NSWNSWSC

State of New South Wales v Wynne

[2020] NSWSC 1650

Supreme Court of NSW|2020-11-12|Before: Davies J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2020-11-12

Before

Davies J

Catchwords

[2009] NSWCA 347 Lynn v State of New South Wales (2016) 91 NSWLR 636
(1992) 37 FCR 150 UBS AG v Tyne (2018) 265 CLR 77
[2018] HCA 45 Walton v Gardiner (1993) 177 CLR 378 X7 v Australian Crime Commission (2013) 248 CLR 92

Source

Original judgment source is linked above.

Catchwords

[2009] NSWCA 347 Lynn v State of New South Wales (2016) 91 NSWLR 636(1992) 37 FCR 150 UBS AG v Tyne (2018) 265 CLR 77[2018] HCA 45 Walton v Gardiner (1993) 177 CLR 378 X7 v Australian Crime Commission (2013) 248 CLR 92

Judgment (13 paragraphs)

[1]

Background

The defendant is currently in custody, parole revoked, serving the balance of sentences imposed by Judge Garling in the District Court on 12 November 2009. The offences involved three counts of assault occasioning actual bodily harm, three counts of common assault, and two counts of aggravated sexual intercourse without consent where at the time of the offence the offender intentionally inflicted actual bodily harm. These offences were committed in August 2007 and October 2008. The overall sentence was imprisonment for 12 years commencing 1 December 2008 and concluding 30 November 2020 with a non-parole period of 9 years expiring 30 November 2017.
The defendant was released to parole on 14 June 2019.
On 4 December 2019 the Crown Solicitor's Office wrote to the defendant saying that the Attorney-General was considering applying to this Court for an ESO although no decision had then been made. The Crown Solicitor thereafter issued s 25 orders and received material in response to those orders. A Risk Assessment Report (RAR) and a Risk Management Report (RMR) were prepared in April and May 2020 respectively. Advice was then sought from counsel.
On 20 June 2020, the defendant was arrested and charged with the following offences: (a) Five counts of common assault contrary to s 61 of the Crimes Act 1900 (NSW); (b) One count of take or detain person with intent to commit a serious indictable offence contrary to s 86(1)(A1) of the Crimes Act; (c) One count of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act; (d) Once count of intentionally choke person without consent contrary to s 37(1a) of the Crimes Act; and (e) One count of destroy or damage property contrary to s 195(1)(A) of the Crimes Act. I will refer to these as "the new offences".

[2]

The defendant's history of offending

Before dealing with the motion for a stay, it is necessary to set out in some detail the history of the defendant's offending to understand why it is that the plaintiff seeks, in the first instance, a CDO.
The defendant was born on 25 August 1969 and is now aged 51 years. He is an indigenous man who was brought up in a stable household with no history of trauma. However, he became aware that he was adopted when he was approximately 11 or 12 years old and discovered his Aboriginal heritage. Despite his positive relationship with his adoptive parents, the psychologist who prepared the RAR, Mandy Lau, reported that the defendant felt abandoned by his biological mother. She identified this to be an unresolved issue which impacted on the defendant's ability to form healthy, intimate relationships later in life. He nevertheless maintained a close relationship with both of his adoptive parents until his father's death in 2019.
The defendant left school during year 10. He commenced employment immediately and worked in different positions including as a sales representative, storekeeper, building labourer, cleaner and yard hand.
He is the father of three children to two former partners, both of whom were victims of his offending. He maintains contact with his two older children but has never met his youngest child. The partner known for the purposes of these proceedings as V4 was the mother of the two older children.
The defendant reported four significant relationships throughout his adulthood.
His first relationship was in 1994 with a person called for the purposes of these proceedings V (also in the material referred to as LI). The defendant and V had just commenced living together when the defendant assaulted her on 4 December 1994. He was intoxicated from alcohol at the time of the offence, and he assaulted her after initiating an argument. The victim alleged that during the assault he punched her, dragged her by her hair, picked her up by the throat and held her against the wall to hit her. When interviewed by Ms Lau, the defendant confirmed those details. He told Ms Lau that he became jealous of V because of her interactions with other men.
The defendant entered into a recognisance for three years under the supervision of the Probation Service.
The defendant then met the woman known for the purpose of these proceedings as V4 in 1995, and commenced a relationship with her shortly thereafter. The relationship continued until 2002. Difficulties in the early stages of the relationship escalated when they commenced living together.
During the relationship the defendant was twice convicted of assault occasioning actual bodily harm. The first of these offences took place during the period of the three year recognisance he had been placed on in relation to the assault on V. For the first offence of assault occasioning actual bodily harm he was fined $1,000 and placed on a further three year recognisance for the breach of the earlier one.
For the second assault occasioning actual bodily harm in 2002, the defendant was sentenced to imprisonment for three years and six months with a non-parole period of two years.
Ms Lau reviewed the primary materials relating to these incidents. She concluded that the defendant engaged in verbal, emotional, psychological, physical and allegedly sexual abuse against V4. The defendant was also charged with sexual intercourse without consent and the matter was committed for trial, but the Director of Public Prosecutions decided not to proceed with the matter. The behaviours included calling V4 names using derogatory terms, demeaning her through verbal remarks about her appearance and skills, directing her to engage in humiliating behaviour, and using her phone to message a friend of hers to claim falsely that she engaged in sexual intercourse with that friend's husband.
His physical abuse towards her included the use of impromptu weapons. During one of the assaults V4 lost consciousness. Some of the abusive behaviours were perpetrated in the presence of family members including their children. Leading up to the offence in 2002, V4 had left the home on at least one occasion to seek shelter at a women's refuge following an assault that required medical attention.
Some three months before the 1995 offence, the defendant had moved out of the house where they were living. On the day of the offence he attended V4's home to retrieve some of his property which he had left there. This property included a jack lever. When he arrived, they resumed an argument they had engaged in on the night before. This escalated to a physical altercation during which the defendant used the handle of the jack lever to hit V4 across her foot.
At some stage following the 1995 incident the defendant and V4 recommenced their relationship. The assault offence occurred on 1 January 2002. Throughout the day, the defendant had been verbally abusive and demeaning towards V4. He punched and kicked her intermittently throughout the day, which caused her to lose consciousness at one point. The abuse took place in the presence of their two young children. He directed the children to call their mother "slut" and not "mum". At one stage, he held V4 in a headlock while he pushed a lit cigarette into her forehead, burning her.
The defendant met V1 at the end of 2004 or the beginning of 2005. By August 2005 they had been in a de facto relationship for about eight months.
On 12 August 2005 the defendant had a violent outburst, and insinuated that V1 was hiding something from him after he saw her put away some paperwork when he woke up. He proceeded to punch and kick her, and when she attempted to escape he laid on top of her and covered her mouth with his hand. V1 began to lose consciousness, but she managed to push him off when he was distracted by visitors. He then locked her in a room. At the time of this offence, there was an enforceable ADVO that had been in place for only a few days.
The defendant was initially sentenced to imprisonment for two years with a non-parole period of 18 months for each of the assault occasioning actual bodily harm offence and the contravention of the ADVO. However, on appeal to the District Court the prison sentence was reduced to 12 months with a non-parole period of four months, and in respect of the contravention of the ADVO he was given an 18 month s 9 bond. Prior to being released from custody he was served with a four year ADVO to protect V1.
The defendant and V1 resumed their relationship after his release until September 2006. They did not live together during that time. The defendant made a number of attempts to reconcile the relationship with V1 but was rejected by her. On 10 October 2006 the defendant approached V1 in a public place while she was in her car to make another attempt to persuade her to resume their relationship. When V1 again rejected him, he became angry and yelled at her, ''You're dead slut. I know where you fucken live. I'm going to come and slit your fucken throat". He repeated "You're dead" and traced his finger across his throat to make a slashing motion before walking away.
The defendant was convicted for contravening the ADVO and for stalk/intimidate with intention of causing fear or physical or mental harm. He was sentenced to 12 months' imprisonment with a non-parole period of three months.

[3]

The index offences

These were the offences for which Judge Garling sentenced the defendant on 12 November 2009.
The first series of offences occurred between 15 and 25 August 2007. They were offences committed against V2 and her daughter, V3, who was 17 years old. The defendant pleaded guilty to six of eight counts on the indictment.
In May 2007 V2 and the defendant commenced a relationship. They lived in Port Macquarie with V2's youngest children, a three year old daughter and a nine year old son.
By July 2007 the relationship began to deteriorate. The defendant began to be violent towards V2 verbally, emotionally and physically.
In the middle of August 2007 V2 was planning a birthday party for the defendant. He punched her a number of times in the face. She suffered two black eyes and a swollen lip. He pleaded guilty to assault occasioning actual bodily harm (count 1).
At about lunchtime on 24 August, V3 attended the house with two school friends. The defendant saw her arrive and said to V2, "Stay in the house. If you try and leave with them I will kill you". V3 went to the bedroom where V2 was resting. V2 said to her, "He's going to kill me. You need to get LW (the young child) out and go to safety".
V3 spoke to the defendant. She then walked back to the car and was about to leave when V2 left the house. She ran to the car saying, ''Take me with you, he's going to kill me". The defendant grabbed V3, knocking her to the ground. He had hold of her wrist and was twisting it, saying, 'You're a cunt, don't backchat me". He was screaming at V2, "Get out of the car". She did so, and told V3 to leave. The defendant pleaded guilty to common assault of V3 (count 2).
As V3 left she saw the defendant bashing V2. She called her grandmother and went to the police station. The defendant then grabbed V2 by the hair, and dragged her to the car where he told her to grab LW and put her in the car. The defendant was armed with a black-handled steak knife at the time. He said, "I should have done this long ago. I'm going to kill you both". He pleaded guilty to common assault of V2 (count 3).
The defendant then drove along the Pacific Highway, punching V2 in the face, ears and head as he drove. He stopped the vehicle near an island and said, "Kiss your daughter goodbye, I'm going to cut her throat and throw her in the river and do the same to you." He held a knife to V2's throat. After a while he seemed to calm down and drove home. He pleaded guilty to assault occasioning actual bodily harm (count 5).
When they arrived back at the house, he took V2 into the house and into a bedroom. He pushed her face down onto the bed. He undid her jeans and pulled them off. He was behind her. He removed his pants and placed his penis into her vagina. V2 said, "No, don't". He told her to "Shut up". One of his hands was pushing on the middle of her back. He shoved her face further into the bed.
He removed his penis from her vagina and pushed it into her anus. V2 felt pain and said, "I beg you to stop". He removed his penis and placed it back in V2's vagina. After some time he ejaculated. The defendant pleaded guilty to aggravated sexual intercourse without consent in circumstances where, at the time of the offence, he intentionally inflicted actual bodily harm on her (count 6).
V2 and the child got into the car. She tried to escape. He came running towards the vehicle, carrying a fence paling, and smashed the driver's window. Glass shattered everywhere and the victim received injuries to her arm. The defendant then attacked the victim with the paling, and she received injuries as a result of a nail embedded in the paling. That was an offence of assault taken into account on a Form 1.
V2 then rendered first aid to the defendant because he had cut himself. He had a knife. He was swinging it around and it came into contact with the victim's right thigh. He said to her, "Shut up and stop acting like a victim". The knife caused a small abrasion to her thigh. The defendant pleaded guilty to assault occasioning actual bodily harm (count 8).
The vehicle came to a stop on a dirt track. The defendant ordered V2 out of the vehicle and grabbed her by her hair. He began to hit her with the paling. He then told her to run. She did and he followed her, hitting her with a tree branch as she was running. He yelled for her to come back, he grabbed a rock and said, "I'm going to smash your skull". V2 pleaded with him. He told her he hated her, and ordered her back into the vehicle. That offence was also taken into account on the Form 1.
The second set of offences occurred between 17 and 19 October 2008 and involved offences committed against V1. As noted earlier, they had commenced a relationship in 2004 which continued on and off until October 2008.
On 17 October 2008, the defendant and V1 were arguing. The argument escalated and the defendant grabbed V1 by the arms and slammed her against the wall. The force of this left a hole in the wall. The defendant pleaded guilty to common assault (count 9).
On 18 October 2008, the defendant was in a shed drinking with a friend. During the evening he became irritable and verbally abusive. V1 drove her son to another location. She received a text message from the defendant saying he had calmed down and she returned. V1 put her son to bed and went to her bedroom. The defendant followed and resumed his verbal abuse of her.
He told her to get onto the bed. He said that she was "a slut, a cunt", and started punching her in the head with his fists. He grabbed her around the throat and started to choke her. He told her to take her pants off. She was afraid and did so. The defendant rolled V1 onto her stomach, pulled her hips up and penetrated her vagina with his penis from behind. This caused her pain. He said, "You're not going to get me on a rape charge". He withdrew his penis and ejaculated over her. The defendant pleaded guilty to the offence of aggravated sexual intercourse without consent in circumstances where at the time of the offence he intentionally inflicted actual bodily harm on the victim (count 10).
The behaviour with respect to this count was representative of the course of behaviour that took place for a number of hours after this incident. After the incident he continued to beat and choke V1. Later in the night he moved her to a position on the bed and with her face pushed into the mattress and her backside in the air. He moved behind her and attempted to insert his penis into her anus. She said it was painful and she screamed. He then removed his penis from her anus and pushed it into her vagina again. The sex lasted for some time before he withdrew his penis and ejaculated onto her.
Later in the night he again moved V1 into the same position with her backside elevated. He penetrated her vagina again. The sex lasted for some time until he withdrew his penis and ejaculated into her mouth. He also spat on her, bit her on the right hand and the right ear. At another point in the evening the defendant put his penis into V1's mouth. He also choked her with a knitted belt from a cardigan and ultimately tied her hands together with the belt before falling asleep. When he woke up he untied her and told her to have a shower. He told her to put on some makeup to hide her injuries. He then started behaving in a remorseful fashion.
She sustained bruising and swelling to the face, the head, the ear, both wrists and arms, the lower back and the right side of the body on the hip and the tibia. She also sustained a black left eye, and lacerations on both sides of her neck and between the right thumb and index finger.
In sentencing the defendant, Judge Garling said this: The facts of the two sexual assault charges are extremely bad. The surrounding circumstances are very serious. I believe the second attack was more vicious than the first attack but they are both very vicious. The Crown submits that they fall into the top bracket or towards the top bracket of these types of offences. I do not disagree with that. They certainly fall well above the mid-range of these types of offences. … I have no faith that this man will even attempt to rehabilitate himself. He has been given opportunities in the past. … These matters are extremely serious. On two separate occasions, involving two different women, this man viciously raped them. There is no other word for it. He subjected them to terror. There were children involved. His behaviour was degrading, humiliating. There was serious violence.

