State of New South Wales v Lynn

EX TEMPORE Judgment 1Before me is a Notice of Motion seeking a further interim supervision order against the defendant pursuant to s 10B of the Crimes (High Risk Offenders) Act 2006 (the "Act"). 2An interim supervision order was made by Button J on 15 August 2013 (State of New South Wales v Lynn [2013] NSWSC 1147). The period specified by that order expires on 13 September 2013. That reflected the maximum period for which such an order could be made, namely, 28 days (see s 10C(1)). The proposed order is consented to by the defendant. 3Section 10B provides: "Interim supervision order - high risk violent offender The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of a high risk violent offender extended supervision order." 4Given the manner in which s 10B is expressed and, in particular, the words "it appears to the Court", it is not clear whether the consent of the parties is a sufficient basis for the Court to make such an order or whether the Court must consider the matter in its own right. Out of an abundance of caution I have taken the latter course. 5In this case there is no doubt that s 10B(a) has been satisfied. The plaintiff has filed a summons seeking an extended supervision order. It was filed prior to the expiry of the offender's period of incarceration. However, he has now been released from custody so that it is inevitable that his current "custody" will expire before the proceedings are determined. 6Further, for the sake of completeness, I notice that the matter has been set down for hearing on 24 October 2013 so that the current interim supervision will also expire before the proceedings are determined. 7Subsection 10B(b) refers to the matters alleged in the supporting documentation, providing a justification for the making of a high risk violent offender extended supervision order. The latter phrase directs attention to s 5E and s 5F, which provide: "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. 5F Extended supervision orders for high risk violent offenders (1) The Supreme Court may, on application under this Act, make an order for the supervision of an offender if the offender is a high risk violent offender. (2) An order made under this section is an extended supervision order. (3) An extended supervision order made under this section may also be referred to as a high risk violent offender extended supervision order." (emphasis in original) 8By the operation of s 4, "offender" in this context means "violent offender". In turn that requires the person to be over the age of eighteen years and someone who has "at any time been sentenced to imprisonment following his or her conviction for a serious violence offence". 9On or about 7 November 2008, the defendant was convicted and sentenced for the offence of manslaughter. Justice Hidden sentenced him to a non-parole period of four and a half years commencing on 18 August 2006 and expiring on 17 February 2011 and a balance of term of two and a half years commencing on 18 February 2011 and expiring on 17 August 2013 (R v Lynn, unreported, Supreme Court of NSW, Hidden J, 7 November 2008). 10The offence of manslaughter clearly meets the definition of serious violence offence as found in s 5A(1) of the Act. 11Section 10B also refers to the "matters alleged in the supporting documentation". By s 4, "supporting documentation" means in this case the documentation referred to in s 6(3) of the Act. Section 6 provides: "Requirements with respect to application (1) An application for an extended supervision order must indicate whether the extended supervision order sought is a high risk sex offender extended supervision order or a high risk violent offender extended supervision order. (2) An application may not be made until the last 6 months of the offender's current custody or supervision. (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: (i) a further serious sex offence (in the case of an application for a high risk sex offender extended supervision order), or (ii) a further serious violence offence (in the case of an application for a high risk violent offender extended supervision order). (4) An application may indicate the kinds of conditions that are considered to be appropriate for inclusion under section 11 in the event that an extended supervision order is made." 12The documentation referred to in s 6(3) is the documentation that supports the application. For present purposes, I will confine myself to the documentation supporting the application at the time it was filed. However, nothing in the material that has been made available to the Court since that time affects the following analysis. 13The material that accompanied the application includes material indicating the offender's criminal history (see s 9(h)). The defendant is 37 years of age. He has a long criminal history that spans a number of years starting when he was a juvenile. Amongst that criminal history is a series of violence offences. They culminated, as I have indicated, in his conviction for the offence of manslaughter. That conviction followed his entry of plea of guilty to that charge. There was no doubt that he caused the death of the victim of that offence and did so by stabbing him. The plea of guilty to manslaughter was on the basis that his actions involved excessive self-defence. The description of the offence as found in the sentencing judgment of Hidden J reveals that what started out as a fairly innocuous meeting between two men quickly developed into a savagely violent confrontation in which the defendant produced a knife and stabbed the deceased to death in an alleyway adjacent to a store's rear carpark. 14As noted, the minimum term of imprisonment imposed by Hidden J expired in 2011. It seems that the defendant was only released on parole in February 2013. Due to difficulties with his consumption of illicit drugs, his parole was eventually revoked and he completed the balance of his term in custody. 15Included amongst the materials supporting the application was a lengthy report from a senior specialist psychologist engaged by the Corrective Services Department (see s 9(c)). It included the following under the heading "Conclusions and Recommendations": "Mr Lynn is a 36 year old man whose risk of violent reoffending is estimated to be in the high risk category relative to other male offenders. The determination of relative risk was decided by Mr Lynn having more elements of risk and less protective factors than other male offenders in my experience." The author then continued: "In the event that no order is imposed, after the 17/8/13, Mr Lynn will remain in the community with no supervision. He will leave Rainbow Lodge and most likely return to his mother's residence. It may be that Mr Lynn could independently remain offence-free. However, his history does not illustrate the ability to desist from violent offending for extended periods of time. The evidence before me suggests that Mr Lynn would continue to live in the community without regard to his potential risk of serious violence. He is unlikely to invest effort into avoiding violence or ameliorating the aspects of his personality and cognition that contribute to combative situations. Whether this would be considered 'unacceptable' in the context of the Crimes (High Risk Offenders) Act 2006 is a matter to be determined by the Court." 16Also included in the material filed in support of the application was a "proposed risk management plan" prepared by a community connections officer within the extended supervision section of the Department of Corrective Services. Under the heading "Summary" it includes the following: "Mr Lynn's history of violent offending is further highlighted. During his period of incarceration he displayed aggressive and physical ... inmates and been found in possession of a gaol made knife." 17Subsection 10(b) does not require the Court to analyse the material in the supporting documentation in terms of assessing whether or not the Court accepts the opinions given by the authors' various reports. Instead it requires a narrower inquiry as to whether what is alleged in that support documentation would, if proved, justify the making of the high risk violent offender extended supervision order. The test for whether an order will ultimately be made is that specified in s 5E(2), namely, satisfaction "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". 18In my view, the material that I have described makes it clear that, based on the limited inquiry that the Court undertakes at this point, the matters alleged, if proved, would justify the making of an order applying the test posed in s 5E(2). Accordingly, that section has been satisfied. 19I have also reviewed the conditions that are proposed to be imposed pursuant to s 11 of the Act which reflect those imposed by Button J. I also consider that they are appropriate. Accordingly, I will make order 1 in the short minutes of order that have been signed by the parties, initialled by me and dated today. 20The matter is to be listed for directions and for further application by the plaintiff to renew the interim supervision order at 9.00am on 8 October 2013. I will make a further direction that the plaintiff use its best endeavours to serve all further material upon which it proposes to rely on or before 2 October 2013.