State of New South Wales v Dennis

Supreme Court of NSW|2024-03-25|Before: Yehia J

Crimes (High Risk Offenders) Amendment Bill 2017 (NSW) Crimes (Serious Sex Offenders) Amendment Bill 2013 (NSW) Crimes (Serious Sex Offenders) Bill 2006 (NSW) Explanatory Note, Crimes (High Risk Offenders) Amendment Bill 2016 (NSW) Explanatory Note, Crimes (High Risk Offenders) Amendment Bill 2017 (NSW) New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 20 February 2013 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 4 May 2016 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 29 March 2006 NSW Department of Justice and Attorney-General, Review of the Crimes (Serious Sex Offenders) Act 2006 (2010), (November 2010) NSW Sentencing Council, High-Risk Violent Offenders: Sentencing and Post-Custody Management Options, (May 2012) T Tulich, "Post-Sentence Preventative Detention and Extended Supervision of High Risk Offenders in New South Wales", (2015), 38(2) UNSW Law Journal Category: Procedural rulings Parties: State of New South Wales (Plaintiff) Shane Barry Dennis (Defendant) Representation: Counsel: M Dalla-Pozza (Plaintiff) Dr J Lucy (Defendant)

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2024/00008762

JUDGMENT

By way of summons filed on 22 December 2023, the State of New South Wales ("the plaintiff") seeks an Interim Supervision Order ("ISO") against Shane Barry Dennis ("the defendant") under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act").
The plaintiff seeks an order pursuant to s 7(4) of the Act that the Court appoint two qualified psychiatrists or two registered psychologists to conduct separate examinations of the defendant and furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and direct that the defendant attend those examinations.
By way of interim relief, the plaintiff seeks an order: 1. Pursuant to s 10A of the Act that the defendant be subject to an interim supervision order from 30 April 2024 ("the ISO"); 2. Pursuant to s 10C(1) of the Act, that the ISO be for a period of 28 days; and 3. Pursuant to s 11 of the Act, directing that the defendant, for the period of the ISO, comply with the conditions set out in the Schedule to the summons.
By way of final relief, the plaintiff seeks an order: 1. Pursuant to ss 5B and 9(1)(a) of the Act that the defendant be subject to an extended supervision order for a period of 18 months from the date of the order ("the ESO"); and 2. Pursuant to s 11 of the Act, directing that the defendant, for the period of the ESO, comply with the conditions set out in the Schedule to the summons.
The plaintiff also seeks ancillary relief that an order be made that 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 for access.
The defendant opposes the orders sought and contends that the plaintiff's application for an extended supervision order ("ESO") is incompetent and should be dismissed with costs.

Background Summary

The defendant is 47 years old. On 19 June 2022 he suffered an eye injury which has left him blind in his left eye and with 6/60 vision in his right eye. The defendant is legally blind and has been in receipt of a disability support pension since February 2023. He has been told by his doctors that his vision will progressively deteriorate over the next few years so that he will eventually lose all sight.
The defendant reported a chaotic and unhappy childhood. The defendant's parents separated when he was a baby and his mother remarried a year after that separation. The defendant was corporally punished by his mother and stepfather. He was exposed to family violence throughout his childhood. His mother abused drugs and was also the victim of domestic violence resulting in frequent moves to escape the violence. The defendant's mother then had a number of partners following her re-marriage, many of whom were abusive towards the defendant. The defendant also reported being the victim of sexual abuse by a family member.
During his youth, the defendant attended five primary schools and three high schools. The defendant truanted regularly and was suspended in Year 7 for carrying an air rifle and drinking alcohol. The defendant's sister was also the subject of bullying and the defendant resorted to violence against those bullying her, in her defence. The defendant also reported he was suspended from school again in Year 8.
On leaving school, the defendant began engaging in drug abuse and criminal activity. He reported injecting heroin and amphetamines around that time and has continued to use illicit substances for much of his adult life on a regular basis. The defendant engaged in delinquent behaviour for much of his youth and was first placed in juvenile detention at the age of 15. The defendant also reported that he was sexually abused whilst in juvenile detention.
The defendant's early criminal history includes offences of assault occasioning actual bodily harm and possession of an offensive implement. He has been convicted for matters of violence, including episodes of domestic violence. In January 2011, the defendant committed an aggravated robbery and was sentenced to 2 years and 3 months imprisonment with a non-parole period of 9 months. Two related charges of assault were dealt with by way of concurrent fixed terms of imprisonment. The defendant's parole included conditions to accept drug and alcohol treatment as directed.
The circumstances of the aggravated robbery in January 2011 included the defendant approaching two women on a train at about 10:00pm and taking a handbag from one of them. The women gave chase and a struggle for the bag ensued in another carriage, with the bag ending up on the floor and the women being prevented from retrieving it. The defendant blocked their path. He punched one of the victims in her ribs and in the right eye. He slapped the second victim in her sternum area. The defendant was arrested shortly after the incident and was found to be in possession of cash, a wallet, and a phone belonging to one of the victims.
Between February and March 2012, the defendant attended five sessions at a relapse prevention program at the Nepean Hospital and three sessions of a SMART Recovery Australia program.

The index offence

On 29 August 2012, the defendant committed the index offence, an aggravated robbery causing grievous bodily harm, contrary to s 98 of the Crimes Act 1900 (NSW). At the time of offending, he was on parole for the previous aggravated robbery committed in January 2011. At about 7:00pm on 29 August 2012, the defendant boarded a train going from Kingswood to Werrington and approached a passenger from behind. He grabbed the passenger by the hair and demanded his belongings, at the same time cutting and causing a wound to the victim's throat. The implement used to cut the victim's throat was a device like a scalpel. As a result of the injury, the victim sustained a 16cm scar. The victim required suturing to his injured anterior jugular vein and has continued to experience pain as a result of the injury some two years later. After wounding the victim, the defendant took the victim's phone. The defendant's whereabouts were then detected via a location finder on the phone, adjacent to St Marys train station.
For the index offence, the defendant was sentenced to 11 years imprisonment, commencing 1 May 2013 and expiring 30 April 2024, with a non-parole period of 8 years and 3 months. The defendant was released to parole on 31 July 2021. Prior to his release he completed the Violent Offender's Treatment Program ("VOTP"). The defendant completed that program between September 2020 and July 2021. He was initially reluctant to participate and refused to consent to entry into the program, claiming that he was not violent when he was not using drugs. [1] However, he did participate and completed the program.
Ms Helen Dimitrios, psychologist, completed a report ("the treatment report") dated 4 November 2021 in respect of the defendant. She noted that the defendant's cognitive distortions included minimising and externalising blame for his offending. The treatment report described the defendant as having anti-authoritarian attitudes which perpetuated his poor supervision compliance. The treatment report described the defendant's violence as either "instrumental" (that is, to fund his drug addiction), in response to provocation, or as an expression of anger. The treatment report also recorded that the defendant displayed poor conflict resolution skills. A number of precipitating factors for violence were identified including antisocial intimate relationships and relationship breakdowns leading to the abuse of illicit substances; unemployment and financial strain; perceived threat, provocation or disrespect; and a lack of engagement with community support.
On the other hand, Ms Dimitrios noted that the defendant had also demonstrated an ability to use assertive communication, restructure unhelpful thoughts and consider alternative perspectives. He developed goals towards a prosocial life and was motivated to engage in treatment. He reported regretting not pleading guilty to the index offence, although maintained that he used scissors and not an implement like a scalpel and that he had not attacked the victim from behind.
In the six months immediately following the defendant's release on parole (on 31 July 2021), apart from issues with housing, the defendant was progressing well. On 29 March 2022 the defendant disclosed to Community Corrections that he had used methylamphetamine the day before. [2]
On 29 April 2022 the defendant reported recent "ice" and cannabis use, stating that he used "ice" when he had "nowhere to go". [3] On 9 May 2022 the defendant reported being temporarily homeless. [4] On 19 June 2022 he suffered a significant injury to his right eye, as a result of a stick penetrating it, during swordplay with his young son. [5]
On 28 June 2022 the defendant was found in possession of a small amount of cannabis and was convicted and fined for possessing a prohibited drug. On that day the defendant again made admissions to using methylamphetamine two days before.
On 2 and 25 August 2022 the defendant disclosed recent use of cannabis. [6] On 6 and 27 October 2022 he disclosed recent use of methylamphetamine. [7] On 10 November 2022 he tested positive for methylamphetamine. The defendant reported to Community Corrections that his drug use related to socialising with other drug users and was a way of relieving mental health issues. [8]
On 19 January 2023 the defendant again disclosed to Community Corrections that he had used methamphetamines the day before. [9] He was counselled for missing psychologist appointments and not contacting Odyssey House, a rehabilitation centre he had been engaged with. On the same day he was found in possession of a knife and charged with custody of a knife in a public place. He was subsequently convicted and fined for that offence. The 6cm knife he was found with was part of a multitool device which the defendant said was used to fix his bike.
On 20 March 2023 the defendant was found at Penrith train station in possession of an extendable baton. He was convicted and fined for that offence on 2 May 2023. The defendant disclosed that three or four days prior to being in possession of the baton, he had used methylamphetamine. [10] The use of drugs on that occasion was precipitated by a deterioration in his relationship with his current partner, placing him "on edge". [11]
On 12 April 2023 the defendant was charged with contravening a domestic apprehended violence order ("AVO"). The police facts disclose that the defendant was at his partner's house despite a condition prohibiting him from approaching her. On 13 April 2023 the defendant disclosed to a Justice Health nurse that he used methylamphetamine once or twice a week. [12]
On 2 May 2023 the defendant was convicted and fined for the AVO breach that he was charged with on 12 April 2023. A further AVO was made on 2 May 2023. As a result of the charges and the defendant's failures under supervision (including ongoing methylamphetamine use and failing to attend psychologist appointments), several parole breach reports were prepared and the defendant's parole was eventually revoked on 20 March 2023. The defendant's parole was restored on 11 May 2023. On 1 December 2023, the defendant was charged with and released on bail for a breach of the current AVO. On 8 December 2023 he was placed on a Community Corrections Order for a period of 12 months. The defendant appealed that decision. At the time the plaintiff's submissions were filed, on 22 January 2024, the defendant's appeal was next listed on 31 January 2024 at Parramatta District Court. There is no material before the Court that indicates what the outcome of that appeal was.
A selection of Offender Integrated Management System ("OIMS") notes, exhibited on this application, reveal varying degrees of progress on the part of the defendant. On several occasions, he disclosed to Community Corrections that he had used methylamphetamine. The notes disclose that he engaged with counsellors to discuss his alcohol and drug issues, amongst other things. The defendant reported on 23 August 2023, that he managed his anger through strategies that he learnt from counsellors at Relationships Australia.
On 12 January 2024, the defendant reported to Community Corrections that he wanted to move to Queensland for a fresh start with his partner and did not want to be subject to police attention. [13] He acknowledged that he would have to cease drug use to do this. [14] OIMS records from 23 February 2024 indicate that the defendant had purchased a home in Queensland and intended to move there once his parole order expired. [15] A letter prepared by Michelle Attenborough, the defendant's case worker at Odyssey House, confirms that the defendant was referred to Odyssey House Aftercare on 31 July 2023 and has attended several case management sessions. [16] Odyssey House Aftercare provides treatment options by qualified caseworkers, with programs tailored specifically to the individual client's needs. In her letter, Ms Attenborough described Aftercare as a program which involves an integrated approach of care that guides and tracks a person over time through a comprehensive array of health services and continuous supportive care.
Ms Attenborough observed the defendant to be motivated and consistently demonstrating a positive attitude towards his recovery. [17] The defendant's case worker reported that the defendant had indicated to her he was making positive changes in his life including deleting old phone numbers, avoiding negative influences and keeping himself busy with projects and chores around the house. [18]

The Issues

There are three issues for consideration.
Firstly, is the defendant a "supervised offender" as defined in s 5I(2) of the Act so that an application for an ESO may be made in relation to him under s 5B of the Act? Central to that question is whether the index offence of armed robbery occasioning grievous bodily harm (contrary s 98 of the Crimes Act) is a "serious violence offence" as defined in s 5A of the Act.
Secondly, if the defendant is a "supervised offender" as defined in s 5I(2), is the Court satisfied, pursuant to s 5B(d) of the Act, to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision?
Thirdly, if the Court is minded to make an ISO, are the proposed orders appropriate?
Whether the Court needs to consider the second and third issues, turns on the answer to the first. If the defendant is not a "supervised offender" under s 5I(2) an ESO cannot be made in respect of him. There would be no need, therefore, to consider whether the defendant poses an unacceptable risk of committing another "serious offence" (s 4(1) of the Act) if not under supervision, or whether proposed orders are appropriate.
The parties agree that in the event the defendant is not a "supervised offender" it is not necessary to determine the second and third issues.

Is the defendant a "supervised offender"?

As noted above, an application for an ESO may only be made in respect of a "supervised offender": s 5I(1) of the Act.
An offender is a "supervised offender" if they meet the statutory requirements set out in s 5I(2) of the Act which provides: 5I Application for extended supervision order (1) An application for an extended supervision order may be made only in respect of a supervised offender. (2) A supervised offender is an offender who, when the application for the order is made, is in custody or under supervision (referred to in this Part as the offender's current custody or supervision) - (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 (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or (b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order. (3) A person is taken to be serving a sentence of imprisonment whether the sentence is being served by way of full-time detention or intensive correction in the community (whether or not subject to a home detention condition) and whether the offender is in custody or on release on parole.

Plaintiff submissions

This summary is taken from the plaintiff's submissions filed on 22 January 2024, plaintiff's submissions in reply, filed on 20 March 2024 and oral submissions made on 25 March 2024.
The plaintiff argued that the defendant can be characterised as an "offender" for the purposes of s 4A of the Act, in relation to his index offence conviction; and that the index offence constitutes a "serious violence offence" for the purposes of s 5A(1)(a) of the Act, having regard to the elements of robbery causing grievous bodily harm and the circumstances of the offending.
The plaintiff's submissions turn on whether the index offence can properly be regarded as a "serious violence offence" and whether the defendant is a "supervised offender" within the meaning of s 5I(2)(a)(i).
The plaintiff acknowledged that there has been general acceptance by the courts that the definition of what constitutes a "serious violence offence" is guided by an analysis of the elements of the index offence. With respect to Leeming JA's conclusion in Lynn v State of New South Wales [2019] NSWCA 300 ("Lynn (CA, 2019)") at [22], that "what matters are the elements of the offence said to constitute a serious violence offence", the plaintiff submitted that Leeming JA did not intend to stipulate a rule that, in the context of s 5A(1)(a), the Court is limited to a consideration of the elements comprising an offence.
The plaintiff seeks to rely on evidence beyond the elements of s 98 of the Crimes Act. In support of the submission that the Court can look past the elements to the circumstances of the offending, to determine whether the index offence is a "serious violence offence", the plaintiff relies upon the following authorities.
Firstly, the plaintiff addressed the judgment of State of New South Wales v Mackey [2015] NSWSC 514 ("Mackey") where the defendant had been charged with malicious wounding with intent to cause grievous bodily harm. He was convicted in 2004 of that offence, which was contrary to s 33 of the Crimes Act. At the time of offending, s 33 relevantly required proof an offender had maliciously inflicted grievous bodily harm with intent to do so. The term "maliciously" in s 5 of the Crimes Act included an act done recklessly. It was submitted that Mackey supports the proposition that inflicting grievous bodily harm with intent to do so, or being reckless as to inflicting grievous bodily harm would fall within s 5A.
Mackey does not provide support for the plaintiff's contention that a court ought to conduct an inquiry into the circumstances or the evidence relating to the offending conduct. In Mackey the offence for which the defendant was convicted included "intent" as an element, and therefore aligned with the statutory requirements in s 5A of the Act.
Secondly, the plaintiff relied on State of New South Wales v Evers [2015] NSWSC 1231 ("Evers"). In that case his Honour Button J dealt with an offender who was originally charged with five counts of murder but had been convicted of five counts of manslaughter relying on a partial defence of diminished responsibility. The index offences did not expressly contain an element of intention to kill or cause grievous bodily harm. However, his Honour considered it was implicit in the facts of the offending that shotgun blasts at a close range demonstrated such an intention.
The plaintiff submitted that Evers is an example of a case in which the Court considered it was appropriate to go beyond the elements of an offence. In particular, the plaintiff relied on his Honour Button J's comments at [34]: "In that regard, the parties were agreed that the five counts of manslaughter fall within the definition of a "serious violence offence" contained in s 5A(1)(a) of the Act. They submitted that that was because, although it may be arguable whether all cases of manslaughter fall within that definition, these examples of the offence undoubtedly do. That is because they featured, at the very least, an intention to cause grievous bodily harm to another person (to my mind, the repeated discharges of shotgun blasts at very close range unquestionably demonstrated an intention to kill). As I have explained, the verdict of not guilty of murder but guilty of manslaughter was based upon the partial defence of diminished responsibility; it was not based upon the absence of a requisite mental element for the offence of murder." (Emphasis added.)
The plaintiff submitted that the only way to understand the emphasised text in the above passage, is that his Honour accepted the submission that the offence of manslaughter fell within the definition of a "serious violence offence." The plaintiff accepted that in that case, the conviction for manslaughter was via a pathway of the partial defence of diminished responsibility but argued it would be wrong to regard that fact as "determinative". His Honour went beyond the elements of the offence of manslaughter, to the specific facts, to find that the offence fell within the definition of manslaughter.
Thirdly, the plaintiff relied on Decision Restricted [2016] NSWSC 1052 ("Decision Restricted'). The plaintiff submitted that Button J found that "unlike s 5 of the Act, [s 5A of the Act] did not create an offence based series of serious (sex) offences, but rather relied on an extended definition." His Honour held that it is the elements of an offence which ought to be analysed for the purposes of s 5A(2), not the evidence relied upon to establish those elements. Button J acknowledged that in some circumstances there may be "opacity" as to the elements. The plaintiff submitted that this would "presumably" require further analysis of the underlying evidence "despite his Honour not explicitly stating so" and that it was open for a Court to have regard to the circumstances of the offending in determining whether an offence is a "serious violence offence".
The plaintiff advanced the argument that there has been no practice of applying, as a rule, the proposition that it is impermissible to go beyond the elements of the offence noting that this approach was taken in Decision Restricted.
Fourthly, the plaintiff relied on State of New South Wales v Coe (Final) [2023] NSWSC 1142 ("Coe (Final)") in which N Adams J concluded that the definition of "serious violence offence" includes, by virtue of s 5A(1)(b) of the Act, a case where the offender does not actually cause death or grievous bodily harm to an individual.
The plaintiff sought to call in aid the reasoning in Coe (Final) to support the proposition that a consideration of whether an offence is a "serious violence offence" is not limited to a consideration of the elements of the offence.
The plaintiff accepted that the decisions of Ford v R [2020] NSWCCA 99 ("Ford") and Ryan v The Queen (1967) 121 CLR 205; [1967] HCA 2 support a finding that s 98 does not include an element of intention to cause grievous bodily harm (or was reckless as to causing such harm). However, the plaintiff argued that even still, the Court is entitled to consider the evidence supporting the elements of the offence.
The plaintiff submitted that to say it is impossible to go behind the elements of an offence would mean that, notwithstanding an offence involving significant criminality (in this case, s 98), that offence could never fall within the scope of the Act. The plaintiff also submitted there are strong purposive considerations against such a construction.
It was submitted that the facts of the index offence are an example where the underlying evidence sheds light on the state of mind of the offender in that the use of a sharp weapon causing a degree of harm, clearly evinces at the very least, a recklessness as to whether actual bodily harm would result. It was submitted therefore the Court could "readily conclude" an intention to inflict at least actual bodily harm, is established by the evidence.
In short, the plaintiff submitted that in the context of the present proceedings, the defendant has been convicted of a "serious violence offence", that being, the index offence; the defendant is therefore an "offender" within the meaning of s 4A the Act and a "supervised offender" pursuant to the definition in s 5I(2)(a)(i) owing to the defendant's unexpired period of parole for the index offence pursuant to s 5I(3).
The defendant is an offender who has served a sentence of imprisonment for a serious offence (s 5B(a)), and he is a supervised offender under s 5I(2)(a)(i) (s 5B(b)). He satisfies the requirements for an ESO application under s 5I (s 5B(c)).

Defendant submissions

At the core of the defendant's submission is the contention that the offence of armed robbery occasioning grievous bodily harm, contrary to s 98 of the Crimes Act, is not a "serious violence offence" as that term is defined in s 5A of the Act, because s 98 does not include the element of intent required by s 5A(1)(a) ("with the intention of causing…grievous or actual bodily harm). Accordingly, the defendant is not a "supervised offender" because he is not serving a sentence of imprisonment for a "serious offence" under ss 5I(1) and (2)(a)(i) of the Act.
The defendant submitted that, on its proper construction, s 5A(1)(a) of the Act describes an offence which is constituted by two elements. First, conduct causing death or grievous bodily harm and, second, an intention to cause (at least) actual bodily harm.
The defendant relied on Ford at [91] and Ryan to submit that s 98 is not an offence "constituted by" conduct "with the intention of causing, or while being reckless as to causing, grievous or actual bodily harm to another person" because the intention to cause bodily harm is not an element of s 98. It was submitted the s 98 offence is not "constituted by" conduct causing grievous bodily harm because it may be constituted by conduct causing lesser physical harm, namely, wounding.
The defendant submitted that it is not for the Court to determine whether it could be inferred that the defendant was reckless as to causing actual or grievous bodily harm. The defendant submitted that the definition of "serious violence offence" requires the Court to consider whether the s 98 offence objectively fulfils the criteria of the definition in s 5A - and not whether the evidence establishes a relevant intention or recklessness.
The defendant then turned to consider the decisions of Lynn (CA, 2019), Evers, Decision Restricted and Coe (Final).
With respect to Lynn (CA, 2019), the defendant relied on Leeming JA's remarks at [22]: "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", as supporting the contention that the focus, in determining whether an offence is a "serious violence offence", is on the elements of that offence and not some inquiry into the evidence or circumstances constituting the offence.
The defendant noted that in Evers, the Court was "faced with an index offence which did not contain an express element of intention to kill or cause grievous bodily harm, but his Honour considered that it was implicit in the facts of the offending that shotgun blasts at very close range demonstrated an intent to kill" (Evers at [34]). The defendant argued that his Honour examined the circumstances of the offending in the context of a case where a manslaughter verdict was "based upon a partial defence of diminished responsibility" and not upon "the absence of a requisite mental element for the offence of murder" (Evers at [34]), as in the present case.
The defendant submitted that to the extent Evers appears to sanction an examination of the particular elements of an offence in the context of the defence raised it may be consistent with s 5A of the Act, as long as those elements are determined by reference to the defence raised, and not the evidence itself. Properly understood, the decision in Evers does not support an approach that allows for the examination of evidence to determine whether an offence is a "serious violence offence."
Turning to Decision Restricted, the defendant submitted that this authority supports the defendant's position. Button J rejected the suggestion that the Court ought to look to the evidence placed before the Court in the substantive proceedings to support a conviction. In particular, the defendant relied on his Honour's reasoning at [56]-[58] in which his Honour enumerated three reasons to reject an approach which involves looking past the elements of an offence.
Further, the defendant referenced his Honour's reasoning that the chapeau of s 5A(1) of the Act speaks of a serious indictable offence which is "well-known" to criminal law and "focuses on the characteristics of the offence" not on "the conduct underpinning the offence."
The defendant acknowledged that in strongly preferring an approach that focused on the elements of an offence, Button J did contemplate a qualification to that approach in limited cases. His Honour noted that in "some limited circumstances… the elements of the offence are not the end of the matter." The defendant submitted that properly understood, the "limited circumstances" are confined to cases where an offence could have variable elements.
The defendant submitted that Coe (Final) is of little assistance. It is not in contention that an offence of attempting to commit, or conspiring with, or inciting another person to commit, a particular type of violent offence can be a "serious violence offence". Additionally, the offence with which the defendant has been convicted is not one of attempting, conspiring, or inciting another to offend.
It was submitted that the defendant is not serving a sentence of imprisonment for a "serious offence" within s 5I(2)(a) and is neither an "offender", nor a "supervised offender" in relation to whom an application for an ESO may be made. As such, it was submitted the application is incompetent and the summons filed on 22 December 2023 ought to be dismissed.

