HIS HONOUR: By summons filed on 9 November 2022 the State seeks an extended supervision order in respect of the defendant, pursuant to Pt 2 of the Crimes (High Risk Offenders) Act 2006 (NSW). The summons is before the Court for a preliminary hearing pursuant to s 7 of the Act, to determine the State's application for an interim supervision order pursuant to s 10A, and the appointment of psychiatric or psychological experts to report upon the defendant and furnish those reports for the purpose of them being taken into account at the final hearing of the State's application.
On 8 March 2020, the defendant committed an offence of recklessly inflicting grievous bodily harm, contrary to s 35(2) of the Crimes Act 1900 (NSW). He was arrested on 20 March 2020 and remanded in custody. The defendant pleaded guilty in the Local Court and was convicted and sentenced in the District Court on 23 April 2021. His sentence for that index offence was 3 years, commencing on 26 March 2020, and expiring on 25 March 2023. A non-parole period of 1 year and 8 months was imposed, under which the defendant was released on statutory parole on 25 November 2021. On 17 March 2022, the defendant was arrested and charged with driving a motor vehicle whilst disqualified (second or subsequent offence), using an offensive weapon to resist arrest and self-administration of a prohibited drug. The defendant was bail refused and on 9 March 2022, the State Parole Authority revoked his parole. The effective date of revocation was 17 February 2022. The defendant remains in custody at the present date.
The defendant was born in January 1981. He was 39 at the date of the index offence on 8 March 2020 and is now 42. He is an "offender" within the definition in s 4 of the Act. The index offence was a "serious violence offence", as defined in s 5A(1)(a). As the defendant is currently serving a sentence of imprisonment for the index offence, he is a "supervised offender" and is amenable to the making of an extended supervision order by force of s 5B(a) and s 5I(2)(a)(i). The summons having been filed during the defendant's current prison term for the index offence and within the last 9 months of that term, as required by s 6(1), complies in all respects with the formal and jurisdictional prerequisites of the Act. On final hearing, the only further question that the Court would have to determine is whether it is "satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under an order": s 5B(d).
State of New South Wales v Ryan [2023] NSWSC 236 | Case summary | Zoe
On this preliminary hearing I am required by s 7(4) to determine whether the matters alleged in the documentation tendered in support of the State's case, "would, if proved, justify the making of an extended supervision order". In the circumstances that means that I must decide whether those alleged matters would satisfy the Court of an unacceptable risk to the standard of proof formulated in s 5B(d). The defendant makes no submission against the Court reaching the conclusion specified in s 7(4). I have no hesitation in drawing that conclusion, primarily on the basis of the defendant's significant record of violent crimes, commencing from before he reached adulthood.
The principal offences in that record, so far as relevant for present purposes, are as follows:
1. 13 June 1997, aged 16½ years: assault occasioning actual bodily harm. A community service order was made.
2. 26 August 2001, aged 20½ years: common assault. The defendant received a suspended sentence.
3. 15 August 2001, aged 20½ years: maliciously inflict grievous bodily harm - 12 months imprisonment with a non-parole period of 9 months.
4. 15 February 2004, aged 23: assault occasioning actual bodily harm - 9 months imprisonment with a non-parole period of 6 months.
5. 14 April 2007, aged 26: using a weapon to prevent lawful detention and aggravated assault with intent to take or drive a motor vehicle - 2 years with a non-parole period of 1 year and 6 months.
6. 1 October 2009, aged 28½ years: stalk and intimidate - 2 months imprisonment.
7. 13 October 2009, aged 28½ years: common assault - 2 months imprisonment.
8. 21 June 2013, aged 32½ years: recklessly causing grievous bodily harm - 4 years imprisonment, with 2 years non-parole period.
9. 8 March 2020: the index offence.
10. 17 February 2022: using a weapon to resist lawful detention.
That course of violent offending has to be considered in the context that throughout the period covered by the chronology the defendant has also committed a very large number of offences of other kinds, including robbery, road traffic offences such as driving without a licence, misuse of drugs and many other matters. The index offence was very serious and was dealt with relatively leniently because the sentencing judge took into account considerable difficulties of the defendant's early childhood, his psychiatric disorders and a brain injury that was acquired in 2011, which appears to have worsened cognitive difficulties that he already suffered. The sentencing judge regarded his expressions of remorse as genuine. The defendant has restated his remorse for the index offence to me, today.
