State of New South Wales v Hona

State of New South Wales v Hona - [2021] NSWSC 373 - NSWSC 2021 case summary — Zoe

[3]

Matters not in issue

There is no issue that Mr Hona is currently serving, in full time custody, the balance of a term of imprisonment imposed on him by her Honour Judge Hock in the District Court of New South Wales on 10 October 2014 for the offence of recklessly causing grievous bodily harm to another contrary to s 35(2) Crimes Act 1900 (NSW). That offence carries a maximum penalty of imprisonment for 10 years and a standard non-parole period of 4 years. For the offending, that I will describe further below, and after allowing a discount of 25 percent for an early plea of guilty, her Honour imposed a term of imprisonment, having a non-parole period of 4 years and 9 months commencing on 16 June 2014 and expiring on 15 March 2019 with an additional term of 2 years expiring on 15 March 2021. Due to the revocation of the parole to which Mr Hona was released, twice, the total term now expires on 30 April 2021.
Mr Hona's offending is a serious offence for the purpose of the Act. More particularly, it is a serious violence offence as defined by s 5A because it consists of him engaging in conduct that caused grievous bodily harm to another person while being reckless to causing grievous or actual bodily harm. It is also a serious indictable offence as defined by s 4 of the Crimes Act 1900 (NSW) in that it carries a maximum penalty of imprisonment of 5 years or more. A number of important matters follow: first, Mr Hona is an offender who is serving a sentence of imprisonment for a serious offence in custody, satisfying the statutory precondition to an ESO established by s 5B(a); secondly, Mr Hona is a supervised offender as defined by s 5I(2), satisfying the precondition established by s 5B(b); and the application complies with s 5I(1) satisfying the precondition established by s 5B(c).
The State's application also complies with the requirements of s 6. The application has been made within the last 9 months of Mr Hona's custody and is supported, so far as it can be at this stage, by the documentation described in s 6(3) including a Risk Assessment Report ("RAR") as required by s 6(3)(b). The RAR dated 22 October 2020 and the supplementary RAR dated 5 March 2021 were prepared by Mr Samuel Ardasinski, a registered psychologist employed by Corrective Services NSW ("CSNSW") as a senior psychologist within the Serious Offenders Assessment Unit.

[4]

