State of New South Wales v Briar

In a summons filed 19 May 2017 the Plaintiff seeks an interim order pursuant to s 18B of the Crimes (High Risk Offenders) Act 2006 (NSW) that the Defendant be subject to an Interim Detention Order from 20 September 2017 until the proceedings are finally determined. In the alternative it seeks an order pursuant to s 10B of the Act that the Defendant be subject to an Interim Supervision Order from 20 September 2017. In either case the summons seeks an order pursuant to s 15(4) of the Act appointing two qualified psychiatrists to conduct separate psychiatric examinations and to report on the results of those examinations.

By an amended summons filed in Court today it is now sought that the Defendant be examined by a qualified psychiatrist and a registered psychologist. The basis for the orders is said to be that the Defendant is a high risk violent offender.

Section 5G of the Act provides:

Section 5E deals with high risk violent offenders. That section provides:

Section 5A defines a “serious violence offence”. That section provides:

An Interim Detention Order may be made in the circumstances set out in s 18B. Section 18B provides:

On 19 February 2015 the Defendant was sentenced after he pleaded guilty to recklessly inflicting grievous bodily harm in company. He was sentenced to a period of three years imprisonment commencing 21 September 2014 and concluding 20 September 2017 with a non-parole period of one year and nine months concluding on 19 June 2016. He was released to parole on 20 June 2016 but was returned to custody on 8 August 2016 after breaching his parole by committing a number of further offences. His sentence will expire on 20 September 2017.

The offence for which the Defendant was sentenced on 19 February 2015 was a serious violence offence.

The offence took place in the Junee Correctional Centre. The Defendant was at the time serving a sentence of imprisonment for 18 months for aggravated enter a dwelling with intent to inflict actual bodily harm. The victim of the offence in the correctional centre was another inmate who was serving a sentence for drug trafficking. The Defendant formed the view that the victim had committed a sexual offence against a ten year old girl. The victim had been charged with such an offence but had been found not guilty.

The Defendant and a co-offender armed themselves with wooden broom handles and attacked the victim using those weapons. The victim suffered a non-displaced fracture of the forearm, fractures of his nasal bones and a three centimetre laceration to the back of his head which was sufficiently deep to expose his skull. It required suturing. He also received multiple welts on his back. During his treatment he lost consciousness on a number of occasions.

As mentioned, the Defendant’s sentence will expire on 20 September 2017. Arrangements have been made for the final hearing of the present proceedings to be heard prior to that date on 15 September. In those circumstances the Plaintiff does not seek an Interim Detention Order nor an Interim Supervision Order. Rather, the only order sought is one for the appointment of a psychiatrist and a psychologist to examine and report on the Defendant. This order is not opposed by the Defendant.

Because of the terms of s 15 of the Act an order for the appointment of psychiatrists and/or psychologists to examine and report on the Defendant can only be made if the Court 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. Section 15 relevantly provides:

The task of the Court and its purpose at the preliminary hearing stage is not to weigh up the documentation or to predict the ultimate result or to consider what evidence the Defendant might call at the final hearing. Rather the test to be applied is similar to the prima facie case test applied by magistrates as part of committal proceedings: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]; State of New South Wales v Manners [2008] NSWSC 1242 at [8]-[9]. Appropriate weight is to be given to risk avoidance: Attorney General for the State of New South Wales v Winters [2007] NSWSC 611 at [7]. It is appropriate to bear in mind that the “fundamental objective of the legislature is the protection of the public” and the safety of the community: State of New South Wales v Pacey [2015] NSWSC 1983; Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 at [21].

What is meant by “a high degree of probability” in s 5E(2) was dealt with in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. What amounts to an “unacceptable risk” in the same section was explained in Lynn v State of New South Wales [2016] NSWCA 57 at [50]-[51], [55], [57]-[59] and [148].

The Defendant was examined by Mr Samuel Ardisinski, the senior psychologist at the Serious Offender’s Assessment Unit in January 2017. Part of Mr Ardisinski’s Executive Summary of his lengthy report reads as follows:

I accept that the enquiry is whether the Defendant poses an unacceptable risk of committing a serious violence offence as defined in s 5A. It is not sufficient to find that there is an unacceptable risk of violence as such. However, whether particular type of behaviour by the Defendant amounts merely to violence or to a serious violence offence is likely to be fortuitous depending on the circumstances. A one punch attack is a good example of how that behaviour may constitute a serious violence offence or may only be an offence of assault occasioning actual bodily harm, for example.

What is contained in Mr Ardisinski’s report demonstrates that the sort of violence and the circumstances of it in which the Defendant has been involved mean that, if this evidence is accepted for final hearing, he is an unacceptable risk of committing a serious violence offence. I note, for example, what appears in paragraphs 16 and 17 of that report:

Similarly, his conclusions at 50, 51, 54 and 55 of his report highlight the risk of serious violence as defined:

I have noted the terms of the risk management report prepared by Pauline Jeffress, the Senior Community Corrections Officer dated 26 February 2017. It is not necessary to say anything further about this report because no Interim Detention or Supervision Order is being sought.

On the basis of the report of Mr Ardisinski, I am satisfied that if the evidence in Mr Ardisinski’s report was accepted at the final hearing either a Continuing Detention Order or a Continuing Supervision Order should be made.

In those circumstances, the following orders should now be made: