By a summons filed on 22 August 2017, the State of New South Wales ("the plaintiff") seeks a number of orders pursuant to the Crimes (High Risk Offenders) Act 2006 ("the Act"). For present purposes, the only order sought by the plaintiff is in paragraph 1 of the summons which is in the following terms:
1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006
1. appointing two qualified psychiatrists or one qualified psychiatrist and one registered psychologist, to conduct separate 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; and
2. directing the defendant to attend those examinations.
There are further orders sought in paragraph 2, but they do not concern me for present purposes, the matter being a preliminary hearing. The plaintiff's ultimate position is that it will seek an extended supervision order for a period of two years at any final hearing.
The order sought in paragraph 1 of the summons is opposed by the defendant.
Three affidavits were read in the plaintiff's case without objection, namely:
1. Claudia Pendlebury of 22 August 2017;
2. Cherice Cieplucha of 18 September 2017; and
3. Claudia Pendlebury of 18 September 2017.
The defendant is currently serving a sentence of imprisonment following a conviction for an offence against s. 33(1)(a) of the Crimes Act 1900 (NSW) of wounding with intent to do grievous bodily harm ("the index offence"). The non-parole period imposed in respect of that offence expired on 7 August 2016 and the defendant's sentence expires on 19 January 2018.
The statutory framework with which I am dealing is helpfully set out in the written submissions provided by counsel for the plaintiff (commencing at paragraph 6) and I draw upon that part of the submissions for the following summary.
The primary object of the Act, as stated in s. 3(1), is to provide for the extended supervision, and continuing detention, of high risk violent offenders so as to ensure the safety and protection of the community. Another object of the Act (see s. 3(2)) is to encourage such offenders to undertake rehabilitation.
Under s. 5E(1) of the Act, an offender can remain the subject of a high risk violent offender extended supervision order, or a high risk violent offender continuing detention order, only if he or she is a high risk violent offender. The term "violent offender" is defined in s. 4 of the Act to mean "a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction of a serious violence offence". A person is defined in s. 5E(2) to be a violent offender where this court is satisfied, to a high degree of probability, that he or she poses an unacceptable risk of committing a serious violent offence if not kept under supervision.
The term "serious violence offence" is defined in s. 5A(1) 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). The expression "serious indictable offence" takes its meaning from the Crimes Act, which means an indictable offence that is punishable by imprisonment for life or for a term of five years or more. The offence of wounding with intent to do grievous bodily harm is a serious violence offence within the definition of 5A of the Act by reason of s 5A(1)(a) read in conjunction with s 5A(2)(a)-(c). It follows - and there is no dispute about it - that the defendant is a violent offender for the purposes of s 4 of the Act. Section 5H entitles the plaintiff to apply to this Court for an extended supervision order. Section 5J(1) provides that an application for a high risk violent offender extended supervision order may be made only in respect of a supervised violent offender under s 5J(2) of the Act. A supervised violent offender is defined in the following terms:
Section 5J(2) is in the following terms:
5J Application for High Risk Violent Offender Extended Supervision Order
(2) A "supervised violent offender" is a violent 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 violence offence, or
(ii) for an offence under section 12, or
(iii) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i) or (ii), or
(b) pursuant to an existing extended supervision order or continuing detention order.
The defendant was in custody when the present application was filed, and he remains in custody. As a consequence, he meets the definition of a "supervised violent offender".
There is no dispute that the threshold criteria which apply to the making of an application for an extended supervision order are satisfied in the present case. The defendant is a violent offender within the meaning of s. 4 of the Act on the basis of him being convicted of a serious violence offence as defined in s. 5A(2)(b), namely the offence of wounding with intent to cause grievous bodily harm. The defendant also meets the definition of "supervised violent offender" contained in s. 5(2) of the Act on the basis that he is currently in custody serving a sentence of imprisonment for that offence. Further, the application has been brought within the last six months of the defendant's current custody as required by s. 6(2) of the Act.
The test to be applied in an application such as this is governed principally by the provisions of s. 7(4) of the Act. Under that section I must be satisfied that the matters alleged in the supporting documentation (i.e., in the affidavit material to which I have referred) would, if proved, justify the making of (in this case) an extended supervision order. If I am so satisfied, I must make an order appointing two clinicians to examine the defendant and prepare reports for the court.
There are a number of authorities which have dealt with the nature of the task of the court at a preliminary hearing. That task has been compared to the prima facie case test which applies for the purposes of committal proceedings: Attorney-General for the State of New South Wales v Hayter [2007] NSWSC 983 at [6]. The threshold is a relatively low one and has been described as "not stringent": State of New South Wales v Lynn [2013] NSWSC 1147 at [18]. The court's is not to weigh the documentation, nor is it to attempt to predict the result of a final hearing. Rather, the court's task is to assess whether, if the matters set out in the documentation were proved, they would justify the making of (in the present case) an extended supervision order: Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 at [98]. That, of course, does not mean that the court simply acts as something in the nature of a rubber stamp. It must, in making its determination, have regard to the supporting documentation to determine whether it satisfies the test that I have outlined. It is also relevant to note that a serious violence offence does not necessarily involve all offences of violence: State of New South Wales v Pacey [2015] NSWSC 1983 at [43] and [51]; State of New South Wales v Sancar [2016] NSWSC 867.
I have already made reference to the affidavit material which is before the court. Section 9 of the Act sets out a number of factors which the court must take into account in making its determination. I have considered those factors by reference to the evidentiary material which is before me.
The first of those factors which is relevant to the present case concerns the safety of the community: s. 9(3)(a). It is of some significance that there are references in the evidentiary material to the fact that the defendant, notwithstanding a verdict of a jury finding him guilty, has consistently denied responsibility for the index offence.
A further factor that I have taken into account concerns the psychological assessments which are before the court: ss. 9(3)(c) and 9(3)(d) of the Act.
There are a number of such assessments, the first of which is that of Mr Richard Parker, a senior psychologist, who provided a report of 14 March 2017 which is annexure A to the second affidavit of Ms Pendlebury. It is of some significance that the recommendations made by Mr Parker in that report, and the opinions he expressed, were supported by Ms Cieplucha.
Mr Parker identified a number of risk factors (commencing at paragraph 40). They included the fact that the defendant had "criminal peers", and that he had a history of substance abuse. Mr Parker also identified what he described as the defendant's "criminal thinking" as being a risk factor.
Commencing at paragraph 41, Mr Parker made reference to the defendant's participation in the Violent Offenders Therapeutic Programme ("VOTP"). He traced the history of that participation, which included (at least initially) a degree of reluctance on the part of the defendant to participate. The history has also been, for want of a better term, "punctuated" by the defendant's suspension from the programme on two occasions due to acts of violence towards other inmates.