Issues

The issues for determination at this preliminary hearing may be cast in terms of ss 7(4) and 10A. In terms of s 7(4), the issue is: [whether I am] "satisfied that the matters alleged in the supporting documentation would, if proved, justifying the making of an Extended Supervision Order[?]" If so, I must make an order appointing two relevantly qualified experts to report to the Court and direct the offender to attend those examinations. The reference to the supporting documentation is a reference to the documentation referred to in s 6(3) by which the State's application must be supported.
In terms of s 10A, the power to make an ISO is predicated upon it appearing: 1. that the offender's current custody or supervision will expire before the proceedings are determined; and 2. that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order. Again, the supporting documentation is a reference to the s 6(3) documentation. The first issue is a purely practical one. There is really no issue given that Mr Hona's current custody will expire on 30 April 2021 and bearing in mind, if s 7(4) is satisfied, it will take some time to appoint the experts, for them to conduct examinations and report. In these circumstances, paragraph (b) is the real issue in relation to whether an ISO may be made. The significance of the reports of the Court appointed experts is that an ESO may not be made unless the Court has regard to them, amongst other matters. Consideration of the reports is mandatory: s 9(3)(b).
A question was debated about whether the word "satisfied" in s 7(4) connotes a standard different from, in effect higher than, the standard connoted by the phrase "it appears to the Court" in s 10A. I will leave that consideration to one side for the time being.
Despite some differences in the statutory language, the focus of the preliminary hearing is whether the matters alleged by the State in its s 6(3) supporting documentation "would, if proved, justify the making of an" ESO. In substance, the sources of the Court's power to make an ESO are to be found in ss 5B and 9. Section 5B sets out statutory preconditions for the exercise of the discretionary power to make an ESO conferred by s 9. I have already said that the first three of the four s 5B conditions are not in issue between the parties. The fourth condition is found in s 5B(d) which provides that the Supreme Court may make an ESO if: the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. The satisfaction of all of the s 5B preconditions opens the gate to the exercise of the s 9 power. However, s 9 confers a discretionary power on the Court to either make an ESO or to dismiss the application; I emphasise, even when the s 5B preconditions are satisfied. The discretionary power falls to be exercised by reference to "the safety of the community [as the] paramount consideration": s 9(2); and, as I have said, by having regard to the mandatory considerations expressed in s 9(3).
At the final hearing, it is obvious that the assessment of the risk the offender presents to the community of committing another serious offence is a central consideration. After the final hearing the Court may not exercise the s 9 power at all, except, perhaps, by dismissing the application, unless it is first satisfied to the high degree of probability required that the offender poses the requisite unacceptable risk.
It is clear from the language of both ss 7(4) and 10A(b) that the Court's task after the preliminary hearing is different. The Court is not called upon to make any decision on the merits. Rather, the Court is required to make an evaluation of the matters alleged in the s 6(3) documentation to form a judgment about whether, if those matters are proved after a final hearing, they would "justify", that is legally support, the making of an ESO. Where "unacceptable risk" is in issue, as it will very frequently be, this will include an evaluation of whether the matters alleged would legally support a finding of unacceptable risk to the "high degree of probability" required.
In expressing this view I have in mind, in particular, the decision of the Court of Appeal in State of New South Wales v Tillman [2007] NSWCA 119, an early decision of the Court of Appeal concerning the then fairly recently enacted Crimes (Serious Sex Offenders) Act 2006 (NSW) under which short title the Act commenced its legislative life. Tillman concerned the concurrent hearing of an application for leave to appeal and the appeal from the orders of a judge of the Common Law Division after a preliminary hearing. The case was one in which the State sought an Interim Detention Order and instead the primary judge made an ISO. The Act has been much amended over the years since Tillman was decided. But its purpose, structure and text remain substantially the same. When Tillman was decided, the power to make final orders by way of an ESO or a Continuing Detention Order was conditioned upon the Court being satisfied of certain matters to a "high degree of probability". The making of interim orders of either kind was empowered by language identical to the language of s 10A. Of the conditions attending the power to make an Interim Detention Order, the Court (Mason P, Santow and Tobias JJA) said (at [98]): The task assigned by s 16(1)(b) is for the Court to look at what is alleged in the supporting documentation to see whether it would, if proved, justify the making of either a continuing detention order or extended supervision order (s 16(1)(b)). In determining whether the power to grant an interim order is enlivened, the Court is not involved in weighing that documentation or predicting the ultimate result. The power is enlivened if the supporting documentation would, if proved, justify the making of either category of final order bearing in mind the elevated standard of proof stated in ss 17(2) and (3). That threshold question is to be resolved without considering what evidence might be called by the offender at the final hearing. Indeed, it is to be considered without taking into account the evidence (if any) called by the offender at the interim hearing: such evidence may go to (relevant) discretionary matters, but would not cast light upon what is alleged in the Attorney General's supporting documentation. (My emphasis.) From this, I would not conclude that the Court is required to be satisfied of anything after the preliminary hearing to a "high degree of probability", although "the elevated standard of proof" stated in s 5B(d) would need to be borne in mind.