History of the Act

It is useful to set out the legislative history in order to appreciate the close consideration that has been given to the development of the relevant statutory requirements and the multiple occasions on which the legislation has been amended to address perceived inadequacies, additional concerns, and expand the category of offences covered by the Act.
In Australia, legislation relating to ongoing detention began to emerge at the beginning of the 20th century. In New South Wales that type of legislation took the form of the Habitual Criminals Act 1905 (NSW). Section 3 of that Act empowered a judge to declare, at their discretion, a person as an "habitual criminal" as provided for: Habitual criminals 3. When any person is convicted on indictment of an offence of one of the classes of offences mentioned in the Schedule, the following provisions of this section shall take effect - (a) where such person is so convicted of an offence included in classes II , III, or IV of the offences mentioned in the Schedule, and has been previously so convicted on at least two occasions of an offence of the same class, the judge before whom such person is so convicted, may, in his discretion, declare as part of the sentence of such person that he is an habitual criminal . (b) where such person is so convicted of an offence included in any other such class, and has been previously so convicted on at least three occasions of an offence within the same class, such judge may, in his discretion, declare as aforesaid that such person is an habitual criminal. This section shall apply whether such previous convictions took place within or without New South Wales, and either before or after the commencement of this Act. (Emphasis added.)
Pursuant to s 5 of the Habitual Criminals Act, every "habitual criminal" was, at the completion of their sentence, to be detained at his Majesty's pleasure, and subject to the regulations, in some place of confinement set apart by the Governor, by proclamation in the Gazette, for that purpose. Section 13 of the Habitual Criminals Act defined any place of confinement under that Act to be a "prison" within the meaning of the Prisons Act 1899 (NSW).
Section 3 of the Habitual Criminals Act dealt with defining an offender as a "habitual criminal" at the time of conviction. Limitations upon and curtailments of an offender's liberty that are imposed at the time of conviction and sentence have not been an uncommon feature of Australian sentencing regimes. Features such as this include, for example, mandatory sentencing requirements. The Habitual Criminals Act of 1905 was eventually replaced by the Habitual Criminals Act 1957 (NSW).
The high risk offender legislative scheme, however, targets the liberties of an offender at a distinctly different stage in the sentencing process. It deals with characterising offenders as "supervised offenders" and the controls that are imposed upon "supervised offenders" after the completion of a sentence. In contrast to sentencing schemes that impose controls upon offenders at the time of conviction (or shortly thereafter), legislation that allows post-sentence curtailment of an offenders liberties is of more recent origin. [19]
A number of post-sentence preventative detention regimes were enacted across Australian jurisdictions in the 1990s, Victoria being the first to do so, with the Community Protection Act 1990 (Vic). New South Wales was the second.
The Community Protection Act 1994 (NSW) (now repealed) came into force on 9 December 1994. The introduction of that Act was prompted by offending of Gregory Wayne Kable. In the course of Mr Kable serving a term of imprisonment for the manslaughter of his wife, he sent a number of threatening letters to members of his deceased wife's family, which raised safety concerns for them. As a result, the Community Protection Act was introduced. Section 3 of that Act related specifically to Mr Kable and provided: 3 Objects and application of Act (1) The object of this Act is to protect the community by providing for the preventive detention (by order of the Supreme Court made on the application of the Director of Public Prosecutions) of Gregory Wayne Kable. (2) In the construction of this Act, the need to protect the community is to be given paramount consideration. (3) This Act authorises the making of a detention order against Gregory Wayne Kable and does not authorise the making of a detention order against any other person. (4) For the purposes of this section, Gregory Wayne Kable is the person of that name who was convicted in New South Wales on 1 August 1990 of the manslaughter of his wife, Hilary Kable.
The Community Protection Act was the subject of a constitutional challenge in the High Court. Brennan CJ noted in Kable v DPP (NSW) (1996) 189 CLR 51 at 63; [1996] HCA 24 ("Kable") that whilst the provisions in the Community Protection Act were introduced in general terms, they were amended and "restricted in the course of the passage of the Bill through Parliament" notably because "the liability to suffer the consequences of a detention order was limited so that only the person against whom a detention order might be made was the appellant, Gregory Wayne Kable". A majority of the High Court bench ultimately held that the Community Protection Act was invalid as it required a Chapter III court (as defined in the Commonwealth Constitution) to perform a non-judicial function incompatible with federal judicial power and was incompatible with s 71 of the Commonwealth Constitution.
Thereafter, a series of Bills seeking to introduce post-sentence preventative detention schemes targeted towards serious sex offenders emerged in the 2000s. [20] In 2003 the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) came into force in Queensland, which introduced a scheme of supervision orders and post-sentence preventative detention. In effect, the Dangerous Prisoners (Sexual Offenders) Act is similar to New South Wales legislation relating to high risk offenders, which will be discussed below. Section 13 of the Dangerous Prisoners (Sexual Offenders) Act enables the Court to make an order in respect of a prisoner if the Court is satisfied the prisoner is a "serious danger to the community" and there is an unacceptable risk the prisoner will commit a serious sexual offence if the prisoner is released from custody or released from custody without a supervision order: s 13 of the Dangerous Prisoners (Sexual Offenders) Act.
Like the Community Protection Act, the Dangerous Prisoners (Sexual Offenders) Act was also subject to constitutional challenge. However, unlike the decision in Kable, the High Court held in Fardon v Attorney-General (Qld) (2004) 223 CLR 575 ("Fardon") the legislation was constitutional. This had the effect of acting as a "green light" for a number of other states, including NSW, to introduce post-sentence preventative detention schemes. [21]
Two years after the decision in Fardon, in 2006 the New South Wales Parliament introduced the Crimes (Serious Sex Offenders) Bill 2006 (NSW). The Bill was directed towards targeting: "a handful of high-risk, hard-core offenders who have not made any attempt to rehabilitate whilst in prison…These concerns are compounded where the offender never qualifies for parole and is released at the end of their sentence totally unsupervised. The bill addresses this problem by allowing this small group of high-risk offenders to be placed on extended supervision, or, in only the very worst cases, kept in custody." [22]
The Crimes (Serious Sex Offenders) Act 2006 (NSW) commenced operation on 3 April 2006.
It is helpful at this point to note that the Crimes (Serious Sex Offenders) Act 2006 (NSW) was subject to a number of amendments one of which broadened the scope of the Act to violent offenders, such that the name of the Act was amended to the Crimes (High Risk Offenders) Act 2006 (NSW). The amending acts of relevance, that will be discussed below, are the: 1. Crimes (Serious Sex Offenders) Amendment Act 2013 (NSW); 2. Crimes (High Risk Offenders) Amendment Act 2014 (NSW); 3. Crimes (High Risk Offenders) Amendment Act 2016 (NSW); and the 4. Crimes (High Risk Offenders) Amendment Act 2017 (NSW).
In March 2013, the Crimes (Serious Sex Offenders) Amendment Bill 2013 (NSW) ("2013 Amendment Bill") was introduced for the purpose of broadening the scope of the Crimes (Serious Sex Offenders) Act 2006 (NSW) to apply to violent offenders who had not engaged in sexual offending.
The 2013 Amendment Bill was precipitated by an examination of the Crimes (Serious Sex Offenders) Act 2006 conducted by the New South Wales Sentencing Council commencing in 2009, and a Statutory Review of the Act in 2010. During the course of the Statutory Review, in April 2010, and in line with a direction from the Premier of NSW, Corrective Services undertook an audit of all "serious offenders" in custody. [23] The audit was designed to identify which violent offenders were not taking responsibility for their actions; identify which offenders were participating in rehabilitation programs; and help determine whether stricter orders should be implemented to keep offenders incarcerated. [24] The Statutory Review noted that despite its infrequent use, the Habitual Criminals Act 1957 had not yet been repealed, and was still the law in New South Wales and considered that the issue of post-custody management options for high risk violent offenders should be referred to the New South Wales Sentencing Council. [25] In the New South Wales Sentencing Council's Report published in May 2012, the majority of the New South Wales Sentencing Council reached a view that with respect to the legislative framework that existed in NSW at the time "there [was] a gap that might justify an additional sentencing or post-custody management option for high risk violent offenders." [26]
The Crimes (Serious Sex Offenders) Amendment Bill 2013 altered the name of the Act by replacing "Serious Sex Offenders" with "High Risk Offenders". The Bill also introduced s 5A into the Crimes (High Risk Offenders) Act (as it became known as) which set out the term "serious violence offence" in the following terms: 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. (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.
In considering Parliament's intention as to the operation of the legislation, as amended, it is relevant to briefly reflect on the Second Reading Speech for the 2013 Amendment Bill: "The New South Wales Sentencing Council in its report on high- risk violent offenders noted that there is a gap in the New South Wales legislative framework for dealing with high-risk violent offenders. This bill closes that gap by expanding the scheme in place for sex offenders that has been tested in the High Court. It does not try to reinvent the wheel, but picks up these tried provisions and extends them to high-risk violent offenders. [27] (Emphasis added.)
Helpfully, comments in the Second Reading Speech for the 2013 Amendment Bill also shed light on the meaning of "serious violence offence" and what comprises a "serious violence offence": "Item [5] of schedule 1 sets out the definition of a "serious violence offence". As the New South Wales Sentencing Council pointed out, defining who is a high-risk violent offender is a difficult task. The first step in the process is defining which violent offenders are eligible for the scheme. In the case of sex offenders, this is relatively simple: Eligibility is defined by identifying a list of sex-specific offences. However, violence arises from a wide range of human behaviours. The bill has taken a different approach by describing more broadly the activity that is subject to these provisions. For an offender to be eligible for consideration under the proposed new provisions he or she must have committed an offence with a serious outcome - the death of, or grievous bodily harm to, another person. That physical outcome must be accompanied by a mental element of intending to cause, or being reckless as to causing, actual bodily harm, grievous bodily harm or death. Recklessness as to actual bodily harm has been included as a reflection of recent amendments by this Government to the provisions governing reckless infliction of harm. Those amendments clarified that recklessness is the relevant fault element for those offences. It is appropriate that this fault element should also apply for the purposes of identifying relevant serious violence offences under this scheme. The definition in the bill also accommodates the fact that in some cases an offender may not have actually caused grievous bodily harm or death. The police may have stopped the offender at the last minute, or the offender may have hired another to commit the physical act for them. Such people should not escape the possibility of being captured by this scheme. The bill, therefore, includes in the definition an attempt, conspiracy or incitement to commit an offence involving grievous bodily harm or death. The bill represents a targeted approach to violent crime. The bill does not extend the possibility of continuing detention and extended supervision to every violent offender in our jails. To qualify, an offence must be a serious indictable offence. A serious indictable offence has the same meaning as it does in the Crimes Act 1900 - that is, an indictable offence that is punishable by imprisonment for life or for a term of five years or more. This means, for example, that a person who negligently causes grievous bodily harm will not be eligible. Not only does the mental element of the offence fall short of intention or recklessness, but also the penalty for such an offence is only two years." [28] (Emphasis added.)
On 19 March 2013 the Crimes (Serious Sex Offenders) Amendment Act 2013 (NSW) commenced operation.
Further amendments were made to the Crimes (High Risk Offenders) Act 2006 (NSW) in October 2014. The Crimes (High Risk Offenders) Amendment Bill 2014 (NSW) was introduced and passed as the Crimes (High Risk Offenders) Amendment Act 2014 (NSW). The 2014 Amendment Act established a High Risk Offenders Assessment Committee (s 24AB of the Act) and introduced ex parte emergency detention orders (s 18CA of the Act), amongst other amendments (none of which provide insight into the origins of or definition of "serious violence offence"). The 2014 Amendment Act also inserted the following definition of "serious offence" in the following terms: serious offence means: (a) in the context of a high risk sex offender - a serious sex offence, or (b) in the context of a high risk violent offender - a serious violence offence.
Two years later, the Crimes (High Risk Offenders) Amendment Bill 2016 was passed. The Crimes (High Risk Offenders) Amendment Act 2016 (NSW) commenced on 7 June 2016 and inserted subsection (2A) into s 5A of the Act to clarify the reference to a "serious violence offence".
At the time of amendment, s 5A of the Act was in the terms set out at [84] of this judgment.
The provision that was inserted by the 2016 Amendment Act after s 5A(2) provides: (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.
The Explanatory Note to the Crimes (High Risk Offenders) Amendment Bill 2016 (NSW) states that: "The object of this Bill is to ensure that the class of violent offenders in relation to whom the State can apply to the Supreme Court for orders requiring their continuing detention or extended supervision following the expiry of an existing sentence of imprisonment or period of supervision extends to offenders convicted of any of the following serious indictable offences: (a) murder that occurs in the course of the commission of another serious crime (known as "constructive murder"), (b) manslaughter by unlawful and dangerous act, (c) wounding with intent to cause death or grievous bodily harm." [29]
In the Second Reading Speech to the Crimes (High Risk Offenders) Amendment Bill 2016, the Attorney-General stated that, if passed, that Act will apply to violent offenders who have been imprisoned for a number of specific offences: "The bill will clarify that the Act applies to violent offenders who have been imprisoned for the offences of: wounding with intent to cause grievous bodily harm, manslaughter by unlawful and dangerous act, and murder that occurs in the course of committing another serious crime, known as constructive murder. The offences have maximum penalties similar to those already clearly covered by the Act. The bill addresses limitations where some very violent crimes, such as shootings and stabbings, are potentially not covered by the Act due to the technical elements of the offence the person was charged with. The Act was intended to cover these types of offending; however, a technical limitation in the drafting of the Act has recently been identified. In some individual cases, there are no distinguishing features between these offences and the offences currently covered by the Act - the nature of the violent offending of people who have been imprisoned for these offences is sometimes just as serious in nature as that of offenders currently covered by the Act. There is a concern that the present definition of "serious violence offence" in the Act could apply haphazardly to some criminal offences but not to others of objectively greater seriousness." [30] (Emphasis added.) and "Finally, the bill clarifies that a serious indictable offence that is constituted by a person engaging in conduct that causes grievous bodily harm includes conduct that wounds another person. The person must still have intended to cause the death of another person or grievous bodily harm. In practice, offenders are often convicted of the offence of wounding when the harm caused was grievous bodily harm. This is because it is easier for the prosecutor to prove the offence of wounding, and the same maximum penalty applies. This is creating a limitation in the Act whereby people who have engaged in the same criminal conduct, such as shooting or stabbing someone, are either covered or not covered by the Act depending on the offence they were charged with and convicted of. Currently, an offender who is convicted of attempting to cause grievous bodily harm but who in fact did not harm the victim would be covered by the Act, but an offender who is convicted of actually wounding the victim would not be covered. This bill will address these limitations by clarifying that applications can be made in respect of offenders serving sentences of imprisonment for the offence of wounding with intent to cause grievous bodily harm. It is the offenders who are serving sentences of imprisonment for wounding - but who intended to cause grievous bodily harm - to which it is envisaged that the Act would now apply in practice." [31]
The Attorney-General made clear that up until this amendment, a number of violent crimes were not covered by the Act owing to "technical elements of the offence", clearly implying that the "elements" of the offence are what precluded a number of offences, supporting the contention that it is elements (and only the elements, given there is no reference to evidence beyond the elements) that must be used to determine the nature of a "serious violence offence".
It is also noted in that Second Reading Speech that prior to the 2016 Amendment Act there was a "limitation in the Act whereby people who have engaged in the same criminal conduct… are either covered or not covered by the Act depending on the offence they were charged with and convicted of." The limitation in the Act stemmed from certain offences falling within the definition of a "serious violence offence" based on their elements only.
The Crimes (High Risk Offenders) Amendment Bill 2017 (NSW) was subsequently introduced and passed as the Crimes (High Risk Offenders) Amendment Act 2017 (NSW) to further amend the Act. Of relevance, the definition of "serious offence" was amended in the following manner: [8] Section 4, definition of "serious offence" Omit the definition. Insert instead: serious offence means: (a) a serious sex offence, or (b) a serious violence offence.
The 2017 Amendment Act related to "eligibility requirements" and was targeted towards "generalist offenders" who have a history of "general offending rather than a category of one offence" [32] .
The Explanatory Note to the Crimes (High Risk Offenders) Amendment Bill 2017 (NSW) states that an object of the Bill is: "(a) to remove the distinction between the two categories of high risk offender so that orders for the continued supervision and detention of high risk sex offenders and high risk violent offenders may be made if an offender poses a risk of committing either a serious violence offence or serious sex offence and to make consequential amendments throughout the Principal Act (Schedule 1 [1], [3]-[8], [14], [15], [17], [21], [24], [25], [27], [30], [31], [35], [38], [41], [42], and [58]-[60]). [33]
The Second Reading Speech for the Crimes (High Risk Offenders) Amendment Bill 2017 states: "…These reforms improve the scheme so that community safety will be the paramount consideration of the court when considering whether to make a continuing detention order [CDO] or ESO; more offenders will be eligible for the scheme as the court will be required to consider an offender's criminal history and future risk of sex and violent offences, instead of just one or the other; and the test for deciding whether to impose a CDO will be strengthened so that an offender's risk to the community is considered instead of whether they can be adequately supervised. The reforms are part of the package of criminal justice reforms. They complete that package by ensuring there are measures in place so that the most serious high-risk sex and violent offenders are subject to a robust framework for post-sentence supervision and detention. I now outline the details of the bill. Items [1], [3] to [8], [14], [15], [17], [21], [24], [25], [27], [30], [31], [35], [38], [41], [42], [50] and [58] to [60] of schedule 1 will remove the distinction between the two categories of high-risk offender so that orders for the continued supervision and detention of high-risk sex offenders and violent offenders may be made if an offender poses a risk of committing either a serious violent offence or a serious sex offence." [34]
As can be gleaned from this brief legislative history, considerable attention has been given to the objectives of the statutory regime; the offences that should be included within its scope; the operation of the Act; and, importantly, its limitations, given the substantial intrusion on the liberty and privacy of the individual, that the making of a supervision order entails.

