[2017] NSWCA 189
Lynn v State of New South Wales (2016) 91 NSWLR 636
Source
Original judgment source is linked above.
Catchwords
[2017] NSWCA 189
Lynn v State of New South Wales (2016) 91 NSWLR 636
Judgment (18 paragraphs)
[1]
Background
The defendant is currently 32 years old, having been born in 1991.
The defendant has a long history of chronic polysubstance abuse. The defendant's juvenile and adult years were entrenched in drug use and drug abuse: the defendant abused a number of substances including heroin, crystal methamphetamine and MDMA. The defendant previously received treatment in the form of the methadone maintenance program, but his poor compliance led to his relapse to substance abuse prior to the index offence.
The defendant has a lengthy criminal history. It commenced when he was 15 years old. The defendant acknowledged that he had a lengthy criminal history (although emphasised that this was largely the product of his disadvantaged upbringing) and also accepted that if his previous patterns of offending continue there was a strong likelihood that he will have future involvement with the criminal justice system.
The defendant's criminal history includes the following. In 2009 and 2012 the defendant was convicted of common assault and affray; in 2009 he was convicted of use offensive weapon with intent to commit indictable offence; in 2010 he was convicted of reckless wounding in company; and in 2014 he was convicted of assault occasioning actual bodily harm, affray, and two counts of aggravated break, enter and steal.
In relation to the 2010 conviction of reckless wounding whilst in company, this involved the defendant chasing an individual and proceeding to stab the victim in the face leg and body with a broken glass bottle. When sentencing the defendant, Conlon DCJ described what the defendant did as "a senseless and totally unprovoked attack on a citizen attempting to make his own way home in the early hours of the morning".
In relation to the 2014 aggravated break, enter and steal offences, the sentencing judge (Conlon DCJ) noted the defendant had "an extensive criminal record", and that at least some of his offending had occurred whilst he was on parole. Conlon DCJ also noted that the defendant had a history of significant drug use including methylamphetamines and when "last in the community he was placed on a methadone program but removed himself from it". The sentencing judge also noted a report from a psychiatrist, who had been retained to provide a report for the purposes of the defendant's sentencing hearing (Dr Olav Nielssen), was to the effect that particular attention needed to be given to the conditions of the defendant's return to the community as necessitating a period of drug rehabilitation in order to minimise the likelihood of the defendant returning to a lifestyle of drug use and associated criminal activity. The plaintiff also drew attention to the finding made by Conlon DCJ about rehabilitation prospects - namely, that there was "nothing in the material … which would inspire the Court with any confidence that he has got prospects of rehabilitation …".
On 23 January 2018 the defendant was released on parole - for the 2014 conviction for aggravated break and enter with intent to commit serious offence in company. The sentence was due to expire on 6 June 2018. Almost immediately upon being released on parole, the defendant became involved in events giving rise to the index offence.
The circumstances giving rise to the index offence are set out in the remarks on sentence of the sentencing judge ('the ROS'), and may be summarised as follows.
The defendant became associated with the Wollongong chapter of Brothers for Life - which the sentencing judge described as a "criminal group" or an "outlaw motorcycle group" (ROS at [2] and [6]). Despite being gaoled, the sentencing judge found that the defendant "continued with that lifestyle in custody, so far as he could" (ROS at [6]).
Following his release on parole, the defendant took steps to obtain firearms and ammunition. The intended victim was the president of the Illawarra Finks outlaw motorcycle group. The agreement, and participation of the defendant, was described by the sentencing judge as follows (ROS at [12]-[13]):
On 23 January 2018, [the defendant] was released from Bathurst Correctional Centre. Very soon thereafter he was involved in attempting to get firearms and ammunition on behalf of the group. Between 23 January 2018 and 1 February 2018, the groups' leader and [the defendant] entered into an agreement to locate and shoot Fornaciari. A number of overt steps were identified by police, they included sourcing of ammunition, conducting observations of Fornaciari's clubhouse, trying to find a map of Fornaciari's clubhouse's location (although that could not have been difficult). Throughout, the group leader is offering encouragement and assistance for [the defendant] to shoot Fornaciari, although he did exhibit some reluctance to bring the firearm to [the defendant]. The plan ultimately decided on, was to use a woman to lure Fornaciari from his residence and ambush him. The plan came to a head on 28 January 2018.
The plan was not completed on that date. There is objective evidence that the car [the defendant] had obtained ran out of petrol ...
Based upon telephone intercept evidence, the sentencing judge found that it was clear that the defendant expressed "to his co-conspirator his willingness to participate in the shooting" (ROS at [15]).
[2]
The determination of the application: assessment of the risk
Section 9(1) empowers the Court, when determining an application for an ESO, to make such an order (s 9(1)(a)) or to dismiss the application (s 9(1)(b)).
In determining whether or not to make an ESO, the "safety of the community" is the paramount consideration of the Court: s 9(2).
Further, the Court must take into account - in addition to any other matter the Court considers relevant - the matters in ss 9(3)(a)-(i), but is not to consider "any intention of the offender to leave New South Wales (whether permanently or temporarily)": s 9(4).
The 12 matters that must be considered, under s 9(3), "fall into two broad categories: first, there are reports and sources of information which may be provided in evidence, including, for example, the criminal history of the offender. The other category identifies evaluative judgments which must be made": Tannous at [18] (Basten JA, McCallum JA and Simpson AJA agreeing).
These provisions - ss 9(2)-(4) of the Act - are relevant not only when considering whether to make an ESO following a final hearing, but also as to whether the Court should make an ISO following a preliminary one.
[3]
Reports under s 7(4) of the Act, and the level of the offender's participation in such examinations: s 9(3)(b)
There are currently no reports from persons appointed under s 7(4) of the Act - thus there is no material of that kind to consider.
[4]
The results of any other assessment prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner as to the likelihood of the offender committing a further serious offence, the willingness of the offender to participate in any such assessment, and the level of the offender's participation in any such assessment: s 9(3)(c)
The plaintiff relied upon the Risk Assessment Report dated 15 December 2022 ('the RAR'). The content of that report was summarised in the plaintiff's submissions at [51]-[59], and the defendant accepted as accurate that summary.
The report is lengthy, but it is only necessary to refer to the key parts of that report.
The report assessed the defendant as falling within the high risk category for violent offending relative to other adult male violent offenders applying the Violence Risk Scale. When assessed according to the Level of Service Inventory-Revised, the defendant was assessed in the "Medium-High" range of risk for general and violent offending.
The RAR identified a number of factors - static and dynamic - that were relevant to the defendant's risk profile, including his violent lifestyle, criminal attitudes, work ethic, criminal peers, interpersonal aggression, emotional control, violence during institutionalisation, weapon use, substance use, stability of relationships, release to high risk situations, violence cycle, impulsivity, cognitive distortions and compliance with supervision: the RAR concluded that these factors were likely predictive of serious violence, in addition to non-serious violence.
Based upon an assessment of the defendant's custodial participation in interventions and treatment (or lack thereof), the RAR concluded that they had been insufficient to address his risk level and treatment needs. Specifically, in connection with substance misuse, the RAR noted that substance misuse was strongly related to the defendant's use of violence, and his risk would likely increase with a resumption of substance abuse.
The RAR considered that the pattern of the defendant's offending demonstrated escalation in violence and antisocial behaviour. Based upon the defendant's history of violent offending, the RAR stated that it was "possible" that future violence could approach the threshold of a "serious violent offence" as defined in the Act. The RAR also identified a most likely risk scenario as occurring in the context of the defendant's poor coping, a return to an antisocial lifestyle - including substance abuse - and through the direct or indirect influence of negative peers. The RAR noted that, based upon his "history", future acts of violence could involve either the opportunistic or planned use of a weapon.
The defendant submitted that the predictive utility of the actuarial assessments, and risk assessment tools, is limited and, importantly, that the results of such assessments do not correspond with the test under s 5B(d): the ultimate issue remains whether any risk satisfies the statutory directive (defendant's submissions at [20]-[21]). So much can be accepted. But I am satisfied that the RAR goes well beyond singular reliance on actuarial (or similar) tools, and extends to a broader assessment of risk by the author of the report.
The plaintiff also relied upon a supplementary RAR dated 5 June 2023. That report confirmed the previous risk assessment, and added the following.
It was suggested that, given the defendant's background, criminal history (including poor history of compliance whilst on supervision) any future acts of violence committed by the defendant could constitute a "serious violence offence" under the Act. In connection with the results of the risk assessments performed on the defendant, it was said that they were "two valid, reliable forensic risk assessment tools" that provide "a valid and reliable empirical means of predicting the likelihood of serious offending".
The defendant's risk factors, as set out in the RAR, were confirmed as remaining (see [65], above), and informing the defendant's risk profile and, therefore, any assessment under s 5B(d) of the Act.
[5]
Statistical and other assessments on the likelihood of the offender committing a further offence: s 9(3)(d)
These have been addressed above under s 9(3)(c).
[6]
Corrective services reports: s 9(3)(d1)
The content of the Risk Management Report ('RMR') dated 15 December 2022 was summarised in the plaintiff's submissions at [60]-[62]. The defendant accepted as accurate that summary, but drew attention to the Pre-Release Report: Supplementary Report dated 28 April 2023 ('the Pre-Release Report').
