State of New South Wales v Tabbah

Supreme Court of NSW|2025-02-10|Before: Lonergan J

Background and outline of the offending: (s 9(13)(h) and (h1))

The following summary has been taken from the Joint Statement of Agreed Facts helpfully provided by the parties. The Court was assisted by this document as a fair summary of essential matters: "Background 5. The defendant was born on 5 November 1989 and is presently 35 years old. He has been in continuous custody since 6 March 2012. 6. The defendant is currently housed at the High Risk Management Correctional Centre (HRMCC) in Goulburn Correctional Centre. His current sentence is due to expire on 5 March 2025 and his non-parole period expired on 5 March 2022. Earlier offending 7. [REDACTED]. [2] 8. [REDACTED], the defendant's offending has comprised an offence of robbery armed with an offensive weapon (when aged 18) and assaults against law enforcement officers (including wounding). 9. The defendant's most serious conviction has been for manslaughter, being the Index Offence. 10. The defendant has exhibited serious behavioural issues while in custody, including for assault and threatening conduct towards correctional staff. [3] As a result of his poor custodial behaviour, the defendant has been managed as an Extreme High Security inmate and has been placed in segregation for periods of time throughout his sentence. [4] The Index Offence 11. As noted above, the Index Offence of manslaughter constitutes a serious violence offence under the Act, as defined under s 5A of the Act. 12. The Index Offence occurred in December 2011, shortly after the offender turned 22. On 7 May 2014, following a jury trial, the defendant was convicted of the Index Offence. The offending occurred in circumstances where the defendant, and his co-accused, Wassim Tiriaki, attended the victim's home with intent to rob him. They both waited outside of the lounge room window. When the victim entered the lounge room, a firearm was discharged which struck the victim in the chest, fatally wounding him. The defendant and Mr Tiriaki subsequently fled the scene, and disposed of various items which would have assisted the planned robbery. [5] 13. A jury found the defendant not guilty of murder but guilty of manslaughter. Mr Tiriaki was found guilty of murder. 14. On 10 December 2014, Schmidt J sentenced the defendant to a term of imprisonment of 14 years commencing on 6 March 2012 (expiring on 5 March 2026), with a non-parole period of 10 years (which would have expired on 25 March 2022). 15. On 30 December 2019, the defendant successfully appealed the severity of his sentence in respect of the Index Offence (Appeal Proceedings). The New South Wales Court of Criminal Appeal (Bathurst CJ, Johnson and Fullerton JJ agreeing) quashed the defendant's original sentence and resentenced him to a term of imprisonment for 13 years commencing on 6 March 2012 (expiring on 5 March 2025), with a non-parole period of 8 years and 6 months (which expired on 6 September 2020). 16. On or about 26 May 2021, the defendant sent a letter to Mr Tiriaki. The letter contained an admission by the defendant that he - and not Mr Tiriaki - had been the principal shooter in the Index Offending. [6] 17. On 29 March 2023, Mr Tiriaki successfully appealed his conviction, and a re-trial was ordered. The defendant gave evidence in Mr Tiriaki's appeal proceedings to the effect that he - Mr Tabbah - was responsible for the fatal shot which caused the victim's death. Further Offending in Custody 18. On 22 May 2015, the defendant was sentenced in the District Court of NSW for a further offence of wounding a law enforcement officer (not police) contrary to s 60A(3) of the Crimes Act 1900 (Custodial Offence). 19. The Custodial Offence occurred just over a month following his remand in respect of the Index Offence. The victim was a First-Class Correctional Officer who had shortly before the assault, become involved in a heated verbal exchange with a group of inmates, not including the defendant. The officer admitted in his evidence that he "descended to their level" and "responded in kind". [7] 20. The circumstances of the offending were that when the defendant was being led to a truck, he approached the victim, raised his handcuffed hands and forcefully brought them down on the victim's nose. [8] The defendant told a psychologist that the assault followed the victim making disparaging remarks regarding his ethnicity. [9] However, the sentencing judge was not satisfied of this on the balance of probabilities. [10] 21. The defendant was sentenced to a term of imprisonment for 3 years commencing on 5 September 2021 (expiring on 4 September 2024), with a non-parole period of 2 years in respect of the Custodial Offence. That sentence was partially accumulated on the sentence imposed in respect of the Index Offence. 22. The severity of the sentence imposed in respect of the Custodial Offence was also considered in the Appeal Proceedings. The Court of Criminal Appeal affirmed the length of the sentence and the non-parole period but varied the commencement date. The defendant received a term of imprisonment of 3 years commencing on 6 March 2020 (which expired on 5 March 2023), with a non-parole period of 2 years (which expired on 5 March 2022). [REDACTED] 23. [REDACTED] [11]

Conclusion - s 5B(d) of the Act

Having considered the evidence addressing the mandatory matters set out in s 9(3) of the Act, I am satisfied to the requisite standard that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. However a question mark remains over whether some of the proposed conditions are appropriate to impose.

Principles regarding the imposition of conditions

Section 11 of the Act empowers the Court to impose conditions that it determines are appropriate, and contains an illustrative list of the types of conditions that might be imposed.
The conditions that are imposed must be stringent and reasonably specific to reducing the particular risks of reoffending in the community: State of New South Wales v BG (Final) [2019] NSWSC 200 per Fagan J at [39]; State of New South Wales v Sturgeon (No. 2) [2019] NSWSC 883 per Garling J at [103].
Whilst there is no express limit on the conditions that may be made, the focus must be on conditions that are appropriate for achieving the purposes of the Act. As stated by Basten JA in Lynn v State of New South Wales [2016] NSWCA 57 at [129], the Court "will seek to impose the least intrusive conditions consistent with its assessment of the risk and a further assessment as to what kinds of conditions are likely to be effective".
I entirely agree with the remarks of Basten JA. A formulaic approach is not appropriate. To impose every available or conceivable condition, without properly considering their efficacy and appropriateness to address risk in the context of a particular offender's situation, is not what the Act requires. The task requires an assessment of the interaction of conditions with each other, with attention paid to the role of a particular condition when considered as part of the whole regime of supervision. Imposing conditions that have the effect of criminalising minor behavioural matters is unfair and setting up an offender to fail. It does little, if anything, to "ensure the safety and protection of the community" in any real sense, and can be actively discouraging of efforts at rehabilitation by offenders.

Condition 4:

The Crown sought a condition in this form: "You must not engage in any threatening or intimidating or abusive behaviour towards CSNSW or electronic monitoring staff involved in your supervision that would cause the staff member to fear for their safety and/or interfere with or impede supervision."
Mr de Mars submitted that the Court should be reluctant to criminalise otherwise non-criminal behaviour by imposing this condition in that form, citing the persuasive, (and undoubtedly correct) remarks of Fagan J in State of New South Wales v KW (Preliminary) [2023] NSWSC 397 ("KW") at [14] to [15] and McNaughton J in State of New South Wales v Ayoub (Preliminary) [2023] NSWSC 479 ("Ayoub") at [27] and [28].
Mr Chapman submitted that those cases did not involve a defendant like this one who has a history of attacks on law enforcement and Correctives Services officers, and so his situation can be "distinguished" from those the subject of the remarks of Fagan J in KW, adopted and agreed with by McNaughton J in Ayoub.
I do not agree. The statements of Fagan J in KW are not reactive ones but address a basic principle of justice that has a wider context and application: "[14] Insofar as he may adopt an intimidating or abusive manner in circumstances that might impede his supervision, the effect of imposing such a condition would be to create an offence, namely a contravention of s11, with a penalty of five years, in circumstances that would not constitute an offence for any other citizen. It is recognised that Community Corrections dealing with people on supervision orders have a very difficult, but valuable, task to perform and that, as far as possible, everything that is done by the Court on an application such as this, should take account of the need to ensure that they can carry out their duties without threats, intimidation or abuse from the people they are required to work with. However, regrettably, such interactions are a hazard of the occupation, having regard to the segment of the population that such officers must, by the nature of their duties, deal with. [15] Recognising the entitlement of the officers to carry out their duties without abuse and the need to support them in their work, nevertheless it is apparent that to impose a condition that would expose the defendant to imprisonment for up to five years if he should adopt an abusive manner that may be perceived as impeding his supervision, would be extreme and out of proportion to the risk. So long as s11 remains in its present form with, no gradation of penalties or exposure to prosecution, the Court is obliged to exercise great caution in imposing conditions that would criminalise conduct that would not be criminal on the part of any other member of the community. For these reasons I do not consider that clause 4 is appropriate and no such condition will be imposed."
When I pointed out the particular practical difficulties created by the potential subjectivity entailed in the words "abusive behaviour", Mr Chapman proposed the deletion of those words.
This proposed redaction would leave condition 4 as creating a second line of criminality for behaviour already covered by the criminal law. There is no proper reason to do this. Despite the defendant's history, I do not accept that there is a proper basis for imposing a condition in this form and so I decline to impose condition 4.

Conditions 7, 8 and 9: Schedule of movements

The defendant has agreed to wear a monitoring ankle bracelet but opposes having to provide a schedule of movements to his DSO as the plaintiff has proposed: "7. If directed, you must provide a schedule of movements. This is required to promote the DSO's ability to proactively assess any risk associated with the defendant's proposed activities and provides scope for a DSO to limit exposure by the defendant to high-risk situations/environment. 8. If you want to change anything in your schedule of movements once it is approved by a DSO, you must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period. 9. You must not deviate from your schedule of movements except in an emergency."
The defendant proposed this alternative wording should the Court considers that a schedule of movements should be required: "7. If directed by his DSO, the defendant is to provide an honest summary of his anticipated movements each week (or over successive weeks), limited to places to which he intends to travel, the purposes and means of his travel to those places, and the dates of travel, but unconfined by any travel route or timetable. If so directed, such a summary is to be provided on or before the Friday prior to each week, or as otherwise agreed between the defendant and his DSO. 8. The defendant must not deviate from his summary of anticipated movements except in an emergency, or unless as specified in paragraph 9 below. 9. It will not be a breach of condition 8 if the defendant departs from the summary but notifies his DSO of his change of plans before doing so, or as soon as is reasonably practicable, afterwards."
Mr Chapman submitted that conditions 8 and 9 in the form proposed by the defendant would be acceptable, but that the DSO must know the order in which the proposed activities are to take place and so requires a timetable to be part of the schedule of movements, and proposed condition 7 must remain.
Mr de Mars submitted that in circumstances where the author of the Risk Assessment report, Mr Ardasinski, counselled against "overly invasive supervisory conditions", the Court should think carefully about the most suitable approach. The defendant is a person who is at a real risk of being permanently institutionalised. His transition into the community should be managed by conditions that manage risk, rather than impose unnecessary and excessive conditions that are invasive to the defendant's decision-making and his taking responsibility for that decision-making. Mr de Mars argued that the Court may be imposing an unfair potential criminal sanction upon the simple exercise of basic freedoms and normal steps towards reintegrating into the community should the defendant, for example, enter a shop to get something to eat in a different order to that which he has told his DSO he will be doing that day.
Mr de Mars emphasised the need for the defendant to establish a routine himself, and to exercise his basic autonomy as a member of the community in a responsible fashion. To impose an excessive level of supervision upon this developing skill, and to criminalise any departure from it, runs the risk of interfering with that process from the beginning. Criminalising a minor departure from a schedule of movements that has been documented to a DSO, can lead to criminal sanction and that would be counter-productive to rehabilitation and is in no way protective of the community.
I accept Mr de Mars's submissions. A schedule of movements can be an important matter for some ISOs and ESOs, for example where a paedophile defendant is dishonest and pursues furtive activities to groom children for further offending. In cases like that, schedules have a protective role to perform.
The main risk factor for this defendant is sudden impulsive anger. This could arise anywhere, at any time, and is more likely to arise where he perceives he is being disrespected, overborne or where those in authority over him are acting unreasonably or offensively. Mr Ardasinski, a very experienced psychologist, says as much in his careful and considered report. I am not satisfied that the imposition of a requirement for a schedule of movements does anything at all to address that risk for this defendant. If anything, it is a millstone to rehabilitation without any real purpose to be served, despite the very general assertions by Mr Banton in his affidavit. I do not see imposing such a regime as appropriate in this case and see it as a potential source of conflict, misunderstandings and anxiety. If the defendant decides a cooperative optional process like this would be helpful to him - planning his time in consultation with his DSO, that option is always there and can be part of the wider supervision and support provided by the DSO. However I decline to impose conditions 7 to 9, or any condition that demands a schedule of movements be pre-provided to the DSO.

Condition 11: Curfew

Although the defendant opposed a curfew condition being imposed, in my view there is some stabilising role to be gained with the defendant establishing connection with a home-base by requiring him to be at home between 10:00pm and a suitable time in the early morning. This is to assist him to establish routines, and to have a base from which to attend work and/or other activities during the day. Whilst the Crown submitted that the curfew is necessary "so that the ESO team can monitor the defendant's location" and the history of "offending with antisocial associates at night" (Mr Banton's affidavit, par 72), I consider the reason I have given to be an important and persuasive one.
It is essential, however, as submitted by Mr de Mars, that there is some flexibility for the defendant to be able to raise particular matters with his DSO and to be at liberty to attend particular religious occasions and times of prayer consistent with his religious obligations and observances as set out in the affidavit of Ms Smith.
Mr Chapman maintained the position, on instructions from his clients, (a number of whom were present in Court), that the DSO should hold the approving hand about attendance at "any approved places of worship", because of some vague reference to some places of worship being locations at which persons with criminal background may be present. Mr Chapman was not able to develop this submission with any specificity.
I found this argument unpersuasive. The idea that a DSO should hold a supervisory role over a person's religious observance and the location at which it should occur is a very unpalatable one, particularly in circumstances where an affidavit explaining the need for flexibility in this regard has been filed, served, and tendered.
The defendant's proposed wording of the curfew condition was appropriately practical, and directed to reasonable exceptions for religious observance and medical emergency.
The form of curfew condition I impose is the wording proposed by the defendant.

