State of New South Wales v Lynn

Supreme Court of NSW|2013-08-15|Before: Button J, Hidden J

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.

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

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