State of New South Wales v Haouchar

Factual background

1. In 2008 the defendant was sentenced for the offence of the manslaughter of Matthew Hughan, committed in 2003. He was sentenced to a period of imprisonment of six years to expire on 23 December 2013, with a non-parole period of three years and six months, to expire on 23 June 2011.
2. In a one year period surrounding the manslaughter offence the defendant also committed a string of serious robbery offences. He was sentenced on various dates in the Children's and District Courts, with the sentences imposed being made partially concurrent with that for the manslaughter offence. It is convenient to adopt the plaintiff's description of them as a 'cluster of index offences'.
3. The total effective period of imprisonment imposed for all of the relevant offences was as follows: Non parole period: 6 years 6 months expiring on 23 November 2011 Additional term: 3 years 6 months expiring on 23 December 2014
4. Whilst the first date the defendant was eligible for release to parole was 23 November 2011, he was not released until 22 March 2012, in part as a result of institutional disciplinary breaches and a superficial response to the custodial Violent Offenders Therapeutic Program ("VOTP").
5. On 9 December 2012 he was arrested for some firearms offences and a breach of parole. Hence, at the time this application was brought, he was serving balance of parole, until 23 December 2014.
6. The defendant was further charged on 24 October 2014 with one count of murder and a further count of attempted murder. These offences are alleged to have been committed whilst he was on parole in 2012. At the time of the hearing before me in December 2014 the defendant was bail refused on these fresh offences.

The application

1. By summons filed on 7 November 2014 the Plaintiff sought the following orders: "Interim/Preliminary orders 1. An order pursuant to section 15(4) of the Crimes (High Risk Offenders) Act 2006 ("the Act"): a. Appointing one qualified psychiatrist and one registered psychologist to conduct separate psychiatric and psychological examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; b. Directing the defendant to attend those examinations. 2. An order pursuant to section 18B of the Act that the defendant be detained in a correctional centre on an interim basis from the date that the Defendant becomes eligible for release from custody ("the interim detention order") for a period of 28 days. 3. An order pursuant to section 20(1) of the Act that the Court issue a warrant for the committal of the defendant to a correctional centre for the duration of the interim order referred to in paragraph 2 above. 4. In the alternative to paragraphs 2 and 3 above: a. An order pursuant to section 10B of the Act that the defendant be subject to an interim supervision order for a period of 28 days from the date on which he is due to be released from lawful custody, including release on parole or release on bail; and b. Pursuant to section 11 of the Act direct that for the period of the interim supervision order, the defendant comply with the conditions set out in the Schedule to this Summons. Final relief: [5] - [7]"
2. As only prayers 1 to 4 were pressed at the preliminary hearing on 12 December 2014, it is unnecessary to refer to the remainder of the Summons.

Statutory requirements

1. Whilst the Court was not asked to grant relief in the form of final extended supervision or detention orders, even at the preliminary stage of the proceedings, when considering the question of interim orders, the Court has to be satisfied that the circumstances would justify the making of final orders. Mr Johnston for the defendant conceded, for the purposes of the preliminary hearing, that the threshold requirements are met, and that the evidence filed, if proved, would justify the making of final orders. Despite the concession, section 15(4) of the Act requires the Court to reach that conclusion independently, and having regard to all of the evidence before the court, I am satisfied that the preliminary requirements are in fact met and that the evidence establishes that the final orders would be justified. The concession was properly made.
2. In light of the nature of the orders I ultimately made on 12 December 2014, it is not necessary to set out the reasons for my conclusions at length. Rather, what follows is a brief outline of those determinations.

Detained Violent Offender

1. Prayers 1 to 4 of the Summons fall within Part 3 of the Act, which applies only to a "detained violent offender" or a "supervised violent offender": s13C. There is no dispute the offender met the definition of a "detained violent offender" at the time of the hearing, falling into the category of s13C(2)(a)(iii) of the Act, which provides: "(2) A detained violent offender is a violent offender who, when the application for a continuing detention order is made, is in custody in a correctional centre (referred to in this Part as the offender's current custody): (a) while serving a sentence of imprisonment by way of full-time detention: (i) for a serious violence offence, or (ii) for an offence under section 12, or (iii) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i) or (ii), or (b) …… "
2. The offence of manslaughter falls within the definition of a "serious violence offence" as set out in s5A of the Act and the defendant was serving a sentence partly concurrently with the sentence imposed for manslaughter.

