State of New South Wales v Noack

Court of Appeal (NSW)|2017-06-20|Before: Gleeson JA, Leeming JA, Simpson JA, Lonergan J

Solicitors: Crown Solicitor (Applicant) Legal Aid (Respondent) File Number(s): 2017/183516 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Common Law Division Citation: State of New South Wales v Noack [2017] NSWSC 782 Date of Decision: 16 June 2017 Before: Lonergan J File Number(s): 2017/111501

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

THE COURT: The State of New South Wales sought leave to appeal from a decision made last Friday 16 June 2017 whereby a judge in the Common Law Division made an interim supervision order, but declined to make an interim detention order, against the respondent, Mr Justin Peter Noack: State of New South Wales v Noack [2017] NSWSC 782. Mr Noack is presently held in Lithgow correctional centre, where he is serving a sentence of four years' imprisonment, with a non-parole period of three years, for recklessly causing grievous bodily harm, contrary to s 35(1) of the Crimes Act 1900 (NSW), to another inmate. This is referred to as the "index offence". It is common ground that this offence was a "serious violence offence" and that Mr Noack is a "violent offender" within the meaning of the Crimes (High Risk Offenders) Act 2006 (NSW).
The State's application for leave and supporting materials were filed on the evening of Monday 19 June 2017. The application was heard with the utmost expedition, because Mr Noack's sentence expires on Wednesday 21 June 2017. However, the issue was ultimately a narrow one. It was whether, as the primary judge ordered, Mr Noack be subject to an interim supervision order for the next 28 days, or else, as the State submits, Mr Noack should be subject to an interim detention order for the next 28 days. Nothing determined by this Court determines what happens thereafter. In particular, nothing determined by this Court in this application determines the outcome of the State's application for a continuing detention order for a period of 18 months, which is set down for final hearing on 4 August 2017. As will be seen, that application will be determined on the basis of better and more up to date evidence than is presently available.
The Court had the advantage of written submissions from both parties. Immediately following a hearing confined to the question of leave, the Court ordered that leave be refused. What follows are our reasons for refusing leave.

History of Mr Noack's offending conduct

Mr Noack has a long history of violent offending, in addition to the index offence. As summarised by the primary judge, it included: 1. 11 June 1999 - whilst inebriated, assaulting police officers in execution of their duty as well as property damage to his father's Department of Housing accommodation and a vehicle parked in the golf club car park at Leeton. 2. 10 December 1999 - in Rockhampton, Queensland, convicted of assault police officer after being asked to stop for a breath test after running a red light. 3. 8 May 2000 - convicted of intimidation and low-range PCA. 4. 8 April 2002 - convicted of assault occasioning actual bodily harm, affray, being armed with intent to commit an indictable offence, and carrying a cutting weapon upon being apprehended having custody of an offensive implement in a public place as well as some property damage offences which all appear to have arisen out of the defendant cruising the streets of Wagga Wagga with associates and being embroiled in a fight which included the defendant pulling a 10 centimetre knife on a group of men and women in a threatening manner. 5. 31 May 2004 - the defendant was arrested after committing some damage to property outside a pub, and then on inspection by police officers was, found to have in his possession a small knife. It is asserted the defendant threatened the arresting police officer and the officer's family during the journey back to the police station. 6. 11 April 2005 - the defendant was convicted of assault occasioning actual bodily harm involving a street brawl in Leeton in which the victim suffered facial lacerations requiring 12 stitches. 7. 6 May 2005 - the defendant was convicted of having custody of a knife in a public place and it is asserted he secreted two throwing knives in his trousers which dropped onto the roadside when he exited a vehicle having been searched by police. 8. 24 November 2008 - in Western Australia, he was convicted of assaulting a public officer, namely a Greyhound Bus driver, where he missed his connecting bus to Perth because of bus delays. The assault involved punching the driver in the head and then retrieving a sock containing billiard balls from his bag and striking the victim a number of times with this weapon. 9. 9 January 2008 - convicted of recklessly cause injury, as well as possessing a controlled weapon without excuse, being drunk in public and resisting arrest. 10. 8 October 2010 - convicted of assault with intent to take/drive motor vehicle. This involved the defendant grabbing an 18 year old male exiting his vehicle in the Albury Myer car park, demanding his keys, and driving the man's car away. He was convicted of being in possession of an unauthorised firearm, namely a pump-action shotgun which was reasonably suspected of being stolen. 11. 16 December 2011 - convicted of assault occasioning actual bodily harm where he punched the victim in retaliation for the victim badmouthing him in Leeton. The defendant placed him in a chokehold and was interrupted by an associate who went to the victim's aid when he started to lose consciousness. It is alleged that the defendant returned to the victim with a claw hammer, but did not further assault the victim. The defendant handed himself in to police after his associate was arrested for his involvement in the offence. 12. 22 March 2013 - convicted for a stalk/intimidate offence whist residing at the Cooma Community Offenders Support Programme while on parole. He had approached the staff window requesting his medications, and the visiting community corrections manager told him to wait and he then threatened the visiting manager, threw a table, and attempted to obtain entry to the staff office through the locked security door. Police were called as the visiting manager was fearful for his safety. 13. 25 February 2016 - convicted of common assault against an officer at the Lithgow Correctional Centre which involved the officer being pulled towards the bars of the defendant's cell after handcuffing him though the grille to escort him into the rear yard. The file material said the assault was unprovoked, but the defendant said he felt disrespected by the officer in question.
In addition to the foregoing, Mr Noack has committed numerous offences within prison. The State emphasised that the offences both within and outside prison typically involved weapons, including an incident within the Metropolitan Remand and Reception Centre on 5 February 2016. The State also emphasised three matters concerning parole: 1. the offences in 2011 and 2013 occurred while he was on parole; 2. in February and March 2013, while on parole in accommodation at Cooma with other offenders who had been released, he asked to have his parole revoked; 3. in June 2016, he did not apply for parole at the completion of the non-parole period of his sentence.
Further, after participating in a short, introductory interview with Mr Ardasinski (a psychologist retained by the State) on 18 August 2016, when he was provided with information concerning the Crimes (High Risk Offenders) Act 2006 (NSW), Mr Noack declined to attend a further interview scheduled on 31 August 2016.
Some context is given on the issue of Mr Noack's request to have his parole revoked in 2013 by the fact that he had by then been charged with the index offence. Notes in evidence made by officers from Cooma Community Corrections included his statements, "I'm being responsible ... it is the best thing to do. I can't see light at the end of the tunnel ... It is only a matter of time (before he snaps and does something ... negative environment - COSP/Town)". It is not entirely clear on the materials, but it seems that there was significant delay between the assault on the other inmate and Mr Noack being charged with the offence to which he pleaded guilty. The notes also contain statements that Mr Noack has a particular dislike to sex offenders, owing to the circumstances surrounding the death of his mother, and suggest that that was at least part of the reason for his mention of the "negative environment" within the COSP.
In relation to Mr Noack's failure to apply for parole in 2016, the Court was not taken to any evidence to suggest that parole would have been granted. The Court was taken to records of telephone interviews conducted at this time, which state that he had only just reconnected with his family, that he had hoped to stay with his brother but "has not discussed this at length with his brother", that he did not wish to have the pressures of parole hanging over him and that he wanted to be released with a fresh start into the community.
One of the difficulties facing the primary judge, and this Court, was the absence of up to date psychological evidence based on interviews with Mr Noack. The statute places great weight on psychological and psychiatric evidence of offenders who are to be subject to extended supervision orders or continuing detention orders. That no such evidence was available in the present case is a consequence of the timing of the application, to which we turn below.

Procedural history

The Act permits applications of this nature to be made within the last six months of an offender's custody: ss 6(2) and 13C(3). The Act thereafter imposes strict conditions as to timing. A preliminary hearing is to be conducted by the Supreme Court within 28 days after the application is filed, unless the Supreme Court allows further time: s 15(3). The preliminary hearing may result in the making of orders for the compulsory examination of the offender by at least two psychologists or psychiatrists. Only after the Court has considered the reports following those compulsory examinations may an extended supervision or a continuing detention order be made.
It may be accepted that in the ordinary course, the scheme of the legislation is to the effect that the determination of an application for an extended supervision order, or a continuing detention order, will occur prior to the expiry of the offender's sentence. However, the Act contemplates the possibility that that might not occur. One reason for this might be that the behaviour giving rise to an unacceptable risk of harm to the public might only become known shortly before the conclusion of a sentence. Another is the possibility of an appeal. To that end, the Act authorises the making of an interim detention order. Section 18B and 18C provide as follows: "18B Interim detention order - high risk violent offender The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court: (a) that the offender's current custody (if any) 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 or a high risk violent offender continuing detention order. 18C Term of interim detention order (1) An interim detention order commences on the day fixed in the order for its commencement (or, if no such day is fixed, as soon as it is made) and expires at the end of such period (not exceeding 28 days from the day on which it commences) as is specified in the order. (2) An interim detention order may be renewed from time to time, but not so as to provide for the detention of the offender under such an order for periods totalling more than 3 months."
There is no power to extend the operation of an interim detention order for more than three months.
The Act also makes provision for making an interim supervision order: "10B 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."
Section 10C contains similar time restrictions as are found in s 18C. An interim supervision order cannot be made for longer than 28 days, and the order cannot be renewed so as to extend longer than 3 months.
The State relied on risk assessment reports by Mr Ardasinski and Ms Thomson which were made on 2 September 2016 and 15 October 2016. The six month period within which an application could be made commenced on around 21 December 2016. Yet the State's summons was not filed until 12 April 2017 (and a supplementary report of Mr Ardasinski was prepared). There were statements from the Bar table that there were issues of resourcing applications such as these. The point of these reasons is not to attempt to identify the cause of the delayed application, but to note its consequence, which was to leave only some ten weeks before Mr Noack's sentence was served for the conduct of a preliminary hearing, the conduct of the compulsory examinations pursuant to s 15(4), the reporting by the psychologists or psychiatrists, and the hearing and determination of the State's application for a continuing detention order or an extended supervision. The Court was told that the reports from the compulsory examinations were not due to be filed until the middle of July.
By its summons, the State sought a continuing detention order, for a period of 18 months, or alternatively an extended supervision order. Recognising the imminence of the expiry of Mr Noack's sentence, it also sought interim orders.
Notwithstanding the short time period before the expiry of the sentence, a preliminary hearing was only conducted on 11 May 2017, and the primary judge made orders pursuant to s 15. Her Honour was thereby satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order: s 15(4).
However, the primary judge observed that there were gaps in the evidence adduced by the State, and appears to have given two opportunities for the State to serve evidence to fill those gaps. The State took advantage of those adjournments. There were further hearings on 23 May and 7 June.
The primary judge was critical of the steps taken by the State pursuant to those opportunities. Her Honour observed that "[r]ather than directing additional evidence to this outstanding issue, a lengthy affidavit of Mr Ardasinski was tendered which largely re-stated with added emphasis material that was already before me": at [10]. Her Honour was also critical of hearsay evidence sought to be given by the State at the second adjourned hearing, and evidence said to have been based on "intelligence" which the State later withdrew as no evidence was available: at [12].
Thus it was that the hearing for interim orders completed on 7 June 2017. Her Honour's judgment was delivered on 16 June 2017. As earlier noted, the hearing of the State's application for a continuing detention order is listed on 4 August 2017.

The reasons of the primary judge

The reasons are available on CaseLaw and need not be summarised in any detail. After dealing with the procedural background, her Honour identified the issues at [13]-[17], noting at [17] that "whether the appropriate interim order should be for continued detention or for supervision" was "a difficult issue". Her Honour summarised the criteria contained in Attorney-General of New South Wales v Tillman [2007] NSWSC 605 and noted at [18] that "the safety of the community is of course a primary concern, but the release of any offender is a risk". Her Honour summarised the index offence at [19], stating: "There have been no serious violence offences since the index offence. In fact, the only "serious violence offence" as defined in s 5A the Act was committed by the defendant whilst in custody in 2012. It involved an attack on an inmate asserted to have been involved on a sexual attack on a child as the defendant understood it at that time. The defendant is antagonistic to sex offenders as he holds the view that his mother committed suicide after participation as a complainant in a rape trial where the alleged perpetrator was not convicted (report of Ms Duffy, Psychologist, September 2014, page 3). This in no way excuses the attack but was a matter taken into account on sentence by Chief Judge Blanch."
Her Honour observed that the offender was more likely to be aware of and come into contact with known sex offenders in detention rather than on interim supervision in the community.
Her Honour summarised Mr Noack's extensive criminal antecedents, and offences in prison, and the opinion of Mr Ardasinski, as well as the circumstances in which Mr Noack applied to revoke his parole in 2013 (at [25]-[26]).
The dispositive portion of her Honour's judgment is at [27]-[41]. Those paragraphs address the limited rehabilitation which Mr Noack had undertaken, which was in part through his unwillingness to participate, and, more recently, through matters not attributable to him. Her Honour addressed the level of supervision available in the community, both in Sydney and with his brother, in some detail (at [31]-[40]), dealing with the suitability of his brother's accommodation, the expertise of local law enforcement and correctional services officers, and the availability of support including psychological support and family support. Her Honour concluded at [41]: "In the circumstances, I have determined that adequate supervision can be provided in that community and it is appropriate to make an interim supervision order with a requirement that the defendant reside at his brother's address in Coolamon."
Her Honour imposed the orders contained in the annexure to this judgment.