However, Mr H. El Hage of Counsel, who appeared for the State, and Mr C. McGorey of Counsel, who appeared for Mr Hona, both drew my attention to the judgment of Hoeben CJ at CL in State of New South Wales v Youseff (Preliminary) [2020] NSWSC 1440. His Honour described the nature of the task in the following terms (at [95]): The Act is directed to the protection of the community. It is not directed to sanctioning a person. It is not directed at sanctioning a person over their past offending or compliance with supervision. The Act is directed to the risk of a defendant committing serious offences, not offences in general. A high likelihood to commit violent offences is not of itself, sufficient. It is clear that the legislature purposely set a high threshold of satisfaction. The high degree of probability in s 5B(d) requires satisfaction as to the unacceptability of the risk to a higher level than would be the case if the normal civil standard of proof applied. His Honour expressed his conclusion at [125] in the following terms: In carrying out the necessary evaluative exercise, and taking into account the supporting documentation, in particular the OIMS reports, and keeping in mind the assumption that the facts alleged in the plaintiff's supporting documentation are proved, I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not kept under strict supervision. In reaching that conclusion, I have not sought to assess the weight of the supporting evidence or to predict the outcome of the proceedings for final orders. What I have sought to do is to take those matters into account in order to determine whether the State has satisfied me to the necessary standard that the assumed facts establish that the defendant poses an unacceptable risk to the community of committing a serious offence if not supervised. Amongst other things, I am not persuaded as to the seriousness of the harm which will ensue in the absence of the protective measures sought by the plaintiff. (My emphasis.)
With respect, it is clear from his Honour's analysis at [84]-[88] that his Honour expressed himself as he did bearing in mind the decisions in the State of New South Wales v Clarke [2019] NSWSC 411 and State of New South Wales v Heness (Preliminary) [2019] NSWSC 1710. In the first case, Fullerton J said (at [7]): The question for determination on the State's application for an extended supervision order is whether the Court is satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. At the preliminary hearing it is not for the Court to assess the weight of the supporting documentation bearing on that question or to seek to predict the outcome of the proceedings for final orders. Rather, the Court is to engage in an evaluative exercise taking into account all of the supporting documentation (and such material as has been tendered by a defendant) and, proceeding on the assumption that the facts alleged in the supporting documentation are proved, to determine whether those facts would justify the making of an extended supervision order. That obliges the State at the preliminary hearing to allege certain facts which, if proved, would lead to a conclusion that the making of an extended supervision order is justified, or, to put it another way, the State bears the burden of persuading the Court that the assumed facts establish to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not supervised. (My emphasis.)
And in Heness, Fullerton J said (at [29]): I was, however, unprepared to accede to Mr McGorey's submission that the evaluative exercise engaged on this application eschews considerations of the weight of the supporting documentation. While it is true that in a preliminary hearing the Court is not to "weigh" the documentation for the purposes of predicting the ultimate outcome of the proceedings, in my view the evaluative exercise in which the Court is engaged in the preliminary hearing necessarily involves an assessment of the "weight" of particular aspects of the evidence, equally as it does the "weight" of the supporting documentation as a whole, when determining whether the State has evidence capable of discharging the burden of establishing that "the unacceptable risk precondition" is met such that interim orders might be made subject to the exercise of discretion. (My emphasis.) Having regard to the language deployed by her Honour in this passage, "whether the State has evidence capable of discharging the burden of establishing that 'the unacceptable risk precondition' is met", I do not conceive of it as at all different from the statement I have extracted from Tillman. However, the passage from Clarke appears to impose a burden on the State at the preliminary hearing "of persuading the Court that the assumed facts establish to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not supervised". And, it is clear that Hoeben CJ at CL agreed with this approach.
As I have said, I have misgivings about whether the State is required to "establish" anything at the preliminary hearing to the s 5B(d) "high degree of probability" on assumed facts or otherwise. Obviously, Youseff and Clarke are recent carefully considered decision of senior judges of the Court, which both counsel contend are correct. In the circumstances, I will take the same approach in determining the State's application for interim relief in the present case.

