State of New South Wales v Kaiser

Relevant Chronology of these Proceedings

1. These proceedings were commenced when the State filed a Summons on 17 May 2018. In that Summons, the State sought a Continuing Detention Order ("CDO") and an Extended Supervision Order ("ESO"). It also sought interim detention or supervision orders as may be necessary. Other orders of the usual kind were sought. The date that this Summons was filed was a little less than two months before the defendant's sentence for manslaughter expired.
2. At that time, the defendant was in custody both because he was serving the balance of his manslaughter sentence (after his parole was revoked), and also because he had been refused bail for the 2017 offences. Ellis DCJ had not at the time of the Summons was filed, sentenced the defendant for the 2017 offences.
3. The State did not make any application to the Court to make any interim orders under the HRO Act at the time the Summons was filed.
4. On 5 December 2018, the State was granted leave to file an Amended Summons which removed the relief previously sought seeking the imposition of a CDO or an Interim Detention Order ("IDO"). It also removed the relief sought by way of an Interim Supervision Order ("ISO").
5. On 17 December 2018, Walton J made orders for the examination of the defendant (and preparation of reports) by two qualified experts pursuant to s 7(4) of the HRO Act. No final hearing date was sought to be fixed at that time. See: State of New South Wales v Kaiser (Preliminary) [2018] NSWSC 1971.
6. Thereafter, the proceedings were adjourned at the request of the State until 20 November 2020, when a timetable for the service of further evidence, including the reports of the two court appointed experts were ordered. At that time the matter was fixed for a final hearing on 6 May 2021.

Relevant Legislation

1. It is convenient here to set out those parts of the HRO Act which are relevant to the issues for consideration. "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). … 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) 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. … 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. 6 Requirements with respect to application (1) An application for an extended supervision order against an offender may not be made until the last 9 months of the offender's current custody or supervision. (2) (Repealed) (3) An application must be supported by documentation: (a) that addresses each of the matters referred to in section 9 (3), and (b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) that assesses the likelihood of the offender committing a serious offence. (4) An application may indicate the kinds of conditions (in addition to the condition referred to in section 11 (2)) that are considered to be appropriate for inclusion under section 11 in the event that an extended supervision order is made."
2. The State also relies upon s 160A of the Crimes (Administration of Sentences) Act 1999 ("the CAS Act") which is in the following terms: "160A Relationship of parole orders to high risk offender orders (1) An offender's obligations under a parole order made in respect of a sentence for a NSW offence are suspended while the offender is subject to - (a) an extended supervision order, an interim supervision order, an interim detention order or an emergency detention order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017, or (b) an interim detention order under Division 105A of Part 5.3 of the Commonwealth Criminal Code. (2) For the purposes of Division 3 of Part 7, the offender's obligations under the extended supervision order or interim supervision order are taken to be obligations under the parole order. Note - Consequently, the offender's parole order may be revoked under Division 3 of Part 7 if the offender fails to comply with his or her obligations under the supervision order. (3) A parole order made in respect of a sentence for a NSW offence to which an offender is subject is revoked if - (a) a continuing detention order is made against the offender under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017, or (b) a continuing detention order is made against the offender under Division 105A of Part 5.3 of the Commonwealth Criminal Code."

Issue 1 - Is the Defendant a "supervised offender"

1. The State submits that the defendant is a supervised offender within the meaning of s 5I(2) because, on the date the application was first made by the filing of the Summons, namely 17 May 2018, he was then serving the sentence of imprisonment for the manslaughter offence which falls within the definition of the term "serious offence" within the meaning of s 5I(2)(a)(i).
2. It is not in contest in these proceedings that the manslaughter offence was a serious violence offence (and therefore a serious offence) as that term is defined in s 5A.
3. Section 5I falls within "Division 1 - Application for extended supervision order", of Part 2 of the HRO Act. It deals with an application by the State for an ESO. It is a limiting provision in the sense that it provides that such an application may only be made "… in respect of a supervised offender".
4. According to s 5I(2) of the HRO Act, a person is a supervised offender if, when the application for an order is made, that person is in custody (or under supervision) for an identified range of offences. Relevantly here, the defendant must be serving a sentence of imprisonment for a serious offence.
5. There is no issue that on 17 May 2018, the defendant was a supervised offender, because he was then serving a sentence for the manslaughter offence.
6. The defendant however, in resisting the proposition that this Court has the power to make an ESO, seeks to argue that the application for an ESO is made for the purpose of s 5I when the application is heard on a final basis by the Court.
7. I reject that submission. I view the suggested interpretation as inconsistent with the provisions of the balance of Division 1 of Part 2 of the HRO Act, and the scheme of the HRO Act generally.
8. In particular s 6, which, in addition to limiting the timing as to when the application may be made, provides that "an application" must be supported by documentation of a specified kind. This is apt only to refer to the time at which a Summons is filed. Section 7 of the HRO Act provides for the service of "an application" within two days after it is filed in the Court. The balance of the provisions of s 7 of the HRO Act, require disclosure of documents and a "preliminary hearing into the application".
9. Together these provisions all point to the fact that one cannot interpret the phrase in s 5I of an application being made for an ESO as meaning anything other than the time at which the proceedings were commenced by the filing of a Summons seeking an ESO.
10. The interpretation contended for by the defendant is also inconsistent with the provisions of s 9 of the HRO Act which is found within "Part 2 Division 2 - Determination of application" of the HRO Act. That section makes provision for the way in which an application for an ESO may be finally determined. It assumes - see s 9(3)(b) - that there has been a preliminary hearing of the application and that orders appointing experts to conduct examination have been made under s 7(4) of the HRO Act. Clearly, those orders could not be made unless an application had already been made. Without an application having been made and served, the Court would have no jurisdiction to make an ESO because it does not have the ability under the HRO Act to make such an order of its own volition.
11. Put differently, the scheme of the HRO Act is that when an application is made that complies with ss 5I and 6, a preliminary hearing will take place as contemplated by s 7 during which orders may be made requiring the defendant to submit to expert examination and then a final determination of the application for an ESO is made by the Court in accordance with ss 9 and 10.
12. I am satisfied that at the time the State made its application, which was when it filed the Summons commencing these proceedings, the defendant was a supervised offender within the meaning of s 5I(1).
13. However, before making an ESO, the Court needs to be satisfied that it can do so having regard to the preconditions which exist in s 5B of the HRO Act. Once those preconditions are satisfied, it is a matter for the Court's discretion as to whether an ESO ought to be made.
14. Section 5B of the HRO Act contains four preconditions to the exercise of the Court's discretion to make an ESO. They are each set out in the sub‑paragraphs to the section.
15. The first pre-condition (s 5B(a)) is that the defendant is an offender who is serving a sentence of imprisonment for a serious offence (generally called the "index offence"), or else who has served such a sentence. The sentence of imprisonment can be, or can have been, served either in custody or in the community.
16. The index offence relied upon by the State here is the offence of manslaughter which is a serious offence. The defendant has served (but is not presently serving) a sentence of imprisonment for that serious offence. It is convenient to note that none of the 2017 offences fall within the description of a serious offence under the HRO Act.
17. The third pre-condition (s 5B(c)) is that an application for an order has been made in accordance with s 5I of the HRO Act.
18. As discussed earlier, I am satisfied that an application for an ESO was made in accordance with s 5I of the HRO Act, although there remains an issue to be considered later as to whether that application complied with s 6(1) of the HRO Act. However, that issue does not preclude the conclusion just expressed that the application when made complied with s 5I
19. For the present purposes of answering the separate questions, the fourth pre‑condition (s 5B(d)) namely 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 the subject of an ESO, does not require resolution. This issue falls to be determined on the merits, if necessary, after the determination of the separate questions.
20. The remaining pre-condition, which is the one upon which submissions centred, is that contained in s 5B(b) of the HRO Act, namely that the defendant "… is a supervised offender (within the meaning of section 5I)".
21. By way of initial observation, it is to be seen that the use of the present tense "is" in that phrase relates to the exercise by the Court of its discretion to order an ESO i.e. "the Supreme Court may make an order for … [an ESO], if…". That is to say that at the time the Court exercises its discretion to make such an order, it has to be satisfied that the defendant is a supervised offender.
22. The State submitted that it had satisfied this provision because the relevant time for the defendant to be a supervised offender is to be drawn from the qualification to the phrase "supervised offender" namely, "… within the meaning of section 5I". The State submitted that as the defendant was a supervised offender at the time the Summons was filed, this precondition was met.
23. The defendant submitted that having regard to the text, context and purpose of the legislation, s 5B(b) means that the Court had to be satisfied that at the time the Court exercised its discretion to make an ESO, the defendant had to be a supervised offender. In other words, the defendant submitted that s 5B(b) should be interpreted as if it read "… is, and continues to be …", or else "… was and remains …".
24. The primary object of the HRO Act, found in s 3, is relevantly to provide for the extended supervision of a high-risk violent offender "… so as to ensure the safety and protection of the community". Another object is to encourage rehabilitation.