[4]

The new offences

The victim in relation to the new offences is V6. She and the defendant have known each other for the past 15 years and have been in a domestic relationship since shortly after the defendant was released to parole.
On 3 June 2020 V6 stayed the night with the defendant at his address in Liverpool. The following morning the defendant told V6 that he needed money. She said she had just been paid and needed it to pay her rent. The defendant became angry. He grabbed V6's mobile phone out of her hand and told her she was not going to work or going anywhere until she transferred the money to him. V6 then transferred $500 into the defendant's account. She then left for work.
At 11:30pm V6 went to the John Edmonson club in Liverpool. She texted the defendant and told him that she was there to collect the money she had lent him and which he had said he would repay her. She started to play the poker machines and wait for the defendant.
The defendant went to the club, walked up behind the victim and punched her hard in the back of her head. He grabbed V6 by the arm and attempted to press the cash-out button on the poker machine she was using. That was offence 1 being a common assault.
V6 then got up out of the chair. She started to walk but the defendant grabbed her by the left upper arm, pushed her back towards the machine, and said, "Get the fucking money now". V6 said to him, "If it means that much to you, then you get it" and she started to walk away. The defendant grabbed her by the hair on the left side and pulled her backwards whilst holding onto her hair. He said, "Get the fucking money now". She managed to break free from him and attempted to walk away. This was offence 2, being a common assault. The defendant stood in front of her trying to stop her from leaving. However, a security guard came into the room, and the defendant walked out of the club calling out abuse to the victim.
V6 waited until she was sure the defendant had left. Eventually she left the club and went across the road to get into her car. As she was putting her keys into the ignition she saw the defendant walking fast towards her. She quickly drove away although the defendant tried to stop her. She parked the car. The defendant called her on the phone, apologising for what he had done and saying that he was under pressure and stress. He said she did not deserve it but she just kept pushing his buttons. He promised to pay back the money. He asked her to come back to his house and he would make her a cup of tea.
V6 drove back to his place and they both went into his flat. V6 said to him, "We are both heightened and on edge, why don't you go and get a towel and let me freshen up and we will both have time to breathe". The defendant went to get towels and soap. He demanded to know where V6 was earlier in the evening. He accused her of not having sex with him and of forgetting about him. He then shoved her on her right shoulder. She slid down the wall and sat on the floor. The defendant told her to stand up but she refused. He kicked her twice in the ribs while she was seated on the floor. He said that if she was "going to lay" with him, he wanted her to have a shower first. He took her clothes and refused to let her put them on. He then escorted her back to his room. That constituted the third common assault.
The accused then opened the door and ordered V6 to sit on a chair in the corner on the opposite side of the room. V6 asked for her clothes but the defendant refused to let her have them. He told her she was not going anywhere. She pleaded with him to let her go home. He said, "I already told you, you're not fucking going home; just sit there and shut the fuck up, you wonder why I hit you". V6 asked if she could go to the toilet. The defendant at first refused but subsequently, after she pleaded to do it and for her clothes, the defendant escorted her to the communal bathroom. He stood outside the toilet and then escorted her back to the room and told her to sit in a corner on the other side of the room. This constituted the offence of take and detain a person intending to commit a serious indictable offence.
The defendant kept yelling abuse at V6, saying it was her fault he was stuck in the room. He went over to V6, grabbed her cheeks with one hand and squeezed them tightly, pulling her face towards him. V6 cried out in pain. The defendant then backhanded her on the left side of her face. He told her to shut up when she started crying. He told her to get onto the bed and do what she was told. V6 got onto the side of the bed closest to the door. The defendant dragged her to the other side of the bed and said, "You fucking wish". That constituted the fourth common assault.
As the defendant was dragging her across the bed she kicked him in the chest or stomach area. He let her go but then grabbed her again. She tried to fight back but he started punching her on the left side of her head repeatedly. She raised her hands to protect herself. He pushed down hard on her jaw. She started swinging punches and scratches at him to protect herself. He forced her to lie down on the bed and he sat on her legs, holding her down and assaulting her. That constituted the offence of assault occasioning actual bodily.
The defendant then grabbed V6 by the neck with one hand. He put both hands around her neck and started to squeeze tightly. She could not breathe. Her vision became impaired and she could feel herself to starting to blank out. The defendant finally let her go, and V6 was gasping for air. She could not move and just lay on the bed. That constituted the offence of intentionally choking a person without consent.
The defendant moved off the top of V6 and told her to stop reacting and be quiet. The victim said that she could not lay on the side of her face that he had injured and she thought an ambulance needed to be called. The defendant told her that she was "being a fucking drama queen". The defendant then rolled and cradled into V6's back. She tried to lie still but her legs started to twitch. The defendant told her to stop twitching her leg but she said she could not. The defendant then punched her with a closed fist hard on the left side of her hip. She called out in pain.
On the following morning the defendant escorted her to the bathroom to go to the toilet and then escorted her back to the room. He then returned her clothes and allowed her to get dressed. He told her to call her work and to text her mother and tell them both she was not going to work. After she did so the defendant demanded she unlock her phone so he could see what was on it. He punched her in the stomach before grabbing the phone out of her hand and shoved it hard up against the left side of her face. He then threw the phone across the room causing it to hit the wall and smash the screen. That constituted the fifth offence of common assault and the offence of destroy or damage property.
That evening the defendant went downstairs to get something to eat. V6 was too scared and in pain to leave. She stayed the night with the defendant. The following day at about lunchtime, V6 returned home. She had a shower and went to Liverpool Hospital Emergency where she stayed overnight.
On Friday 19 June she attended Green Valley Police Station with a support person and provided the police with a 17 page statement, photographs of her injuries and discharge papers from Liverpool Hospital. The following day the police arrested the defendant.

[5]

Legislation

Sections 5B of the CHRO Act provides: 5B Making of extended supervision orders - unacceptable risk The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a supervised offender (within the meaning of section 5I), and (c) an application for the order is made in accordance with section 5I, and (d) the Supreme Court 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 the order.
Section 5I defines supervised offender as follows: (2) A supervised offender is an 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 offence, or (ii) for an offence of a sexual nature, or (iii) for an offence under section 12, or (iv) for another offence (whether under a law of this State or another Australian jurisdiction) that is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment referred to in subparagraph (i), (ii) or (iii), or (b) under an existing interim supervision order, extended supervision order, interim detention order or continuing detention order.
Section 5C provides: 5C Making of continuing detention orders - unacceptable risk The Supreme Court may make an order for the continued detention of a person (a continuing detention order) if: (a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and (b) the person is a detained offender or supervised offender (within the meaning of section 13B), and (c) an application for the order is made in accordance with section 13B, and (d) the Supreme Court is satisfied to a high degree of probability that the person poses an unacceptable risk of committing another serious offence if not kept in detention under the order.
Section 13B defines both detained offender and supervised offender as follows: (2) A detained offender is an offender who, when the application for a continuing detention order is made, is in custody (referred to in this Part as the offender's current custody): (a) while serving a sentence of imprisonment: (i) for a serious offence, or (ii) for an offence of a sexual nature, or (iii) for an offence under section 12, or (iv) for another offence which is being served concurrently or consecutively, or partly concurrently and partly consecutively, with one or more sentences of imprisonment (whether under a law of this State or another Australian jurisdiction) referred to in subparagraph (i), (ii) or (iii), or (b) under an existing continuing detention order, emergency detention order or interim detention order. … (4) A supervised offender is an offender who, when the application for a continuing detention order is made, is an offender in lawful custody or under supervision: (a) under an extended supervision order or an interim supervision order who: (i) has been found guilty of an offence under section 12 in respect of that order, or (ii) because of altered circumstances, poses an unacceptable risk of committing a serious offence if the continuing detention order is not made, or (b) whose obligations under an extended supervision order or an interim supervision order have been suspended, or (c) under an interim detention order.
At the present time the defendant is a detained offender, but he was not a detained offender between his release to parole and his return to custody after his parole was revoked. I will return to that matter when dealing with the stay application.
Section 5D of the CHRO Act provides: 5D Determination of risk For the purposes of this Part, the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence.
Section 9(2) provides: 9 Determination of application for extended supervision order … (2) In determining whether or not to make an extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.
Similarly, s 17(2) provides: 17 Determination of application for continuing detention order … (2) In determining whether or not to make a continuing detention order or extended supervision order, the safety of the community must be the paramount consideration of the Supreme Court.
The State now seeks an IDO order under s 18A, alternatively, an ISO under s 10A of the Act. Those sections provide: 18A Interim detention order The Supreme Court may make an order for the interim detention of an offender if, in proceedings on an application for a continuing detention order, it appears to the Court: (a) that the offender's current custody (if any) will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order or continuing detention order. 10A Interim supervision order The Supreme Court may make an order for the interim supervision of an offender if, in proceedings for an extended supervision order, it appears to the Court: (a) that the offender's current custody or supervision will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order.
Section 15 provides for what is to happen at the preliminary hearing for a continuing detention order: 15 Pre-trial procedures … (4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 1 qualified psychiatrist and 1 registered psychologist, or (iv) 2 qualified psychiatrists and 2 registered psychologists, to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the offender to attend those examinations. (5) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of a continuing detention order or extended supervision order, the Supreme Court must dismiss the application.
Section 7 is in relevantly identical terms if an ESO is being sought.

[7]

Submissions

The defendant submitted that the State, in various guises, has commenced two proceedings with the intention of imprisoning the defendant. One proceeding is the present claim under the CHRO Act and the other is the institution of criminal proceeding for the new offences. He submitted that this was an abuse of process, and relied on what was said by the High Court in Walton v Gardiner (1993) 177 CLR 378, and UBS AG v Tyne (2018) 265 CLR 77; [2018] HCA 45.
The defendant submitted that it will be necessary for him to put the facts of the new offences in issue because his risk profile would be different if he did not do so. He denies the offending in any event. The defendant submitted that, effectively, there would need to be a hearing in relation to those charges within the final hearing for the proceedings brought under the CHRO Act. The defendant says that the more convenient and just forum for the resolution of those matters is the criminal proceedings that have been brought. In any event, the final hearing conducted in that way prior to the resolution of the new offences highlights the abuse of process.
The defendant submitted also that he would lose the right to silence in relation to those matters if he is required to attend appointments with psychiatrists/psychologists that must be ordered at a preliminary hearing for the CHRO proceedings. The defendant submitted that he cannot be required to waive that right of silence where the legislation does not expressly stipulate that he must provide the information to those health professionals. Reliance was placed on what was said in X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at [71]. The defendant submitted further that he would not be entitled to have a lawyer present at those assessments and he will not be afforded any immunity for information that he provides.
The defendant submitted that if a CDO is made under the CHRO Act, the combined effects of ss 3, 4 and 126(4) of the Crimes (Administration of Sentences) Act 1999 (NSW), and s 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW), would mean that the defendant would not be permitted a parole period if he were later convicted and sentenced in respect of the new offences. Nor would the fact that he was not permitted a parole period be allowed to be taken into account by the sentencing judge. He submitted that that would be a grave miscarriage of justice.
The defendant submitted that the only reason the plaintiff is seeking a CDO is because of the new offences. Prior to those offences the plaintiff had only indicated an intention to seek an ESO. The defendant submitted that there was nothing in the RAR or the RMR that considered the need for a CDO. It was the alleged commission of the new offences, he submitted, which alone provides any basis for a CDO. In that way, the defendant submitted that the real issue for the making of a CDO was whether he had committed the new offences.
The plaintiff submitted that no issue arises in relation to his right of silence because the plaintiff is not seeking an order that the defendant attend the medical examinations within any specified time, and there is no requirement that it do so. The plaintiff submitted that a timetable can be arranged taking into account the progress of proceedings in respect of the new offences.
The plaintiff submitted that the new offences are only relevant at the preliminary stage for proceedings under the CHRO Act as "matters alleged". In that way the plaintiff is not required at this stage to prove the allegations in relation to those charges. The plaintiff accepted that if the assessments by the medical professionals or the final hearing took place before the hearing of the new offences, prejudice to the defendant would arise.
The plaintiff submitted that, if the present application was stayed until the finalisation of the criminal proceedings, the safety and protection of the community may be exposed to the behaviour of the defendant. The plaintiff submitted that the Court cannot second-guess what might happen in relation to the charges. The plaintiff submitted that it is not a remote scenario that the criminal charges might be withdrawn, the revocation of parole is rescinded and the defendant is released into the community with no interim orders being made under the CHRO Act. The plaintiff points out that orders made under the CHRO Act are automatically stayed whilst the defendant is in lawful custody (s 18C(1A)) and s 10C(1A)).
The plaintiff submitted that it was seeking only an ESO prior to the commission of the new offences because it had no entitlement to seek a CDO. That was because the defendant had been released on parole. He was neither a detained offender nor a supervised offender within the meaning of s 13B.

