State of NSW v RC (Final)

By a further amended summons filed in Court on 30 June 2022, the State of New South Wales (the plaintiff) seeks the following:

Following a hearing which extended over several days, I made orders in the following terms:

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.

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.

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.

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.

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:

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.

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: