32 charges since 2013. Mr Briar is considered untreated, as he has not yet participated in a high-intensity program aimed at addressing his violence, refusing to consent to a referral in early 2016. He has also failed to address his significant substance abuse issues.
I accept that the enquiry is whether the Defendant poses an unacceptable risk of committing a serious violence offence as defined in s 5A. It is not sufficient to find that there is an unacceptable risk of violence as such. However, whether particular type of behaviour by the Defendant amounts merely to violence or to a serious violence offence is likely to be fortuitous depending on the circumstances. A one punch attack is a good example of how that behaviour may constitute a serious violence offence or may only be an offence of assault occasioning actual bodily harm, for example.
What is contained in Mr Ardisinski's report demonstrates that the sort of violence and the circumstances of it in which the Defendant has been involved mean that, if this evidence is accepted for final hearing, he is an unacceptable risk of committing a serious violence offence. I note, for example, what appears in paragraphs 16 and 17 of that report:
16. Apart from Mr Briar's history of interpersonal criminal violence, Mr Briar's criminal record also contains numerous convictions for contravening AVOs, property damage offences, thefts (as a juvenile, including Larceny, Goods in Personal Custody suspected of being stolen), behaving in an offensive manner, breaches of bail, and driving offences (despite never having held a valid licence). Furthermore, as mentioned, Mr Briar has recently been convicted of further offences committed while on parole in mid-2016. He stole the car of an acquaintance who had agreed to give him a lift home, and he then crashed the car. He resisted arrest when Police arrived at his home following the incident. His sentences are subsumed within his current sentence, adding no further time in custody for Mr Briar.
17. In summary, "Mr Briar's violence has often been unprovoked and impulsive. If there have been elements of provocation involved, the ultimate use of force has far outweighed the seriousness of the initial affront. Victims have ranged in age from teenagers to a 94-year old man, in level of acquaintance from sibling to complete stranger, and the locations of the violent offences have ranged from in or around residential dwellings to street violence, typically attacking the victims whilst they are walking past Mr Briar in the streets of Parkes or surrounds. Often, Mr Briar has been involved in group violence. Reports indicate that Mr Briar's violence has typically been fuelled by, and at times motivated to pursue further, alcohol and other drug abuse" (Ardasinski SPA report, 20/4/16).
Similarly, his conclusions at 50, 51, 54 and 55 of his report highlight the risk of serious violence as defined:
50. If Mr Briar were to:
● Drink alcohol or use illicit drugs;
● Perceive a threat or feel that someone was 'talking down' to him;
● Associate with criminal peers, who encourage random acts of violence; or
● Feel that he is being targeted by Police,
this may result in a potential violent scenario, with victims ranging in level of acquaintance from family to complete strangers walking past Mr Briar on the street.
51. On the balance of the evidence, any of the above high risk scenarios could readily result in 'serious violence'. The use of a weapon in any of the above scenarios would increase the potential for life-threatening violence, although Mr Briar is less likely to use a weapon in his commission of spontaneous violence. However, he has shown in his custodial and prior community violence record that he has the potential to cause significant injury
without resorting to weapon use, and it has often been only through Police or other intervention at the time of the assaults that life-threatening injuries have been avoided.
…
54. The overall totality of evidence suggests that Mr Briar falls in the High risk category of violent offending relative to other adult male violent offenders. The most serious violence perpetrated by Mr Briar was committed in custody, and in company. However, his violence in the community had approached the threshold of 'serious violence' (but not yet met it), but for the intervention of others or the sheer luck of his assault victims.
55. It is considered probable that future violence could conceivably approach the threshold of a "serious violence offence" as defined in the Crimes (High Risk Offenders) Act 2006, given Mr Briar's history of escalating violence, his young age and his lack of insight into how to avoid a return to risk factors such as alcohol or drug use. Should Mr Briar return to a situation in which he is associating with antisocial peers who condone or encourage his violence and alcohol abuse, the potential is very real that the resultant violence may result in significant injury to victims.
I have noted the terms of the risk management report prepared by Pauline Jeffress, the Senior Community Corrections Officer dated 26 February 2017. It is not necessary to say anything further about this report because no Interim Detention or Supervision Order is being sought.
On the basis of the report of Mr Ardisinski, I am satisfied that if the evidence in Mr Ardisinski's report was accepted at the final hearing either a Continuing Detention Order or a Continuing Supervision Order should be made.
In those circumstances, the following orders should now be made:
ORDERS AS PER SMO DATED 2 JUNE 2017
An order pursuant to s 15(4) of the Crimes (High Risk Offenders) Act 2006 (NSW):
a. appointing Dr Andrew Ellis, a qualified psychiatrist and Professor Susan Hayes, a registered psychologist, to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by 23 August 2017;
b. directing the Defendant to attend those examinations.
ORDERS AS PER SMO DATED 5 JUNE 2017:
The Plaintiff is to file and serve any evidence at final hearing on which it relies at least 15 business days prior to final hearing, that is by 25 August 2017.
The Defendant is to file and serve any evidence on which he relies at final hearing at least 10 business days prior to final hearing, that is by 1 September 2017.
The Defendant is to notify the Plaintiff if any witnesses are required to attend the final hearing at least 10 business days prior to final hearing, that is by 1 September 2017.
The Plaintiff is to file and serve any submissions on which it relies at final hearing at least 7 business days prior to final hearing, that is 6 September 2017.
The defendant is to file and serve any submissions on which he relies at final hearing at least 2 business days prior to final hearing, that is by 13 September 2017.
The matter is listed for a final hearing with an estimate of 1 day at 10am on 15 September 2017.
An order be issued under s. 77 of the Crimes (Administration of Sentences) Act 1999 directing the Commissioner of Corrective Services to cause the defendant to be produced at Court for the final hearing by audio visual link at 10am on 15 September 2017.
Liberty to apply to relist the matter on one day's notice.
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Decision last updated: 07 June 2017