The State's application for leave to appeal

Section 22 of the Act authorises appeals as of right from the making, or refusing to make, a range of orders under the Act, but does not extend to interim detention orders. However, the order made last Friday is an order of the Supreme Court and therefore subject to an appeal under s 101 of the Supreme Court Act 1970 (NSW). It was common ground that the appeal is only available with leave (by reason of s 101(2)(e)).
The first question is whether there should be a grant of leave. The entirety of the State's written submissions on the grant of leave was: "Leave ought be granted as the appeal is of importance in terms of the safety and protection of the community. The appeal also concerns the proper construction of the threshold in s 18B of the HRO Act."
That formulation reflected the two proposed grounds of appeal. The first proposed ground was that the primary judge had erred in failing to consider five relevant circumstances in determining whether to make an interim detention order, namely: (a) the risk of Mr Noack committing a serious violence offence, (b) his breaches of parole in 2011 and 2013, (c) his refusal to apply for parole in 2016, (d) his refusal to be interviewed by Mr Ardasinski for the purposes of risk management assessment, and (e) the paucity of evidence concerning Mr Noack's brother's capacity to assist him to reintegrate without reoffending.
The second proposed ground was that that the primary judge had "erred in the construction and or the application of the test in s 18B of the HRO Act: (a) the requirement in s 18B(b) that the matters alleged in the supporting documentation would, if proved, justify the making of either an ESO or CDO. (b) consideration of 'adequate supervision' under an ESO for the purposes of s 18B(b)" [sic].