The RMR noted that the defendant's compliance with supervision had been "unsatisfactory", and that there had been breach reports for failing to comply with the conditions of parole, as well as noting the fact that the defendant had been released on parole when he committed the index offence.
The report also noted that the defendant had refused to participate in the Violent Offenders Therapeutic Program (the 'VOTP') on four occasions, albeit that the defendant had consented to participating in that program on two occasions but was found to be "unsuitable at the time due to further pending court matters and Correctional Centre operational reasons".
The RMR recorded that on 17 November 2022 the State Parole Authority determined not to release the defendant on parole due to the need for him "to complete a program aimed at addressing his violent behaviour", as well as due to his poor prison performance (regression in classification). Since that time, the defendant has expressed a willingness to undertake intervention.
After noting the RAR, the RMR suggested a range of risk management strategies that were available if the defendant was subject to an ESO, as well as making recommendations in connection with conditions of any such ESO. The plaintiff ultimately submitted that the content of this report supported the orders sought.
The defendant relied upon particular parts of the Pre-Release Report. Specifically, the defendant relied upon the reports that the defendant's behaviour in custody had shown demonstrated, and positive, change; that there were clear signs that the defendant had insight into his past criminal behaviours; that the defendant completed the HIPU program (the High-Intensity Program Unit - Violent Offenders Therapeutic Program (HIPU-VOTP), being a shorter high intensity program). The defendant also emphasised that the post-release plans were themselves sufficient in addressing the risks that he might otherwise present without resorting to the imposition of an ESO - in particular, through reconnecting with family members, in pursuing further study at TAFE, playing soccer and continuing with Aboriginal painting (defendant's submissions at [23]-[24]).
[7]
Treatment or rehabilitation programs etc: s 9(3)(e)
Section 9(3)(e) requires the Court to have regard to any treatment or rehabilitation program "in which the offender has had an opportunity to participate", as well as the willingness of the offender to participate in any such programs and the level of any such participation.
This consideration was the subject of some debate between the parties, particularly in connection with the defendant's willingness to participate in various programs and, when he did not, the reasons for that non-participation.
The RAR set out the defendant's engagement with programs whilst in custody, and included those times when the defendant withdrew his consent to participate in those programs (see [75], above). The Pre-Release Report, however, noted that the defendant had completed the HIPU program on 21 April 2023 and within that program the defendant had completed "Aboriginal strengthening, CONNECT, EQUIPS Foundation, Aggression and Addiction".
The defendant accepted that his history of engaging with these treatment programs was "mixed". The defendant also accepted that he did not complete the VOTP, despite recommendations that that occur in April 2019 and by the sentencing judge when the defendant was sentenced for the index offence (ROS at [38]), but submitted that there were occasions when he was unable to attend for reasons beyond his control. The defendant emphasised, as has been earlier noted, that he completed the HIPU on 21 April 2023.
Although I am prepared to accept, as the defendant submitted, that the defendant's participation in these programs should be viewed positively, I am not prepared to find that this limited, and recent, participation has sufficiently altered the defendant's risk profile.
In relation to treatment, the defendant also drew attention to the fact that he commenced monthly Bivudal injections for opioid dependence in June 2021 which, it was submitted, coincided with the defendant's more positive trajectory; again, this was argued to diminish the defendant's risk profile. However, as the plaintiff submitted, there was other material that suggested that the defendant continued to use, illicitly, buprenorphine after this time. For example, in September 2021 and in February 2022, the defendant is reported to have admitted the use of illicit drugs (including buprenorphine). Further, although in a pre-release report from October 2022, the defendant "maintains he has remained abstinent from illicit substances and is on the Buvidal program" (a similar history was contained in the RAR - viz., that the defendant "reported he has been abstinent from all substances since 2020"), given the other material that I have referred to, that history is plainly inaccurate.
In my view, the material is insufficiently clear to accept, as the defendant submitted, that there has been cessation of illicit drug use and, in consequence, a reduction in the defendant's risk profile.
[8]
Options (if any) available if the offender is kept in custody or is in the community that might reduce the likelihood of the offender re-offending over time: s 9(3)(e1)
The Pre-Release Report noted that the defendant's supervision would include a referral to Koori SMART for drug counselling (although the attendance would be voluntary), and it also noted that, as the defendant had completed the HIPU program, he would be eligible for the EQUIPS Maintenance Program (again, this attendance would be voluntary).
In connection with the Koori SMART program, I note that although the CSNSW Case Notes dated 20 April 2023 recorded that the defendant was "eager to participate" in this course, those notes record that on 22 May 2023 the defendant is reported to have advised "that he had issues with other members of the group and is unable to attend" that course.
If subjected to an ESO, the plaintiff pointed out that the RAR outlined the type of monitoring and case management that could be provided by CSNSW (including referral to a CSNSW psychologist for risk management intervention) and the RMR would include a "case plan", that would be reviewed every two months to ensure its relevance, that would be tailored to address criminogenic risk/needs "and include modules targeting stress and anger management, high risk environments, managing cravings and leading a pro social lifestyle".
[9]
The likelihood that the offender will comply with the obligations of an ESO (s 9(3)(e2))
The plaintiff submitted that, given the defendant's past conduct, there was a distinct prospect that the defendant may not comply with any 'obligations of an ESO' (a submission that I accept), but ultimately submitted that this consideration was neutral. I agree.
[10]
The level of the offender's compliance with any obligation to which they have been subject while on parole or an earlier ESO: s 9(3)(f)
The plaintiff submitted that the defendant has a demonstrated history of non-compliance with supervision conditions imposed through various court orders, pointing out that the index offence commenced immediately upon the defendant's release on parole: see [51], above. It is also the case, as I have earlier noted, that the aggravated break, enter and steal in 2014 also occurred whilst the defendant was on parole.
Given that history, the plaintiff further submitted - a submission I accept - that was a matter that supported an order being: in my view it is, given there has been no material change in the underlying causes for the defendant's offending, supportive of the continued existence of the risk of the defendant reoffending.
[11]
The level of the offender's compliance with any obligations to which he or she is or has been subject under the Child Protection (Offenders Registration) Act 2000 or the Child Protection (Offenders Prohibition Orders) Act 2004: s 9(3)(g)
This legislation was not raised as being relevant to the present application.
[12]
The offender's criminal history (including prior convictions and findings of guilt in respect of offences committed in New South Wales or elsewhere), and any pattern of offending behaviour disclosed by that history: s 9(3)(h)
The defendant's criminal history, and pattern of offending, has been set out earlier in these reasons: see [47]-[55], above.
The plaintiff submitted that the nature of the defendant's criminal history includes a degree of escalation into serious offending, matters that operated in favour of an ISO being made (plaintiff's submissions at 63). The defendant, on the other hand, submitted that although the index offence was a serious one, it should not overwhelm the Court's assessment of risk. Further, the defendant submitted that the defendant's criminal history, in and of itself, does not support a finding in the requisite terms.
The submissions of each side accepted the relevance and materiality of the defendant's past offending to the ultimate question about the existence, and unacceptability of, the relevant risk. That approach is consistent with a number of authorities, including Lynn at [126]: see [44], above. However, I accept, as the plaintiff submitted, that the defendant's offending can be fairly said to have exhibited "a degree of escalation into serious offending" culminating in the index offence.
[13]
The views of the sentencing court at the time the sentence was imposed on the offender: s 9(3)(h1)
The defendant relied upon those parts of the sentencing judgment that noted that the defendant had a disadvantaged background, that there were features of the offending suggesting that it was "relatively unsophisticated" and, finally, that the sentence imposed was well below the maximum penalty and standard non-parole period, submitting that basing a finding upon the views of the sentencing court would be speculative and could not satisfy the standard required by, nor the requirements of, s 5B(d).
The plaintiff, on the other hand, drew upon the following observations made by the sentencing judge, submitting that they support an ESO being made.
The first was the sentencing judge's finding, in line with the recommendation made by the psychologist retained by the solicitors for the defendant for the purposes of his sentence hearing for the index offence (at [38]):
that he engage with the Violent Offender Therapeutic Management Program and engage in other anger management programs and that his release from custody be staged. I agree with that recommendation. [The defendant] must be supervised and monitored for as long as practicable on his release because his criminal antecedents records a dismal failure, to date, in his willingness to engage with Probation and Parole and his complete lack of concern about returning to custody.
The second was the sentencing judge's assessment of the defendant's future prospects (at [45]-[46]):
[The defendant's] prospects for the future are guarded but the long experience of the Court is that people of his age with his terrible background are often at the crossroads when they next face release into the community. A choice needs to be made; do I continue the way I have been going or do I go back to my family and prove myself to them. [The defendant's] real family are there for him. He is still young enough, and will still be young enough on release, to make those choices. It very much remains a matter for him.
The offence for sentence is objectively serious, it involved criminal gangs, it involved firearms, it involved a real risk that someone could have been seriously harmed. Against that has to be balanced a young man who has no advantages, who has been socialised in custody, both in juvenile detention and in gaol and has to date chosen that course to live as an outlaw. Living as an outlaw has meant he has spent most of his life in custody. It would seem to me, [the defendant], to be a no brainer, if you want to live in the community you have to be honest but if you want spend the rest of your life in gaol, continue the way you have lived to date.
[14]
Any other information that is available as to the likelihood that the offender will commit a further serious offence: s 9(3)(i)
The defendant submitted that his recent behaviour in custody demonstrates that he has developed insight into his offending behaviour, and was a significant factor supportive of a finding that he does not pose an unacceptable risk of committing a further serious offence (defendant's submissions at [29]-[31]).
I accept that the material does evidence some positive behavioural changes, but I am unpersuaded (and do not find) that they are as significant as the defendant has submitted.
[15]
The ISO should be made: unacceptable risk
I have already found that the matters in ss 5B(a)-(c) of the Act are satisfied: see [34]-[40], above.
Having regard to the matters under s 9(3) referred to above, as well as the safety of the community (s 9(2)), I am satisfied that, unless supervised, the matters alleged in the supporting documentation are sufficient to demonstrate that the Court would, if those facts and circumstances were proved, be justified in making an ESO: see the authorities at [21]-[29], above. (To those authorities the decision in State of New South Wales v Delaporte [2022] NSWSC 436 at [4]-[6], relied upon by the plaintiff, can be added). Specifically, I am satisfied that the defendant poses an unacceptable risk of committing a serious offence if released into the community without supervision (s 5B(d)). Accordingly, I am satisfied that the terms of s 7(4) of the Act are met.
In arriving at that conclusion (and state of satisfaction), I am particularly mindful of the following matters.
First, as I have earlier indicated, I am satisfied (and have found) that the defendant's offending can be fairly said to have exhibited "a degree of escalation into serious offending" culminating in the index offence, as the plaintiff submitted.
Secondly, the defendant has been assessed as having a high risk of violent reoffending - an assessment that I accept. As to this assessment, although there are recognised limitations in using risk assessment (and actuarial) tools to predict the risk of reoffending in an individual case, here the evidence, which I accept, is that the results of those assessments provide "a valid and reliable empirical means of predicting the likelihood of serious offending" - a conclusion I consider to be consistent with the identified risk factors which I am presently satisfied remain. Separately, the RAR identified the various risk factors and undertook an assessment of the defendant's risk profile more broadly than simply by reference to risk assessment and actuarial tools: the opinion expressed - viz., that the defendant had a high risk of violent reoffending - is the product of that broader assessment.
Thirdly, although the defendant has, most recently, participated in a range of interventions and programs, and there are some positive signs about the defendant's engagement with those interventions and programs, the defendant largely resisted engaging in them during the course of his time in custody. In those circumstances, I am unprepared to find, particularly given the relative recency of his participation, that the defendant's involvement and participation have favourably solidified changed patterns of behaviour. In this last respect, it should be noted that in the RAR it was said that, at least until the end of 2022, the defendant's participation had been insufficient to address the defendant's risk level, and assessed treatment needs. Further, it should also be noted that the author of the RAR suggested that research supports that those such as the defendant "require a minimum of 200 face-to-face hours of program interventions to reduce risk … more if they have issues which impact on their ability to respond to program content, such as literacy or mental health problems". The evidence, which establishes that the defendant is functionally illiterate, does not support a finding that the defendant has engaged in anything approaching this level of intervention in order to reduce his risk profile. Thus, I do not accept that the defendant has been rehabilitated or undergone sufficient interventions to address the underlying cause of his offending, and thus to have materially altered his risk profile.
Fourthly, to the extent that the defendant relied upon the fact that there has been behavioural stabilisation - consequent upon the commencement of Buvidal injections that had been prescribed for the defendant's drug addiction since June 2021 - that evidence (again, whilst the basis for some optimism) only goes so far. That is because there is other evidence that, since that time, establishes that the defendant's illicit use of drugs has continued - thus tending to cast some doubt upon whether there has been the stabilisation suggested: see [84]-[85], above. As earlier noted, the defendant has been a long time drug user and he has, in the past, unsuccessfully sought to treat his addiction by entry into the methadone program. It is, in my respectful view, unrealistic to think that this long-term issue, which has been linked as a significant contributor to his past offending, has been successfully treated by use of Buvidal injections.