[6]

The index offending and the views of the sentencing judge - s 9(3)(h)(1)

It is alleged in the supporting documentation that the index offending was committed during the night of 13 and 14 December 2013 when Mr Hona was aged 19 years and 9 months. When he offended, Mr Hona was drunk and affected by the consumption of prohibited drugs. He and a cousin had been ejected from a hotel at Bondi at about 1 am. The cousin became involved in a verbal confrontation with the victim near a kebab shop. The confrontation continued along Roscoe Street and across Campbell Parade near the bus shelters located there. During the confrontation, the cousin appears to have ripped the victim's t-shirt which the latter discarded. Mr Hona followed the confrontation, crossing Campbell Parade by squeezing through fencing running along the centre of the roadway. By the time he arrived at the bus shelters, his cousin had been shepherded away from the confrontation by a bystander.
Nonetheless, Mr Hona continued to approach the victim who was standing facing him with his arms extended and his palms open. The learned sentencing judge found that this was a peaceful gesture indicating that the victim "did not want to engage in any sort of confrontation" (CB 115). Notwithstanding this, Mr Hona struck the victim in the face with his right elbow knocking him backwards to the ground. As the victim fell Mr Hona swung his left arm at his head meaning to punch him, but apparently missing his mark. The victim fell heavily onto the paved footpath striking his head and losing consciousness. Notwithstanding his vulnerability, Mr Hona stomped forcefully onto the victim's upper chest. Her Honour described the stomping when the victim was down as "particularly despicable and cowardly".
The victim suffered a very severe traumatic brain injury requiring surgery, subsequent intensive medical management and rehabilitation. From his victim impact statement read at the proceedings on sentence, it was clear that the victim had ongoing physical and emotional symptoms affecting him in the activities of daily life, notwithstanding a better level of recovery than might otherwise have been expected.
Her Honour assessed the objective gravity of the offending as "high… [and] well above the mid-range for such an offence" (CB 116). Indeed, her Honour must have regarded the offending as close to the worst case because she adopted a starting point of about 9 years (the maximum being 10) before the discount for the early plea of guilty. At the time of the offending Mr Hona was at liberty subject to a suspended sentence imposed by the Children's Court including for an offence of reckless wounding in company and on bail for a serious set of driving offences including engaging in a police pursuit in March 2013. As her Honour recognised, these were aggravating factors (CB 117).
Mr Hona gave evidence on the proceedings on sentence. He appeared to display insight about the connection between his offending and substance abuse. He expressed remorse and regret which her Honour accepted as "genuine". Her Honour acknowledged that he enjoyed the support of his mother, other family members and persons in the wider community. Her Honour was somewhat guarded in her assessment of Mr Hona's prospects for rehabilitation. They appeared to depend upon his abstinence from substance abuse. But the inevitable length of the sentence to be imposed "made the assessment difficult" (CB 119).
To my mind an additional concerning factor is the consideration that Mr Hona was apparently out on the town in anticipation of an unfavourable result when he appeared before Court on 16 December 2013 on the call-up of the suspended sentence. He did in fact receive a term of full time custody which expired on 15 June 2014, explaining why her Honour took that date for the commencement of the sentence she imposed.
A severity appeal to the Court of Criminal Appeal was dismissed on 21 June 2016: [2016] NSWCCA 119, Wilson J, with Baston JA and Schmidt J agreeing.

[7]

Mr Hona's criminal history - Section 9(3)(h).

I have alluded to Mr Hona's record prior to the index offending. On 29 April 2011 he was convicted by the Children's Court of the offences of resisting police, assaulting police causing actual bodily harm and affray. Mr Hona was apparently extremely aggressive and refused to comply with police directions. The assault matter involved him knocking a female police officer to the ground.
Further violent offending occurred on 7 September 2011. This appeared to be entirely gratuitous violence engaged in by Mr Hona in support of friends of his whose efforts to gate-crash a party had been repelled. Armed with a knife, Mr Hona, who was then 17, threatened one victim by holding the knife to his throat and stabbed a second victim twice in the stomach. For the stabbing offence, he was sentenced to a control order by the Children's Court which was overturned on appeal to the District Court including the suspended sentence for the reckless wounding in company offence.
The serious driving offences for which he was on bail when the index offending occurred were committed on 2 March 2013. While unlicensed, he broke into a car which he took for a joy ride having found keys in the glove box. He drove at speed and in a somewhat erratic manner. The attention of passing police was attracted by this manner of driving leading to a chase. After police lost sight of him, Mr Hona lost control of the vehicle resulting in a collision. He received non-custodial sentences for this offending and other related matters.
Regrettably when released to parole to serve his current sentence in the community he offended again. Of these, the most significant is the common assault charge I have referred to above which was committed on 11 April 2020. I acknowledge that common assault is not a serious violence offence. But, it was committed while he was on parole and as I have said, in September 2020 he was sentenced to a CCO of 3 years. On the matters alleged in the State's supporting documentation, the violence was not severe but involved him kicking the victim on the feet, lunging at him and striking him about the body on a number of occasions.
While on parole he has also committed other offences involving possession of prohibited drugs, goods in custody, dishonestly obtaining financial advantage by deception and destroying or damaging property.