Conditions 14 and 15: visitors

The plaintiff initially proposed a condition requiring the defendant to notify a DSO of any visitor entering and remaining at his approved address and not allowing any overnight visitors other than persons who ordinarily reside there, without prior approval of a DSO.
This was modified by the plaintiff during argument to confine the condition to the defendant's own room if the approved address is shared accommodation, and a notification to the DSO of visitors within 24 hours, but still no overnight visitors without prior DSO approval.
This modification goes some way to improving the practicality of the condition in circumstances where the accommodation has not yet been identified.
The defendant proposed a wider arrangement that allowed for 24 hours notification of visitors remaining and 7 days notification in respect of anyone else living there allowing a visitor to remain or stay.
Conditions 14 and 15 were difficult to address in the abstract. Depending on the nature of the accommodation, it could be quite unfair and unrealistic to have a condition imposed by which a defendant undertakes to notify a DSO of any overnight guests of other residents.
There is also no logical reason that a visitor "remaining", potentially all day and a visitor "staying overnight" be treated differently. The focus of conditions is to address risk. The risk being addressed is criminal associations. That is the same whether it is day or night. The fact that the index offence occurred at night does not provide a basis to require the defendant to have to have night time visitors pre-approved.
The management of this risk is addressed by the interrelationship between this condition and conditions 1, 3, 12, 13, 25 and 26. The approach to this condition proposed by the defendant, as well as limiting its operation to the area over which the defendant has actual control, is appropriate.

Condition 27: clubs and organisations - pre-approval

Condition 27 in the form proposed by the plaintiff is appropriate. The defendant can visit any gym or boxing club he likes. It is not until he wishes to join or to regularly attend, that the condition will apply. There is nothing invasive about cross-checking with his DSO before joining a club, be it a gym or any other club. Accordingly, this condition is imposed in the form sought by the plaintiff. It is expected that permission to join a club would not be unreasonably withheld. The positive effects of exercise in an appropriately equipped environment, for mood management and fitness, would no doubt be borne in mind by any DSO.

Orders

I make the following orders: 1(a) Two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) as agreed by the parties are to conduct separate psychiatric or psychological examinations of the defendant and are to furnish reports to the Supreme Court on the results of those examinations by a date to be agreed by the parties. 1(b) The defendant is directed to attend those examinations. 2(a) The defendant is to be the subject of an ISO from midnight 5 March 2025. 2(b) The ISO is to be for a period of 28 days. 2(c) The defendant is to comply with the conditions set out in the Schedule appended to this judgment for the period of the ISO.

Schedule of Conditions - State of NSW v Tabbah (166045, pdf)

Endnotes

Joint Statement of Agree Facts, dated 30 January 2025
Criminal History Bail Report, Exhibit AJ-1, p 2
Inmate Profile Document, Exhibit AJ-1, p 32
Ibid, p 35-39; Supplementary Pre-Release Report, dated 23 May 2023; Exhibit AJ-1, p 372
Remarks on Sentence - R v Tabbah; R v Tiriaki (No 6) [2014] NSWSC 1764; Exhibit AJ-1, p 109, [13] [26]
Affidavit of Salim Tabbah, dated 10 December 2021, Exhibit AJ-1, p 172
R v Salim Tabbah, Judge's Remarks on Sentence, 2013/00159851, dated 22 May 2015, Exhibit AJ-1, p 293
Tabbah v R [2019] NSWCCA 324; Exhibit AJ-1, tab 8
Report of Dr Bradley Jones, Forensic Psychologist, dated 29 July 2013 (p 3), Exhibit AJ-1, p 321
R v Salim Tabbah, Judge's Remarks on Sentence, 2013/00159851, dated 22 May 2015, Exhibit AJ-1, p 295
Joint Statement of Agree Facts, dated 30 January 2025 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 February 2025

Relevant legal test

The preliminary application is limited to an ISO of 28 days length. At this stage I am not engaged in the task of weighing up material contained in the evidence, or predicting the result of the plaintiff's application at final hearing.
What I am required to do is to consider whether the facts and matters contained in the documentation tendered by the plaintiff, would, if proved, justify the making of an ISO.
The test is not a stringent one: see State of New South Wales v Lynn [2013] NSWSC 1147 at [18]. It is necessary to have regard to the objects of the Act - safety and protection of the community being paramount - and to give weight to risk avoidance: Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7].

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (9)