Fifthly, although it should be acknowledged that there is evidence that the defendant intends to engage in a range of pro-social activities (aspirations that should be encouraged), I am cautious about these statements given the fact that the defendant has spent most of his adult life in gaol. Furthermore, although again it should be acknowledged that there is evidence that the defendant's grandparents will provide pro-social support for him, as well as a place to live, it needs also to be recognised that they have historically strived to provide that level of support to the defendant with limited success: they were providing support to the defendant when sentenced by Conlon DCJ on 2 October 2014 (for the aggravated break, enter and steal offences), and they were providing that support to him when sentenced for the index offence on 3 May 2019 (ROS at [25] and [45]). Put simply, although the defendant is fortunate to have the support of his grandparents, I am cautious about whether his family has the capacity to meaningfully assist the defendant by providing him with a support network moving forward when, to this point, that support has been unable to curb the defendant's criminality and anti-social activities. A similar view, one which I accept, was expressed in the RAR report - viz., that they may "lack the insight and understanding of the challenges" that the defendant may face. Furthermore, there has only been limited time following the defendant's release on parole, and that does not permit any finding favourable to the defendant to be made about the extent to which he has successfully re-engaged in the community.
Sixthly, when sentenced in connection with the index offence, the sentencing judge considered that the defendant's "prospects for the future are guarded", and had earlier found that the longer the defendant was "monitored in the community the better" (ROS at [40] and [45]). These observations largely align with the assessment that I have made.
[16]
The conditions
An ESO or an ISO may direct an offender to comply with such conditions as the Court considers appropriate, including but not limited to those conditions specified in ss 11(1)(a)-(n) of the Act. Thus, as is apparent from the language of the section, the power of the Court to impose conditions as part of an ESO (or ISO) is delimited by the requirement that the conditions be "appropriate".
When an ESO or ISO is made, it must include a condition "requiring the offender not to leave New South Wales except with the approval of the Commissioner of Corrective Services": s 11(2). (I add: that is largely what standard condition 10 of the defendant's parole conditions is directed to).
Failure by a person to comply with the requirements of an ESO or ISO is an offence, punishable by fine, imprisonment, or both: s 12.
As I have earlier noted, the plaintiff accepted that, whilst reserving its position to argue for different conditions at any final hearing (it is open for either party to seek to re-agitate the nature of any conditions that might be imposed if an ESO is made: Golding at [102]), the defendant's current parole conditions were appropriate. Having reviewed them, and having regard to the principles identified in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 at [44] and given that they are both standard and specifically tailored ('additional') parole conditions, I am satisfied that this is so.
[17]
Orders
Accordingly, I make the following orders:
1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) ('the Act'):
1. Appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and
2. Directing the defendant to attend those examinations.
1. An order:
1. Pursuant to ss 10A and 10C of the Act that the defendant be subject to an interim supervision order for a period of 28 days from 24 June 2023; and
2. Pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions as set out in Annexure 'A' to this judgment.
1. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.
Annexure A (52558, pdf)
[18]
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: 19 June 2023
In State of New South Wales v BG (Preliminary) [2022] NSWSC 1065 at [8]-[16], I set out the legislative scheme, and organising principles, relating to continuing detention, and extended supervision, orders.
What follows draws largely upon what I have there set out.
The Act has two express objects. The primary object "is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community" (s 3(1)). Another object "is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation" (s 3(2)). These objects are protective, not punitive: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [5] (Mason P, Santow and Tobias JJA) ('Tillman'); Kamm v State of New South Wales (No 4) (2017) 95 NSWLR 179; [2017] NSWCA 189 at [147] (Beazley P).
The Act seeks to fulfil these objects by conferring jurisdiction on the Supreme Court to make orders, extending beyond the terms of imprisonment imposed by sentencing courts, for the extended supervision (s 9(1)), or for the continuing detention (s 17(1)), of convicted offenders: State of New South Wales v Kaiser [2022] NSWCA 86 at [6] (Simpson AJA, Bell CJ and Beech-Jones JA agreeing) ('Kaiser').
Section 5H of the Act permits the State to apply for an ESO "against an offender". However, s 5I(1) qualifies this by providing that an order can only be made against a "supervised offender".
The defendant conceded that he is a supervised offender for the purposes of s 5I, and I find that he is. That is because, as the plaintiff submitted and as the defendant accepted, the defendant was, when the plaintiff's application was made, a 'supervised offender'. Relevantly here, in the language of s 5I, the defendant is a 'supervised offender' because, when the application was made, the defendant was "in custody or under supervision" while serving a sentence for a serious offence: s 5I(2)(a)(i).
Section 6 of the Act sets out a number of requirements with respect to an application for an ESO. One is that the application "may not be made until the last 9 months of the offender's current custody or supervision" (s 6(1)). It is accepted by the defendant that this element is satisfied, and I find that it is. The plaintiff's application, commenced by the filing of a summons on 6 April 2023, was made within the last 9 months of the defendant's supervision.