High risk violent offender

1. The second pre-requisite to the making of the final orders is for the Court to be satisfied that the defendant is a high risk violent offender, as defined by s5E, that is, that there is a high degree of probability that the defendant poses an unacceptable risk of committing a serious violence offence unless supervised or detained.
2. The test has been held to be akin to the "prima facie case" test; not to be a stringent one; and not to require any prediction of the outcome of the final hearing (State of New South Wales v Lynn [2013] NSWSC 1147).
3. In light of the evidence filed by the plaintiff I am satisfied that the defendant falls with the definition of a high risk violent offender.

Evidence

1. The plaintiff tendered and relied upon a large volume of material in support of the application addressing the various considerations the Court must take into account pursuant to s17. No issue was taken with the admissibility of that material at the preliminary hearing. Indeed, as noted above, the defendant conceded that the material, if proved, would establish the statutory requirements.

Criminal history

1. The evidence establishes that the defendant has a number of convictions for offences of violence in various jurisdictions within New South Wales. The defendant's offending history commenced when he was aged 13, in 2000, with a finding of guilt for an offence of assault occasioning actual bodily harm. By 16 years of age, when he committed most of the index offences, the defendant had accumulated a significant number of convictions for various offences, including serious violence offences. His crimes had escalated to those involving the use of weapons.
2. The index offences are conveniently summarised in a table produced in the plaintiff's submissions as follows: Table of Cluster of Index offences Date of Offence Description Date of Sentence Details Sentence 27 Aug 2002 Break, Enter and Steal, Parramatta High School 19 Dec 2006 Bidura CC 2y control order 23/9/03-22/9/05 Total 4y 10m imprisonment 21 Apr 2003 Harris Park TAB Robbery in company 2 Dec 2008 Judge Ellis, Parramatta District Court NPP 1y and 4m NPP 24/2/10-23/6/11 Add 24/6/11-23/12/14 7 May 2003 Silverwater BP service station Robbery in company. 23 Sept 2008 Taken into account on Form 1 Total 6y imprisonment 8 May 2003 Manslaughter of Matthew Hughan 23 Sept 2008 Justice Hidden, Supreme Court NPP 3y and 6m NPP 23/12/07-23/6/11 Add 24/6/11-23/12/13 Total 4y 6m imprisonment 12 May 2003 Granville TAB Aggravated robbery 11 May 2007 Judge Ellis, Parramatta District Court NPP 2y3m NPP 24/9/05-23/12/07 Add 24/3/10-23/03/10 Defendant departs Australia 14 May 2003 and returns on 27 Aug 2003 Total 6y 6m imprisonment 24 Sept 2003 Orchard Tavern Chatswood Armed Robbery 30 Apr 2004 Judge Hock, Sydney District Court NPP 3y 6m NPP 24/9/03-23/3/07 Add 24/3/07-23/3/10

1. All of the offences involved some degree of violence, while the factual circumstances of some of the offences were very serious indeed.
2. The Harris Park TAB robbery, committed on 21 April 2003, involved the use of a gun like implement which was pointed to the victim's head at the time when he was closing the TAB for the night. The defendant and two accomplices stole $550 from the victim's wallet after assaulting him.
3. The robbery of the BP Service Station was committed some two weeks later, on 7 May 2003, again in company of two others. The victim was threatened and covered with a duvet while the offenders stole 90 packets of cigarettes.
4. The most serious offence, the manslaughter of Matthew Hughan was committed the following day, on 8 May 2003. The defendant joined two co-offenders in their quest to "shut down" the victim, a rival drug dealer. The defendant had a small pistol on him, which he handed over to one of the co-offenders as he tried to break down the door and enter the victim's premises. A struggle ensued during which the co-offender fired the gun, striking the deceased in the chest. The victim died in the hospital soon after.
5. What may be described without hyperbole as the defendant's crime spree continued on 12 May 2003 when he, in the company of an accomplice, robbed the Granville TAB of $45,000, as well as the manager's phone and wallet.
6. Two days after the Granville robbery the defendant left for Lebanon for a number of months. In September 2003, a few weeks after his return to Australia, he, together with a co-offender, robbed a tavern in Chatswood armed with a knife and a pistol. Patrons were forced to lie on the ground. One patron's wallet was taken at knifepoint, and the defendant held the gun to the back of the barman's head forcing him to open the cash register. The defendant fired the pistol into the ceiling as the pair left the pub. They were arrested soon after.
7. The defendant's offending conduct continued whilst in custody, both in juvenile and in adult correction centres; the defendant committing at least 25 offences in juvenile detention, and 30 institutional infractions in adult prison, some being offences of violence. In fact, as recently as late 2013 and early 2014 the defendant was dealt with for offences of assault and intimidation.

Other relevant allegations

1. Allegations of the defendant's violent inclinations do not cease with his convictions. The Court is entitled to have regard to other relevant information, including further allegations against the respondent, although the weight to be given to such information is necessarily low in cases where the defendant has been acquitted or the charges were discontinued.
2. In 2003, 10 days before the manslaughter of Mr Hughan, the defendant was allegedly involved in another string of violent offences, the allegation being that he attended the complainant's house, stole cannabis from him, shot him in the stomach and placed a gun at another man's head. The proceedings were discontinued as the complainant failed to attend court.
3. As noted above, the defendant's parole was revoked in 2012 after he was charged with further offences.
4. On 21 July 2012 the defendant was allegedly involved in a shooting across a public street at 4.45 in the afternoon, where a car containing two people was caught in the middle of the cross fire. A house was penetrated by projectiles, with one bullet grazing one of the occupants and others narrowly missing her children. The charges against the defendant were later withdrawn.
5. In June 2013 the defendant was charged with an offence of an accessory after the fact to an attempted murder, based on the allegations that he assisted and counselled his brother and another person in the commission of that crime. While he was ultimately acquitted of the charge, lawfully intercepted conversations between the defendant and one of the offenders indicated the defendant had access to, and was prepared to make use of, guns and large amounts of money in order to evade authorities and subvert the operation of the law.
6. The most recent proceedings the defendant faces are charges of murder and attempted murder, commenced in October 2014. The Crown case is that in 2012, whilst he was on parole, the defendant and three co-accused robbed the deceased of some money and drug precursors. The deceased, having issued some threats against the perpetrators of the robbery, was murdered a week later. An associate was wounded. These are, of course, allegations only at this stage, but the proceedings are the reason the defendant remains in custody, bail refused.
7. The defendant's criminal history is evidently deserving of the description used by one of the judges who sentenced him for the index offences as "alarming for someone of such young age." Notably, the defendant was only 16 years of age at the time he committed the index offences. All of the sentencing judges noted the defendant's immaturity, lack of insight, and tendency to associate with undesirable company, and considered that he will require extended supervision and assistance once released from custody, to assist in reintegration to society.

Supervision

1. Regrettably, the defendant's response to supervision once released to parole in 2012 was considerably less than satisfactory. In addition to being charged with a number of offences as outlined above, the defendant breached the conditions of his parole by leaving the state and travelling to Queensland. He failed to engage with the Probation and Parole Service, attending appointments only sporadically, and engaging in only two sessions of the VOTP maintenance program.
2. His conduct on parole is clearly indicative of a lack of willingness to take advantage of the assistance offered by the services available to him in the community, which in turn decreases any positive effect such involvement may have in assisting the defendant to lead a law abiding life. It indicates that the risk of reoffending in a violent way is a real one.

Risk assessment and supervision reports

1. The plaintiff tendered two risk management reports, one under the hand of Julie Bates, the unit leader of the ESO Team dated 18 September 2014; and a report of Samuel Ardasinski, a senior specialist psychologist within the Department of Corrective Services, dated 3 September 2014.
2. Ms Bates' report addresses the extent to which the defendant can be managed in the community and makes recommendations as to strategies aimed at reducing risk factors specific to the respondent, such as implementing electronic monitoring as an integral part of supervision; focusing on ensuring that the defendant has suitable accommodation; providing assistance with obtaining employment and developing positive social relationships; engaging the defendant in gambling counselling, and in ongoing VOTP Maintenance Program attendance.
3. Mr Ardasinski addressed the defendant's risk factors and opined that he falls within the category of the high range risk of reoffending, where 44.5% of people with the defendant's score committed an offence of violence within 5 years of release.
4. Mr Ardasinski identified a number of dynamic risk factors relevant to the defendant's risk of re-offending, most important being the association with criminal peers, including his family members. The defendant indicated he intends to reside with his parents, notably where he had resided at the time of committing the index offences, and where he was released to reside when on parole in 2012. That accommodation was deemed unsuitable in 2012 due to the fact the defendant's brothers were facing, or have been convicted of, serious criminal charges. The family additionally had a negative attitude to Probation and Parole staff attending the house to monitor the respondent.
5. Such a domestic environment is considered a high risk situation as it increases the risk of the defendant reverting to the criminal ways of his past. In addition, it indicates a lack of effective and positive support by his immediate social circle.
6. Also supportive of the need for closer than usual supervision, in Mr Ardasinski's opinion, are the defendant's poor employment history; relaxed attitudes to criminal offending; disregard for conditions of parole; access to weapons; impulsivity and inability to control his emotions; as well as the fact that, because of the length of his incarceration, the defendant has not had adequate time to employ and test his self-management skills in the community.
7. Opining that the defendant is unlikely to refrain from committing further offences without supervision, and noting that, if the defendant returns to his old ways, such offences could possibly be even more serious than his past offending, Mr Ardasinski expressed a view that the defendant requires supervision of at least three and a half years to moderate the risk he poses.

Would the circumstances justify the making of the final orders?

1. Having regard to the evidence filed by the plaintiff, the conclusion that the defendant poses an unacceptable risk of committing a serious violence offence unless supervised or detained is inescapable. The number and the nature of the offences on his criminal history, together with his criminal associations (including family members), in combination with the evident breaches of parole and lack of commitment to a law abiding life, clearly indicate that the defendant is highly likely to commit further offences of violence unless he is closely supervised.
2. I am satisfied that the risk posed by the defendant is such as to justify the making of the final extended supervision or detention orders to manage that risk of reoffending, and to further the objectives of the Act as noted in s.3, in particular, to ensure the protection of the community.
3. In light of the orders I ultimately made, it is unnecessary for present purposes to decide whether an extended supervision order or an extended detention order was appropriate.

Appointment of experts following the preliminary hearing

1. Having determined that the final orders would be justified on the evidence before the Court if proved, s.15(4) requires the Court to make orders appointing experts to conduct separate examinations and furnish reports to the Court, and directing the defendant to attend and submit to such examinations.
2. The plaintiff asked the Court not to nominate the date on which the reports are to be furnished, but rather to grant the parties liberty to restore the matter to the list and seek further orders to that extent when it becomes necessary. This course, it was submitted, would ensure that the examinations are conducted at the most appropriate time having regard to the defendant's complicated custodial history. Mr Johnston agreed that this was a proper approach.
3. In line with the statutory requirements, and noting the defendant's concession, two experts were appointed to conduct examinations of the defendant and furnish reports on a date to be fixed by the Court. The defendant was directed to submit to those examinations.