Mr Parker concluded (commencing at paragraph 62) that the defendant was at high risk of further violent offending. He said that his assessment was "anchored by static, unchangeable factors and backed up by the identification of a number of criminogenic needs". Mr Parker acknowledged that although the defendant had commenced the VOTP, and whilst he should be able to complete that programme within his existing sentence, it was likely that he would need an extended period of strict monitoring to implement and consolidate the skills and attitudes learned in that programme. Mr Parker expressed the view that in the event that the defendant was subject to an extended supervision order, it was likely that he would benefit from both intensive supervision and case management.
There is a further report from Ms Rima Nasr prepared on 13 April 2012. Ms Nasr noted (in paragraph 2) that the defendant experienced difficulties in containing his anger, and expressed fixed beliefs that his co-accused should be "punished". Ms Nasr went on to recount (commencing at paragraph 25) the defendant's drug and alcohol history. She described that history as indicating an alcohol dependence associated with substantial psychosocial harm, including increased aggressive behaviour and engagement in criminal behaviour. At paragraph 42, Ms Nasr described the defendant as presenting as a complex individual, with disturbed attachment and exposure to antisocial peers and family members, violence, and substance abuse during his formative years, all of which were likely to have contributed to a serious fragmentation of his personality function. She said that those factors had impacted on all aspects of his functioning, and that could be expected to have had a profound impact on his behaviour.
Ms Nasr (at paragraph 43) said that the defendant's rehabilitation and management would need to be extensive. She also noted that his motivation to commit to treatment seemed poor, but he would nonetheless require long-term treatment and management.
There is a further psychological report of Mr John McMahon of 20 April 2013. That report appears to have been prepared in conjunction with an application brought by the defendant for Victim's Compensation. Mr McMahon diagnosed the defendant (at page 8 of his report) as suffering from a chronic adjustment disorder with anxiety, and antisocial and paranoid traits. In terms of prognosis, Mr McMahon expressed the view (at page 9 of his report) that the defendant's prognosis was poor, and that he would likely remain moderately symptomatic, with angry acting-out, and repeated periods of incarceration as a consequence.
A further consideration to which the court must have regard is any evidence as to the defendant's management in the community: s. 9(3)(d1). In that regard, there is a risk management plan of 20 June 2017 before the court. That plan recommends that in the event that an extended supervision order is made, management of the defendant could include weekly interviews, field visits, home visits, contact with third-parties, and electronic monitoring. The report also sets out a number of challenges which might be faced in managing the defendant under any extended supervision order. Those challenges are said to include an apparent reluctance on the part of the defendant to take advantage of services provided to him. In that regard, reference was made to the defendant having a history of denying and/or minimising responsibility for his offending.
A further factor which the court must take into account is any evidence of treatment or rehabilitation programmes in custody: s. 9(3)(e). I have previously made reference to the defendant's progress under the VOTP and importantly, the fact that such progress was interrupted by the incidents to which I referred. After being excluded from the program, the defendant re-entered on 27 July 2017. Whether he will complete the programme prior to his sentence expiry date is not clear. If he is the subject of an extended supervision order, he will be eligible for assessment to attend the relevant risk management sessions.
The affidavit of Ms Cieplucha (who I note is a registered psychologist) made specific reference (at paragraph 20) to the fact that notwithstanding what had occurred thus far in the VOTP, it was her impression that the defendant appeared to be motivated to complete the programme. In her affidavit (commencing at paragraph 21) Ms Cieplucha made reference to the fact that the defender's group participation was completely satisfactory and that he appeared to have a positive influence in the group in terms of the other participants. She also noted (at paragraph 22) that the defendant's treating psychologist had informed her that the defendant had been asked to reflect upon his participation in the programme. He was said to be able to recognise early warning signs so as to take responsibility for his behaviour.
A further factor which the court must take into account is any compliance with parole obligations under s. 9(3)(f). The defendant has not been released on parole in respect of the index offence. However as the plaintiff has pointed out, there is evidence before me which would suggest that the defendant's response to parole on previous occasions has been poor. In particular, there is evidence that the defendant has repeatedly failed to engage in programmes which were directed towards addressing issues of violence and alcohol abuse.
I turn to the defendant's criminal history which is also a relevant consideration: s. 9(3)(h). The defendant was convicted of the index offence following a trial. Following his conviction, he appealed to the Court of Criminal Appeal: Prince v R [2013] NSWCCA 274. The facts of the offending were set out commencing at [19]:
[19] At trial the parties agreed that during the affray Mr Waters had suffered a 10cm full thickness laceration to his scalp which required suturing and that he also sustained bruising to his right back, right chest and left knee. It was also agreed that the laceration constituted a wound at law.
[20] Mr Sampson and Mr Peterson had been at Ms Hawke's house on 19 June, the day before the affray. She lived there with her son and two friends. The house was located on the corner of Sussex and Bourne streets, opposite a park. It had a yard which was fenced by a colorbond fence, which on Ms Hawke's evidence was not damaged before the affray.
[21] Mr Sampson's evidence was that on 19 June they were in the front yard of the house when the appellant drove past in a car with a number of other people, including his sister Fiona Prince and his nephew Michael Prince and some children. He called out to Mr Peterson 'Go and get your uncles, your fathers, or whatever for me, I'll fight them and all that if youse want to carry on'. Mr Peterson, who knew the appellant because he had gone out with one of his daughters for a few weeks, 'bit back'. Mr Sampson also knew the appellant, because his aunt used to go out with his brother. The next day they saw the appellant in the park across the road from Ms Hawke's house arguing with a girl, who he thought was the appellant's daughter. Mr Sampson's evidence was that Mr Peterson began mouthing off at him, being cheeky. The appellant walked away.
[22] Mr Peterson had been in rehabilitation in the time since the affray and did not have a clear memory of that night, but corroborated aspects of both Mr Waters' and Mr Sampson's evidence. He did remember that he had gone out with the appellant's daughter for a few weeks and that his argument with the appellant was about their nephews 'rowing' and fighting. Initially he denied saying anything to the appellant, but later said that he said something that 'ticked me off' and that he then yelled 'well I'll meet you in the middle, you want me to meet you in the middle'. He also said that later, while he was kicking back at Ms Hawke's house, that there was yelling and that on 20 June he went to meet up with the appellant in the park to 'have a go', but that it 'didn't work out the way it was meant to'.
[23] That evening Mr Waters, Mr Sampson and Mr Peterson were present with a number of others at a gathering in the yard of Ms Hawke's house, where a fire was burning. Inside the house were Ms Hawke and her friends Jamie-Lee Hawkins, Nyari Jackomos and Bianca Kedwell. They were watching movies and not drinking.
[24] Mr Waters and others who were involved in, or present during the affray described what they saw that night. Various of the witnesses gave an account of having seen people, including the appellant and Mr Peterson, in the park beforehand. That identification was not in issue on appeal.
[25] The evidence was that the street lighting was operating normally that night and that there was a very bright spotlight on a pole in the park, which lit it up and shone back to Bourne St. Police attended at about 10.30pm. The attending constables variously described the light in the park as 'quite bright' (Constable Murray), but in the immediate area of Bourne Street, 'poor' (Constable Rachford). Constable Parsons' evidence was that the light was sufficient for her to see the people there. They found the fence damaged, with panels missing and a lot of glass, a chain and a knife on the road, as well as other weapons in the vicinity.
[26] Ms Hawke's evidence was that an outside backdoor light was on, which lit up the backyard, which was also lit by the fire. Inside kitchen lights were also shining into the yard. The only witness who described it to be dark, was Ms Kedwell.
[27] The affray broke out after an altercation between the appellant and Mr Peterson in the park. It was not disputed that Mr Waters' head injury was inflicted during this affray, when he was struck on the head with a weapon variously described by other witnesses as a machete and a sword. That weapon was not found.
[28] The affray was variously described as having involved two groups of men, who spent a considerable time throwing bricks, bottles and sticks at each other. On Ms Kedwell's evidence, the violence lasted for some 15-20 minutes, during which Mr Waters, who was in the yard, was attacked by the appellant and others with him. He fell to the ground when one of them struck him with the weapon which lacerated his head. The appellant relied on Ms Kedwell's description of the assailant, to support his case that the Crown had not established beyond reasonable doubt that it was he who had inflicted this wound.
[29] Mr Waters was not able to identify who hit him on the head, although he identified the appellant as part of the group who attacked him, in the statement which he gave to police that night and in his evidence. His evidence was that he went to Ms Hawke's house that evening with his nephew, Mr Dale Sampson. A group of 15 to 20 people were gathered there, including his brother, Mr Ernie Peterson. People were outside drinking near the fire and out the front. His evidence was that before he went to Ms Hawke's house he had drunk two or three cans of rum at lunchtime, but had eaten lunch and his dinner afterwards. Mr Sampson described him to have been a bit tipsy, but that neither he nor Mr Peterson drank. Later Constable Parsons said she could smell alcohol on Mr Waters, but that he was not drunk.
[30] Mr Waters arrived at between 8 and 9 pm and initially went into the house, before going out to the fire. He knew Ms Hawke. He had been told about the incident between Mr Peterson and the appellant and understood that he had received some threats. He also knew the appellant, who was the brother-in-law of his sister. He was concerned about his brother and wanted to ensure that he did not get involved in a fight with the appellant. Mr Peterson was then aged 19 years and Mr Sampson 17 or 18. Mr Waters was some 15 years older than his brother. In cross-examination he said that he was there to protect his brother and nephew. Mr Sampson's evidence was that Mr Peterson told him while they were in the yard, that the appellant wanted to fight him.
[31] There were various accounts of how it was that the affray later broke out. Mr Waters' evidence was that he heard a lot of yelling from the park. He moved to the fence and could hear one voice yelling out to his brother. He moved to the gates and saw the appellant in the park trying to call his brother over to fight. He was alone, calling Mr Peterson's name. Mr Sampson and Mr Peterson corroborated that evidence. Mr Waters said that he was urging his brother not to fight the appellant, but he went over to the park.
[32] The accounts given by the witnesses differed as to whether Mr Waters and Mr Sampson then followed Mr Peterson over to the park; whether Mr Peterson and Mr Sampson were armed with sticks; what caused them to return to Ms Hawke's house; and whether Mr Peterson went into the house and remained there, or was involved in the affray.
[33] What was common to these accounts was that Mr Peterson crossed the road and went into the park, where he approached the appellant and they yelled at each other. Mr Peterson was ready to fight the appellant, but fled from the park without any fighting between them.
[34] On Mr Waters' account he followed Mr Peterson, with Mr Sampson urging him to fight and Mr Waters urging him not to. They were about five metres apart and he finally pulled him away, when he saw the appellant bring something from behind his back, which he described to be shiny, which he saw glinting. He could not see what it was, but said that he was frantic, fearing that it was a weapon and told them to get out, he did not want them dead. He grabbed them by the back of their shirts and dragged them back and they went back to Ms Hawke's house, where Mr Peterson went inside and he went into the yard.
[35] Mr Waters was cross-examined by the Crown as to earlier evidence he had given, in which he had said that the appellant had pulled out what looked like a knife or machete out of his sleeve. His evidence was that he only caught a quick glimpse of this object, before he pulled his brother and nephew out of the park. In cross-examination for the appellant he agreed that he had not mentioned this object when he made his statement to police, while in the hospital. He explained that he was then only asked about who had hit him. He had not then seen a machete, only a little metal pole, or shiny thing. He agreed that he was not sure that it was a knife or machete, but insisted that he had seen a shiny object.
[36] Mr Waters said that Mr Peterson and Mr Sampson were in and out of the yard a couple of times, checking the park, while he was in the yard talking. About five or ten minutes later there was more abuse yelled from the park. He then heard more voices and when he went and looked over to the park, he saw a group of men, with the appellant in the centre, carrying weapons which looked like sticks, a bar and a machete, but he could not see what the appellant was carrying in his hand. Mr Peterson and Mr Sampson were no longer armed. The two groups were exchanging abuse and he tried to get everyone back into the yard and shut the gates, while there were missiles being thrown at him. He said in cross-examination that Mr Peterson was then near the back steps and Mr Sampson behind one of the cars in the yard. He was in the driveway.
[37] Mr Sampson's evidence was that Mr Peterson went to the park. In cross-examination he said that he was alone and unarmed and that he had not seen Mr Waters go into the park, he remained with him and a Mr Allan. He also said that he saw Mr Peterson flee the park, after the appellant pulled 'a machete or something' out, when they were about '30 metres apart' and starting running towards him. About 30 others who were all armed with 'sticks and stuff' joined him. In cross-examination he said they might have been 50 metres apart and the group which emerged another 20 metres behind him.
[38] Mr Sampson's evidence was that Mr Peterson ran into the house and told him to help Mr Waters. Mr Peterson agreed that he went inside, but accounts as to how long he remained there differed. On Mr Peterson's own evidence, however, he was also involved in the affray, returning outside and throwing bottles at the group attacking Mr Waters. Mr Sampson's evidence was that he had also gone to go inside, but became involved when he saw Mr Waters was being attacked. He was then throwing bricks he said, in order, to protect himself. In cross-examination he denied being inside the house during the affray. Mr Peterson had locked the door on him, when he went inside. Mr Peterson's evidence was that Ms Kedwell was also involved in the fighting at one point. She denied this.
[39] Mr Peterson remembered the appellant yelling his name and that he 'jumped straight at it' and 'that's when me and him was meant to meet in the middle of the park and have a go' and that he went there 'peacefully to get it over and done with'. He said that he took nothing with him and that Mr Waters and Mr Sampson did not go with him, but waited near the gate. He saw the appellant swinging something around in his hand and saw other 'young fellas' come to join him from behind the bike jumps and that he turned and ran as soon as he saw their heads popping up. He did not know what the appellant was holding, but he could 'see the shine'. He said that when he got to the back door, they were already in the yard. That did not accord with the evidence of other witnesses.
[40] In cross-examination Mr Peterson denied that he had hit the appellant in the stomach with a brick, while they were in the park together. He claimed that he was then concerned to look after Mr Sampson and not cause dramas.
[41] Ms Kedwell's evidence was that she also heard the yelling before the affray broke out. She saw the group in the park increase from three to four people to 10 to 15. Her evidence was that the group from the house were yelling out 'Reapers for life. Mother' and the group across the road yelling 'QSBs bitches'. She also saw rocks, bricks and sticks being thrown by both sides and the group in the park cross the road. She then saw three or four of them run up to Mr Waters, who was hit over the head with what she described to be a big green coloured samurai style sword, when three or four people ran up to him. He fell to the ground behind a car, about two to three feet from the fire, with blood pouring out of his head. She could not see him on the ground, but could hear what sounded like the men continuing to beat him. They ran away a few minutes later.
[42] Ms Kedwell said it was dark and that she could not see people's faces, but described the person who struck Mr Waters in terms which did not describe the appellant. The appellant is of Aboriginal descent, a middle-aged man of average stature. Her description of what she saw was:
"Q. How many do you say ran up Koey?
A. There was about three or four of them. It was that dark but I know there was at least three of them and one of them hit him over the head with a sword looking thing.
Q. Can you describe the sword looking thing?
A. Well, it was really long, or fairly long. It was sort of - well, what I could see in the dark anyway it was sort of like a greeny colour. Could have been dark or could have been lighter but what it looked like to me was like a greeny looking colour.
Q. How long was this thing?
A. It was fairly long, I wouldn't be able to tell you exact inches or length but it looked like sort of one of them mantel swords, if you know what I mean. Like, you put on a mantel or something like that, one of them-
Q. Decorative?
A. Yeah, just display Samurai looking - or I don't know, one of them sort of looking things, so - to me it did anyway.
...
Q. The person you say who had the sword, who struck Koey, are you able to say what that person was wearing?
A. It was really dark and - see, I can't really remember anything. Like, if you were to ask me when it first started, I probably would have been able to but now I can't really remember anything.
Q. You remember giving evidence in this courtroom in July of last year?
A. Vaguely. I do but -1 remember coming but I don't remember what I said, so-
Q. Right, okay?
A. They gave me a transcript, I think they called it. I think that's what they called it anyway.
Q. I'm going to read from that transcript. Okay?
A. Yep.
WALSH: Your Honour and Mr Crown, p 216.40.
Q. This question was put to you?
A. Mmm.
Q. By the crown prosecutor?
A. Mmm
Q.
"Q. The person that swung the sword, are you able to describe the person like -
A. He was young. That's about it. He wasn't very old or I don't think so.
Q. How tall?
A. I don't know. Sort of average I suppose. I couldn't tell you.
Q. What gave you the impression that he was young?
A. Just because of the way he - he wasn't very big. Like, he wasn't like, you know, like man sort of size. He was sort of a young guy.
Q. He was just a smaller person?
A. Yeah.
Q. But you didn't see his face?
A. No. He was just small framed.
Q. The other boys or men around Koey, did they have any weapons or anything in their hands?
A. No. There were just one of them that did."
That's the evidence you gave in July last year?
A. Yep.
Q. On that occasion you told the truth to the best of your ability?
A. Yeah.
Q. Is that correct? And you agree today that would be your evidence today?
A. Yep.
Q. You talked about some of the people on our side?
A. Mmm.
Q. Ernie, Dale, Frank and Thomas?
A. Mmm.
Q. Begin outside - at some stage outside the yard just outside the fence. Is that right? They were yelling across the road?
A. Yes, that is correct.
Q. Did you ever see Koey go outside the yard at any stage that night?
A. Not that I can remember, no.
Q. And you said in your evidence today that it was very dark in the yard. Is that right?
A. Yes, it was.
Q. And I take it that's why you can't say too much about what you saw
because it was so dark. Is that right?
A. That's correct.
Q. And you weren't able to see people's faces and - is that correct?
A. That's correct.
Q. So you could see people but not the detail of-
A. Yeah, but not the detail."
[43] Mr Waters' evidence in chief was that he was in the driveway trying to shut the gates, but things were frantic. He was later told that his brother had then gone into the house. Rocks, bottles and sticks were being thrown and then someone shouted a warning to him, he turned around and was attacked.
[44] Mr Waters said that he then saw the appellant, but he was not the first one who ran into the yard. He was first hit in the ribs with a whipper snipper handle, being wielded by someone other than the appellant, who he identified. He retaliated by punching that person, who fell to his knees and the others then set him upon. He kept fighting, being hit everywhere. He felt two hits on the head and felt his ears pop. He pulled the man on his knees over and rolled onto the ground, using him as a shield, while he continued being hit with sticks, iron bars and what felt like blunt objects. He then thought someone was trying to kill him and eventually let the man he was holding go and managed to stand up, ready to fight on, but his attackers fled, chased by those in the yard, who were still throwing things at them.
[45] Mr Waters did not know what he was struck with on the head and could not identify the person who struck him, or those with him, apart from the person who hit him with the whipper snipper. In cross-examination he said that he did not actually see the appellant in the yard and agreed that he had never said that it was the appellant who struck him on the head.
[46] He was treated in hospital for his head wound, lacerations and bruising. He made a statement to the police while there. The head wound required nine stiches.
[47] Ms Hawkins' evidence was that she was at Ms Hawke's house during the day with Mr Peterson and Mr Sampson and had heard people going past on a number of occasions, yelling at Mr Peterson. She had also heard Mr Peterson respond. She returned to the house at about 8pm and was told to park her car in the yard, because the 'boys in Quinn Street' were 'starting stuff'. She was outside later and saw Mr Peterson, Mr Sampson, Mr Waters and others standing near the gate, while people were yelling from the park. She heard Mr Peterson respond at one point, but did not listen to what he said. She could see the outlines of four or five people's shadows in the park, moving around. She thought at one stage some boys had crossed from the house to the park and returned, but she could not remember who they were.
[48] Ms Hawkins then saw four people in the park walk towards the house. She saw another four or five come out and then a larger group, who she described as 'the boys from Quinn St', start running toward the house. When they got close she was told to go inside the house. All the girls did, apart from Ms Kedwell. When she was up on the steps she could see that one of them was carrying a metre-long object in his right hand, held beside his body towards the ground. It was shining in the light, while the others were carrying a wood plank or a stick and bricks and rocks.
