State of NSW v RC

Supreme Court of NSW|2022-06-30|Before: Bellew J

INTRODUCTION

By a further amended summons filed in Court on 30 June 2022, the State of New South Wales (the plaintiff) seeks the following: 1. an order pursuant to ss 5C and 17(1)(b) of the Crimes (High Risk Offenders) Act 2006 (the Act) that RC (the defendant) be the subject of a continuing detention order for a period of up to 1 year from the date of the order (the continuing detention order); 2. an order pursuant to s 20(1) of the Act that a warrant issue for the committal of the defendant to a Correctional Centre for the period of the continuing detention order; 3. an order: 1. pursuant to ss 5B, 9(1)(a) and 25B of the Act that the defendant be subject to an extended supervision order ("the extended supervision order") commencing on the expiration of the continuing detention order (or its earlier revocation by the Court) and expiring 5 years after its commencement; and 2. pursuant to s 11 of the Act, directing the defendant, for the period of the extended supervision order, to comply with the conditions set out in the Schedule to this Amended Summon. 1. in the alternative to the above: 1. an order pursuant to s 17(1) of the Act that the defendant be subject to an extended supervision order for a period of 5 years from the date of the order; and 2. a direction pursuant to s 11 of the Act that the defendant comply with the conditions set out in the Schedule to this Amended Summons.
Following a hearing which extended over several days, I made orders in the following terms: 1. Pursuant to section 17(1)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW), the Court orders that the defendant be subject to an extended supervision order for a period of five years from the date of this order. 2. Pursuant to section 11 of the Crimes (High Risk Offenders) Act 2006 (NSW), the Court directs that the defendant comply with the conditions set out in the Schedule to this order.
The conditions referred to in order (2) are annexed to this judgment.
I indicated at the time of making those orders that my reasons for doing so would be published in due course. Those reasons now follow. Given the manner in which the hearing ultimately proceeded, and in light of the final positions of each party, those reasons can be brief.

FACTUAL BACKGROUND

The background to the proceedings is not in dispute. In summarising it, I note that counsel for the defendant conceded that all formal statutory requirements for the making of an Extended Supervision Order (ESO) under the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act) had been met.
On 4 April 2016, the defendant committed the offence of wounding with intent to cause grievous bodily harm. He was subsequently sentenced to imprisonment for 6 years, commencing on 15 April 2016 and expiring on 14 April 2022. The offending involved an unprovoked attack with a knife upon the victim, who was walking to work, and who was unknown to the defendant. The defendant stabbed the victim on 2 occasions. He later claimed that his offending stemmed from the fact that he had been a victim of sexual abuse.
During his period in custody, the defendant was convicted of assaulting a Corrections Officer and was sentenced to 20 months imprisonment. He was also convicted of assaulting a fellow inmate and was sentenced to 5 months imprisonment.
The defendant's criminal history includes the commission of a number of offences whilst a juvenile between 2008 and 2009. He has also been convicted of other offences as an adult, and has a history of self-harm.

THE RESPECTIVE POSITIONS OF THE PARTIES

During the course of the final hearing, the position of the plaintiff deviated from that reflected in the further amended summons, as a consequence of which the ultimate issue for my determination became a narrow one.
The orders originally sought by the plaintiff in the further amended summons including the making of a Continuing Detention Order (CDO) for a period of 1 year. That was predicated on the assumption that the defendant would be able to undergo a period of transition through a forensic hospital for that period. It was the plaintiff's original position that, after that period, the defendant be released subject to an ESO for a period of 5 years.
However, counsel for the plaintiff conceded at the commencement of the hearing that such a proposal was not viable. [1] That change of position was based primarily upon the evidence of Dr Smith, Psychiatrist, which was to the effect that the waiting list for admission to a forensic hospital was such as to render the prospects of the proposed transition impossible in any practical sense. Further, Dr Dayalan, Psychiatrist, took the firm view that any CDO would be counter-productive because of the absence of the availability of proper therapeutic treatment.
In light of that evidence, the real issue centred upon the identification of appropriate accommodation into which the defendant could be placed if released subject to an ESO. I do not propose to dwell upon the unacceptably piecemeal manner in which the evidence going to that issue was adduced. I will content myself by observing that the lack of urgency exhibited by those responsible for making the necessary assessments left a great deal to be desired. Ultimately however, an address was identified and assessed as suitable.

THE FINAL POSITIONS OF THE PARTIES

At the conclusion of the evidence, and notwithstanding the identification and assessment of an address at which the defendant could reside if released, the plaintiff's final position as articulated by counsel [2] was that a CDO for 3 months should still be made, followed by an ESO for a period of 5 years. That position was advanced on the basis that notwithstanding the evidence that a suitable address had been identified, there remained (as counsel put it) "some opacity about the question of whether there may be a problem down the track".
The final position of the defendant was that a continuing detention order for 3 months was not warranted, given that there was a clearly identified option for the defendant's placement in the community. Counsel submitted that an ESO for a period of less than 5 years was appropriate.

CONSIDERATION

In light of the evidence, a CDO for any period would, in my view, be inappropriate. Quite apart from any other consideration, it is clear that the defendant is in need of ongoing treatment. On the evidence before me, it is equally clear that: 1. there is no realistic prospect of the defendant being admitted to a forensic hospital at any time in the near future, be it for a "transitional" period or otherwise; and 2. there are significant constraints placed on any treatment as long as he remains in custody, in circumstances where treatment is required.
It is clearly in the interests of both the defendant and the community that appropriate treatment be made available in some form of supervised setting. Primarily for that reason, having taken into account all statutory considerations, and bearing in mind the final positions of the parties, I am satisfied that an ESO should be made for a period of 5 years.
Having considered the submissions of the parties, it is my view that the conditions proposed by the plaintiff are appropriate. Whilst there were some limited areas of dispute, the fact of the matter is that the defendant is, for want of a better word, largely "untested" in the community. For that reason, a cautious approach should be taken regarding the conditions to which he is to be subject.

Costs

Counsel for the defendant foreshadowed an application for costs. At the time of the making of my orders, I indicated that the parties would be given a further opportunity to make submissions in relation to that question in light of my reasons. In the event that the defendant seeks to make such application, I make the following further orders: 1. The defendant is to file submissions with my Associate in relation to the question of costs, such submissions not to exceed two pages, by 7 February 2023. 2. The plaintiff is to file any submissions in reply, not exceeding two pages, by 8 February 2023.

SCHEDULE OF CONDITIONS OF SUPERVISION In these conditions: "Associate" includes, but is not limited to, being in company with, or to communicate by any means (including by post, facsimile, telephone, email or any other form of electronic communication). "CSNSW" means Corrective Services NSW. "Commissioner" means Commissioner for Corrective Services "Defendant" means Richard Corr, the defendant in these proceedings and the subject of the order. "DSO" means Departmental Supervising Officer, that is, any Corrective Services Officer supervising the defendant under the order. "Electronic Identity" means each of the following:

an email address,
a user name or other identity allowing access to an instant messaging service,
a user name or other identity allowing access to a chat room or social media on the internet,
any other user name or other identity allowing access to the internet or an electronic communication service. "Material" includes:
any written or printed material;
any picture, painting or drawing;
any carving, sculpture, statue or figure;
any photograph, film, video recording or other object or thing from which an image may be reproduced;
any computer data or the computer record or system containing the data; and
any other material or object on which an image or representation is recorded or from which an image or representation may be reproduced. "NSWPF" means NSW Police Force. "Search" includes:
A garment search, being a search of any article of clothing worn by the defendant or in the defendant's possession, where the article of clothing is touched or removed from the person's body; and
A pat-down search, meaning a search of the defendant where the defendant's clothed body is touched. Part A: Reporting and Monitoring Obligations Monitoring and Reporting
The defendant must submit to the supervision and guidance of a DSO and obey all reasonable directions of a DSO.
Where a direction may conveniently be given in writing (or is required to be given in writing) it may be given electronically including by SMS or other messaging service.
The defendant must truthfully answer questions from a DSO, or any other person supervising him, about where he is, where he is going, who he is with, what he is doing and the nature of his associations.
The defendant must not engage in any threatening, intimidating or abusive behaviour towards CSNSW or electronic monitoring staff involved in his supervision that would cause the staff member to fear for their safety and/or interfere with or impede supervision. Electronic Monitoring
The defendant must wear electronic monitoring equipment as directed by a DSO and must not tamper with, or remove, the equipment. Schedule of Movements
If directed, the defendant must provide a weekly plan (called a schedule of movements) and this is to be provided 3 days before it is due to start.
If the defendant wants to change anything in his schedule of movements once it is approved by a DSO, he must seek approval from a DSO about the change 24 hours in advance, unless a DSO approves a shorter period
The defendant must not deviate from his approved schedule of movements except in an emergency. Part B: Accommodation
The defendant must live at an address approved by a DSO and notify a DSO of any intention to change the defendant's address or living arrangements.
The defendant must be at his approved address between 9PM and 6AM unless other arrangements are approved by a DSO.
The defendant must allow a DSO to visit him at his approved address at any time and, for that purpose, to enter the premises at that address.
The defendant must not spend the night anywhere other than his approved address or any alternative approved addresses (if relevant) without the approval of a DSO.
The defendant must promptly notify a DSO of any visitor entering and remaining at his approved address and must not permit any person to stay overnight, at his approved address (other than persons who ordinarily reside at his approved address), without the prior approval of a DSO. Part C: Place and travel restrictions
The defendant must surrender any passports held by him to the Commissioner, must not be in possession of any passports, and must not attempt to apply for any passports.
The defendant must not leave New South Wales without the approval of the Commissioner of CSNSW.
The defendant must not frequent or visit any place or district specified by a DSO. Part D: Employment, finance and education
The defendant must take all reasonable steps to participate in interventions as recommended by a DSO, including the development of a case management plan which may include employment, education, training or participation in personal development programs.
The defendant must not start on his own initiative any job, volunteer work or educational course without the approval of a DSO.
The defendant must provide any information relating to his financial affairs, including income and expenditure, if directed by a DSO. Part E: Drugs and alcohol
The defendant must not: a. Possess or consume alcohol without the prior approval of a DSO. b. Possess or use prohibited drugs or drugs unlawfully obtained.
The defendant must submit to drug and alcohol testing.
The defendant must not enter any licensed premises including hotels, bars, racecourses and licenced clubs, but excluding cafes and restaurants, without the prior approval of a DSO.
The defendant must not purchase alcohol through the use of online services or mobile phone applications without the prior approval of a DSO.
The defendant must attend and participate in programmes and courses for drug and alcohol rehabilitation as reasonably directed by a DSO, and must not discharge himself from such programs and courses without prior approval of a DSO. Part F: Non-association Associations with Others (not children)
The defendant must not associate with any person or persons specified by a DSO.
Without limiting condition 25, the defendant must not: a. associate with any people who he knows are consuming or under the influence of alcohol without the prior approval of a DSO. b. associate with any people who he knows are consuming or under the influence of illegal drugs. c. associate with any person held in custody without prior approval of a DSO.
The defendant must agree to a DSO disclosing his criminal history to another person if the disclosure is reasonably necessary.
The defendant must obtain written permission from a DSO prior to joining or affiliating with any club or organisation Part G: Weapons
The defendant must not possess or use any of the following: a. a firearm, firearm part or ammunition within the meaning of the Firearms Act 1996, or b. a prohibited weapon within the meaning of the Weapons Prohibition Act 1998.
Without limiting or altering condition 29, the defendant must not possess or use any of the following, without a DSO's prior approval: a. a knife, machete, sword or any other device that consists of a single-edged or multi-edged blade or spike that is designed or adapted to inflict violence, whether actual or threatened b. any other implement made or adapted for use for causing injury to a person; or c. anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property. Part H: Access to the internet and other electronic communication
The defendant must obey any reasonable direction by a DSO about communication, internet access and use of electronic devices (including, but not limited to, approval of devices used, method of communication, access to the internet and restrictions on deleting information.
The defendant must not use any alias, electronic identity, log-in name, name other than "Richard Corr" or any email address other than those known to a DSO. The defendant must give a DSO a list of all devices, services and applications he uses to communicate with or to access the internet and advise a DSO of any change to the list immediately. This includes phones, tablet devices, data storage devices or computers.
The defendant must provide the details of telephone numbers, service provider account numbers, email addresses or other user names as well as any relevant passwords, pin codes and pass codes used by the defendant and the nature and details of the internet connection, as directed.
The defendant must provide consent for a DSO (or any other person requested by a DSO) to remotely inspect any internet account used by the defendant, including any internet service provider account, email accounts and social media accounts, in monitoring compliance with this Order.
The defendant must not delete or alter any applications, email, text messages, any electronic message, call history, any data, internet search, internet or application search history, any application chat or communication history from his phone, computer, tablet or any other electronic device without the prior consent of a DSO. Part I: Search and seizure
The defendant must submit to the search of any item or place in his possession or under his control, including his residence, any vehicle in which he is traveling or which is under his effective control, any computer, electronic and communication device, or any storage facility, garage, locker or commercial facility; and to the seizure of any object located during the search.
The defendant must not attempt to destroy or interfere with any object that is the subject of a search or seizure carried out pursuant to this Order. Part J: Personal details and appearance
The defendant must not change his name from "Richard Corr" or use any other name without notifying a DSO.
The defendant must not significantly change his appearance without the approval of a DSO.
The defendant must let a DSO photograph him, dressed, within one week of the commencement of these conditions and following any significant change to his appearance.
If the defendant changes the details of any current form of identification or obtains further forms of identification, he must provide a DSO with such details. Part K: Medical intervention and treatment
The defendant must undergo ongoing psychological or psychiatric assessment or counselling (or any combination of these) as directed by a DSO, including any therapy sessions, support and treatment programs the subject of the direction.
The defendant must notify a DSO of the identity and address of any healthcare practitioner that he consults.
The defendant must attend, upon the direction of a DSO, any therapy sessions, support and treatment programs the subject of the direction.
The defendant must take medications that are prescribed to him by his healthcare practitioners only in the manner prescribed.
The defendant must notify a DSO immediately if he ceases to take or declines to commence taking any medication as referred to in the above condition.
The defendant must agree to his treatment and service providers and healthcare practitioners sharing information, including reports on his progress and attendance, and information he has told them, with each other and with a DSO.
The defendant must agree to any information being shared between those persons and agencies that are involved in his supervision including, but not limited to, a DSO, NSWPF and CSNSW.
The defendant must agree to the disclosure of his criminal history to any healthcare professionals that are treating him.

Endnotes

T3.16.
T59.18 - T59.37. 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: 02 February 2023

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