Interim orders

1. The issue at the preliminary hearing arose with respect to the plaintiff's request for the interim orders pursuant to 18B (interim detention order), or, in the alternative, s10B (interim supervision order). Both of those sections allow the Court to make orders on an interim basis if, on the application for the final orders, the court is satisfied that the final relief is justified, but it appears that the proceedings will not be finalised before the defendant's custody expires.
2. That the material justifies the making of the interim orders was not disputed. Whether the Court has power to impose them from an unspecified future date, was at issue.
3. Section 18C provides: "18C Term of interim detention order (1) An interim detention order commences on the day fixed in the order for its commencement (or, if no such day is fixed, as soon as it is made) and expires at the end of such period (not exceeding 28 days from the day on which it commences) as is specified in the order. (2) An interim detention order may be renewed from time to time, but not so as to provide for the detention of the offender under such an order for periods totalling more than 3 months."
4. Section 10C is in identical terms although with respect to interim supervision orders.
5. As noted at the outset of this judgment, the defendant's sentence for the index offences was to expire on 23 December 2014. Ordinarily, if the Court were to make the interim orders, the Court would order them to commence on the date the defendant is to be released from custody, in this case on 23 December 2014.
6. However, as the plaintiff pointed out, because the defendant was bail refused with respect to the fresh matters, he was not going to be released from custody at the expiration of his sentence (ie on 23 December 2014). Rather, he would remain in detention, as a remand prisoner, until such time as he is granted bail, or the fresh matters are finalised.
7. The plaintiff is not in a position to postpone the application and await the outcome of the fresh matters, or any bail proceedings, as it was required to make this application within the last six months of the defendant's sentence for the index offences: 13C(3) and 6(2).
8. The application now being on foot, the plaintiff argues that if the interim orders were made to commence on 23 December 2014, there would be no utility as the defendant would be in custody in any event. Indeed, the whole of the maximum term of the interim orders, three months, could expire while the defendant is still in custody on remand.
9. Likewise, in light of the uncertainty regarding the defendant's release date, there would be no utility in finalising the proceedings and making the final orders, as they, or at least a portion of them, would be concurrent with the period the defendant spends in custody bail refused.
10. On the other hand, if the orders are not made, once the defendant's current sentence expires on 23 December 2014, the defendant could be released to bail with little or no notice to the State. The plaintiff argues it would not be in position to restore the matter to the list on an urgent basis without at least some notice of the defendant's pending release. The danger, of course, is that the defendant would be released to the community with no adequate supervision.
11. To offset these practical difficulties, the plaintiff sought to have interim orders made, to commence on the unspecified date of the defendant's eventual release to bail, or after the finalisation of the current criminal proceedings.
12. The plaintiff argued that the reference to the defendant's current term of "custody" in s18B is not limited to his status as a sentenced prisoner but extends to, and includes, his detention as a remand inmate.
13. Mr Johnston, whilst acknowledging these practical issues, as does the Court, disagreed, calling on the purposes and the context of the Act to argue that "custody" refers to the term of the current sentence.
14. I agree with the defendant's submission. That the term "current custody" refers to the term of the sentence the defendant is serving is evident from provisions of sections 13C and 5J of the Act which outline when an application for a continuing detention order (s13C) or an extended supervision order (s5J) can be made, and define "detained violent offender" as follows: "13C Application for high risk violent offender continuing detention order (1) An application for a high risk violent offender continuing detention order may be made only in respect of: (a) a detained violent offender, or (b) a supervised violent offender. (2) A detained violent offender is a violent offender who, when the application for a continuing detention order is made, is in custody in a correctional centre (referred to in this Part as the offender's current custody): (a) while serving a sentence of imprisonment by way of full-time detention: (i) for a serious violence offence, or (ii) for an offence under section 12, or (iii) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i) or (ii), or (b) pursuant to an existing continuing detention order or emergency detention order. (3) An application in respect of a detained violent offender may not be made more than 6 months before: (a) the end of the offender's total sentence, or (b) the expiry of the existing continuing detention order or emergency detention order, as appropriate. (4) A supervised violent offender is a violent offender the subject of an extended supervision order or an interim supervision order who: (a) has been found guilty of an offence under section 12 in respect of that order, or (b) because of altered circumstances, cannot be provided with adequate supervision under an extended supervision order or interim supervision order. (5) An application in respect of a supervised violent offender who is serving a sentence of imprisonment by way of full-time detention may not be made more than 6 months before the end of the person's total sentence. (6) The Supreme Court must not make a continuing detention order on an application referred to in subsection (4) (b) unless it is satisfied that circumstances have altered since the making of the extended supervision order or interim supervision order and those altered circumstances mean that adequate supervision of the offender cannot be provided under an extended supervision order or an interim supervision order." (underlining added; bold in the original)
15. Again, s5J is in similar terms, at least when it comes to the definition of "current custody" and "supervised violent offender."
16. Evidently, subsection 2 effectively defines the term "current custody" to mean the period the offender is serving a sentence. Necessarily, that excludes being detained on remand.
17. In any event, even if the plaintiff's construction of s18B was correct, the terms of s18C require the interim order to commence on a specified date. In terms of subsection 1: "An interim detention order commences on the day fixed in the order for its commencement (or, if no such day is fixed, as soon as it is made)…."
18. To my mind, this provision requires the court to specify a date for the orders to commence, failing which, the orders would commence on the date on which they are made. Proclaiming the commencement date to be the day the defendant is granted bail or is released from custody on other matters, without specifying an actual date, would not in my view comply with s18C.
19. Whilst I acknowledge the practical difficulties created by the complications with the defendant's custodial status, I am of a view that the legislation does not allow for orders to commence on an unspecified future date. Having reached that conclusion, I declined to make the orders sought in prayers 2 to 4 of the Summons.

Orders

1. The orders made on 23 December 2014 were as follows: 1. Pursuant to section 15(4) of the Crimes (High Risk Offenders) Act 2006: 1. Dr Andrew Ellis, psychiatrist, and Dr Katie Saidler, psychologist, are appointed to conduct separate examinations of the defendant and to furnish reports on the results of those examinations to the Supreme Court of New South Wales by a date to be fixed by the Court; and 2. The defendant is directed to attend those examinations. 1. Liberty to apply to relist the matter on one day's notice.

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