Principles of construction

In construing statute - in this case, s 5A and the definition of "serious violence offence" contained within that provision - I have had regard to the principle of legality as set out by French CJ in Momcilovic v the Queen [2011] HCA 34; (2011) 245 CLR 1 at [42]-[43]: "[42] The common law in its application to the interpretation of statutes helps to define the boundaries between the judicial and legislative functions. That is a reflection of its character as "the ultimate constitutional foundation in Australia" [68]. It also underpins the attribution of legislative intention on the basis that legislative power in Australia, as in the United Kingdom, is exercised in the setting of a "liberal democracy founded on the principles and traditions of the common law."[69] It is in that context that this Court recognises the application to statutory interpretation of the common law principle of legality. [43] The principle of legality has been applied on many occasions by this Court. It is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. It requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law[70]. The range of rights and freedoms covered by the principle has frequently been qualified by the adjective "fundamental". There are difficulties with that designation[71]. It might be better to discard it altogether in this context. The principle of legality, after all, does not constrain legislative power[72]. Nevertheless, the principle is a powerful one. It protects, within constitutional limits, commonly accepted "rights" and "freedoms". It applies to the rules of procedural fairness in the exercise of statutory powers[73]. It applies to statutes affecting courts in relation to such matters as procedural fairness and the open court principle, albeit its application in such cases may be subsumed in statutory rules of interpretation which require that, where necessary, a statutory provision be read down so as to bring it within the limits of constitutional power[74]. It has also been suggested that it may be linked to a presumption of consistency between statute law and international law and obligations[75]." (Footnotes omitted.)
Regard must be had to the primary object of the Act which is contained in s 3(1) and 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".
The word "ensure", which is referred to in the objects of the Act, is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection: State of New South Wales v King (Final) [2019] NSWSC 151 ("King (Final)") at [11].
Another object of the Act is to encourage high risk offenders to engage in rehabilitation, provided for in s 3(2) of the Act: "…another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation".
The Court's power to impose particular conditions upon a "supervised offender" depends upon the scope of the Act: State of New South Wales v Rush (Final) [2022] NSWSC 984 at [91] citing Winters v Attorney-General of New South Wales [2008] NSWCA 33 at [19].
Imposing restrictions or constraining an individual's liberty requires careful consideration. In State of New South Wales v Donovan [2015] NSWSC 1254 McCallum J (as her Honour then was) considered at [2] that: "After serving any sentence of imprisonment lawfully imposed, an offender has the right to personal liberty. That is "the most fundamental and important of all common law rights". It is one which "cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes": Williams v the Queen [1986] HCA 88; 161 CLR 278 at 292 per Mason and Brennan JJ."
There are a number of principles the Court must have regard to when imposing conditions on an offender. Those principles are set out in State of New South Wales v Wilkinson (Preliminary) [2020] NSWSC 1813 at [44]: "1. having served a sentence of imprisonment for their offences, an offender has a right to personal liberty, however, this right is not absolute: State of New South Wales v Donovan at [83]; 2. in imposing conditions, the Court needs to strike a balance between competing considerations: Attorney General for NSW v Tillman at [68]; 3. a relevant consideration in imposing conditions is that a breach gives rise to a criminal penalty: State of New South Wales v Ley Thomas Baker (No 2) [2015] NSWSC 483 at [36]; 4. conditions do not have to have a demonstrated link to past offending, but they should address the risk of future offending based on the scope, purpose and objects of the Act: Wilde v State of New South Wales [2015] NSWCA 28 at [53]. 5. conditions should not be designed toward future general criminal conduct, but instead focussed on mitigating the risk of a serious offence: State of New South Wales v Green (Final) [2013] NSWSC 1003 at [36]-[38]. 6. conditions must not be unjustifiably onerous or punitive, "nor should they simply be an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision": State of New South Wales v Bugmy [2017] NSWSC 855. 7. conditions "must be understood as having substantial work to do; a mere speculative possibility that it could be useful will not suffice": State of New South Wales v Ley Thomas Baker (No 2) at [36]. 8. to ensure a balance between the community interests and personal liberty, the Court should impose conditions that are the least intrusive possible (Lynn v State of New South Wales at [129]-[131])."
The conditions imposed upon an offender must not be unjustifiably onerous or simply punitive: Wilde v State of New South Wales (2015) 249 A Crim R 65; [2015] NSWCA 28 at [45] citing R A Hulme J in State of New South Wales v Green (Final) [2013] NSWSC 1003. Nor should those conditions be, as set out in State of New South Wales v Bugmy [2017] NSWSC 855 at [89]: "…an expression of State paternalism or imposed to meet what might be thought to be in the public interest in some generalised sense or because they might be a convenient or resource efficient means of the Department exercising supervision under an extended supervision order."
The principles applying to the extent and nature of conditions attaching to an order also reflects a recognition of the balance between community safety, acknowledging its primacy as an objective, and the liberty and privacy of an individual.

Extended Supervision Order Requirements

Section 5H of the Act provides that the State may apply to the Supreme Court for an ESO against an "offender".
Section 5I(1) of the Act provides that an application for an ESO may be made only in respect of a "supervised offender". 5I Application for extended supervision order (1) An application for an extended supervision order may be made only in respect of a supervised offender. …
A "supervised offender" is defined in s 5I(2) of the Act. For the purposes of this application, a "supervised offender" is a offender who, when the application for the order is made, is in custody or under supervision while serving a sentence of imprisonment for a "serious offence": s 5I(2)(a)(i).
A "serious offence" is defined as a "serious violence offence" under s 4(1) of the Act, which provides: serious offence means - (a) a serious sex offence, or (b) a serious violence offence.
The definition of a "serious violence offence" is contained in ss 5A(1), (2) and (2A) of the Act, which provide: 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. …
The Court's power to make an ESO is discretionary. Section 9(1) of the Act provides that the Court may determine an application for an ESO by either making an ESO or dismissing the application.
Sections 9(2) and (3) of the Act provide for a number of mandatory considerations to which the Court must have regard in determining whether or not to make an ESO as follows: 9 Determination of application for extended supervision order … (2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court. … (3) In determining whether or not to make an extended supervision order, the Supreme Court must also have regard to the following matters in addition to any other matter it considers relevant - (a) (Repealed) (b) the reports received from the persons appointed under section 7 (4) to conduct examinations of the offender, and the level of the offender's participation in any such examination, (c) 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, (d) the results of any statistical or other assessment as to the likelihood of persons with histories and characteristics similar to those of the offender committing a further serious offence, (d1) any report prepared by Corrective Services NSW as to the extent to which the offender can reasonably and practicably be managed in the community, (e) any treatment or rehabilitation programs in which the offender has had an opportunity to participate, the willingness of the offender to participate in any such programs, and the level of the offender's participation in any such programs, (e1) options (if any) available if the offender is kept in custody or is in the community (whether or not under supervision) that might reduce the likelihood of the offender re-offending over time, (e2) the likelihood that the offender will comply with the obligations of an extended supervision order, (f) without limiting paragraph (e2), the level of the offender's compliance with any obligations to which he or she is or has been subject while on release on parole or while subject to an earlier extended supervision order, (g) 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, (h) 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, (h1) the views of the sentencing court at the time the sentence of imprisonment was imposed on the offender, (i) any other information that is available as to the likelihood that the offender will commit a further serious offence. …
The first issue requires a determination of whether this application for an ESO is competent, a question that involves consideration of whether the index offence is a "serious violence offence". In short, in order to be the subject of preliminary orders, the defendant must have been imprisoned after conviction for a "serious violence offence" as defined in s 5A of the Act.
In determining if an offence is a "serious violence offence", a question arises as to whether the Court is limited to a consideration of the constituent elements of the offence of which the defendant has been convicted or whether the Court is entitled to have regard to the evidence said to substantiate those elements; to draw inferences from that evidence, and to make findings outside the scope of the elements of the offence.
The defendant has been convicted of and is serving a sentence for an offence against s 98 of the Crimes Act. Section 98 provides: 98 Robbery with arms etc and wounding Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person, robs or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflict grievous bodily harm upon such person, shall be liable to imprisonment for 25 years.
The elements of an offence contrary to s 98 are that: 1. While the offender was: 1. Armed with an offensive weapon or instrument; or 2. in company; 1. The offender did rob or assault a person; 2. The offender did have the intention to rob any person; and 3. In doing so - either immediately before, after, or during the robbery - assaults, wounds or inflicts grievous bodily harm on such a person.
In Ryan the High Court considered the offence of armed robbery with wounding contrary to the Crimes Act which at that time provided: 98. Whosoever, being armed with an offensive weapon, or instrument, or being in company with another person so armed, robs, or assaults with intent to rob, any person, and immediately before, or at the time of, or immediately after, such robbery, or assault, wounds, or inflicts grievous bodily harm upon, such person, shall be liable to penal servitude for life.
It is clear on the text of s 98 that an offence contrary to that provision is not constituted by an intention to cause, or recklessness as to causing, grievous or actual bodily harm to another person. Intention and/or recklessness as to grievous bodily harm is not an element of the offence; only the infliction of that grievous bodily harm is an element of the offence. A key observation in Ryan was that where the act which caused "wounding" was not in any relevant sense an act of the accused, a charge contrary to s 98 would fail, because, in that situation it was not the accused's act that had caused the wounding: Ryan at [231] per Taylor and Owen JJ.
In Ryan, Barwick CJ also commented on the construction of s 98, in particular, with respect to "wounding" at 223-224: "I turn first to the construction of s. 98. There can be no doubt, in my opinion, that the wounding must be by the voluntary act of the accused: "whosoever wounds" is not satisfied by the mere fact that before, during or immediately after a robbery with arms the victim is in fact wounded. But will any act of the accused which causes the wounding suffice, or must there be a specific intent on the part of the accused by that act to wound the victim of the robbery. It is at the outset noticeable that the word "maliciously", found in s. 32, is absent from s. 98. I would take this omission to be deliberate and significant. In s. 32 nothing but the presence of that word would introduce the elements recited in the definition of malice in s. 5. In the case of s. 98, the earlier acts of robbery with arms introduces the element of unlawfulness, and makes unnecessary the use of the word "maliciously" merely to confine the wounding to some occasion of criminal behaviour. I do not think that s. 98 should be construed as if the word "maliciously" were inserted before the word "wounds". Further, s. 98 bears somewhat the same relation to s. 97 as s. 96 bears to s. 95. In each bracket, it is the wounding that enlarges the punishment from penal servitude for 14 years to penal servitude for life. I think it is instructive to observe that in the case of s. 96 it is the wounding thereby, ie, by the commission of the crime under s. 95 which constitutes the aggravated offence. That crime may be committed by a robbing preceded, accompanied or followed by a striking of a person or the use of violence to a person, in either case not necessarily the victim of the robbery. Clearly, it is the element of striking or use of violence by which the wounding will most likely be effected so as to satisfy s. 96. But according to the precise language of s. 96 the person wounded need not be the same person as the person struck or towards whom violence was used, who in turn, as I have observed, need not be the person robbed. It seems to me that under s. 96 whilst the striking or the use of violence must be voluntary, there need be no intention to wound and particularly no intention to wound the person who is in fact wounded. It seems to me that an accused may be guilty of the offence under s. 96, when he has robbed A, struck B and wounded C by the blow which he aimed at B, having towards C no intent even of the most general kind. Therefore, "whosoever . . . wounds" in s. 96 does not, in my opinion, import any intention to wound. But whilst there need be no intent to wound, the wounding must be by the accused. Therefore, the striking or the use of violence must be of such a nature or with such a weapon or implement as to be capable of wounding some person. But this does not mean that it must be found that the accused ought to have realized that his act would wound." (Emphasis added.)
In the above passage, his Honour draws on the terms of s 96 of the Crimes Act to shed light on the scope of s 98, and whether intention is required to prove an offence under that provision. Section 96 is in somewhat similar terms to s 98 and provides: 96 Same (robbery) with wounding Whosoever commits any offence under section 95, and thereby wounds or inflicts grievous bodily harm on any person, shall be liable to imprisonment for 25 years.
Barwick CJ considered that it is only necessary that an individual must be wounded in the course of a robbery and there need not be an associated intention to wound. It is sufficient that wounding of someone is caused by an act of the accused. His Honour in particular noted that in s 98, it was not necessary to import "maliciously" - a word indicative of some level of intention - prior to "wounds" in s 98 so that the provision would read that "whosoever… maliciously wounds, or inflicts grievous bodily harm." The absence of the term in s 98 would suggest that Parliament did not intend that an accused's intention to inflict grievous bodily harm is required to be proved for an offence contrary to s 98.
This construction appears to suggest that there was an express exclusion of intention as an element of s 98, which supports the submission that s 98 does therefore not fall within the scope of "serious violence offence" under s 5A(1)(a) of the Act (which requires that a defendant has the "intention of causing" or is "reckless as to causing, the death of another person or grievous or actual bodily harm to another person").
State of New South Wales v Lynn [2013] NSWSC 1147 ("Lynn (SC, 2013)") appears to be one of the earliest decisions that dealt with the scope of the term "serious violence offence" under s 5A of the Act (albeit briefly), following the 2013 amendments to the Act. The judgment related to an application for an ISO.
It is useful to note at this point, that after the decision in Lynn (SC, 2013) two subsequent procedural rulings were made in relation to Mr Lynn. One in 2015, State of New South Wales v Lynn [2015] NSWSC 665 ("Lynn (SC, 2015)") per Hidden J, and the other in 2019, State of New South Wales v Lynn (Final) [2019] NSWSC 580 ("Lynn (SC, 2019)"), per Ierace J. Neither of these decisions dealt with the meaning of "serious violence offence" in detail. The later decision of Ierace J, Lynn (SC, 2019), was subject to an appeal, Lynn (CA, 2019), which will be dealt with further below. All the decisions related to the same offending committed by Mr Lynn.
His Honour Button J's decision in Lynn (SC, 2013) did not set out the specific facts of Mr Lynn's offending. However, Hidden J's judgment in Lynn (SC, 2015) which related to an ESO application, did set out the facts of the offending. The following summary of that offending is therefore taken from Lynn (SC, 2015).
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 his heart and wounded his lung.
Mr Lynn was charged with murder. In April 2008 a jury was unable to agree upon a verdict. He subsequently entered a plea of guilty to manslaughter which was accepted on the basis of excessive self-defence.
Button J considered the background to the application for the ISO at [5]. The defendant was in custody at the time of hearing, having breached parole. His sentence was set to expire in two days. That sentence related to the defendant's conviction for manslaughter that was entered as a result of a plea of guilty on the basis of excessive self-defence.
With respect to Mr Lynn's manslaughter conviction falling within the scope of a "serious violence offence" under s 5A, Button J remarked at [9]: "I say that because, although not all manslaughters will fall within that definition, this one does. That is because a plea of guilty to manslaughter based upon excessive self-defence implicitly accepts that there had been on the part of the offender an intention to kill or inflict grievous bodily harm. Manslaughter is also of course a "serious indictable offence" as defined in the Crimes Act 1900." (Emphasis added.)
His Honour makes clear that an offence that comprehends an element of intention (to kill or inflict grievous bodily harm), as Mr Lynn's manslaughter plea did, may fall within the scope of s 5A. In the present case, the conviction for the s 98 comprehends the elements of s 98. Those elements do not include "intention". The elements are not opaque. The pathway to conviction in the present case did not involve variable elements and there was no pathway to conviction which comprehended elements of intention or recklessness.
The case of Evers does not support the plaintiff's contention. Evers related to an application for an ISO. In Evers the defendant was originally charged with five counts of murder. In a trial by judge alone in the Supreme Court of New South Wales, the defendant relied upon the partial defence of diminished responsibility (a partial defence that is similar, but not identical, to the partial defence of substantial impairment now contained in s 23A of the Crimes Act): Evers at [11]. The Crown did not dispute that the mental condition of the defendant at the time of the offences should reduce his culpability. He was, as a result, convicted of five counts of manslaughter.
The parties jointly submitted in Evers that all of the statutory preconditions for the making of the orders had been established: Evers at [32]. Although Button J did examine the circumstances of the offending in concluding that the conduct demonstrated an intention to kill (at [34]), His Honour did not state as a matter of principle, that in determining whether an offence is a "serious violence offence", a court should consider the evidence or the circumstances of the offending. (Indeed, in a later decision, Decision Restricted, Button J explicitly rejected such an approach at [68].)
Furthermore at [34], Button J emphasised that "the verdict of not guilty of murder but guilty of manslaughter was based upon the partial defence of diminished responsibility; it was not based upon the absence of a requisite mental element for the offence of murder": "In that regard, the parties were agreed that the five counts of manslaughter fall within the definition of a "serious violence offence" contained in s 5A(1)(a) of the Act. They submitted that that was because, although it may be arguable whether all cases of manslaughter fall within that definition, these examples of the offence undoubtedly do. That is because they featured, at the very least, an intention to cause grievous bodily harm to another person (to my mind, the repeated discharges of shotgun blasts at very close range unquestionably demonstrated an intention to kill). As I have explained, the verdict of not guilty of murder but guilty of manslaughter was based upon the partial defence of diminished responsibility; it was not based upon the absence of a requisite mental element for the offence of murder."
The above passage demonstrates that some recourse was had to the circumstances of the offending noting that the offending "…featured, at the very least, an intention to cause grievous bodily harm to another person" because the repeated discharge of a firearm at close range "unquestionably" demonstrated an intention to kill. Unlike the present offending, the elements of the offence in Evers were determined based on the partial defence of diminished responsibility that was raised, and not simply on the evidence.
The defendant's conviction for manslaughter by reason of diminished responsibility contemplated the elements of murder (including intention). Unlike Evers, the present defendant's conviction was not reached through a finding of guilt to an alternate charge, by a process of reasoning that must have comprehended an element of intention.
