State of New South Wales v Prince

1. [1]

   By a summons filed on 22 August 2017, the State of New South Wales (“the plaintiff”) seeks a number of orders pursuant to the Crimes (High Risk Offenders) Act 2006 (“the Act”). For present purposes, the only order sought by the plaintiff is in paragraph 1 of the summons which is in the following terms:

2. [2]

   There are further orders sought in paragraph 2, but they do not concern me for present purposes, the matter being a preliminary hearing. The plaintiff's ultimate position is that it will seek an extended supervision order for a period of two years at any final hearing.

3. [3]

   The order sought in paragraph 1 of the summons is opposed by the defendant.

4. [4]

   Three affidavits were read in the plaintiff's case without objection, namely:

5. [5]

   The defendant is currently serving a sentence of imprisonment following a conviction for an offence against s. 33(1)(a) of the Crimes Act 1900 (NSW) of wounding with intent to do grievous bodily harm (“the index offence”). The non-parole period imposed in respect of that offence expired on 7 August 2016 and the defendant's sentence expires on 19 January 2018.

6. [6]

   The statutory framework with which I am dealing is helpfully set out in the written submissions provided by counsel for the plaintiff (commencing at paragraph 6) and I draw upon that part of the submissions for the following summary.

7. [7]

   The primary object of the Act, as stated in s. 3(1), is to provide for the extended supervision, and continuing detention, of high risk violent offenders so as to ensure the safety and protection of the community. Another object of the Act (see s. 3(2)) is to encourage such offenders to undertake rehabilitation.

8. [8]

   Under s. 5E(1) of the Act, an offender can remain the subject of a high risk violent offender extended supervision order, or a high risk violent offender continuing detention order, only if he or she is a high risk violent offender. The term "violent offender" is defined in s. 4 of the Act to mean "a person over the age of 18 years who has at any time been sentenced to imprisonment following his or her conviction of a serious violence offence". A person is defined in s. 5E(2) to be a violent offender where this court is satisfied, to a high degree of probability, that he or she poses an unacceptable risk of committing a serious violent offence if not kept under supervision.

9. [9]

   The term "serious violence offence" is defined in s. 5A(1) as follows:

10. [10]

    Section 5J(2) is in the following terms:

11. [11]

    The defendant was in custody when the present application was filed, and he remains in custody. As a consequence, he meets the definition of a “supervised violent offender”.

12. [12]

    There is no dispute that the threshold criteria which apply to the making of an application for an extended supervision order are satisfied in the present case. The defendant is a violent offender within the meaning of s. 4 of the Act on the basis of him being convicted of a serious violence offence as defined in s. 5A(2)(b), namely the offence of wounding with intent to cause grievous bodily harm. The defendant also meets the definition of “supervised violent offender” contained in s. 5(2) of the Act on the basis that he is currently in custody serving a sentence of imprisonment for that offence. Further, the application has been brought within the last six months of the defendant's current custody as required by s. 6(2) of the Act.

13. [13]

    The test to be applied in an application such as this is governed principally by the provisions of s. 7(4) of the Act. Under that section I must be satisfied that the matters alleged in the supporting documentation (i.e., in the affidavit material to which I have referred) would, if proved, justify the making of (in this case) an extended supervision order. If I am so satisfied, I must make an order appointing two clinicians to examine the defendant and prepare reports for the court.

14. [14]

    There are a number of authorities which have dealt with the nature of the task of the court at a preliminary hearing. That task has been compared to the prima facie case test which applies for the purposes of committal proceedings: Attorney-General for the State of New South Wales v Hayter [2007] NSWSC 983 at [6]. The threshold is a relatively low one and has been described as "not stringent": State of New South Wales v Lynn [2013] NSWSC 1147 at [18]. The court’s is not to weigh the documentation, nor is it to attempt to predict the result of a final hearing. Rather, the court’s task is to assess whether, if the matters set out in the documentation were proved, they would justify the making of (in the present case) an extended supervision order: Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 at [98]. That, of course, does not mean that the court simply acts as something in the nature of a rubber stamp. It must, in making its determination, have regard to the supporting documentation to determine whether it satisfies the test that I have outlined. It is also relevant to note that a serious violence offence does not necessarily involve all offences of violence: State of New South Wales v Pacey [2015] NSWSC 1983 at [43] and [51]; State of New South Wales v Sancar [2016] NSWSC 867.

15. [15]

    I have already made reference to the affidavit material which is before the court. Section 9 of the Act sets out a number of factors which the court must take into account in making its determination. I have considered those factors by reference to the evidentiary material which is before me.

16. [16]

    The first of those factors which is relevant to the present case concerns the safety of the community: s. 9(3)(a). It is of some significance that there are references in the evidentiary material to the fact that the defendant, notwithstanding a verdict of a jury finding him guilty, has consistently denied responsibility for the index offence.

17. [17]

    A further factor that I have taken into account concerns the psychological assessments which are before the court: ss. 9(3)(c) and 9(3)(d) of the Act.

18. [18]

    There are a number of such assessments, the first of which is that of Mr Richard Parker, a senior psychologist, who provided a report of 14 March 2017 which is annexure A to the second affidavit of Ms Pendlebury. It is of some significance that the recommendations made by Mr Parker in that report, and the opinions he expressed, were supported by Ms Cieplucha.

19. [19]

    Mr Parker identified a number of risk factors (commencing at paragraph 40). They included the fact that the defendant had "criminal peers", and that he had a history of substance abuse. Mr Parker also identified what he described as the defendant’s "criminal thinking" as being a risk factor.

20. [20]

    Commencing at paragraph 41, Mr Parker made reference to the defendant's participation in the Violent Offenders Therapeutic Programme (“VOTP”). He traced the history of that participation, which included (at least initially) a degree of reluctance on the part of the defendant to participate. The history has also been, for want of a better term, “punctuated” by the defendant’s suspension from the programme on two occasions due to acts of violence towards other inmates.

21. [21]

    Mr Parker concluded (commencing at paragraph 62) that the defendant was at high risk of further violent offending. He said that his assessment was "anchored by static, unchangeable factors and backed up by the identification of a number of criminogenic needs". Mr Parker acknowledged that although the defendant had commenced the VOTP, and whilst he should be able to complete that programme within his existing sentence, it was likely that he would need an extended period of strict monitoring to implement and consolidate the skills and attitudes learned in that programme. Mr Parker expressed the view that in the event that the defendant was subject to an extended supervision order, it was likely that he would benefit from both intensive supervision and case management.

22. [22]

    There is a further report from Ms Rima Nasr prepared on 13 April 2012. Ms Nasr noted (in paragraph 2) that the defendant experienced difficulties in containing his anger, and expressed fixed beliefs that his co-accused should be “punished”. Ms Nasr went on to recount (commencing at paragraph 25) the defendant's drug and alcohol history. She described that history as indicating an alcohol dependence associated with substantial psychosocial harm, including increased aggressive behaviour and engagement in criminal behaviour. At paragraph 42, Ms Nasr described the defendant as presenting as a complex individual, with disturbed attachment and exposure to antisocial peers and family members, violence, and substance abuse during his formative years, all of which were likely to have contributed to a serious fragmentation of his personality function. She said that those factors had impacted on all aspects of his functioning, and that could be expected to have had a profound impact on his behaviour.

23. [23]

    Ms Nasr (at paragraph 43) said that the defendant's rehabilitation and management would need to be extensive. She also noted that his motivation to commit to treatment seemed poor, but he would nonetheless require long-term treatment and management.

24. [24]

    There is a further psychological report of Mr John McMahon of 20 April 2013. That report appears to have been prepared in conjunction with an application brought by the defendant for Victim's Compensation. Mr McMahon diagnosed the defendant (at page 8 of his report) as suffering from a chronic adjustment disorder with anxiety, and antisocial and paranoid traits. In terms of prognosis, Mr McMahon expressed the view (at page 9 of his report) that the defendant's prognosis was poor, and that he would likely remain moderately symptomatic, with angry acting-out, and repeated periods of incarceration as a consequence.

25. [25]

    A further consideration to which the court must have regard is any evidence as to the defendant's management in the community: s. 9(3)(d1). In that regard, there is a risk management plan of 20 June 2017 before the court. That plan recommends that in the event that an extended supervision order is made, management of the defendant could include weekly interviews, field visits, home visits, contact with third-parties, and electronic monitoring. The report also sets out a number of challenges which might be faced in managing the defendant under any extended supervision order. Those challenges are said to include an apparent reluctance on the part of the defendant to take advantage of services provided to him. In that regard, reference was made to the defendant having a history of denying and/or minimising responsibility for his offending.