[49] From inside the open door Ms Hawkins saw four or five men from the park rush towards Mr Waters, who she saw fall. She did not see him hit the ground, because a car obscured him and she was then pushed inside the house. She also saw the man carrying the shiny object at the gate, walking fast toward Mr Waters, before he fell. She also said that Mr Peterson had been inside the house, but she thought that he was then standing near the steps. He did not come back inside again, until shortly before Mr Waters did. It was she and another girl who called the police.
[50] In cross-examination Ms Hawkins said that Mr Peterson had been inside the house for only about a minute and that he was standing near the bottom of the steps when Mr Waters was being attacked, although she agreed that she was not sure when he was inside. She also agreed that in other evidence she had given, she had said that he was inside when five people attacked Mr Waters. Her memory was not clear, but she did remember that the person with the shiny object was wearing a blue jumper. In re-examination she said that she could only remember bits and pieces of that night, but that she was sure that he was wearing a candy blue jumper.
[51] She also said that Mr Waters had asked her to look at his head. She could see his skull and got him a towel. She did not know the people who had attacked, she did not see their faces, but was later told that it was the Princes.
[52] Ms Hawke had also heard the yelling outside. She did not really remember who was yelling, but said that Mr Peterson had started a lot of trouble for her on earlier occasions. She did not know all the people who were at her house that evening. She said that she had no control over who had come there. She was inside with her friends watching moves.
[53] She remembered the yelling starting outside with Mr Peterson. She went outside at the back door to see what was going on. She saw Mr Peterson, Mr Sampson, Mr Waters and two others standing near the gates yelling abuse at a group of four or five men in the middle of the park, who were also yelling abuse. She had not then known that Mr Waters was there.
[54] Ms Hawke remembered that things were then thrown by both sides, such as rocks, bottles and bricks. The boys in the park came closer, over to the road and the others retreated and then things escalated.
[55] Parts of her fence were pushed in and Ms Hawke saw one person run across and strike Mr Waters, who was still standing outside the fence, once on the top of the head with a machete which he was holding. She identified that person to be the appellant, who she said 'was named and pointed out to me'. She did not then know him, but that was what everyone was then saying and what it looked like to her, having a few months earlier had him pointed out to her in the street. She said that others came with him, but she could not remember what they were carrying.
[56] She also said that when Mr Waters fell to the ground, the attack did not stop, but they started laying into him. He was not armed, but was surrounded by the appellant and others who were hitting him as well, she assumed with their fists. In cross-examination she recognised one of them to be Steven Prince, who she agreed was of small build, aged about 17 or 18 years. She could not remember what the appellant was wearing.
[57] In cross-examination Ms Hawke said that she realised the appellant was holding a machete when he came closer. Initially when he was in the middle of the park she was not sure what it was. She thought it was a pole, but when he got closer she saw it had a blade at one end. He was standing under a light at one point as he crossed the park. It looked green in colour and was about a metre long. She said that Mr Waters was then outside the fence about seven and a half metres away and Mr Peterson was inside the yard. She was the only witness who placed them there. Others said Mr Waters was in the yard, near the fire when attacked and Mr Petersen near the steps. In cross-examination she agreed that her memory of the evening was no longer good and that the lighting where Mr Waters was, was not very good. She also agreed that afterwards, there had been a lot of talk about the incident, in which the appellant's name had been mentioned.
[58] Ms Hawke went inside and called an ambulance and the police. She later gave Mr Waters some towels. She later participated in computer generated photographic identification when she identified the appellant as the person who had hit Mr Waters with the machete. She considered that he had a recognisable face.
[59] In cross-examination her evidence was, however, that she had not paid much attention when the appellant had been pointed out to her in the street, he was then walking away on the other side of the street. She said she had just had a look and looked away. She also said that her memory of the night was not good and that she was relying on her statement. She also agreed that she had given evidence in other proceedings, that she had chosen the appellant's photo because of his distinctive almond eye shape. She agreed that she could have been wrong that it was the appellant holding the machete, because she wouldn't have been able to see the shape of his eyes that night and only had a brief moment to observe what had happened.
[60] Ms Hawke said at one point that the appellant had been pointed out to her that night. When pressed, she could not remember whether he had been pointed out to her that night and said that she had to go off her statement. She also agreed that she had earlier given evidence that he had not been pointed out to her and added that she could be wrong that it was him who hit Mr Waters with the machete, but that she was pretty sure that it was.
[61] In re-examination, she said that she had identified him because he had been pointed out to her before and she recognised his face, when he came into the light in the park.
[62] Mr Sampson's evidence was that he was in the yard, near a car, protecting himself by throwing bricks which were near the side of the house, when he saw the appellant run through the gate. Others were then bashing into the fence. He saw the appellant pause and the others with him run towards Mr Waters. He then saw the appellant strike Mr Waters on the top of the head with a machete, causing him to drop to the ground. He described the machete to be silver, about 60cm long and that it caused a big slice on the top of Mr Waters' head, from which blood poured. The appellant then ran off and others, whom he did not recognise, hit Mr Waters with sticks and poles around his ribs and back. In cross-examination he insisted that he saw the appellant attack Mr Waters with a machete and said that he was wearing a white top.
[63] Mr Sampson said that Mr Waters was unarmed and defended himself by grabbing one of his attackers and using him like a shield. He was then about ten metres away and could not help him, as he was defending himself by throwing bricks and then five or six men chased him into the house, where he remained for a minute or two, before he went back outside, when the attackers ran off. He identified various of the others involved in the affray, including Michael and Stephen Prince, whom he knew
[64] In cross-examination he said that he did not see a whipper snipper being used. He was on the other side of the car to Mr Waters, but said it was not difficult to see what was happening. He denied seeing the appellant banging at the backdoor.
[65] Mr Sampson also denied that he was part of a gang called 'the Reapers', but agreed that Mr Peterson was and that he hung around with them and that he knew that there was a dispute between them and the Prince boys. He also said that Fiona Prince was at the house that night and that earlier in the afternoon, he had seen the appellant and others drinking, a street away.
[66] Mr Peterson said that he saw his brother fighting one-on-one and one person hitting him with a stick and 'the lad on the other side' also hitting him. He saw him fall and another 'old cuz' fall on top of him and the appellant standing over him, 'trying to crack him', while this man was on top of him. He did not know if the appellant did 'crack' him, but he saw that he was carrying a 'metal sort of piece thing', which could have been even a piece for the bottom of the door which blocks the air, about three quarters of a metre long.
[67] Mr Peterson did not recall going into the house, but said that he was at the back door, trying to launch things to get the attackers away from his brother. He was about eight metres away, being attacked near the fire, with one lad trying to hit him with a fence paling in the ribs and the appellant on one side and his nephew on the other.
[68] In cross-examination Mr Peterson denied remaining in the house, because he was worried about the appellant getting him. He said he was worried about getting whacked and launched bottles from the steps, to try to get the attackers away from his brother, because he 'wasn't gonna run down and get myself slaughtered'. He insisted that he saw his brother fall, with the appellant on one side of him and one of his nephews, Michael, who he described to have fair skin, on the other. He said that he did not know if he actually saw the appellant hit Mr Waters on the head, but he saw him swinging at him, while he was on the ground.
[69] Evidence was called from police officers who attended the scene, where they found Mr Waters sitting in the gutter, seriously injured. They conducted a search and recovered various weapons in the vicinity, including knives, a hammer and a whipper snipper shaft, which had blood on it. DNA analysis yielded no results.
[70] It should also be noted that King DCJ gave the jury a warning as to the reliability of the evidence given by Mr Sampson and Mr Peterson, given their obvious involvement in the affray. This has to be taken into account, when assessing their evidence.It should be noted that the Court of Criminal Appeal, in its judgment, concluded that the Crown had not established beyond reasonable doubt that it was the defendant who actually inflicted the relevant wound. He was sentenced on the basis that he was one of those present who was armed and who acted together with a number of others with the intention of inflicting really serious harm on the victim.
The defendant has, on any view of it, an otherwise lengthy criminal history. The facts in relation to the vast majority of those offences in that history are before me. I do not propose, in the circumstances, to detail each and every entry in that criminal history. However, there are some matters which, in my view, are worthy of comment.
On 1 July 2009 the defendant was at the home of his brother. The defendant was overheard using derogatory terms towards his mother. He was asked to leave. He was overheard saying that he was going to find his brother and assault him. He then approached his brother and began throwing punches. He pulled a branch from a nearby tree and commenced assaulting his brother with it. His other brother attempted to intervene. When he did so, the defendant hit him with the branch and then punched him. The police were contacted. The defendant was charged with offences of common assault, destroying property, and contravening an Apprehended Violence Order. He was convicted and sentenced to a term of imprisonment.
On 27 March 2008 the defendant was charged with an assault on his then partner. He had accused her of being "a slut" and threw a brush at her which hit her beneath the left eye, causing her nose to bleed and necessitating a visit to hospital.
On 3 March 2007 the defendant was charged in relation to events which occurred on 26 December 2006 when he followed his then partner into her bedroom and verbally abused her. His partner became fearful and approached a neighbour's house with her children. The defendant followed her and grabbed her phone, causing cuts to her left and right-hand fingers. An interim Apprehended Violence Order had been imposed on the defendant approximately three months beforehand for the protection of his partner.
On 8 March 2005 the defendant was issued with an interim Apprehended Violence Order prohibiting him from intimidating his then partner. On the following day police were called by his partner who was seen to have a bruised and swollen right eye. She told police that she had been sitting in the back seat of a motor vehicle with the defendant who had lashed out at her for no apparent reason and hit her in the face. The defendant was sentenced to a term of imprisonment.
On 17 December 2003 the defendant was driving a car in which his then partner and two daughters were passengers. He stopped the car and tried to get something from the rear seat. He became angry when he thought his daughter was trying to stop him doing so. He verbally abused his partner. An altercation ensued. One week later he threw a bottle of water at his partner. When police attended, he said to them words to the effect:
"I know where youse all live. When I get out from gaol, I'm gonna come and kill you, you fuckin' white cunts".
He was charged with a number of offences, including common assault, intimidating a police officer in the course of his duties, and contravening an Apprehended Violence Order and was sentenced to a term of imprisonment.
There was a further incident on 3 May 2002 in which the defendant assaulted his then partner, who was four months pregnant at the time.
On 26 May 1996 he punched his then partner in the face and kicked her in the right and left shins, causing her to fall to the floor. These actions were accompanied by verbal threats, including a threat to kill her. He was again sentenced to a term of imprisonment.
On 7 November 1995 the defendant became embroiled in an argument with his sister's husband. He picked up a length of iron rod and threw it in his direction. Whilst it missed, it struck the wall and caused a large hole. His sister's husband ran away. The defendant caught him, picked him up and threw him to the ground twice saying:
"Put me into the cops and I'll put you in hospital, crippled".
The defendant was charged with assault and malicious damage to property. He was placed on a good behaviour bond, and fined.
There was a further incident on 28 December 1993 when the defendant and his then partner and three children were at the house of his mother. On that occasion, for no apparent reason, the defendant punched his partner in the back of the head saying:
"You know what that's for".
He then punched and kicked her. She fled into her bedroom. He grabbed her by the hair and dragged her from that room back to the lounge room, where he assaulted her again. When she went outside, he commenced to throw objects at her and demanded that she come back into the house. He was sentenced to a term of imprisonment.
Those entries in the defendant's criminal history will give some indication of the nature of past offending in which he has engaged in the past. That history demonstrates a consistent pattern of violent offending from his first appearance before an adult court in 1985. Moreover, and although it is not a characteristic of each and every instance of his offending, there have been a number of cases in which the defendant has resorted to the use of weapons to assault other people.
I am also mindful of the remarks of the sentencing judge, Judge King SC of the District Court and also those of Schmidt J in the Court of Criminal Appeal, which is a relevant factor to be taken into account pursuant to s. 9(3)(h1).
Those of King DCJ were as follows:
Of significance in relation to this offender, is that the Court is of the opinion beyond reasonable doubt that the offender at least inspired the affray, if not actually recruited co-offenders, and was the person responsible for inflicting the major injury on the victim.
In those circumstances the offences must be regarded as a serious example of violence in a suburban area, which must have put a number of persons in considerable fear for their safety and property in view of the attack made on the premises at Sussex Street, where persons should have been entitled to go about their business in privacy and without being attacked.
…
REMORSE, CONTRITION AND REHABILITATION
The offences were defended at trial. The offender continues to deny the commission of the offences as referred to in both the Pre-sentence Report and the psychologist's report. Of serious concern are the following extracts contained in the psychologist's report:
"He appeared agitated and confused about the purpose of the assessment, expressing anger and distaste at the legal process. He experienced difficulties containing his anger. His thoughts were tangential and he also expressed fixed beliefs that his co-accused should be punished and that he would seek revenge if he is given a long period of incarceration."
Further at para 30:
"Mr Prince reported that he was found guilty at trial of wound with intent and affray. While he acknowledged being present at the time the offences occurred, he contested his involvement in the offences and hence had pleaded not guilty. As such he expressed a strong sense of feeling 'hard done by and wanting revenge' against his cooffender, therefore he struggled to disclose any information about the offences without become fixated on his co-offender. It appears that Mr Prince is experiencing difficulties dealing with being found guilty of the current offences and he expressed a strong sense of
injustice."
I have already referred to the passages in the psychologist's report dealing with his failed attempts at residential rehabilitation programmes on five occasions because he ceased rehabilitation prematurely because of relapsing
into substance abuse.
The Pre-sentence Report contains the following passage under the heading "Attitude to the Offences":
"Mr Prince vehemently denies any responsibility of the offences and has indicated that he will appeal this matter on all grounds. He advised that the individuals who are responsible for the commission of the offences are his own relatives and indicated the parties responsible having not owned up to their role in the altercation has caused a rift in the family unit."
There is in the circumstances no expression whatsoever of remorse or contrition. In view of his criminal history and the matters already referred to in
terms of past attempts at rehabilitation there certainly cannot be a good prospect of rehabilitation. Indeed on the evidence before the Court it would appear that the offender is incapable of addressing his drug and alcohol problems, which are at the heart of his criminal conduct, together with his inability to control his anger. In those circumstances there would not appear to be any significant hope of rehabilitation.
Hopefully during the time that the offender is in custody he will become aware of the significant changes that he needs to make to his attitudes and lifestyle in order to cease being one of those who because of his conduct rotates on a regular basis through the prison system.
Those of Schmidt J included the following:
[145] His long history of offending was constant, despite sanction, dating back to 12 years of age and involving numerous driving offences, drug related offences and offences of violence. He had limited insight into his offending and externalised responsibly for it, expressing strong feelings of victimisation and being wrongly accused. He had poor insight or commitment into his rehabilitative needs. His coping skills were found to be limited and would have a profound impact on his behaviour, including in relation to drug dependence, impulse control problems, aggressions and ultimately crime.
...
[150] This is such a case. The evidence of the appellant's awful childhood experiences of violence and drug and alcohol abuse, cast significant light on his ongoing problems with anger management, violence and criminal conduct throughout his adult life, so as to reduce his moral culpability for his inability to control himself. To be weighed against this is not only his serious lack of control, which has resulted in his extensive criminal record, but also his lack of remorse and expressed desire for revenge and retribution, particularly on his co-accused and family members. This aspect of the evidence points strongly to an increased need to protect the community from the appellant.
…
[153] Given the evidence I have discussed as to the nature of this affray and of the appellant's involvement in the attack on Mr Waters, the evidence of the appellant's attitude to the others involved with him in that offending, his stated desire for revenge upon them and his general attitude to violence, in my view in this case both general and specific deterrence must feature in the sentence imposed, even though it must be accepted that the appellant's moral culpability for his inability to exercise self control is reduced by the ongoing effects of his deprived upbringing and social deprivation, which must also be taken into account.
Finally, I must have regard to any other information as to the risk posed by the defendant: s. 9(3)(i). In that regard, the plaintiff points to a recent incident in custody in which the defendant was said to have waved his fist at another inmate, as a consequence of which there was an allegation of assault. That does form part of the evidence, although it must be said that this incident is very much at the lower end of the scale of seriousness.
In written submissions, counsel for the plaintiff submitted that there was a strong basis for the making of an extended supervision order having regard to a number of factors.
Firstly, counsel pointed to the expert opinion of Mr Parker that the defendant presented a high risk of violent recidivism.
Secondly, counsel submitted that the defendant's violent offending in the past had been persistent and had, on occasions, involved the use of weapons.
Thirdly, it was submitted that the fact that the defendant had not been granted parole meant that he will reach the end of his sentence without any supervision. This, it was submitted, was significant in light of the remarks of King DCJ and Schmidt J to which I have referred, particularly regarding the need for ongoing supervision. Paraphrasing what was said, it was the submission of counsel for the plaintiff that the remarks in each case supported a conclusion that the defendant required a high degree of supervision, co-ordinated support, and comprehensive intervention if he was to make a meaningful transition into the community.
Fourthly, it was submitted that on the evidence, the defendant's issues of substance abuse were unresolved, and that an extended supervision order would moderate that behaviour.
Finally, it was submitted that the defendant's anger management issues were also related to his risk of re-offending and required supervision. It was submitted that an extended supervision order may provide for mandatory community-based psychological treatment, and the development of a structured and productive personal routine.
In oral submissions, counsel for the plaintiff made further reference to the defendant's criminal history. She submitted, with some emphasis, that such history disclosed a pattern which, coupled with the instances in which the defendant had used weapons to assault other persons, demonstrated that his violence could escalate quickly, to the point where he could inflict serious bodily injury on another person.
Counsel further submitted that the decision reached by the Court of Criminal Appeal that the Crown had not proved that the defendant had actually wielded the weapon which inflicted the injury on the victim in the index offence should not obscure the facts which were actually found. It was submitted that it was evident that the defendant had made threats only a few days before the commission of the index offence, and that there was evidence from various witnesses who saw a number of people in the group (of which the defendant was a member) carrying weapons. It was also pointed out that on any view of the evidence, the defendant was present when the wound was inflicted.
It was further submitted that the observations of Schmidt J provided "conspicuous support" for the making of the orders which had been sought. Counsel for the plaintiff also emphasised the circumstances which saw the cessation of the defendant's participation in the VOTP. Counsel also made reference to what was said to be his poor history of compliance with parole in the past.
Counsel for the defendant emphasised that one purpose of the preliminary hearing procedure is to allow the court to filter out unmeritorious applications at an early stage. Whilst not specifically put, the essence of the submission advanced by counsel was that the present application fell into such a category. It was submitted that the critical issue for determination was not whether the defendant was a high risk offender, but more specifically whether he posed an unacceptable risk of committing a serious violence offence if he were not supervised. In this regard, counsel submitted that the words "unacceptable risk" should be given their ordinary meaning within the context of the objects of the Act.
The principal submission advanced by counsel for the defendant was that despite a relatively large number of occasions on which the defendant had been involved in violent conduct, there was only one which involved serious violence, namely the index offence. It was emphasised that there was evidence that the defendant appeared motivated to complete the VOTP and had been responsive to feedback, as a consequence of which he had agreed to revise his strategies to assist in remaining focused on the tasks which the course presented. In addition to the evidence of satisfactory group participation, counsel for the defendant submitted that there was no evidence of any recent issue of concern noted by any member of staff of the VOTP. He also pointed out that the defendant had undertaken anti-addiction programmes and that urinalysis tests which had been returned were negative.
To the extent that the plaintiff relied upon the views expressed by the Court of Criminal Appeal regarding the risk of further offending, counsel for the defendant submitted that those views should be read in the context of the Court contemplating the defendant's release to parole. It was submitted, in effect, that those circumstances had now changed, that the defendant had not been released on parole, and that I was now required to deal with the threshold test under the Act. It was submitted, in particular, that the fact that supervision may be beneficial is not determinative of the evaluative assessment that I am required to make. It was submitted that the factors in s. 9(3) of the Act were particularly concerned with, and directed to, ensuring as far as possible that a defendant would not be released from custody without appropriate and adequate supervision.