Another requirement is that the material that must accompany the application for an ESO addresses the matters in s 9(3) of the Act (s 6(3)(a)) and includes a report from a qualified psychiatrist, registered psychologist or registered medical practitioner that "assesses the likelihood of the offender committing a serious offence" (s 6(3)(b)). I am satisfied that the material in the affidavit of James Palmer affirmed 6 and 26 April 2023 and exhibit JP-1 to that affidavit addresses these matters (some of which are dealt with, later in these reasons, when addressing the matters in s 9(3) of the Act), and the defendant did not contend otherwise.
The application may also indicate the kinds of conditions that are considered appropriate for inclusion under s 11 - in the event that an ESO is made: s 6(4). This has occurred; in fact, this remains the second area of dispute on this application.
Section 7 of the Act prescribes a number of pre-trial procedures relating to the making of, and dealing with, an application for an ESO: the application must be served on the offender (the defendant) within 2 business days of the application being filed, or such further time as the Court may allow (s 7(1)); the State must disclose to the offender material relevant to the application (s 7(2)); and the Court must hold a preliminary hearing within 28 days of the filing of the application, or within such further time as the Court may allow (s 7(3)). I am satisfied that these pre-trial procedures have been complied with and, like the position the defendant took in relation to the matters referred to in s 6, the defendant did not submit to the contrary.
The preliminary hearing
A preliminary hearing is required to be conducted when an ESO is sought (s 7(3)).
When an ESO is sought, s 7(4) of the Act provides that if, following the preliminary hearing, the Court "is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO", the Court must make two orders. The first is an order appointing a qualified psychiatrist and/or a registered psychologist (or several of them) to examine the offender, and to furnish reports to the Court (s 7(4)(a)). The second is an order that the offender attend those examinations (s 7(4)(b)).
If, following the preliminary hearing, the Court is "not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO", the Court must dismiss the application: s 7(5).
The Court may make an ISO in proceedings for an ESO if it appears to the Court that "the offender's current custody or supervision will expire before the proceedings are determined" (s 10A(a)) and "that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO" (s 10A(b)).
Generally, the ISO will be for a period of 28 days: s 10C(1)(a). An ISO may be "renewed from time to time, but not so as to provide for the supervision of the offender under such an order for periods totalling more than 3 months": s 10C(2).
An application for an ISO, and for the appointment of psychiatrists and/or psychologists to examine the defendant (and report to the Court following such examinations) is to be assessed on the basis that the Court is required to be "satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO …": ss 7(4) and 10A(b).
That s 7(4) directs attention to "the matters alleged in the supporting documentation" has a number of consequences that should be noted. First, the task being performed 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, it is for "the Court to look at what is alleged in the supporting documentation to see whether it would, if proved, justify the making of either a continuing detention order or extended supervision order": Tillman at [98] (Mason P, Santow and Tobias JJA); State of New South Wales v Shields (Preliminary) [2022] NSWSC 469 at [12] (Wright J) ('Shields'). The task has been described as being similar to applying a prima facie case test, taking the plaintiff's case at its highest: State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [17] and [19] (R A Hulme J) ('Golding'); State of New South Wales v Dickson (Preliminary) [2019] NSWSC 1116 at [43] (Johnson J).
Sections 5B and 5C
I will start by addressing the statutory provisions that relate to the making of an ESO. What follows is largely drawn upon from the analysis in State of New South Wales v JC (Preliminary) [2023] NSWSC 31 at [30]-[42] ('JC').
In relation to an application for an ESO, ss 7(4) and 10A(b), by their reference to the requirement that the Court be satisfied that the matters alleged in the supporting documentation justify the "making of an extended supervision order", direct attention to s 5B of the Act. Section 5B contains four cumulative criteria that must be satisfied in order for an ESO to be made. They have been described as "identifying the conditions of engagement of statutory powers to make continuing detention orders or extended supervision orders": Tannous v State of New South Wales (2020) 103 NSWLR 183; [2020] NSWCA 261 at [14] (Basten JA, McCallum JA and Simpson AJA agreeing) ('Tannous').
By s 5B, the Court may make an ESO upon satisfaction of the matters in ss 5B(a)-(c) and, by s 5B(d), of satisfaction to "a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order".
The defendant has accepted that the statutory preconditions in s 5B(a)-(c) of the Act have been met (see [3], above). I find that they are, for the following reasons.
Section 5B(a) requires the defendant to be "an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community".
In order to consider whether the requirements of this section are met, it is necessary to make reference to some other sections which define concepts within s 5B(a).