26. [26]

    A further factor which the court must take into account is any evidence of treatment or rehabilitation programmes in custody: s. 9(3)(e). I have previously made reference to the defendant's progress under the VOTP and importantly, the fact that such progress was interrupted by the incidents to which I referred. After being excluded from the program, the defendant re-entered on 27 July 2017. Whether he will complete the programme prior to his sentence expiry date is not clear. If he is the subject of an extended supervision order, he will be eligible for assessment to attend the relevant risk management sessions.

27. [27]

    The affidavit of Ms Cieplucha (who I note is a registered psychologist) made specific reference (at paragraph 20) to the fact that notwithstanding what had occurred thus far in the VOTP, it was her impression that the defendant appeared to be motivated to complete the programme. In her affidavit (commencing at paragraph 21) Ms Cieplucha made reference to the fact that the defender's group participation was completely satisfactory and that he appeared to have a positive influence in the group in terms of the other participants. She also noted (at paragraph 22) that the defendant's treating psychologist had informed her that the defendant had been asked to reflect upon his participation in the programme. He was said to be able to recognise early warning signs so as to take responsibility for his behaviour.

28. [28]

    A further factor which the court must take into account is any compliance with parole obligations under s. 9(3)(f). The defendant has not been released on parole in respect of the index offence. However as the plaintiff has pointed out, there is evidence before me which would suggest that the defendant's response to parole on previous occasions has been poor. In particular, there is evidence that the defendant has repeatedly failed to engage in programmes which were directed towards addressing issues of violence and alcohol abuse.

29. [29]

    I turn to the defendant's criminal history which is also a relevant consideration: s. 9(3)(h). The defendant was convicted of the index offence following a trial. Following his conviction, he appealed to the Court of Criminal Appeal: Prince v R [2013] NSWCCA 274. The facts of the offending were set out commencing at [19]:

30. [30]

    The defendant has, on any view of it, an otherwise lengthy criminal history. The facts in relation to the vast majority of those offences in that history are before me. I do not propose, in the circumstances, to detail each and every entry in that criminal history. However, there are some matters which, in my view, are worthy of comment.

31. [31]

    On 1 July 2009 the defendant was at the home of his brother. The defendant was overheard using derogatory terms towards his mother. He was asked to leave. He was overheard saying that he was going to find his brother and assault him. He then approached his brother and began throwing punches. He pulled a branch from a nearby tree and commenced assaulting his brother with it. His other brother attempted to intervene. When he did so, the defendant hit him with the branch and then punched him. The police were contacted. The defendant was charged with offences of common assault, destroying property, and contravening an Apprehended Violence Order. He was convicted and sentenced to a term of imprisonment.

32. [32]

    On 27 March 2008 the defendant was charged with an assault on his then partner. He had accused her of being "a slut" and threw a brush at her which hit her beneath the left eye, causing her nose to bleed and necessitating a visit to hospital.

33. [33]

    On 3 March 2007 the defendant was charged in relation to events which occurred on 26 December 2006 when he followed his then partner into her bedroom and verbally abused her. His partner became fearful and approached a neighbour's house with her children. The defendant followed her and grabbed her phone, causing cuts to her left and right-hand fingers. An interim Apprehended Violence Order had been imposed on the defendant approximately three months beforehand for the protection of his partner.

34. [34]

    On 8 March 2005 the defendant was issued with an interim Apprehended Violence Order prohibiting him from intimidating his then partner. On the following day police were called by his partner who was seen to have a bruised and swollen right eye. She told police that she had been sitting in the back seat of a motor vehicle with the defendant who had lashed out at her for no apparent reason and hit her in the face. The defendant was sentenced to a term of imprisonment.

35. [35]

    On 17 December 2003 the defendant was driving a car in which his then partner and two daughters were passengers. He stopped the car and tried to get something from the rear seat. He became angry when he thought his daughter was trying to stop him doing so. He verbally abused his partner. An altercation ensued. One week later he threw a bottle of water at his partner. When police attended, he said to them words to the effect:

36. [36]

    He was charged with a number of offences, including common assault, intimidating a police officer in the course of his duties, and contravening an Apprehended Violence Order and was sentenced to a term of imprisonment.

37. [37]

    There was a further incident on 3 May 2002 in which the defendant assaulted his then partner, who was four months pregnant at the time.

38. [38]

    On 26 May 1996 he punched his then partner in the face and kicked her in the right and left shins, causing her to fall to the floor. These actions were accompanied by verbal threats, including a threat to kill her. He was again sentenced to a term of imprisonment.

39. [39]

    On 7 November 1995 the defendant became embroiled in an argument with his sister's husband. He picked up a length of iron rod and threw it in his direction. Whilst it missed, it struck the wall and caused a large hole. His sister’s husband ran away. The defendant caught him, picked him up and threw him to the ground twice saying:

40. [40]

    The defendant was charged with assault and malicious damage to property. He was placed on a good behaviour bond, and fined.

41. [41]

    There was a further incident on 28 December 1993 when the defendant and his then partner and three children were at the house of his mother. On that occasion, for no apparent reason, the defendant punched his partner in the back of the head saying:

42. [42]

    He then punched and kicked her. She fled into her bedroom. He grabbed her by the hair and dragged her from that room back to the lounge room, where he assaulted her again. When she went outside, he commenced to throw objects at her and demanded that she come back into the house. He was sentenced to a term of imprisonment.

43. [43]

    Those entries in the defendant’s criminal history will give some indication of the nature of past offending in which he has engaged in the past. That history demonstrates a consistent pattern of violent offending from his first appearance before an adult court in 1985. Moreover, and although it is not a characteristic of each and every instance of his offending, there have been a number of cases in which the defendant has resorted to the use of weapons to assault other people.

44. [44]

    I am also mindful of the remarks of the sentencing judge, Judge King SC of the District Court and also those of Schmidt J in the Court of Criminal Appeal, which is a relevant factor to be taken into account pursuant to s. 9(3)(h1).

45. [45]

    Those of King DCJ were as follows:

46. [46]

    Those of Schmidt J included the following:

47. [47]

    Finally, I must have regard to any other information as to the risk posed by the defendant: s. 9(3)(i). In that regard, the plaintiff points to a recent incident in custody in which the defendant was said to have waved his fist at another inmate, as a consequence of which there was an allegation of assault. That does form part of the evidence, although it must be said that this incident is very much at the lower end of the scale of seriousness.

48. [48]

    In written submissions, counsel for the plaintiff submitted that there was a strong basis for the making of an extended supervision order having regard to a number of factors.

49. [49]

    Firstly, counsel pointed to the expert opinion of Mr Parker that the defendant presented a high risk of violent recidivism.

50. [50]

    Secondly, counsel submitted that the defendant's violent offending in the past had been persistent and had, on occasions, involved the use of weapons.

51. [51]

    Thirdly, it was submitted that the fact that the defendant had not been granted parole meant that he will reach the end of his sentence without any supervision. This, it was submitted, was significant in light of the remarks of King DCJ and Schmidt J to which I have referred, particularly regarding the need for ongoing supervision. Paraphrasing what was said, it was the submission of counsel for the plaintiff that the remarks in each case supported a conclusion that the defendant required a high degree of supervision, co-ordinated support, and comprehensive intervention if he was to make a meaningful transition into the community.

52. [52]

    Fourthly, it was submitted that on the evidence, the defendant's issues of substance abuse were unresolved, and that an extended supervision order would moderate that behaviour.

53. [53]

    Finally, it was submitted that the defendant's anger management issues were also related to his risk of re-offending and required supervision. It was submitted that an extended supervision order may provide for mandatory community-based psychological treatment, and the development of a structured and productive personal routine.

54. [54]

    In oral submissions, counsel for the plaintiff made further reference to the defendant's criminal history. She submitted, with some emphasis, that such history disclosed a pattern which, coupled with the instances in which the defendant had used weapons to assault other persons, demonstrated that his violence could escalate quickly, to the point where he could inflict serious bodily injury on another person.

55. [55]

    Counsel further submitted that the decision reached by the Court of Criminal Appeal that the Crown had not proved that the defendant had actually wielded the weapon which inflicted the injury on the victim in the index offence should not obscure the facts which were actually found. It was submitted that it was evident that the defendant had made threats only a few days before the commission of the index offence, and that there was evidence from various witnesses who saw a number of people in the group (of which the defendant was a member) carrying weapons. It was also pointed out that on any view of the evidence, the defendant was present when the wound was inflicted.

56. [56]

    It was further submitted that the observations of Schmidt J provided "conspicuous support" for the making of the orders which had been sought. Counsel for the plaintiff also emphasised the circumstances which saw the cessation of the defendant's participation in the VOTP. Counsel also made reference to what was said to be his poor history of compliance with parole in the past.

57. [57]

    Counsel for the defendant emphasised that one purpose of the preliminary hearing procedure is to allow the court to filter out unmeritorious applications at an early stage. Whilst not specifically put, the essence of the submission advanced by counsel was that the present application fell into such a category. It was submitted that the critical issue for determination was not whether the defendant was a high risk offender, but more specifically whether he posed an unacceptable risk of committing a serious violence offence if he were not supervised. In this regard, counsel submitted that the words "unacceptable risk" should be given their ordinary meaning within the context of the objects of the Act.

58. [58]

    The principal submission advanced by counsel for the defendant was that despite a relatively large number of occasions on which the defendant had been involved in violent conduct, there was only one which involved serious violence, namely the index offence. It was emphasised that there was evidence that the defendant appeared motivated to complete the VOTP and had been responsive to feedback, as a consequence of which he had agreed to revise his strategies to assist in remaining focused on the tasks which the course presented. In addition to the evidence of satisfactory group participation, counsel for the defendant submitted that there was no evidence of any recent issue of concern noted by any member of staff of the VOTP. He also pointed out that the defendant had undertaken anti-addiction programmes and that urinalysis tests which had been returned were negative.

59. [59]

    To the extent that the plaintiff relied upon the views expressed by the Court of Criminal Appeal regarding the risk of further offending, counsel for the defendant submitted that those views should be read in the context of the Court contemplating the defendant’s release to parole. It was submitted, in effect, that those circumstances had now changed, that the defendant had not been released on parole, and that I was now required to deal with the threshold test under the Act. It was submitted, in particular, that the fact that supervision may be beneficial is not determinative of the evaluative assessment that I am required to make. It was submitted that the factors in s. 9(3) of the Act were particularly concerned with, and directed to, ensuring as far as possible that a defendant would not be released from custody without appropriate and adequate supervision.

60. [60]

    Counsel for the defendant also referred, at some length, to the decision in Pacey (to which I have already referred) together with a more recent decision of State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367, a decision of N Adams J. Counsel took me, in particular, to the observations of the Harrison J in Pacey (at [53]) that the safety of the community must be assessed in the context of the assessment of the defined risk. In oral submissions, counsel sought to draw a number of comparisons between the circumstances in Wilson and those in the present case. He took a similar approach with respect to the circumstances in Pacey. Having done so, he emphasised that the defendant, despite what had happened in the past, had remained involved in the VOTP and had been the subject of positive reports in relatively recent times.

61. [61]

    The effect of counsel's submissions was that although a pattern of behaviour was established by the offender's record, it was not, in all of the circumstances, sufficient (in combination with the various others matters to which I have referred) to satisfy me to the requisite standard that the order sought should be made. In advancing that submission it should be emphasised that counsel did not suggest that I should completely ignore that past criminal history in terms of the assessment that I am required to make.

62. [62]

    Harrison J pointed out in Pacey (at [42]) that the operative words of ss. 5E(1) and (2) of the Act require that the defendant be made the subject of an extended supervision order if and only if I am satisfied that he poses an unacceptable risk of committing a serious violent offence if not kept under supervision. As his Honour pointed out, that necessarily involves conducting a balancing exercise in which the court must take into account all of the positive and negative material in the evidence, based upon the assumption that it can be ultimately proved.

63. [63]

    It is relevant, in carrying out the balancing exercise, to bear in mind that a fundamental objective of the legislation is the protection of the public and the safety of the community: Attorney General for New South Wales v Gallagher [2006] NSWSC 340 at [21]; Attorney General for New South Wales v Quinn [2007] NSWSC 873 at [19]. Based upon the material before me to which I have referred, I am satisfied that the matters alleged would, if proved, justify the making of an extended supervision order. That being the case, I must make the order appointing two psychiatrists to examine the defendant and to prepare reports for the court's assistance. I have reached that conclusion for a number of reasons.

64. [64]

    Firstly, whilst I accept that the index offence represents the only instance of serious violent offending on the defendant's record, it was an obviously serious offence, and was described by the Court of Criminal Appeal as being pre-meditated. Moreover, and as I have outlined, it came against the background of a long history of violent offending. That history included instances in which the defendant had been convicted of violent offending which involved the use of various objects as weapons. In dealing with that history it is relevant to bear in mind that the definition of “serious violent offence” is a broad one. It is not confined to, for example, the intentional infliction of grievous bodily harm: see State of New South Wales v Lynn [2013] NSWSC 1147.