Evers was decided prior to the 2016 amendments to the Act which broadened the definition of "serious violence offence" to include constructive murder, manslaughter by unlawful and dangerous act, and wounding with intent to cause grievous bodily harm. [35] It is useful, therefore, to examine the authorities post-dating those amendments.
The two key decisions relating to a "serious violence offence" that were decided after the 2016 amendments are Decision Restricted and Lynn (CA, 2019). Both Lynn (CA, 2019) and Decision Restricted, strongly support the proposition that the Court ought to look only to the elements of an offence to assess whether an offence is "serious violence offence", save for limited circumstances.
In Decision Restricted the defendant was convicted and sentenced to imprisonment for an offence of causing grievous bodily harm while reckless as to the infliction of actual bodily harm, contrary to s 35(2) of the Crimes Act. The making of an ESO was opposed by counsel for the defendant. A central dispute was whether the preconditions for the making of such an order had been established by the plaintiff.
The defendant in that case was convicted of an offence of inflicting grievous bodily harm reckless as to the infliction of actual bodily harm contrary to s 35(2) of the Crimes Act. It was submitted that when deciding whether s 35(2) was a "serious violence offence", the Court was required to examine the evidence in the criminal proceedings for the index offence. Button J summarised the submissions for the defendant at [54] as follows: "…In considering whether the preconditions contained in s 5A has been made out for the purposes of the preliminary application under the act, it is not a matter of a judge of this Court looking to the elements of the offence for which a conviction was entered against the defendant. Rather, she submitted, it is a matter of that judge examining for himself or herself the evidence that was placed before the court in support of that conviction (whether by way of trial, summary hearing, or plea of guilty) and thereafter determining whether that evidence establishes the test contained in that section".
At [56]-[58] of Decision Restricted, Button J rejected the defendant's submission that the Court ought to look to the evidence when determining whether an offence is a "serious violence offence" for the purposes of s 5A of the Act, for the following reasons: "[56] First, to the extent that s 5A(2) of the Act speaks explicitly of elements, that explicit reference gives rise to a powerful inference that it is elements that are to be analysed for the purposes of s 5A(2) as a whole, not the evidence said to establish those elements. [57] Secondly, it is very difficult to accept that Parliament intended that a judge hearing an application such as this would embark upon his or her own analysis of the evidence said to support or not support a conviction for an offence, the elements of which fall within the definition of s 5A(1) of the Act. Such an exercise would have obvious logistical difficulties. It could also call upon a judge of this Court, in the case of a conviction founded upon a verdict of guilty of a jury, to "disagree" with that verdict. One would be slow indeed to infer such a counter-intuitive result. [58] Thirdly, I consider it much more likely that Parliament intended to impose a regime of curtailment of the liberty of citizens that was founded upon precise preconditions, in the sense of a person (and his or her lawyers) being able readily to determine whether or not the person is liable to have an order made against him or her, simply on the basis of an analysis of one's convictions, and not on an analysis of (perhaps voluminous and contestable) evidence."
Of note, in particular, is that his Honour specifically considered that prior to the 2016 amendments to the Act, there were a small subset of offences for which the evidence of an offence could be considered to determine whether that offence was a "serious violence offence" at [60]-[61]: "[60] Fifthly, it is true that, until recently, for a limited class of offences, it was necessary to analyse the evidence as opposed to the elements, for the purposes of the Act: see my discussion in State of New South Wales v Mackey [2015] NSWSC 514 and the Crimes (High Risk Offenders) Amendment Act 2016 (NSW), which commenced on 7 June 2016. [61] To give two very well-known examples, there are three potential mental elements for the offence of murder, and one set of circumstances in which it may be committed without any mental element for murder at all (constructive murder, formerly known as felony murder). It seems that some of those "versions" of murder would have fallen within the definition, and some would not, before the commencement of the amending Act. Similarly, there are many "pathways" to a conviction for manslaughter; again, it seems that some of them would have fallen within the definition and some would not, at least before the amendment. It may be that other such offences remain that have not been captured by the amendment."
His Honour went on to say that there may be some exceptions, requiring a consideration of the evidence and/or circumstances of the offending but that such a course should only be taken where the elements of the offence are "opaque" at [62]: "I accept that it may still be the case that, in some limited circumstances, in determining whether an offence of which a defendant has been convicted falls within the definition of a "serious violence offence", the elements of the offence (if they are opaque with regard to the requirements of the sub-section) are not the end of the matter. In the vast majority of cases, however, that analysis will not be required, and the elements of the offence will speak for themselves as to whether they are or are not captured by the definition. In other words, the possible remaining need for the analysis of a number of exceptional offences that may be made out in a number of ways, does not, to my mind, mean that all offences are to be approached in that way." (Emphasis added.)
Button J ultimately concluded at [68]: "In short, as a matter of statutory interpretation, I do not accept that, in order to determine whether the defendant has committed a serious violence offence, I need to analyse the evidence that was placed before the relevant court in support of that proposition. Rather, I believe that my analysis must be limited to the elements of an offence of which he was convicted, and for which he was sentenced to imprisonment.
The elements of s 35(2) - that a person causes grievous bodily harm to any person and/or is reckless to causing actual bodily harm to that or any other person - considered in Decision Restricted, are clearly encompassed within the definition of a "serious violence offence". Section 5A(1)(a) of the Act clearly contemplates that a person who is "[engages in conduct] that causes… grievous bodily harm to another person… with the intention of causing, or while being reckless as to causing…. actual bodily harm to another person." In Decision Restricted the defendant was convicted of and imprisoned for the offence of causing grievous bodily harm while reckless as to actual bodily harm. The elements themselves included recklessness.
Unlike the "limited class of offences" referred to by Button J in Decision Restricted, in this case, the elements of the s 98 offence are not opaque.
The decision in King (Final) related to an application by the plaintiff for an ESO to be imposed on the defendant who had been convicted of an offence contrary to s 35(2) of the Crimes Act, of recklessly inflicting grievous bodily harm. That is, the defendant caused grievous bodily harm and was reckless as to causing grievous bodily harm.
In that case, Walton J dealt with a submission by a defendant that the Court could not be satisfied that the defendant was an "offender" because the victim's injury, based on what was contained in an agreed statement of facts (placed before the District Court in the sentencing of the offender for the index offence), did not amount to "grievous bodily harm". It was submitted that the Court could not be satisfied that the offence was a "serious violence offence" as that term is defined in s 5A: King (Final) at [19(2)]). Walton J rejected that construction: at [20].
To find that the injury was not in fact "grievous bodily harm" would require the Court to look beyond the elements to consider the evidence of the harm sustained by the victim. His Honour reasoned (at [25]-[28]) that it was not appropriate for the Court to make a "separate factual determination as to whether, on the material before the Court in support of an application for an ESO, there was proof of the necessary "elements": "[25] I do not consider the construction earlier advanced for by the defendant may be accepted. Proof that the offence, for which a person was convicted and sentenced to full-time imprisonment, was constituted by the elements in s 5A(1) suffices to satisfy the definition of "offender". I do not consider the legislation required, by the definition of offender in s 4A, the Court to make a separate factual determination as to whether, on the material before the Court in support of an application for an extended supervision order, there was proof of the necessary "elements" per se on the balance of probabilities. Rather it was sufficient to prove that there was a conviction for an offence which contained those elements. [26] The term "offender" in s 4A operates where a person has been sentenced to imprisonment following conviction for a serious offence. When seen in that context, the word "conviction" must mean a conviction entered by a Court after an accused is found guilty at trial (whether by a verdict entered upon a not guilty plea or upon a plea of guilty). A Court cannot proceed to sentence an offender before such a determination is made: see discussion of principles in Maxwell v R (1996) 184 CLR 501 ("Maxwell") at 507-511 (per Dawson and McHugh JJ) and at 529-30 (per Gaudron and Gummow JJ); Perejmibida v Skelcher (2002) 127 A Crim R 549; [2002] WASCA 2 ("Perejmibida") at [26]-[27]; see also HA v Director of Public Prosecutions; SB v Director of Public Prosecutions (2003) 57 NSWLR 653; [2003] NSWSC 347 ("Ha v DPP") at [10] (per Dunford J).. [27] Thus, the term "offender" for the purposes of s 4A is directed to the fact of a person being sentenced to imprisonment following his or her conviction for a serious offence. [28] When s 4A is read in conjunction with s 5A(1), it is clear that the relevant inquiry for the Court is whether the defendant was sentenced to full time imprisonment following conviction, for an offence that included elements of the kind identified in s 5A(1)."
In King (Final) Walton J agreed with Button J's reasoning in Decision Restricted at [68], that the characterisation of a "serious violence offence" ought to be "limited to the elements of an offence of which he was convicted, and for which he was sentenced to imprisonment": King (Final) at [32]. Walton J further commented at [32]-[33] that: "[32] Button J rejected the defendant's proposed construction (at [55]-[69]), holding, inter alia, that the explicit reference to "elements" in s 5A(2) gave rise to a powerful inference that it was the "elements" that had to be analysed rather than the evidence said to establish the same. Moreover, it was difficult to conceive the legislature intended the Court to embark on such an exercise given the obvious logistical difficulties it would involve (at [56]-[57]). His Honour held that the analysis "must be limited to the elements of an offence of which he was convicted, and for which he was sentenced to imprisonment (at [68]). [33] In my view, that construction proposed by the defendant would result in unduly protracted proceedings and cannot be said to promote the objects of the Act. It would also be inconsistent with the incontrovertibility of the determination of guilt as well as the principle of finality (see discussion of principle of finality (as general principle) in Achurch v R (2015) 253 CLR 141; [2014] HCA 10).'"
In the present case, there is no dispute that the defendant has been convicted of an offence contrary to s 98 of the Crimes Act. Unlike the offence in King (Final), contrary to s 35(2), the elements of s 98 do not include an "intention of causing or… recklessness as to causing grievous or actual bodily harm to another person". Rather, s 98 requires only that "whosoever…immediately before, or at the time of, or immediately after… inflicts grievous bodily harm upon, such person." There is nothing opaque about the elements of the offence.
Lynn (CA, 2019), is strong support for the proposition that what matters is the elements of the offence which is said to constitute a serious violence offence: [22]. The respondent's conviction for manslaughter in Lynn (CA, 2019) comprehended all the elements of murder, which, relevantly, included an element of intent. That is in no way analogous to the index offence in this case, an offence contrary s 98 of the Crimes Act, which does not explicitly include intention as an element of that offence.
The decision in Coe (Final) does not support the plaintiff's contention. An issue raised in Coe (Final) was whether conspiring to discharge a firearm with intent to cause grievous bodily harm is a "serious violence offence" for the purposes of s 5A(1)(b). In Coe (Final) the index offence was one of intending to cause grievous bodily harm with intent by discharging a firearm contrary to s 33A of the Crimes Act.
Both parties agreed the statutory criteria were met for the purposes of s 5A and both agreed that the offence of discharging a firearm fell within s 5A(1)(b) of the Act. The State, however, in its role as a model litigant, raised a "threshold jurisdictional issue" as to whether the index offence of conspiring to discharge a firearm with intent to cause grievous bodily harm is a "serious violence offence." Both parties agreed that the offence of discharging a firearm fell within s 5A(1)(b): Coe (Final) at [11].
The decision in Coe (Final) does not assist in determining whether a court is permitted to look beyond the elements of an offence to the evidence in determining whether an offence is in fact, a "serious violence offence" for the purposes of s 5A. The issue raised by the State and dealt with by N Adams J, clearly related to the statutory language of s 5A(1)(b) which specifies that a "serious violence offence" can be constituted by a person "attempting to commit or conspiring with or inciting another person to commit" a "serious violence offence". The offending engaged in by the defendant in this case does not concern any form of conspiracy, attempt or incitement of a serious violence offence.
The analysis of the previous cases supports the following conclusions: 1. In determining what is and is not a "serious violence offence" the focus is on the elements of the offence which is said to constitute a serious violence offence: Lynn (CA, 2019) at [22]. 2. Except in some "limited circumstances" a court cannot look to the evidence or circumstances of the offending, for the purposes of determining whether an offence is a "serious violence offence": Decision Restricted at [62]. 3. The "limited circumstances" in which a Court can go behind the elements of an offence and look to the evidence, are cases where the defendant has raised a partial defence (which has resulted in a conviction for an offence that may not explicitly include elements of intention or recklessness) but reveals that the pathway to conviction must have comprehended elements of intention and/or recklessness; or where the elements of the offence are "opaque": Decision Restricted at [62]; Evers at [34]. 4. There are good policy reasons for restricting the scope of "serious violence offence" to offences where elements expressly meet the legislative definition of s 5A(1) (or in the "limited circumstances" identified at [159(c)]). Any supervision order imposed upon an individual is onerous and has the effect of significantly curtailing an individual's liberty and intruding upon an individual's privacy. 5. There have been numerous amendments to the Act, and ample opportunity to amend the Act to include specific offences. If Parliament's intention was to extend the scope of "serious violence offence", such an intention would have been expressly provided for. Indeed, Parliament has acted to expand the category of offences by specifically including constructive matter, manslaughter (by an unlawful and dangerous act), and wounding with intent to cause death or grievous bodily harm. 6. To accept the plaintiff's contention that a court can and ought consider the evidence and/or circumstances of the offending to determine whether the offence is a "serious violence offence" would result in requiring a court to hold a further inquiry as to whether and to what extent the constituent elements of the offence were satisfied, or, conversely, whether the evidence establishes a state of mind that is not an element of the index offence. Such an inquiry would involve a considerable increase in the time and resources dedicated to the hearing of these applications. That is not a desirable outcome.