[9]

Other available information - s 9(3)(i)

The negative side of Mr Hona's custodial experience includes his gang membership perhaps related to an OMCG and involvement in gang activities, record of infringements of prison discipline involving aspects of violence and continued drug abuse. So far as infringements are concerned there are, on my count, three instances involving possession of a gaol made weapon on 17 October 2015, 20 February 2017 and 9 December 2019. I have listed the dates because they show the pervasiveness of this misconduct which may be related to gaol gang activity. There are five incidents of threatening, intimidating, aggressive and argumentative behaviour toward correctional centre staff. There are a number of "standover" allegations involving assaults or intimidation of other inmates. There is also an early infringement involving tampering with a sandwich press. It is not clear to me that this was done with the intention of harming any person.
As late as 5 November 2020 he continued to be regarded as an inmate who poses an extreme threat to the good order and security of the correctional centre (CB 230-1). He was first warned about that status on 6 November 2019 and over the 12 month period was involved in gaol incidents involving what appear to be three further instances of gaol made weapons and two incidents of violence involving the assault of another offender.
Mr Hona's classification history has been disappointing. His first classification after he was sentenced was to C1 minimum security. Over the years that has generally declined so that he has mostly oscillated between B medium security and A2 maximum security. As at 15 December 2020 he remained A2.
As at the time of the index offence, Mr Hona was abusing alcohol and cannabis. It is apparent that in custody he developed other substance abuse problems including the abuse of opiates. He has seven infringements of prison discipline related to drugs between 19 September 2017 and 4 November 2019. A review of the OIMS demonstrates that he has sought to address this problem in custody not only by his engagement in some of the programs referred to above, but also by his engagement in a methadone program and more recently he has been on a monthly buprenorphine depot injection regime (CB 68). He told Mr Ardasinski that this had been effective for him. That is contrary to the picture which emerges from the OIMS where he has complained of the treatment being less effective toward the end of the cycle, leading him on occasions to supplement it illegally. He has asked for his dosage to be reviewed.
In the community when at liberty on parole he has reverted to substance abuse, notwithstanding his pro-social relationship with his mother and his partner in a recently formed relationship.
Mr McGorey submitted that I should take a benign view of the negative aspects of Mr Hona's custodial history. It was submitted that what the matters alleged in the documentation suggested in his behaviour might be accounted for a need to adopt self-preservation strategies in gaol by forming alliances and by making himself an unattractive target. One can understand how that argument could run. On the other hand, what I have termed the negative aspects of his custodial history, if proved at the final hearing, support an argument that he should be kept under supervision.

[10]

Compliance with parole - s 9(3)(f)