[8]

Determination

The basis of the claim of abuse of process by the defendant arises from the fact that criminal charges have been brought against him for the new offences whilst at the same time the State seeks a CDO under the CHRO Act relying partly on the commission of those same offences to justify the order.
In Walton v Gardiner the judgment of Mason CJ, Deane and Dawson JJ said (at 393-4): [24] In Jago v. District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23.) , at least three of the five members of the Court clearly rejected "the narrower view" that a court's power to protect itself from an abuse of process in criminal proceedings "is limited to traditional notions of abuse of process" ibid, per Mason CJ at p 28.). Mason CJ considered that a court, "whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves", possesses the necessary power to prevent its processes being employed in a manner which gives rise to unfairness ibid, at p 28.). His Honour quoted, with approval, the following remarks of Richardson J of the New Zealand Court of Appeal in Moevao v. Department of Labour (1980) 1 NZLR 464, at p 481.): "public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice." Deane J expressed a similar view in his judgment in Jago (1989) 168 CLR, at p 58.): "The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed."
In State of Western Australia v Bond Corporation Holdings Ltd (No 2) (1992) 37 FCR 150, certain defendants to civil proceedings for damages against those parties sought a stay of the civil proceedings until criminal proceedings brought against them arising out of the same matters were completed. Justice French (then a judge of the Federal Court) quoted with approval guidelines relevant to the exercise of the power to stay proceedings first enunciated by Wootten J in McMahon v Gould (1982) 7 ACLR 202, and which had subsequently been approved by other decisions in the Federal Court. The guidelines were as follows: (a) Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court. (b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds. (c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with. (d) Neither an accused nor the Crown are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding. (e) The court's task is one of "the balancing of justice between the parties" taking account of all relevant factors. (f) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors. (g) One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's "right of silence", and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding. (h) However the so called "right of silence" does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceedings. (i) The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings. (j) In this regard factors which may be relevant include: (i) the possibility of publicity that might reach and influence jurors in the civil proceedings; (ii) the proximity of the criminal hearing; (iii) the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses; (iv) the burden on the defendant of preparing for both sets of proceedings concurrently; (v) whether the defendant has already disclosed his defence to the allegations; (vi) the conduct of the defendant, including his own prior invocation of civil process when it suited him. (k) The effect on the plaintiff must also be considered and weighed against the effect on the defendant. In this connection I suggest below that it may be relevant to consider the nature of the defendant's obligation to the plaintiff. (l) In an appropriate case the proceedings may be allowed to proceed to a certain stage e.g. setting down for trial, and then stayed.
Those guidelines were subsequently approved by the NSW Court of Appeal in Lee v Director of Public Prosecutions (Cth) (2009) 75 NSWLR 581; [2009] NSWCA 347 at [88] where they were said to conform to the existing law on the basis of what was said in earlier Court of Appeal decisions in Halabi v Westpac Banking Corporation [1989] 17 NSWLR 26 and Yuill v Spedley Securities Ltd (in Liq) (1992) 8 ACSR 272 at 273 and 274. The Court of Appeal in Lee accepted that the guidelines might give too limited a weight to the general law immunity from compulsion to incriminate oneself. That view acquires further force as a result of the High Court's decision in X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 at [71] and [104].
In X7, the High Court said at [104]: As four members of this court said in Reid v Howard, "[t]he privilege [against self-incrimination], which has been described as a 'fundamental … bulwark of liberty', is not simply a rule of evidence, but a basic and substantive common law right". The evolution of and rationale for the privilege against self-incrimination have been described in various ways. No single explanation has achieved universal acceptance, whether in judicial decisions or academic writings. But neither the existence nor the content of those controversies can be understood as denying that the privilege is now regarded as being "a basic and substantive common law right", and not just a rule of evidence. That is, it is not a privilege which is concerned only with the use to which answers given may be put at, or in connection with, a trial. It is a privilege which permits the refusal to make an answer regardless of whether the answer is admissible as testimonial evidence. The accusatorial process of criminal justice and the privilege against self-incrimination both reflect and assume the proposition that an accused person need never make any answer to any allegation of wrong-doing.
The fact that criminal proceedings have been brought against the defendant arising out of the facts making up the new offences, and that the State seeks orders under the CHRO Act is not, of itself, an abuse of process. The basis of each is different. The latter proceedings arise principally as a result of the defendant's past criminal record. The correspondence indicated an intention to do so before the alleged commission of the new offences. At that time, it was not open to the plaintiff to seek a CDO or an IDO. When the defendant was charged with the new offences he was returned to custody. That enabled the seeking of a CDO and an IDO. The new offences were obviously relevant to a consideration of either an IDO or an ISO, because they formed part of the material in respect of which the test set out in ss 7(4) and 15(4) had to be applied.
The criminal proceedings were brought because the police considered that they had sufficient evidence to charge the defendant with those offences. That decision will ultimately be tested if and when the charges are certified. It is not correct to say, as the defendant asserts, that the State is taking two sets of proceedings to gaol him. The purpose of the criminal proceedings is to convict the defendant. What happens thereafter may involve the defendant being imprisoned and the DPP may seek such a sentence to punish the defendant. The principal purpose of the CHRO Act proceedings is to ensure the safety and protection of the community: s 3(1), and in determining whether to make a CDO or an ESO the safety of the community is the paramount consideration: ss 9(2) and 17(2). If that results in an IDO and a CDO, that is not to punish the defendant but to protect the community.
This is a long way from what the High Court was speaking of when it said in UBS AG v Tyne at [45]: Further, there is no reasons why the courts should tolerate attempts to manipulate other parties and the courts themselves by the deployment, by a single directing mind and will, of different legal entities under common control for such a purpose. That case involved multiple proceedings in various jurisdictions making similar claims brought by an individual as well as trustees of various trusts all of which were under the control of the individual concerned.
It may be accepted that the existence of the two sets of proceedings may become oppressive or unfair in the way that the proceedings progress. For example, if compliance with orders made in the CHRO proceedings impaired the defendant's right not to incriminate himself, any such order might need to be stayed or modified.
Subject to one matter the making at the present time of an IDO will not infringe the defendant's right to silence nor will it impair any defence of the criminal proceedings. That is because the defendant is in custody with his parole revoked and bail refused in respect of the new offences. Even when his parole ceases on 8 December 2020 he will remain in custody unless released on bail.
It would only be on any such release on bail that time would commence to run for any interim order which had been earlier made. That is because of the provisions of ss 10C(1A) and 18C(1A) of the CHRO Act. It is only at that time that a date would need to be fixed for the defendant to attend the assessments in respect of the orders which must be made following the preliminary hearing if the Court is satisfied that the supporting documentation would, if proved, justify the making of either an ESO or a CDO (ss 7(4) and 15(4)). In addition, at that time it will be apparent that a final hearing for the ESO or the CDO will take place within three months of the defendant's release on bail because any interim order may not be extended beyond a three month period.
However, it is not appropriate for the Court to second guess what might occur at the conclusion of the defendant's parole period: State of New South Wales v Elmir [2019] NSWSC 263 at [27]-[30]; State of New South Wales v Vincent (Preliminary) [2020] NSWSC 1269 at [100]-[104]. The Court should not now assume that the defendant will be released to bail so that interim orders will need to be made including the appointment of assessments by the psychiatrists/psychologists.
Concern about infringing the present defendant's right of silence does not arise for consideration at the present time. The issue will only arise if a date must be fixed for the attendance by the defendant at assessments by the psychiatrists/psychologists and at the time of any final hearing for a CDO or an ESO. For present purposes, I must make any decision on the basis that the defendant remains in custody both with his parole revoked until 8 December 2020 and also bail refused both before and after that date.
The third matter relied upon by the defendant concerns the interaction of statutory provisions that are said to deny a right to parole to the defendant if he is sentenced to imprisonment in relation to the new offences. In the same way, that issue does not arise at the present time, except in relation to a discretion for any order at the conclusion of the preliminary hearing. I will, therefore, deal with that matter later in the judgment.
I do not consider that any basis has been shown to stay the present proceedings.
It is necessary, therefore, to determine the outcome of the preliminary hearing.