Taking into account all of those subjective circumstances, that resulted in the relatively short current sentence, it is relevant to my evaluation of whether on final hearing the Court may be sufficiently satisfied that an unacceptable risk is posed by the defendant that the objective circumstances of the index offence were very serious. The defendant struck the victim to the left side of his face with a tomahawk, knocking him to the ground. The blow caused a large laceration, to bone depth. It also caused a complex fracture of the mandible, and multiple teeth fractures. The victim was unable to eat or drink for several days after the attack and on 12 March 2020 he underwent a three and a half hour operation to stabilise the fracture of the mandible with a titanium plate and screws. The victim suffered permanent loss of sensation in part of his face, as a result of irreparable severance of a nerve. He has a permanent speech impairment, he can drink only through a straw and he has had to have his teeth removed. The victim's face is disfigured and he has, in consequence of these disabilities, lost social confidence. The offence inflicted upon the victim severe, permanent, and life changing damage.
The evidence before me on this application confirms the difficulties of the defendant's early childhood that were adverted to by the sentencing judge when he was dealt with for the index offence in early 2021. Those materials also confirm, in the context of professional medical assessments, his low level cognitive functioning, measured in the 18th percentile, and psychiatric disorders, which he has been unable to manage effectively with medication, particularly because of the defendant's tendency to lapse into the use of illicit drugs. The defendant has been a user of illicit drugs for at least two decades, and has battled to control them. Their affects upon him undoubtedly contribute to his commission of violent offences.
The sentencing judge, with respect to the index offence, was satisfied that the defendant's psychiatric disorders, and his tendency to psychosis under the long-term influence of drugs, were contributing factors in the commission of this offence. Having regard to the extensive record of impulsive violence, it is scarcely necessary to rely upon the confirmatory professional opinions contained in reports tendered by the plaintiff to form the view that if all of these matters are proved at the final hearing the Court would be likely to reach the comfortable satisfaction of an unacceptable risk, which is necessary for the making of an extended supervision order. In those circumstances, I will make an interim supervision order with a significant number of conditions, designed to ameliorate the risk to the community, pending the final disposition of the State's summons.
The defendant will be subject to parole conditions upon his release at the expiry of his term for the index offence. That is because he was sentenced last December to a further term of imprisonment, for the offences of February 2022. When he is released, he will be on parole pursuant to those orders for the February 2022 offences. He has also been made subject to a community corrections order, which has conditions attached to it. The defendant's counsel submits that the conditions of the interim supervision order should be nothing more than an amalgam of the parole conditions and the community corrections order conditions.
However, the difficulty with that proposal is that those existing conditions provide for the Departmental Supervising Officer ("DSO") to direct the defendant as to his conduct, in a wide range of respects, in the exercise of the DSO's discretion. It is usual, in the making of an interim supervision order, that the conditions attached should confine the DSO's discretion, particularly, as any breach of the conditions is subject to prosecution for an offence that carries a penalty of 5 years. It is not desirable that the defendant should be exposed to the risk of such prosecution and penalty on the basis of breaching conditions the content of which is furnished only by the DSO's exercise of discretion from time to time. Rather, the conditions should be spelled out in this Court's order, given the significant consequences for any breach, under the Act.
The State has proposed a schedule of 45 conditions and, upon rejection of the proposal that only the parole and community corrections conditions should be replicated, the defendant's counsel has taken issue with but a few of the 45.
First, the defendant opposes the making of conditions for electronic monitoring, and for the defendant to provide to his DSO a schedule of proposed movements and then to adhere to it. Those are conditions 5, 6, 7 and 8 in the State's draft. I do not consider that those conditions are warranted. Tracking, confining and containing the movements of the defendant does not appear to have anything to do with the risk that he poses, on his past record, of committing further acts of violence. His past acts of violence, universally, have been unpremeditated, impulsive, and have arisen out of entirely unpredictable circumstances. The index offence, for example, was committed when the defendant was in a room occupied by him at the time and, upon a friend seeking entry and kicking the door because entry was not immediately allowed, the defendant opened the door and struck him without warning with the tomahawk. Other offences of violence, committed in the past, are explained in statements of facts that have been submitted to the Court as part of the evidence on this application. They disclose that it would not assist authorities, in any respect, in their endeavour to contain the risk of further violence, to have his movements scheduled or tracked by electronic monitoring. Further, if either of those mechanisms or both should be adopted, they would impose a frequency of contact with the defendant by Community Corrections officers and a degree of interaction between the defendant and the officers that would be likely to exacerbate poorly controlled aspects of the defendant's behaviour while achieving nothing towards the overriding concern of the Court, which is the safety of the community.
A second point of dispute taken up by the defendant is very minor. In proposed condition 29, the plaintiff wishes to have the defendant prohibited from having in his possession any object that could be used as a weapon. This is a difficult proposition because his past record shows that he has used as weapons objects that would in most circumstances be innocuous but that have been close to hand. Clause 29, as drafted by the State, lists a large number of items that the defendant must not possess but an exception is made that he may have a knife for ordinary domestic use at his approved residence, if he possesses and uses it for legitimate purposes within those premises. The defendant wishes to have this exception expanded so that it will also apply to a knife of a kind ordinarily used in connection with fishing or camping and that is possessed by the defendant for the purposes of such activities. In my view, that is a reasonable extension of the exception and the condition will be imposed with the extension so made.