Mr Hona's compliance with parole has been poor during both periods that he has been released to parole. It has not only involved other offending, albeit not of a serious violent kind, but it has also been characterised by a complete neglect of his obligations towards supervision. One can accept that in the last 12 months there have been difficulties with community supervision because of restrictions related to the pandemic. But the overall impression from the documentation is negative. The history has been summarised at paragraphs 29 and 30 of the RAR. I have reviewed the primary material for myself and I am of the view that Mr Ardasinski's summary is accurate.
Mr Hona's initial response to supervision appeared positive, he engaged in employment with an uncle and formed an intimate relationship with a law abiding woman. He also engaged as required with professional supports. Mr Ardasinski takes a positive view of his conduct between his initial release on 15 March 2019 and about 16 July 2019 on which occasion he admitted to his Communities Correction Officer (CCO) that he had returned to illicit drug use. Notwithstanding a merely verbal warning and encouragement to engage in interventions, "Mr Hona disengaged completely from this supervisory relationship, and was unable to be contacted by his CCO for some weeks" (CB 67). His parole was revoked and he was rearrested for new offending.
Following his re-release to parole on 22 January 2020 after he was dealt with on a non-custodial basis for the offending on parole, the matters alleged in the supporting documentation demonstrate that his compliance was non-existent (CB 169). Upon his release pre-COVID, he was instructed to report to the City Community Corrections Office on 24 January 2020. He failed to do so and did not remedy this breach until he was contacted by Community Corrections on 22 April 2020. In the meantime, he had been charged with further property offences as detailed above.
Notwithstanding that resumption of contact on 22 April 2020, the very next day, 23 April 2020, he was arrested for the common assault offence which had been committed on 11 April 2020 and granted conditional bail. The new charge led to a recommendation that parole be revoked on 24 April 2020 and this recommendation was accepted by the State Parole Authority at its meeting on 6 May 2020 backdating the revocation to the date of the common assault of 11 April 2020. He has remained in custody without parole since then and an application for release on the ground of manifest injustice was refused in December 2020.
During the course of the assessment of Mr Hona's manifest injustice application, Mr Hona's mother, while confirming that she was supportive and happy to have Mr Hona resume residence with her subject to Community Corrections support, also confirmed the pattern which appeared to be suggested by the objective facts alleged in the supporting documentation. That is to say that upon his initial release he was enthusiastic, he did undertake work with an uncle and seemed compliant. However, she suspected, I infer, a degree of institutionalisation. He became withdrawn and was anxious going out in the world. He resorted to his abuse of alcohol and prohibited substances. It is quite clear from her statements that she feels the need for assistance with Mr Hona's supervision when he is released from custody.

[14]

Resolution of the question of whether the CCO will suffice

I accept Mr McGorey's argument that the question of unacceptable risk cannot be resolved in favour of the State after a final hearing unless the Court is satisfied to a high degree of probability that he poses an unacceptable risk of committing another serious violence offence. A high risk of violent offending per se is insufficient. Although Mr Ardasinksi states that its "possible", only, that the risk crosses the s 5B(d) threshold, in my view at this interlocutory stage, that suffices to support the findings I have made in relation to the satisfaction of the s 5B(d) condition. Expert opinion will be but one factor to be taken into account with all other evidence at the final hearing.
I am also of the view that this case is quite unlike Youseff. I remind myself that factual determinations in previous decisions are not of precedential value. But factual differences may provide relevant points of distinction. In Youseff the application for an ESO was made at the heel of the hunt as Mr Youseff was approaching the end of a successful period of 20 months on parole. It is true that he had suffered some relapses or backsliding during the course of his supervision. I accept that this may be expected. But the general trajectory of his performance was upward. In these circumstances Hoeben CJ at CL was not persuaded that the risk was unacceptable in the statutory sense to the required degree of persuasion.
As I have said, in the present case, at best Mr Hona's conduct in custody has been "mixed" and his conduct under the supervision provided by a parole order has been, frankly, very poor. The matters alleged in the supporting documentation, if proved, after a final hearing, at best from Mr Hona's point of view, would raise serious questions about the likely effectiveness of a CCO given the ineffectiveness of the parole order.
None of this seeks to predict what will happen at the final hearing; nor does any of this involve impermissible weighing of the evidence which is a matter which must abide the final hearing. But, however persuasive the arguments by Mr McGorey might be at the final hearing, they are in my view, not sufficient to displace my assessment of the potential effect of the matters alleged in the State's supporting documentation.

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (23 paragraphs)

Parties

Legislation Cited (3)

Cases Cited (5)

Cited By (1)