25. The current HRO Act is an amendment from the original legislation, the Crimes (Serious Sex Offenders) Act 2006 which applied only to serious sex offenders. During the Second Reading Speech for this bill, the Minister for Police, Mr Carl Scully, said on 29 March 2006 this: "One particular concern that is dealt with by this scheme relates to a handful of high risk, hard-core offenders who have not made any attempt to rehabilitate whilst in prison. These offenders make up a very small percentage of the prison population, yet their behaviour poses a very real threat to the public. These concerns are compound where the offender never qualifies for parole and is released at the end of their sentenced sentence totally unsupervised. The Bill addresses this problem by allowing this small group of high-risk offenders to be placed on extended supervision…"
26. The original Act was amended in by the Crimes (Serious Sex Offenders) Amendment Act 2013. The purpose of the amendment was to extend the reach of the Act to those who committed serious violence offences. In the Second Reading Speech in the Legislative Council, the Parliamentary Secretary for the Minister for Police said this: "The purpose of the Bill is to extend the existing scheme for the continued detention and extended supervision of serious sex offenders to high-risk violent offenders. … The Bill recognises that there are serious violent offenders in our prisons who are nearing the end of their sentence, who have made no attempt to rehabilitate themselves, or who have made it very clear to authorities that they intend to reoffend when they are released. The Bill responds to this very clear danger and ensures the protection of the community from a clear risk."
27. As can be seen from these extracts, the purpose of the HRO Act is to provide for the extended supervision (or continuing detention) of individuals upon the completion of their terms of imprisonment where they present a risk to the safety of the community upon their release and that the protection of the community justified this extended supervision (or detention).
28. The text of s 5B is important for the resolution of the competing submissions. First, s 5B(a), there must be, or have been, a term of imprisonment served for a serious offence, being the index offence.
29. Section 5B(a) does not require that the defendant is actually serving a sentence of imprisonment for a serious offence at the time the Court makes an ESO. The defendant falls within s 5B(a) if, as a matter of history, unlimited to a point in time, they have served such a sentence. If the defendant is still serving that sentence, s 5B(a) will be satisfied.
30. Section 5B(c) requires that an application for an ESO satisfies the requirements of s 5I. That section requires the application to be made at a time when the defendant is still serving a sentence of imprisonment, relevantly to this defendant either for a serious offence or else for any other offence where the sentence for that offence is either concurrent or consecutive to the imprisonment for the serious offence. A hiatus is not permissible: Decision Restricted [2021] NSWSC 245.
31. Section 5B(b) requires that the defendant is a supervised offender (within the meaning of s 5I). Taking this sub-section as a whole, the text is capable of two possible meanings, namely, was the defendant serving a relevant sentence of imprisonment: 1. only when the application for an ESO was made by filing the Summons; or 2. at that time and, as well, at the time the Court exercises its discretion to make an ESO.
32. If the correct interpretation is (i), that the State only has to show that the defendant was serving a relevant sentence of imprisonment when the Summons was filed, then s 5B(b) would be otiose because it would add nothing to the requirement in s 5B(c) for the application for an ESO to satisfy s 5I.
33. As well, this interpretation would not give any effect to the different times at which a summons is filed, to which s 5I is directed, and the time at which the Court exercises its discretion to make an ESO under s 5B. As is clear from the earlier discussion about the true meaning of s 5I, these times will be different, and often by some months, because of the time which elapses before a preliminary hearing is held, and then the relevant expert examinations take place, and reports are available for the Court's consideration. The provisions of s 6(1) have the effect that this period may be up to nine months.
34. If the second possible meaning is adopted, then s 5B(b) would be interpreted as meaning "… was and remains …" a supervised offender, or else "… is and continues to be …" a supervised offender at the time the Court exercises its discretion to make an ESO.
35. Such an interpretation would allow the sub-section to have a separate and distinct operation from s 5B(c). It would also more accurately reflect the principal provisions of s 5B (sometimes called the chapeau) which makes the exercise of the Court's discretion subject to the satisfaction of the four pre‑conditions.
36. Finally, the second interpretation is consistent with the purpose of the legislation which was to provide for the extended supervision (or detention) of a high-risk offender immediately upon their completing their sentence where they presented an on-going risk to the safety of the community.
37. What stands against this interpretation is the inclusion of the words "(within the meaning of section 5I)" which the State submitted had the effect of limiting the time at which a defendant was serving a relevant term of imprisonment to the date the Summons was filed.
38. However, the words in s 5B(b) referring back to s 5I still have meaning if the definition of "supervised offender'" contained in s 5I is read in the temporal context of s 5B. All that is required is to interpret the phrase "supervised offender" in s 5B(b) as being a person who at the relevant time is in custody or under supervision while serving a relevant sentence of imprisonment.
39. Considering all of these matters and applying the relevant principles of statutory interpretation, I have concluded that s 5B(b) requires that a defendant must be a supervised offender at the time the Court comes to exercise its discretion to make an ESO. This means that, at that time, the defendant must be in custody or under supervision: 1. while serving a sentence of imprisonment for a serious offence; 2. while serving a sentence for a non-serious offence which is concurrent with, or consecutive to, the sentence for the serious offence; or 3. is under an interim supervision order, or an existing ESO (or interim or continuing detention orders).
40. As is apparent from the defendant's criminal history, the defendant is not now, and has not been since 9 December 2019 when his sentence for the intimidation offence expired, a supervised offender within the meaning of s 5B(b) of the HRO Act.
41. It follows from this conclusion that the Court does not have the power to make an ESO in respect of the defendant pursuant to s 5B of the HRO Act.
42. The first separate issue must be answered "No" to reflect these conclusions.
43. It seems to me that it ought follow from this answer that, as the State cannot establish one of the essential pre-conditions to the exercise of the Court's jurisdiction under s 5B of the HRO Act, the proceedings should be dismissed.
44. This conclusion also means that it is strictly unnecessary to answer the other separate questions. However, it is convenient to do so as the judgment as touched upon matters relevant to the answering of those questions.

Issue 2 - Application Made within Last Nine Months

1. Section 6(1), as set out above at [21] provides a time limitation of nine months prior to the conclusion of an offender's "current custody or supervision", for the bringing of an application for an ESO.
2. This period is fixed so as to reflect the scheme of the HRO Act, which depends upon an assessment of the relevant unacceptable risk. One of the pre‑conditions to the exercise of the Court's jurisdiction to make an ESO, is that the State needs to persuade the Court to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under the order. In considering that requirement, the Court is required to have regard, as a minimum, to the matters set out in s 9(3) of the HRO Act.
3. The mandatory considerations are directed to material which assists the Court to consider what the likelihood is that the defendant will commit a further serious offence, and whether an ESO will be appropriate having regard to the paramount consideration that the safety of the community is protected.
4. One sees in the mandatory considerations the need for the Court to take into account the results of expert assessments prepared by appointed psychiatrists or psychologists; other assessments prepared by qualified experts: "… as to the likelihood of the offender committing a further serious offence…"
5. And the results of any statistical or other assessment as to the likelihood of: "… of persons with histories and characteristics similar to those of the offender committing a further serious offence."
6. The Court is entitled to take into account any other information: "… that is available as to the likelihood that the offender will commit a further serious offence."
7. Given that the assessment of the risk, and whether or not it is an unacceptable one, requires an element of contemporaneity as to when the ESO would commence, the time limit fixed by the HRO Act ought be interpreted to give effect to this constraint.
8. The chronology of events described above shows that the application for the ESO was made about two months before the end of the sentence being served by the defendant for the offence of manslaughter, which was, within the meaning of s 5I(2)(a)(i), a sentence of imprisonment for a serious offence.
9. The text of s 6(1) shows clearly that it is required to be interpreted by reference to the date when the Summons was filed. The facts unarguably demonstrate that the State's Summons was filed within the time permitted by s 6(1) of the HRO Act.
10. It would have been open to the State to have filed such an application within nine months before the end of the sentence of imprisonment imposed on the defendant for the intimidation offence, namely in the period after 9 March 2019 and before 9 December 2019, because whilst ever the defendant was serving the sentences of imprisonment for the malicious damage offence and intimidation offence, he was still serving a sentence of imprisonment for other offences that were being served concurrently or consecutively, or partly concurrently partly consecutively, with a sentence of imprisonment for a serious offence: see s 5I(2)(a)(iv).
11. The answer to this issue separate question must be, yes.

Issue 3 - Commencement Date of an ESO

1. The State seeks to argue that it would be open to the Court, if appropriately satisfied of the four preconditions for the exercise of its discretion to make an ESO pursuant to s 5B of the HRO Act, to commence that ESO on a day when the defendant is on parole, as he will be on and after 9 June 2021 for the choking offence, and prior to the expiry of that sentence.
2. The State argues that the ability of the Court so to do is enabled by the interaction of two statutory provisions.
3. The first is s 10(1) HRO Act which provides that an ESO commences: "… when it is made, or when the offender's current custody or supervision expires, whichever is the later"
4. Secondly, the State draws attention to the provisions of s 160A of the CAS Act set out [22] above, which has the effect that an offender's obligations under a parole order are suspended while the offender is subject to an ESO. In effect the State argues that even though a person is serving their sentence in the community and subject to parole, which may include supervision by the relevant Community Corrections Offices, the Court is entitled nevertheless to impose an ESO and thereby make the defendant the subject of different, and perhaps stricter, conditions to those imposed as part of the defendant's parole.
5. In my view, this is an erroneous construction of the HRO Act and the provision of the CAS Act to which reference has been made.
6. It is to be recalled the scheme of the HRO Act is to provide supervision which extends from the end of a sentence of imprisonment and continues for a period fixed by the court. The Second Reading Speeches to which attention is drawn above, highlight that the issue which the legislation was intended to address was the need to supervise offenders in the community (or to detain them) where those offenders presented an ongoing risk of committing a further serious offence.
7. The words of s 10(1) of the HRO Act also address that matter specifically i.e., it provides that an ESO commences on the later of two dates, namely when the Court makes the ESO or when the offender's term of custody or imprisonment ceases.
8. The provisions of s 160A of the CAS Act do not, contrary to the State's submissions, have any substantive effect on the timing at which an ESO can commence.
9. Section 160A is directed to the existence, at the same time, of an ESO and a parole order, and provides for a remedy to any possible conflict between the conditions imposed by way of parole and those imposed by way of an ESO. That resolution is that the provisions of the ESO are to prevail.
10. However, s 160A is not apt to permit an ESO to be imposed with respect to the same offence upon which the person is serving their term of imprisonment for which parole may be granted.
11. That is so because the specific terms of s 10(1) of the HRO Act provides for an ESO to come into effect only once an offender's "current custody or supervision expires". This suggests that an ESO cannot be effective whilst the offender remains under supervision as one would if subject to a parole order.
12. However, it is entirely possible that, particularly if an ESO covers a lengthy period and whilst subject to an ESO an offender commits another offence, not a serious offence within the meaning of the HRO Act (nor an offence for which an ESO would be available), and is sentenced to a term of imprisonment with a statutory period of parole, that the ESO will remain in place once that person is on parole. In those circumstances s 160A will take effect.
13. It is not intended to have the effect contended for by the State.
14. Accordingly, issue three needs to be answered that an ESO cannot commence until the defendant's current term of imprisonment expires.

Conclusion

1. As earlier indicated, the consequence of the conclusion I have reached on the first issue is that the Court does not have the power to make an ESO under s 5B of the HRO Act.
2. It will be appropriate for the Court to order that the proceedings be dismissed and that the plaintiff should pay the defendant's costs.

Orders

1. The Court makes the following orders: 1. Pursuant to Rule 28.2 of the Uniform Civil Procedure Rules 2005, that the separate questions be answered as follows: 1. Q: Whether, for the purposes of the application of s5B(b) of the HRO Act to the defendant, the State has shown that the defendant is a "supervised offender (within the meaning of s 5I)" of the HRO Act. 1. A: No. 1. Q: Whether, for the purposes of the application of the HRO Act to the defendant, the State has shown that the application for the ESO has been made within the last nine months of the defendant's current custody or supervision, within the meaning of s 6(1) of the HRO Act. 1. A: Yes. 1. Q: Whether, if the Court has jurisdiction to make an ESO and it determines that it is appropriate to so order, such ESO can commence on a date earlier than 9 December 2022 when the defendant's current sentence expires. 1. A: An ESO cannot commence on any date prior to 9 December 2022 when the defendant's current sentence of imprisonment expires. 2. Order that the Amended Summons filed 5 December 2018 be dismissed. 3. Order the plaintiff to pay the defendant's costs. 4. Order that access to the Court's file in these proceedings be restricted such that access to a non-party would be permitted only with the leave of a judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

Amendments 08 June 2021 - Typographical error on coversheet 08 June 2021 - Typographical error on p.22. 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: 08 June 2021