[9]

Risk Assessment Report

The RAR was prepared by Mandy Lau who is a Senior Psychologist with the Serious Offenders Assessment Unit. Her recommendations were supported by the Chief Psychologist, Cherice Cieplucha. The report was prepared on 14 April 2020 prior to the defendant being charged with the June 2020 offences.
The Executive Summary to the report is this: Mr Shayne Wynne is a 50 year old man who was convicted and sentenced for two sequences of violent and sexual offences against two adult females, with whom he had been engaged in an intimate relationship. The first of these offences were committed in 2007 whilst he was under supervision on a Parole Order for prior violent offences against a previous partner. Following commission of the 2007 offences, he evaded Police detection and committed further offences in 2008 before surrendering at a Police station. Mr Wynne's history of offending occurred almost exclusively against intimate partners. During his incarceration, Mr Wynne participated in the High Intensity Sex Offender Program (HISOP) to address his offending. He completed all components of the treatment program satisfactorily without any significant adverse behaviours noted. He was described to be an active group member and was well-respected by other community members in the program. Mr Wynne has been assessed as falling in the Medium risk category for violent offending using an actuarial risk assessment instrument, with his risk being highest in the context of intimate relationships. His risk of sexual offending was assessed to be above average compared to other male sexual offenders. Mr Wynne's sentence expires on 30/11/2020. In the event that Mr Wynne were to be subject to an Extended Supervision Order (ESO), the mitigation of future risk may be enhanced by ongoing community supervision and resources to help him to adjust to life in the community, including ongoing risk management intervention with CSNSW Psychological Services. This would require consideration as to whether his risk of committing a further serious offence can be adequately managed in the community with intensive supervision. If Mr Wynne were to be subject to an ESO, it would be important for his order to be tailored to monitor his risk in the context of his relationships given his history of offending. For example, it may be beneficial to allow his Supervising Officer to be able to direct him to engage in relevant interventions to address risk-related issues, such as relationships counselling, and to be able to seek collateral information from these service providers.
Ms Lau noted that the defendant reported four significant relationships throughout his adulthood to date. He admitted to perpetrating violence against all four of his ex-partners whilst they were in a relationship. Ms Lau said that in at least three of his offences against his partners, the defendant was either intoxicated during the commission of the offences or had been abusing substances during the period leading up to his offence.
The defendant reported to her a history of binge drinking and polysubstance abuse when he was at large in the community. He commenced cannabis use at the age of 12, increasing to daily usage by the age of 14. He reported ingesting amphetamines recreationally from the age of 16 which later escalated to daily intravenous use. He reported relying on illicit substances to regulate his emotions despite also recognising that he had a tendency to become volatile and aggressive whilst intoxicated.
During the interview, the defendant said that he had abstained from alcohol and illicit substances since the commencement of his last period of incarceration and continued to do so following his release into the community. Ms Lau said that he identified substance abuse as one of the primary contributing factors to his offending behaviour, and she said he demonstrated insight into factors that perpetuated his use in the past.
The defendant told Ms Lau that since he had been released from custody, he reconnected with a female friend and commenced an intimate romantic relationship with her since September 2019. Ms Lau said that some instability was noted since the early stages of the relationship, including one incident where the defendant slapped his partner following an argument that escalated. She said there was evidence to suggest that his partner minimised the incident, and had been reluctant to cooperate with Community Corrections. The defendant reported that following the incident he and his partner had been seeking relationship counselling with Relationships Australia. However, they both declined to consent to release of information for his supervising officer to verify their attendance and engagement.
Ms Lau noted that the defendant appeared to have developed some insight into his offending through his participation in treatment whilst in custody. He acknowledged that he held unhelpful attitudes about relationships and when his expectations were not met he often projected blame on his partner. He recognised that his tendency to become jealous and possessive in his relationships related to insecurities and fear of abandonment, and admitted that he was using his inability to control his emotions as an excuse to act violently towards his partners.
Ms Lau noted that the defendant was generally described as a model inmate who was compliant with Correctional Centre routine and held a trusted custodial employment position prior to his release. His prison records indicated that he had yielded negative results for all urinalysis testings throughout his last period of incarceration.
Ms Lau noted that since his release from custody in June 2019, the defendant had been attending Forensic Psychology Services (FPS) for ongoing support in reintegration and management of risk-related issues. He was noted to be generally open in discussing most risk-related issues with his primary therapist, but was noted to be somewhat less forthcoming when discussing his current relationship.
Whilst in custody, the defendant completed the High Intensity Sex Offender Program (HISOP). He was described as being an active group member and was well-respected by other community members who participated in the program with him at the time. He completed all components of the treatment program satisfactorily, and did not engage in any significant adverse behaviours. He demonstrated an ability and willingness to reflect on the content discussed in the group, and would share his reflections in later sessions.
The defendant's HISOP treating psychologist noted that the defendant presented with some limits to his insight into his risk factors and warning signs. Although he was able to identify more overt risk factors and warning signs related to violence, he struggled with the more nuanced components (eg. core beliefs, the function of his behaviours). Furthermore, he was also noted to have a tendency to present himself in a positive light, he separated himself now from his past self and routinely cemented all problematic behaviour to the time of his offending.
He also completed the EQUIPS Addiction Program in 2017. His facilitator said that he completed it satisfactorily with excellent participation.
Ms Lau noted that he had been assessed on a number of protocols. On the Risk of General Offending - Level of Service Inventory - Revised, his risk/needs were assessed in July 2019 as falling within the medium risk category for general and violent offending. He was assessed in March 2010 using the STATTIC-99 where his score of 5 was described as being in the Moderate-High risk category relative to other male sexual offenders. He was also assessed on the STATTIC-99R in February 2019, with his score placing him in the "Above Average Risk" level or Level IVa.
Ms Lau assessed him on the Violence Risk Scale with his score placing him in the medium risk category for reoffending. She also assessed him on the Risk of Sexual Offending (Dynamic Risk Factors) - STABLE-2007. His score of 13 suggested a high density of criminogenic needs. When the STATIC-99R and STABLE-2007 were combined he was assessed as being in the Above Average risk level or Level IVa.
The defendant told Ms Lau that he continued to receive emotional support and some practical assistance from his mother and his two eldest children, who are now adults. He also said he received emotional and practical support from his current partner. Ms Lau noted, however, that Corrective Services New South Wales records contained information that raised concerns about his partner's ability to support him in his ongoing management of issues related to his offending. She was noted to be reluctant to cooperate with Community Corrections, and on one occasion she approached his FPS primary therapist to accuse her of interfering with her relationship with the defendant. The defendant was also noted to have become less open in discussing details of his relationship difficulties following his partner's contact with Community Corrections to minimise the incident when the defendant slapped her. Further, both the defendant and his partner had declined to consent for Community Corrections to contact Relationships Australia for the purpose of verifying their attendance and engagement in relationships counselling. I note that this partner is V6 against whom the new offences are alleged to have been committed.
In dealing with risk scenarios, Ms Lau said that based on his history of offending, if the defendant ceased to develop adequate problem-solving and emotion regulation skills, he might be at increased risk of using interpersonal aggression to resolve conflicts in his relationships. Based on his past history, that may also include sexual violence. The risk may be further exacerbated when he is under the influence of alcohol or illicit substances, or when he is already struggling with stress from other aspects of his life. Ms Lau noted that his pattern in relationships suggested a tendency for him to begin residing with his partner in the early stages of their relationship and that there was a risk of his forming further relationships that are primarily focused on sex.
Ms Lau said that if no order was imposed, (presumably she meant an ESO), he would be at unconditional liberty with no support or monitoring. Whilst it was possible that he could remain offence-free, given his persistent pattern of violence in his intimate relationships and instability that had already been noted in his new relationship, if he did not utilise the support available to him to improve his relationships skills to an adequate level prior to the expiry of his supervision, he may be at increased risk of re-engaging in similar behaviour without any monitoring or supervision.
The RMR was prepared by Community Corrections on 15 May 2020.
The report noted that the defendant's supervision had focused on addressing his drug and alcohol issues as well as anger management and mental health concerns. The report said: Despite this he has continued to come to the attention of authorities for similar and more violent offences.
The report noted further part of a pre-release report prepared in September 2017 which said: Mr Wynne admitted he had a poor attitude toward supervision when he was last on parole and he acknowledged he failed to engage in psychological intervention to address his history of domestic abuse. He reported he absconded from parole supervision as he did not want to face the consequences of his offences.
The report noted the altercation between the Defendant and his new partner in October 2019. It noted that the defendant told his Community Corrections officer in February 2020 that the relationship had ended, and he similarly reported that fact in April 2020. However, contact with his partner in May 2020 confirmed that her relationship with the defendant was still in existence and she reported it to be supportive and understanding.
The report noted the attitude of the partner towards Community Corrections and Forensic Psychology Services, and expressed concern that her attitude may present a difficulty in monitoring the defendant's relationship and home environment and prevent Community Corrections' ability to gauge and monitor his risks and progress.

[10]

Legal principles

The task of the Court at the preliminary hearing on an application for an interim order is not to predict the ultimate result. Rather the test is said to be one similar to the prima facie test applied by magistrates in committal proceedings: Attorney General for New South Wales v Tillman [2007] NSWCA 119; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11].
In respect of an application for an interim supervision order, Fullerton J said in State of NSW v Clarke [2019] NSWSC 411: [7] The question for determination on the State's application for an extended supervision order is whether the Court is satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision. At the preliminary hearing it is not for the Court to assess the weight of the supporting documentation bearing on that question or to seek to predict the outcome of the proceedings for final orders. Rather, the Court is to engage in an evaluative exercise taking into account all of the supporting documentation (and such material as has been tendered by a defendant) and, proceeding on the assumption that the facts alleged in the supporting documentation are proved, to determine whether those facts would justify the making of an extended supervision order. That obliges the State at the preliminary hearing to allege certain facts which, if proved, would lead to a conclusion that the making of an extended supervision order is justified, or, to put it another way, the State bears the burden of persuading the Court that the assumed facts establish to a high degree of probability that the defendant poses an unacceptable risk of committing a serious offence if not supervised. [8] In determining whether to exercise its discretion in favour of making interim orders, the Court needs to be persuaded not simply that an unacceptable risk of the relevant kind will manifest if the defendant is not subject to supervision, but also of the seriousness of the harm that will ensue in the absence of protective measures in the form of supervision orders (see State of NSW v Ceissman [2018] NSWSC 508 at [26]). [9] It follows that if the Court is unable to reach that level of satisfaction at the preliminary hearing the Summons must be dismissed. [10] It is also clear that in undertaking that evaluative task the protection and safety of the community from the dangers posed by high risk sex offenders or violent offenders is paramount (see s 9(2) introduced by the Crimes (High Risk Offenders) Amendment Act 2017 (NSW). The Act is not concerned with addressing rates of recidivism in the prison population per se or the risk of prisoners reoffending against the general criminal law. Neither is the Act concerned with how rates of recidivism might be addressed in the interests of community safety. In exercising the jurisdiction under the Act, this Court is not exercising the powers or function of a de facto parole authority. [11] The observations of Harrison J in State of NSW v Pacey [2015] NSWSC 1983 at [53] have particular resonance in that connection and on this application: It goes without saying that the safety of the community is a matter of great importance both generally and as a central theme in the inspiration for, and implementation of, applications such as the present. That does not however equate either to an indication by the legislature or to a necessary acceptance by me that offenders who have in all relevant respects served their sentences and become entitled to be released on parole should be made subject to supervision orders simply because their release is associated with some risk. Indeed, rates of recidivism indicate that a high percentage of offenders who are released into the community are by definition at some risk of reoffending. In contrast to the general prison population, what the Act makes abundantly clear is that only those offenders who are at risk of reoffending in a particular way are to be subjected to the prospect of continuing or extended supervision following their release. (emphasis added)
In Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 Beazley P said, when discussing the meaning of the phrase "unacceptable risk": [50] As the respondent pointed out in its submissions, by reference to dictionary definitions, the word "unacceptable" requires context in which, or parameters against which, the "unacceptable" risk can be measured. Thus, according to the Macquarie Dictionary, that which is unacceptable is "so far from a required standard, norm expectation, etc as not to be allowed". The Oxford Dictionary defines the word by reference to its antonym "acceptable". Something is "acceptable" if it is "tolerable or allowable, not a cause for concern; within prescribed parameters". [51] What the court, therefore, must find to be unacceptable is the "risk" that the offender poses "of committing a serious violence offence if … not kept under supervision". The respondent accepted that the precise parameters or standard or norm against which that determination is to be made are not immediately evident from the text of the provision. That must be so. A determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made. … [58] …[T]he proper approach is to give the words of s 5E(2) [now s 5B(d)]: "… their everyday meaning, in the context of the provision in which they appear, and having regard to the objects of the Act" as stated by R A Hulme J in Thomas (Final) at [38], and as I have explained above.
In State of New South Wales v Simcock (Final) [2016] NSWSC 1805 Wilson J said at [71]: Unacceptability of risk involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate.

[11]

Determination

On my assessment of the material, even excluding a consideration of the new offences, I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO. In reaching that conclusion I am mindful that before such an order could be made the Court must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence. The offence is likely to be a serious sex offence as defined in s 5(1)(a) of the CHRO Act. In reaching that conclusion, I have had particular regard to the extent of the defendant's offending, the nature of the offending, particularly in 2007 and 2008 that came before Judge Garling, and the RAR of Ms Lau.
The material shows that the persons who are most at risk from the defendant are persons with whom he is in an intimate relationship. It also shows that the defendant forms these relationships quickly and, at least at the outset, they are driven by sex. The behaviour demonstrated towards the first four partners, which provides the basis for the historical and index offences, is consistent. Although the new offences have not yet been proved, if the facts of those offences are proved, those facts would be entirely consistent with what occurred with previous partners.
Ms Lau's report shows that, although the defendant has some insight into his offending, he tended to separate off the past offending from the person he sees himself as being. Although he appears to have been a model prisoner, the evidence tends to suggest that when outside the prison situation, he reverts to his accustomed behaviour with intimate partners. In those circumstances, he does not seem to be able to put into practice the matters which he identified in speaking to Ms Lau.
The risk is increased because the present relationship appears to be very unstable, the defendant has been reluctant to discuss it, and both he and his partner have made it difficult for the relationship to be monitored by those who were supervising him before he went back into custody. Given that there has been admitted violence in the relationship, quite apart from the new offences, and given the assessments on the various protocols discussed by Ms Lau in RAR, there is an unacceptable risk to a high degree of probability of the commission by the defendant of a serious offence as defined in ss 4, 5 and 5A of the CHRO Act.
The more difficult question is whether the fact that the defendant has been charged with the new offences increases the risk to justify the making of an IDO on the basis that the documentation would, if proved, justify the making of a CDO.
I accept that the defendant denies the offending constituted by the new offences. However, when determining whether or not to make either a CDO or an ESO the Court has to have regard to the matters set out in s 17(4) and to any other matter it considers relevant. Two matters of particular relevance in s 17(4) are these: 17 Determination of application for continuing detention order … (e2) whether it is satisfied that the offender is likely to comply with the obligations of an extended supervision order, … (i) any other information that is available as to the likelihood that the offender will commit a further serious offence,
In State of New South Wales v DK (Preliminary) [2018] NSWSC 1947, the defendant was released on parole and committed further offences while on parole. The charges for those offences were subsequently withdrawn. Fullerton J said at [39]: The Court was invited by Ms Graham to place no weight on the allegations of violence constituted by the February charges. She submitted that in circumstances where those offences were denied and where the charges were withdrawn, they should form no part of the Court's evaluative task. I am not prepared to take that approach. I consider that they bear relevantly on the exercise to be undertaken at the preliminary stage under s 9(3)(i), bearing as they do on the primary question of the safety of the community (see State of New South Wales v John Owen Conway [2011] NSWSC 976 and State of New South Wales v Veeran [2015] NSWSC 75).
If the new offences are proved, they would demonstrate a number of things. First, notwithstanding that the index offences took place 12 and 13 years ago and that the defendant was said to have been a model inmate, persons in an intimate relationship with the defendant are still at risk of violence and sexual violence. Secondly, the fact, if proved, that those offences took place whilst the defendant was on parole and being supervised including with electronic monitoring, is not enough to prevent the defendant offending in a similar manner to what he has done with each of his other intimate partners.
The Breach of Parole Report dated 22 June 2020 said: Mr Wynne's new offences are of an identical nature to his previous offending behaviours, including his index offence (sic). His criminal antecedents identify an extensive history of violence perpetrated within all domestic relationships he has been involved with. His prepensaty (sic) in relation to his aggression and violence has not abated, despite the support he has been provided while in the community. … Community Corrections has made this recommendation [that his parole be revoked] because Mr Wynnes' current behaviours are repetitive of his previous offending behaviours and increase his risk in the community of further re-offending.
Other information which I consider to be relevant in considering this aspect of the matter is the admitted assault by the defendant of V6 at an earlier time than the commission of the new offences by slapping her. In addition, the efficacy of supervision under an ESO is likely to be diminished by matters reported by Ms Lau in relation to the present relationship between the defendant and V6. V6 was reluctant to cooperate with Community Corrections. Both of them declined to consent to the release of information for the defendant's parole officer in relation to their attendance and engagement with Relationships Australia.
The new offences, if proved, also tend to undermine matters reported upon by Ms Lau in relation to the defendant's insight into his behaviour that had led to previous offending. Whether or not the defendant actually has the insight Ms Lau assessed him as having, that insight does not appear to be able to control the defendant's behaviour when that behaviour is triggered by similar matters that gave rise to offending in the past. In any event, as Ms Lau said, although the defendant was able to identify overt risk factors and warning signs related to violence, he struggled with the more nuanced components in relation to his beliefs and the function of his behaviours. That was emphasised also by the way the defendant separated problematic behaviour as being in the past rather than understanding it in relation to present and future behaviour.
When the events that have occurred since the defendant was released to parole are considered with his prior offending, I am satisfied, having regard to the level of satisfaction required by ss 5C(d) and 5D, that the matters alleged in the supporting documentation would, if proved, justify the making of a CDO.
My one hesitation about making an IDO, as opposed to an ISO, concerns an argument put forward by the defendant's counsel in support of the stay application.
Section 126(4) of the Crimes (Administration of Sentences) Act provides: An offender is not eligible for release on parole for a NSW offence if the offender is - (a) a Commonwealth post sentence terrorism inmate, or (b) a NSW post sentence inmate. Section 3 defines NSW post sentence inmate as: (a) an inmate of a kind referred to in section 4(1)(c1), Section 4(1)(c1) is: (c1) any person the subject of a warrant under section 20 of the Crimes (High Risk Offenders) Act 2006 by which the Supreme Court has committed the person to a correctional centre pursuant to a continuing detention order, interim detention order or emergency detention order under that Act.
The effect of those sections is that a person subject to an IDO or CDO is not eligible for release on parole.
Section 24A of the Crimes (Sentencing Procedure) Act relevantly provides: 24A Mandatory requirements for supervision and other prohibitions to be disregarded in sentencing (1) In sentencing an offender, the court must not take into account, as a mitigating factor in sentencing, the fact that the offender - … (d) has or may become the subject of an order under the Crimes (High Risk Offenders) Act 2006, or
Contrary to the defendant's submission, the combined effect of these provisions does not mean at the time of sentence that the defendant would not be permitted a parole period. He would be sentenced in the ordinary way and, if a period of fulltime custody was ordered, but not a fixed term given, he would be sentenced to a non-parole period and then a balance of term. However, at the conclusion of the non-parole period he would not be eligible for release on parole unless the CDO had expired.
Sections 18(2) and s 18C(1A) provide for the suspension of an IDO and CDO where a person is otherwise in lawful custody. The result is, therefore, that a person sentenced to imprisonment must serve the whole of that sentence and then serve the remainder of the term of the CDO. Whether that is what the Legislature actually intended by the interaction between the CHRO Act and the Crimes (Administration of Sentences) Act, or whether it was enacted that way to ensure that a person subject to a CDO was not released when otherwise eligible for parole but without thought for the extra time that would be served if no credit was given, the legislation is clear. The CHRO Act does not give any credit in terms of a CDO for a period when the person might otherwise have been eligible for parole.
The only limitation is that any suspension of the CDO during other lawful custody does not affect the expiry date of the CDO. In the present case, where the plaintiff seeks a CDO of one year, it is foreseeable that the CDO might expire whilst the defendant is serving any sentence of imprisonment imposed for the new offences if he is convicted. That will obviously depend upon the date of commencement of the CDO.
None of that seems to me to provide a basis for not directing that the defendant be subject to an IDO if the evidence otherwise requires such an order to be made. In the present case, as I have indicated, I am satisfied that the matters alleged in the supporting documentation including the information about the new offences would, if proved, justify the making of a CDO.

State of New South Wales v Wynne - [2020] NSWSC 1650 - NSWSC 2020 case summary — Zoe

State of New South Wales v Wynne

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Legislation Cited (5)

Cases Cited (24)

Cited By (1)