Determination

In my view the question of whether an index offence satisfies the definition of a "serious violence offence" requires an analysis of the elements of the offence itself. It does not (except in limited circumstances as described above) require an analysis of the evidence concerning the commission of the offence in question. Put another way, I do not accept that, in order to determine whether the defendant has committed a "serious violence offence", consideration of the evidence that was placed before the trial court to substantiate the elements of the offence, is required. My analysis in this case is properly limited to the elements of the index offence.
The index offence does not contain an element of an intention (or recklessness) to cause death of another person or grievous or actual bodily harm to another person. The elements of a s 98 offence include a requirement that the prosecution establish that at the time of, or immediately after the robbery, grievous bodily harm was inflicted upon the victim. There is no requirement to prove a state of mind involving either an intention or recklessness to inflict such harm.
It follows, that I am not satisfied in the circumstances of this case that the index offence is a "serious violence offence". An application for an ESO may be made only in respect of a "supervised offender". Given that I am not satisfied that the index offence is a "serious violence offence", the defendant is not a "supervised offender" and the application for an ESO is incompetent and should therefore be dismissed.
Accordingly, the orders are as follows: 1. The plaintiff's summons filed on 22 December 2023 is dismissed. 2. The plaintiff is to pay the defendant's costs.

Endnotes

VOTP consent form dated 21 January 2020 (Exhibit JM-1, tab 29).
OIMS note dated 29 March 2022 (Exhibit JM-1, tab 31, p 189).
OIMS note dated 29 April 2022 (Exhibit JM-1, tab 31, p 190).
OIMS note dated 9 May 2022 (Exhibit JM-1, tab 31, p 192).
OIMS note dated 20 June 2022 (Exhibit JM-1, tab 31, p 193).
OIMS notes dated 2 and 25 August 2022 (Exhibit JM-1, tab 31, p 194 and 196).
OIMS notes dated 6 and 27 October 2022 (Exhibit JM-1, tab 31, p 197-198).
OIMS note dated 11 November 2022 (Exhibit JM-1, tab 31, p 199).
OIMS note dated 19 January 2023 (Exhibit JM-1, tab 31, p 201).
OIMS note dated 22 March 2023 (Exhibit JM-1, tab 31, p 206).
OIMS note dated 22 March 2023 (Exhibit JM-1, tab 31, p 206).
Justice Health progress note dated 13 April 2023 (Exhibit JM-1, tab 33, pp 213-215).
McLachlan 16 February 2024 Affidavit, Annexure A, p 8 (OIMS notes for 12 January 2024).
Ibid.
McLachlan 20 March 2024 Affidavit, Annexure A, p 1 (OIMS notes for 23 January 2024).
Coles 13 March 2024 Affidavit, Annexure D, p 18 (letter from Michelle Attenborough).
Ibid.
Ibid.
T Tulich, "Post-Sentence Preventative Detention and Extended Supervision of High Risk Offenders in New South Wales", (2015), 38(2) UNSW Law Journal, 828.
T Tulich, "Post-Sentence Preventative Detention and Extended Supervision of High Risk Offenders in New South Wales", (2015), 38(2) UNSW Law Journal, 829.
T Tulich at 829, fn [20].
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 29 March 2006 at 21730.
NSW Sentencing Council, High-Risk Violent Offenders: Sentencing and Post-Custody Management Options, (May 2012), 1 [1.2].
Ibid, 80 [3.1].
NSW Department of Justice and Attorney-General, Review of the Crimes (Serious Sex Offenders) Act 2006 (2010), 100 [1.6].
High-Risk Violent Offenders: Sentencing and Post-Custody Management Options, p 124 [5.10] fn 23.
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 20 February 2013 at 17680.
Ibid at 17681.
Explanatory Note, Crimes (High Risk Offenders) Amendment Bill 2016 (NSW).
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 4 May 2016 at 53-54.
Ibid at 55.
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 283.
Explanatory Note, Crimes (High Risk Offenders) Amendment Bill 2017 (NSW).
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 October 2017 at 283.
New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 4 May 2016 at 53. 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: 02 May 2024

Community Protection Act 1990(Vic)

Community Protection Act 1994(NSW)

Crimes (High Risk Offenders) Amendment Act 2014(NSW)

Crimes (High Risk Offenders) Amendment Act 2016(NSW)

Crimes (High Risk Offenders) Amendment Act 2017(NSW)

Crimes (Serious Sex Offenders) Act 2006(NSW)

Crimes (Serious Sex Offenders) Amendment Act 2013(NSW)

Habitual Criminals Act 1905(NSW)

Prisons Act 1899(NSW)

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