The third area of disagreement about these conditions is that the plaintiff seeks to have the defendant give consent for his health treatment providers and practitioners to share information concerning him, "where it is relevant to his risk of committing a serious offence or to his rehabilitation". The defendant has a strong objection to a condition that would permit healthcare providers, particularly psychologists and psychiatrists, to divulge information to Community Corrections or other law enforcement personnel, across such a wide scope. In the course of the hearing, the defendant expressed this objection to the Court directly. He explained that he is willing to receive psychiatric and/or psychological care and assistance, but he has a sensitivity about disclosure to third parties of the facts and circumstances of his background. He finds it acutely embarrassing to contemplate that others may know of the things that he tells healthcare professionals in confidence, concerning his upbringing and his psychiatric and social difficulties.
My assessment is that the defendant is genuine about this. The sensitivity and concern that he describes appears to me to be bona fide and legitimate. I consider that he should be required to give consent for his mental healthcare professionals to provide some degree of information to his DSO or others but not to the point of divulging the details of background history that he shares with them on a confidential basis. I consider that the limitation on what they might disclose should be narrow. It should be limited to the healthcare professionals passing on to the DSO information regarding whether or not he is attending consultations and at what frequency and with what reliability. They should be free to report to the DSO if they observe any development in the defendant's conduct or behaviour that manifests deterioration with respect to his drug abstention, or with respect to compliance with the prohibition on his use of weapons or deterioration with respect to his mental health and stability.
The condition should be so phrased as to limit the reporting of information to the DSO to general descriptive information of that type, and not to sharing with them, his confidential instructions about personal matters that may be very important to the health professionals' assessment, diagnosis and treatment but would not be necessary to disclose to the DSO in order to assist with his compliance with the conditions and the protection of the public.
Conditions to give effect to those modifications are to be drafted by the parties and submitted to me in chambers. The orders will be settled on the basis of the drafts received.
The orders of the Court are:
1. Order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006:
1. That two qualified psychiatrists and/or registered psychologists, or any combination of two such persons, be appointed to conduct separate psychiatric and/or psychological 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;
2. The defendant to attend those examinations.
1. An order:
1. Pursuant to s 10A of the Act, the defendant is to be subject to an interim supervision order from midnight on 25 March 2023 ("the interim supervision order");
2. Pursuant to s 10C(i) of the Act, the interim supervision order is to be for a period of 28 days; and
3. Pursuant to s 11 of the Act, the defendant for the period of the interim supervision order, is to comply with the conditions settled by the Court this day.
1. Leave is granted to the parties to approach the registrar, to obtain a date for listing in the HRO list, for the purposes of appointing a date for final hearing, a date for furnishing the experts' reports and the identity of the experts and any other interlocutory matters that may appear to require attention, upon that listing.
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Addendum
The Court's reasons were delivered orally at the conclusion of the hearing, as above. I add the following reasons for having rejected the defendant's application that the conditions of the Interim Supervision Order be expressed according to the draft submitted by the defendant's counsel. Those draft conditions followed the substance of the plaintiff's proposed 45 clauses but they were expressed in the first person, such as "I must be of good behaviour". The draft utilised slang, expressing a restriction on associations as "I must not hang out with or contact anyone my DSO tells me not to hang out with or contact" and with a heading to the section regarding medical treatment that read: "Doctors, psychs and medical stuff". Generally the draft utilised slightly shorter sentences than those in the Crown's proposed conditions and conveyed slightly simpler concepts in some clauses. It also contained numerous small pictures, either photographs or sketches created by computer software. These appeared under subject headings at intervals throughout the list of conditions. There was a drawing of a house, a drawing of a knife and a handgun with a diagonal line drawn through them, a photograph of some Australian currency - and numerous others.
The wording of the draft was described in submissions as "plain English". I maintain quotation marks around that expression as I do not consider that the defendant's informally worded draft made the proposed conditions any plainer, to any reader, than those put forward by the State. An example of the style of drafting suggested on behalf of the defendant may be seen in the pdf attachment to State of New South Wales v Harlow (Final) [2021] NSWSC 1278. The conditions of the Extended Supervision Order in that case are very similar to what was proposed in the present proceedings.
The Court was informed that this formulation was intended to facilitate the defendant's understanding, given his low intellectual functioning and lack of educational attainments. The "plain English" draft was delivered to chambers two days before the hearing as an annexure to the defendant's written submissions. Through my Associate I requested that the defendant's substantive position regarding conditions be provided in conventional legal language, in a table for comparison with the Crown's position. I informed the parties that I would not make orders of the Court in the defendant's proposed amalgam of first person declarations, pictures, slang and simplified language but would adopt formal legal wording, as is customary in orders issued to parties and entered on the Court record. I advised that the defendant's solicitors could exercise their own judgment as to whether paraphrasing such conditions as might be ordered by the Court, or making an illustrated version, might assist their client's understanding, but that would be something for them to undertake after the orders, including conditions, had been pronounced and I would not regard it as part of the Court's function to approve or adopt such a paraphrase.
The defendant's legal representatives were not prepared to accept that position. At the commencement of the hearing defence counsel argued at length for orders to be made in "plain English". Decisions of three other judges of the Common Law Division were cited, in which orders under the Act were expressed informally and with illustrations. An affidavit of the defendant's solicitor was read, deposing to the frequency with which clients of Legal Aid make inquiries of the office concerning the scope and effect of conditions in supervision orders. The solicitor deposed to the limitations upon Legal Aid's resources to respond. This evidence was apparently directed to the contention that a "plain English" form of orders pronounced by the Court would reduce the number of such inquiries.
In my view, and with due respect to those judges who have concluded otherwise, it is not necessary and not acceptable that the precision with which orders are expressed should be compromised or degraded for the purpose of accommodating one party's lack of facility in the official language of the law of the State and of the courts. Solicitors and counsel are officers of the Court. Responsibility rests with them to explain the Court's orders to their clients. They have the opportunity to assess their clients' level of understanding and, if required, to recruit friends, relatives or social workers to assist. There is no need for this function to be escalated to the Court itself, thereby requiring expert evidence of a party's linguistic or comprehension difficulties and evidence of what mode of expression would be most likely to penetrate.
The defendant's proposal of informal orders, incorporating slang and pictures, for a defendant with poor language skills and cognition leads logically to the proposition that Court orders affecting a person recently arrived from Afghanistan should be pronounced and entered in Pashtun and for an immigrant from China, who may not read English with confidence, in Mandarin. But the Court has always proceeded on the basis that proceedings before it are conducted and resolved in one official language, English, and that litigants who become bound by orders must thereafter take their own responsibility to gain understanding of what those orders require of them, with the assistance of legal advice and/or language interpretation as necessary.
If the Court were to adopt a practice of drawing up orders under the Act in the manner proposed, it may be expected that Legal Aid solicitors would next seek similar drafting of conditions for bail applicants who have low level cognition and/or poor command of English. Presumably the courts would be asked to express the conditions of bonds and other non-custodial restraints on liberty in the same way. The criminal justice records of the State would soon assume a very crude and strange appearance. None of this is necessary. It would not improve upon what has always in the past been achieved through careful solicitor-client communications. The conditions of the Interim Supervision Order in this case will of course be explained by Community Corrections personnel during supervision contacts with the defendant, as a supplement to explanations from his legal representatives.
The interests of both parties to this proceeding, not just those of the defendant, must be considered in the formulation of orders. For the State's purposes, the conditions must be sufficiently clear to inform Community Corrections staff of the precise limits placed upon the defendant, so that they may know when he should be counselled or warned and whether he should be reported to police for breach. To those ends the careful drafting submitted by the State appears apt. For the most part the defendant's alternative clauses merely convert imperative directions into first person declarations, which are inappropriate for a court order. The defendant's proposed draft also simplified the expression of some conditions but without any obvious benefit to comprehension - certainly not sufficient to warrant making an issue of the "plain English" version and requiring the Court to resolve the differences in drafting clause by clause.
The State adopted a passive stance with respect to the defendant's drafting in this case. The Crown Solicitors Office may not yet have formed a definitive view upon the implications or utility of Legal Aid's concept of "plain English".
From the frequency with which conditions of this type have recently been proposed on behalf of legally aided defendants in proceedings under the Crimes (High Risk Offenders) Act, I infer that expression in the first person, paraphrasing, incorporation of slang and the use of illustrations must be considered by Legal Aid to be useful in its communications with low intellect clients. The vigour with which "plain English" conditions were pressed in the present case and the terms of the affidavit supporting that application indicate that Legal Aid perceives it as important to persuade all judges of the Common Law Division to adopt and utilise this informal style of drafting in orders entered on the record. While acknowledging good intentions, I regard the attempt to involve the Court in this "plain English" project as misconceived. The degraded - in some respects, infantile - form of expression that was proposed in this case is an unnecessary and unacceptable innovation, for Court record purposes.
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Decision last updated: 17 March 2023