Consideration: proposed ground 1

There are two principal difficulties faced by the State in relation to proposed ground 1. The first goes to the strength of the ground. The second goes to the question of leave. It is convenient to follow the course taken in oral submissions and address both aspects in that order.
The primary judge did address, expressly, the five circumstances of which complaint was made. Those references may be summarised as follows: 1. Much of the judgment is directed, expressly or implicitly, to whether there was a risk of committing a serious violence offence. For example, her Honour noted that Mr Ardasinski had concluded that although there was a high risk of violent offending, he did not conclude that there was a risk of commission of a serious violence offence: at [24]. Her Honour repeated the point at [36]. Her Honour's consideration of the appropriateness of the supervision by Mr Noack's brother, and the capacity of local and regionally based police to monitor him, are also directed to this issue. The statements made in relation to Mr Noack's insight and maturity and family support are implicitly directed to the risk and nature of any reoffending. 2. In relation to the second and third circumstances, the question of previous breaches of parole was addressed in terms at [25] and [26], and contributed to the ultimate conclusion at [39], when her Honour observed that "the support of family has potentially great value for the defendant and is something that was not available to him last time he was released from custody". 3. In relation to the fourth circumstance, the fact that Mr Noack had not consented to being assessed by Mr Ardasinski was noted at [24]. 4. In relation to the fifth circumstance, the evidence as to the capacity of Mr Noack's brother to supervise him was summarised at [31] and [32], and informed the statement about "support of family" at [39].
There is a further point to be made. The primary judge was called upon to make a difficult evaluative judgment, based on voluminous documentary evidence, together with cross-examination, in a relatively short timeframe. Her Honour's reasons on the interlocutory question (the need for which was itself only generated by reason of the timing of the application) are to be read with those pressures in mind.
In oral submissions in this Court, the State's essential complaint was that the primary judge had not properly considered the five matters mentioned in the draft notice of appeal. But here the difficulty is that the State accepted that this Court should apply the approach stated in State of New South Wales v Donovan (2015) 90 NSWLR 389; [2015] NSWCA 280 at [16]-[17] by reference to Attorney General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324. Even if there were a grant of leave, it is not enough merely for the appellate court to be of a different view from that reached by the primary judge, who heard the case over three days, saw the experts cross-examined, and who was required by the Act to make a "value judgment in respect of which there is room for reasonable differences of opinion".
At one stage, it was submitted that a proper consideration of those five considerations would, in combination, have "inexorably" led to the making of an interim detention order. That is quite different from the proposed grounds of appeal. Even if it were within the scope of the proposed appeal, we would not accept the submission. The question is whether Mr Noack is to be kept in a correctional centre, or else is to be placed into the community in accordance with the terms of the interim supervision order, for the 28 days. Mr Noack knows that if he breaches any of the conditions of the interim supervision order then not only is that an offence (pursuant to s 12 of the Act) punishable by up to 5 years' imprisonment, it is also apt to be at the forefront of the State's application to be heard on 4 August 2017. The orders presently in place require, inter alia, that he live with his brother at Coolamon, that he wear electronic monitoring equipment, that he provide a weekly plan of his movements, that he observe a curfew between 9pm and 6am each day of the week, that he must not possess or use alcohol, or illegal drugs, or associate with people who are consuming or under the influence of alcohol or illegal drugs, that he must not possess or use any firearm, and must submit to a variety of searches at any time. (That is far from being an exhaustive summary of the orders, which are annexed to this judgment for convenience.) While we acknowledge that no regime is riskless, we do not agree that it was not open to the primary judge to conclude that the regime would provide adequate protection for the community from Mr Noack over the next few weeks in circumstances where he faces such serious penalties in the event of non-compliance.
Of course, when the State's application for a continuing detention order is determined, it will be on the basis of up-to-date evidence obtained pursuant to the s 15 orders which is not available to this Court. Further, if the result of those examinations is materially to alter the risk presented by Mr Noack, then that would amount to altered circumstances such as to engage the power to make an emergency detention order under Division 3A of Part 3.
Enough has been said to conclude that the State's first proposed ground of appeal is not a ground which is particularly strong. But the threshold question was whether there should be a grant of leave. That was the second difficulty the State faces.
Every application for an interim detention order necessarily involves a contention that there would be a basis for making an extended supervision order or a continuing detention order: s 18B(b). Moreover, the application for an interim detention order will ordinarily be made in circumstances where it has already been determined, pursuant to s 15(4), that the documentation if proved would justify the making of an extended supervision order or a continuing detention order.
The State's submission was in substance that because the primary judge erred in the assessment of the risk to the community, there was a question of public importance warranting the grant of leave. That submission is contrary to the Act. If that submission were accepted, then the statutory requirement of leave in the case of interim detention orders, contrasting with the appeal as of right in relation to extended supervision orders and continuing detention orders, would be rendered nugatory. Orthodox principles of statutory construction require rejection of the State's submission.
The State had not demonstrated a question of principle, or of general importance, or of injustice which was reasonably clear going beyond the merely arguable, in relation to this proposed ground of appeal. For those reasons, leave to appeal in respect of this ground was refused.

Proposed ground 2

The State's second reason given for a grant of leave focussed on ground 2 of the proposed appeal. It was said that the primary judge erred in the construction and/or the application of s 18B. However, it was not said that there was any error in the construction of the section on the face of the reasons. The highest the submission was put in writing was that "it appears that her Honour may have viewed the question of an IDO or an ISO as a choice between alternatives." The oral submissions took the matter no further.
Even if that were so, there was no error. In every case where there is power to make an interim detention order, there will also be power to make an interim supervision order. In both cases, the preconditions to the exercise of both potentially available powers having been made out, the court is inevitably faced with a choice. That choice will involve an evaluative judgment based on the evidence and require consideration of the primary purpose of the Act, to ensure the safety and protection of the community.
This proposed ground of appeal was far from the forefront of the State's written and oral submissions. Indeed, in oral submissions, senior counsel for the State acknowledged that there was little if any separate content to this proposed ground beyond proposed ground 1. That concession was properly made. Once again, there was no warrant for a grant of leave.
It was for those reasons that this Court made the following orders on 20 June 2017: 1. Notice of motion filed 19 June 2017 dismissed, with costs. 2. Summons filed 19 June 2017 dismissed, with costs.

Annexure: Orders of the Supreme Court made on 19 June 2017 Noack - Order 19 June 2017 (439 KB, pdf)

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