Counsel for the defendant also referred, at some length, to the decision in Pacey (to which I have already referred) together with a more recent decision of State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367, a decision of N Adams J. Counsel took me, in particular, to the observations of the Harrison J in Pacey (at [53]) that the safety of the community must be assessed in the context of the assessment of the defined risk. In oral submissions, counsel sought to draw a number of comparisons between the circumstances in Wilson and those in the present case. He took a similar approach with respect to the circumstances in Pacey. Having done so, he emphasised that the defendant, despite what had happened in the past, had remained involved in the VOTP and had been the subject of positive reports in relatively recent times.
The effect of counsel's submissions was that although a pattern of behaviour was established by the offender's record, it was not, in all of the circumstances, sufficient (in combination with the various others matters to which I have referred) to satisfy me to the requisite standard that the order sought should be made. In advancing that submission it should be emphasised that counsel did not suggest that I should completely ignore that past criminal history in terms of the assessment that I am required to make.
Harrison J pointed out in Pacey (at [42]) that the operative words of ss. 5E(1) and (2) of the Act require that the defendant be made the subject of an extended supervision order if and only if I am satisfied that he poses an unacceptable risk of committing a serious violent offence if not kept under supervision. As his Honour pointed out, that necessarily involves conducting a balancing exercise in which the court must take into account all of the positive and negative material in the evidence, based upon the assumption that it can be ultimately proved.
It is relevant, in carrying out the balancing exercise, to bear in mind that a fundamental objective of the legislation is the protection of the public and the safety of the community: Attorney General for New South Wales v Gallagher [2006] NSWSC 340 at [21]; Attorney General for New South Wales v Quinn [2007] NSWSC 873 at [19]. Based upon the material before me to which I have referred, I am satisfied that the matters alleged would, if proved, justify the making of an extended supervision order. That being the case, I must make the order appointing two psychiatrists to examine the defendant and to prepare reports for the court's assistance. I have reached that conclusion for a number of reasons.
Firstly, whilst I accept that the index offence represents the only instance of serious violent offending on the defendant's record, it was an obviously serious offence, and was described by the Court of Criminal Appeal as being pre-meditated. Moreover, and as I have outlined, it came against the background of a long history of violent offending. That history included instances in which the defendant had been convicted of violent offending which involved the use of various objects as weapons. In dealing with that history it is relevant to bear in mind that the definition of "serious violent offence" is a broad one. It is not confined to, for example, the intentional infliction of grievous bodily harm: see State of New South Wales v Lynn [2013] NSWSC 1147.
Secondly, the psychological assessment of Mr Parker identifies a number of specific risk factors. His opinion points very much in favour of the conclusion that the defendant remains at a high risk of further violent offending.
Thirdly, the historical psychological assessments point in the same direction. Ms Nasr, as long ago as 2012, made reference to the defendant's then need for a high level of supervision.
Fourthly, I accept that the defendant has taken some steps towards rehabilitation. However, it remains the case that whilst participating in the VOTP, he was suspended on account of acts of violence, both of which he was the instigator.
Fifthly, I take into account that the Court of Criminal Appeal specifically identified the need for extended supervision once the defendant had completed his sentence, making specific reference to his issues with anger management and violence. Whilst I accept that those observations may have been made in the context which counsel for the defendant suggested, that does not lead to a conclusion that they are any less apt, or deserving of any less weight.
As I have noted, I was addressed at some length in respect of the decision of Harrison J in Pacey. In that case his Honour dismissed an application for an order pursuant to s. 7(4) of the Act. It was not suggested that I was bound by that decision. However, the effect of the submissions put was that there were a number of factual similarities between that case and the present case, and that in the circumstances, I should reach the same conclusion as Harrison J. A similar approach, generally speaking, was taken to the submissions made by reference to the more recent judgment of N Adams J in Wilson.
It is trite to say that each case must be determined on its own facts. An approach which involves seeking to draw factual comparisons between one case and another in support of the proposition that the same result should ensue, has obvious limitations. It also carries with it the danger of erroneously seeking to elevate findings of fact into propositions of law.
As far as the decision in Pacey is concerned, there are a number of factual distinctions which can be drawn. The psychological assessment in that case dealing with risk made reference to that offender falling toward the lower end of the high risk category of offending. The principal psychological opinion in the present case puts the defendant at a high risk. Harrison J further found that violence which is not at the serious end of the spectrum neither amounts to a serious violent offence, nor provides reliable predictive assistance with respect to future violent conduct. His Honour's observations must obviously be viewed as having been made in the context of dealing with the particular evidence which was before him. Whether a history of violence provides reliable predictive assistance of the kind to which his Honour referred will necessarily depend on the facts of the case. As I have observed on a number of occasions in the course of these reasons, the defendant's previous violent offending is extensive, and has included occasions when he has resorted to the use of weapons.
Harrison J also found that the defendant in Pacey demonstrated a genuine desire to reform. Whilst there is, in the present case, some indication of such a desire, I am not able to reach such an affirmative conclusion, given the defendant's lengthy criminal history and the more recent circumstances surrounding his suspension from participating in the VOTP. Notwithstanding recent positive reports, being excluded from a programme directed toward rehabilitation from violent offending on account of two instances of violence, could be seen as the antithesis of demonstrating a genuine desire to reform.
Finally, in terms of the comparisons sought to be drawn between the facts of the present case and those in Wilson, I simply make the observation that the offending in Wilson was properly regarded as historical. That is certainly not the case in the present instance.
[2]
ORDERS
Accordingly, I make the following orders:
1. Pursuant to s. 7(4) of the Crimes (High Risk Offenders) Act 2006:
1. That a registered psychologist and a qualified psychiatrist be appointed to conduct separate examinations of the Defendant and to furnish reports on the results of those examinations to the court by no later than 16 November 2017;
2. The defendant is directed to attend those examinations.
1. The Plaintiff's Summons is listed for final hearing at 10am on 11 December 2017, with an estimate of 1 day.
2. The Plaintiff is to file and serve any evidence on which it relies for the final hearing by 5:00pm on 22 November 2017.
3. The Defendant is to file and serve any evidence on which he relies for the final hearing by 5:00pm on 27 November 2017.
4. The Plaintiff is to file and serve written submissions on which it relies for the final hearing by 5.00pm on 29 November 2017.
5. The Defendant is to file and serve written submissions on which he relies for the final hearing by 5.00pm on 6 December 2017.
6. The Defendant is to advise the Plaintiff which experts are required to attend court to give evidence at the final hearing by no later than 7 days before the hearing.
7. Pursuant to s. 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) an order directing the Commissioner of Corrective Services to cause the Defendant to be produced at the court for the final hearing, unless the court otherwise orders.
8. Liberty to relist the matter on 24 hours' notice.
[3]
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: 29 November 2017