65. [65]

    Secondly, the psychological assessment of Mr Parker identifies a number of specific risk factors. His opinion points very much in favour of the conclusion that the defendant remains at a high risk of further violent offending.

66. [66]

    Thirdly, the historical psychological assessments point in the same direction. Ms Nasr, as long ago as 2012, made reference to the defendant's then need for a high level of supervision.

67. [67]

    Fourthly, I accept that the defendant has taken some steps towards rehabilitation. However, it remains the case that whilst participating in the VOTP, he was suspended on account of acts of violence, both of which he was the instigator.

68. [68]

    Fifthly, I take into account that the Court of Criminal Appeal specifically identified the need for extended supervision once the defendant had completed his sentence, making specific reference to his issues with anger management and violence. Whilst I accept that those observations may have been made in the context which counsel for the defendant suggested, that does not lead to a conclusion that they are any less apt, or deserving of any less weight.

69. [69]

    As I have noted, I was addressed at some length in respect of the decision of Harrison J in Pacey. In that case his Honour dismissed an application for an order pursuant to s. 7(4) of the Act. It was not suggested that I was bound by that decision. However, the effect of the submissions put was that there were a number of factual similarities between that case and the present case, and that in the circumstances, I should reach the same conclusion as Harrison J. A similar approach, generally speaking, was taken to the submissions made by reference to the more recent judgment of N Adams J in Wilson.

70. [70]

    It is trite to say that each case must be determined on its own facts. An approach which involves seeking to draw factual comparisons between one case and another in support of the proposition that the same result should ensue, has obvious limitations. It also carries with it the danger of erroneously seeking to elevate findings of fact into propositions of law.

71. [71]

    As far as the decision in Pacey is concerned, there are a number of factual distinctions which can be drawn. The psychological assessment in that case dealing with risk made reference to that offender falling toward the lower end of the high risk category of offending. The principal psychological opinion in the present case puts the defendant at a high risk. Harrison J further found that violence which is not at the serious end of the spectrum neither amounts to a serious violent offence, nor provides reliable predictive assistance with respect to future violent conduct. His Honour's observations must obviously be viewed as having been made in the context of dealing with the particular evidence which was before him. Whether a history of violence provides reliable predictive assistance of the kind to which his Honour referred will necessarily depend on the facts of the case. As I have observed on a number of occasions in the course of these reasons, the defendant's previous violent offending is extensive, and has included occasions when he has resorted to the use of weapons.

72. [72]

    Harrison J also found that the defendant in Pacey demonstrated a genuine desire to reform. Whilst there is, in the present case, some indication of such a desire, I am not able to reach such an affirmative conclusion, given the defendant's lengthy criminal history and the more recent circumstances surrounding his suspension from participating in the VOTP. Notwithstanding recent positive reports, being excluded from a programme directed toward rehabilitation from violent offending on account of two instances of violence, could be seen as the antithesis of demonstrating a genuine desire to reform.

73. [73]

    Finally, in terms of the comparisons sought to be drawn between the facts of the present case and those in Wilson, I simply make the observation that the offending in Wilson was properly regarded as historical. That is certainly not the case in the present instance.

ORDERS

1. [74]

   Accordingly, I make the following orders:

   1. (1)

      Pursuant to s. 7(4) of the Crimes (High Risk Offenders) Act 2006:

   2. (2)

      The Plaintiff’s Summons is listed for final hearing at 10am on 11 December 2017, with an estimate of 1 day.

   3. (3)

      The Plaintiff is to file and serve any evidence on which it relies for the final hearing by 5:00pm on 22 November 2017.

   4. (4)

      The Defendant is to file and serve any evidence on which he relies for the final hearing by 5:00pm on 27 November 2017.

   5. (5)

      The Plaintiff is to file and serve written submissions on which it relies for the final hearing by 5.00pm on 29 November 2017.

   6. (6)

      The Defendant is to file and serve written submissions on which he relies for the final hearing by 5.00pm on ­­­­­­6 December 2017.

   7. (7)

      The Defendant is to advise the Plaintiff which experts are required to attend court to give evidence at the final hearing by no later than 7 days before the hearing.

   8. (8)

      Pursuant to s. 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) an order directing the Commissioner of Corrective Services to cause the Defendant to be produced at the court for the final hearing, unless the court otherwise orders.

   9. (9)

      Liberty to relist the matter on 24 hours’ notice.