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[2013] NSWSC 1147
Supreme Court of NSW
2013-08-15
Button J, Hidden J
Original judgment source is linked above.
EX TEMPORE Judgment 1By summons filed on 6 August 2013 the plaintiff seeks two substantive orders today pursuant to the Crimes (High Risk Offenders) Act 2006, to which I shall subsequently refer as "the Act". 2The first order is as follows: "1. An order pursuant to section 7(4) of the Crimes (High Risk) Offenders Act 2006 ("the Act"): a. Appointing two qualified psychiatrists to conduct separate psychiatric 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." 3The second order sought is as follows: "2. An order: a. pursuant to section 10B of the Act, that the defendant be subject to an interim supervision order from 17 August 2013 ("the interim supervision order"); b. pursuant to s. 10C(1) of the Act, that the interim supervision order be for a period of 28 days; and c. pursuant to s.11 of the Act directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in schedule A to this Summons." 4I should record that in the course of the hearing those conditions sought were amended by senior counsel for the plaintiff. 5The background to the application is that the defendant is in custody, having breached his parole. His current sentence will completely expire in two days, that is, on 17 August 2013. That sentence relates to a conviction for manslaughter that was entered as a result of a plea of guilty to that charge by the defendant whilst represented by counsel that was founded upon excessive self-defence. Hidden J sentenced the defendant to a head sentence of imprisonment for 7 years with a non-parole period of 4 years and 6 months.
The Act 6The necessary definitions in the Act are, I consider, made out. The defendant has not submitted otherwise. 7In light of his incarceration the defendant is a "supervised violent offender" as defined in s 5J of the Act. 8The defendant is a "violent offender" as defined in s 4 of the Act because he is over the age of 18 years and has been sentenced to imprisonment for a "serious violence offence" as defined in s 5A. 9I 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. 10The test to be applied by me at this preliminary stage pursuant to s 10B as to whether or not an interim supervision order should be made has two aspects. The first, in short, is whether the current custody of the defendant will expire before the application can finally be determined. As I have said, the sentence of the defendant expires in two days and the test in s 10B(a) is certainly made out. 11The second aspect of the test, to quote from s 10B(b) is a necessity for it to appear to me, "that the matters alleged in the supporting documentation [I interpolate to say, in the case for the plaintiff] would, if proved, justify the making of a high risk violent offender extended supervision order". 12With regard to the latter test and its relevance to the order sought with regard to the two psychiatrists, the test contained in s 7(5) is relevantly identical. 13Consideration of the test in s 10B(b) and s 7(5) leads one to the test for making an order contained in section 5E. 14Section 5E is as follows: "5E High risk violent offender (1) An offender can be made the subject of a high risk violent offender extended supervision order or a high risk violent offender continuing detention order as provided for by this Act if and only if the offender is a high risk violent offender. (2) An offender is a high risk violent offender if the offender is a violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if he or she is not kept under supervision. (3) The Supreme Court is not required to determine that the risk of a person committing a serious violence offence is more likely than not in order to determine that the person poses an unacceptable risk of committing a serious violence offence." 15The definition of a "serious violence offence" (which forms part of the test contained in s 5E) is surprisingly broad. Section 5A, which provides that definition, is as follows: "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. ..." 16At its lowest, on analysis a serious violence offence could be an offence that features an act causing grievous bodily harm done with foresight of the possibility that actual bodily harm could occur. An example that springs to mind is punching someone to the face whilst realising that it is possible that the victim will receive a split lip and the victim, as a result of the punch, falling back and hits his or her head on concrete and suffering a very large laceration to his or her head. Clearly, the concept of a serious violence offence is not confined to offences of homicide, or even the intentional infliction of serious violence. 17It has been said that the interim test that calls for consideration by me today is akin to the test that a magistrate applies in determining whether there is a prima facie case to answer in committal proceedings: see State of New South Wales v Manners [2008] NSWSC 1242 at [8]. In the State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118, R A Hulme J said at [11]: "The task of the Court at the preliminary hearing stage is not to weigh up the documentation, or predict the ultimate result, or to consider what evidence the defendant might call at the final hearing: Attorney General (New South Wales) v Tillman [2007] NSWCA 119. The test is one that is similar to the prima facie case test applied by magistrates in committal proceedings: Attorney General (NSW) v Hayter [[2007] NSWSC 983], above, at [6]: State of New South Wales v Manners [[2008] NSWSC 1242], above, at [8]." 18Clearly, that is not a stringent test.
Evidence and submissions of the plainitff 19In light of the exigencies of the situation, I will not review at length the voluminous evidence about the defendant upon which the plaintiff relies. 20In summary, first, the defendant, who is now aged 37 years, has a great many convictions for offences of violence. They began in the Children's Court. Although a substantial majority of them are not of the greatest seriousness, it is important that many of them involved the use of a weapon including, on at least one occasion, a knife, a syringe and a bottle. Furthermore, the defendant has on his criminal record a number of separate convictions with regard to the possession and use of weapons themselves. 21Secondly, the convictions for violence of the defendant culminate in a homicide inflicted by a deadly weapon in a public place over a relatively trivial on-going dispute between the defendant and the deceased. 22Thirdly, the defendant has been almost completely resistant to addressing his violent proclivities over the years, including during his most recent lengthy period of incarceration. 23Fourthly, the expert evidence suggests that the use of illicit drugs has the potential to exacerbate the tendency to violence on the part of the defendant. The submission is that it is noteworthy that the defendant overdosed on heroin earlier this year whilst in the community, and has also been found recently to have ingested methylamphetamine, though I hasten to add that the defendant disputes that latter proposition. 24Fifthly, there is expert evidence suggesting, as one would expect, that in light of his longstanding tendency towards acts of violence and his refusal or inability to address that issue, if the defendant is in the community completely unconditionally there is a not insubstantial risk that the defendant will commit one or more further acts of violence. I refer particularly to the risk assessment report prepared by Mr Sheehan. 25Sixthly, the defendant was released this year to parole, and he remained on parole for only a matter of three or four months before he was breached and parole was revoked. Not only that, he has failed on parole and other forms of conditional liberty a number of times over the years. 26Seventhly, even in custody the defendant has behaved violently on several occasions. Indeed, two days before his release on parole earlier this year, he involved himself in a fist fight with another prisoner. 27Eighthly, in light of the lack of seriousness of many of the offences committed by the defendant, whilst it may be that it would be difficult for any judicial officer to be satisfied that there is an unacceptable risk of the defendant committing another homicide, or an offence that involves the intentional infliction of grievous bodily harm, as I have demonstrated that is not the definition of a serious violence offence that in turn forms an element of the test in s 5E of the Act. The definition is much broader than that. 28Ninthly, to the extent that it is appropriate to consider the onerousness of the orders from the perspective of the defendant (and I appreciate that the authorities are not entirely clear on that point: see State of New South Wales v Richardson (No 2) [2011] NSWSC 276 and State of New South Wales v Watson [2011] NSWSC 1692; but also see State of New South Wales v Reed (Preliminary) [2011] NSWSC 625) two facts are, it is submitted, important. With regard to the first order sought pursuant to s 7(4) of the Act, all the defendant is being asked to do is attend upon and engage with two psychiatrists for the purposes of an examination. With regard to the second order sought, the plaintiff accepts that it includes onerous restrictions upon the liberty of the defendant. On the other hand, it can be said that the order will not extend beyond 28 days from today. 29Tenthly, it has been submitted that the defendant's obdurate approach to the preparation and conduct of this hearing itself is suggestive at least of a resistance to authority, and an unwillingness to face up to the real issues that have led to the application.
Submissions of the defendant 30The defendant, who appeared for himself, tendered and led no evidence, but was permitted to address the court orally for over an hour. At first there was a flavour of recalcitrance in his approach to matters generally, but on reflection that is understandable in light of the fact that, as I understand it, he is the first prisoner with regard to whom an order of this particular kind has been sought. Although discursive, the defendant's submissions were neither aggressive nor discourteous, and some of them had force. 31First, he repeated a submission that the statutory regime of the Act is unconstitutional and that the application is outside what he called the statute of limitations. Those are submissions that I respectfully reject: see Fardon v Attorney-General of Queensland [2004] HCA 46; (2004) 223 CLR 575. 32Secondly, he submitted that many of the offences of which he has been convicted were escalations of confrontations in which he was not the only party at fault. There may well be some truth in that. On the other hand, the defendant also repeatedly made it clear that he is a person who will exercise his purported right to self-defence vigorously. 33Thirdly, he submitted that some of the weapons convictions were, again, not as serious as they may first appear. 34Fourthly, he submitted that his inability meaningfully to engage in rehabilitation whilst in custody could be explained by a refusal on his part to seek excuses for his conduct, whether by blaming his family or upbringing, or any mental condition. He also submitted that it was impossible to engage in group therapy and reveal one's innermost thoughts and feelings in front of a group of violent criminals. Again, that is understandable. 35Fifthly, he submitted that the making of the orders sought today, far from being of assistance to him, could actually disrupt the logistics of his release and prospects of success in the community. So much may be accepted, but rehabilitation is not the primary purpose of the Act. 36Sixthly, the defendant made the point that his time on parole, whilst it ended unsuccessfully, did not feature any fresh charges for violence. As for the overdose, he stated that that was the recurrence of an old problem that was resolved years ago. As I have said, he firmly denied any recent use of methylamphetamine. 37Seventhly, he submitted that the conditions sought would be onerous indeed. Again, I consider that that submission has force. The defendant particularly objected to the possibility of electronic monitoring. 38On the other hand, as I understand it the defendant has no settled place to live when he is released in less than 48 hours. There is no suggestion of employment being available, or any other structure to his life. His plans to avoid spending yet more of his life in custody were vague indeed.
Determination 39I turn to my determination of the summons. In short, taking into account all of the evidence and the submissions of both parties, I am satisfied that the test in s 10B(b) and s 7(5) of the Act is made out. To be clear, I am satisfied that the matters alleged in the supporting documentation in the case for the plaintiff would, if proved, justify the making of a high risk violent offender extended supervision order. 40I have come to that view bearing in mind all of the relevant factors in s 9(3) of the Act. In these urgent circumstances, I will not work through them seriatim. 41It follows that, pursuant to s 7(4), I will make the orders sought in the summons with regard to psychiatric examination. 42I also propose to make an interim supervision order. To permit the orderly preparation of the final hearing, that should be for 28 days. 43I accept that the amended conditions sought will be an onerous imposition on the liberty of the defendant. On the other hand, three things may be said. First, not all of them may be called for in their entirety, in the discretion of his supervising officer. Secondly, they will only last for 28 days. Thirdly, in assessing their appropriateness, it is worth recalling that the tendency of the defendant to commit offences of violence has culminated in fatality, and realistically there is really little or nothing proposed by the defendant to stop serious violence occurring again. 44Accordingly, I make the following orders: (1)Pursuant to section 7(4) of the Crimes (High Risk Offenders) Act 2006: (a)two qualified psychiatrists be appointed to conduct separate psychiatric examinations of the defendant, in order to furnish reports to the Supreme Court on the results of those examinations by 4.00pm Thursday 5 September 2013, which is two weeks from today; and (b)the defendant is to attend those examinations. (2)Pursuant to ss 10B and 10C(1) of the Crimes (High Risk Offenders) Act 2006, the defendant is subject to an interim supervision order from 17 August 2013 for 28 days. (3)The defendant is to comply with the conditions of the interim supervision order as set out in Amended Schedule A of the summons filed by the plaintiff on 6 August 2013. (4)The matter is adjourned to the Common Law Registrar's list at 9.00am on Thursday 22 August 2013, that being one week from today.
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: 20 August 2013
State of New South Wales
Lynn