Section 4A of the Act defines "an offender" to be a "person who - (a) is of or above 18 years of age and, (b) has at any time been sentenced to imprisonment … to be served by way of full-time detention … following the person's conviction for a serious offence". It is clear that the defendant is above 18 years of age: s 4A(4). And it is also clear, and I find, that the defendant satisfies s 4A(b), for the following reasons.
The defendant has been sentenced to full-time imprisonment following his conviction for a serious offence (s 4A(b)) - being, as the State submitted, an offence under s 33A of the Crimes Act 1900 (NSW) where the offence is punishable by imprisonment for 25 years: s 5A(1)(b).
Section 5B(b) requires the defendant to be "a supervised offender (within the meaning of s 5I)". I have earlier made a finding about this: see [16], above. He is, therefore, a "supervised offender".
High degree of probability
The high degree of probability "qualifies the state of the judge's satisfaction, not the degree of the risk": Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [122] (Basten JA) ('Lynn').
The Court must be satisfied that the likelihood of the defendant committing a further serious offence is higher than the civil standard of proof, in other words it is "beyond more probable than not", but it is not a requirement that the finding be made to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] (Mason P, Giles and Hodgson JJA); Golding at [14] (R A Hulme J) ('Golding'); Shields at [12] (Wright J).
Unacceptable risk
In JC at [45]-[46] I said the following about 'unacceptable risk':
45. The concept of "unacceptable risk" is expanded upon by s 5D, which is in the following terms:
"For the purposes of this part, the Supreme Court is not required to determine the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of a person committing such an offence."
46. The concept of an "unacceptable risk" has, unsurprisingly, been the subject of considerable judicial consideration, which establishes the following:
(1) The phrase is to be given its everyday meaning within its context having regard to the objects of the Act: Lynn at [55]-[58] (Beazley P).
(2) What the Court must find to be unacceptable is the risk that the offender poses of committing another serious offence if not kept under supervision; that is, an assessment of the likelihood in the absence of any supervision: Lynn at [51] and [55] (Beazley P); State of New South Wales v Donovan [2015] NSWCA 280 at [24] (Beazley P, Macfarlan and Leeming JJA). That finding provides the basis for imposing control on the offender: Lynn at [127] (Basten JA).
(3) The interests of the offender to liberty and privacy are not relevant to the assessment of whether there is an "unacceptable risk", but can be taken into account when considering whether to make, under s 9 of the Act, an ESO or to dismiss the application: Lynn at [44] (Beazley P), [143] (Basten JA), and [148]-[149] (Gleeson JA).
(4) Unacceptability of risk "involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate": State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] (Wilson J) ('Simcock'); State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J). The nature of the risk "posed had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition": Lynn at [126] (Basten JA).
(5) An offender may pose an unacceptable risk, even where the likelihood of committing another serious offence is low, if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43] (Harrison J); Golding at [16] (R A Hulme J); State of New South Wales v Devaney (Final) at [73] (Dhanji J).
Secondly, it is impermissible for a defendant to adduce evidence that might "cast light" on - or contradict - the matters alleged in the supporting documentation: Tillman at [98] (Mason P, Santow and Tobias JJA); State of New South Wales v Devaney (Preliminary) [2021] NSWSC 1432 at [20]-[21] (Dhanji J).
Thirdly, "there is no place at a preliminary hearing for the undertaking of any challenge, by cross-examination or otherwise, of any person who has stated facts, including expert opinions, in the documentation supporting the State's application, or else who has written reports of the kind referred to, or who has undertaken any of the assessments referred to …": State of New South Wales v Sturgeon [2019] NSWSC 559 at [13] (Garling J).
Before moving to consider whether the preconditions to the making of a ESO have been satisfied, it should be noted that the defendant accepted (subject to the requirement in s 5B(d)) that the statutory preconditions for the making of an ESO were present. I next address - briefly in light of the concession made by the defendant - the conditions of engagement to the making an ESO.
Section 5B(c) requires the application for the order to be made in accordance with s 5I. However, the reference in s 5B(c) to s 5I is "a drafting or cross-referencing error and should have been a reference to s 6": Kaiser at [124] (Simpson AJA, Bell CJ and Beech-Jones JA agreeing). I have previously made findings that the requirements stipulated by s 6 have been met: see [17]-[19], above.
Having established the matters in ss 5B(a)-(c), s 5B(d) of the Act remains to be considered. That section requires the Court to be "satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order". In determining whether (or not) to make an ESO, the "safety of the community must be the paramount consideration" (s 9(2)) and, the Court must also have regard, in addition to any other matter it considers relevant, to the matters set out in s 9(3), but is not to consider any intention of the offender to leave NSW (s 9(4)).