State of New South Wales v Coffey

1. [1]

   By summons filed on 16 September 2025, the plaintiff, the State of New South Wales, sought the following interim and interlocutory relief:

   1. (1)

      An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act):

   2. (2)

      An order:

2. [2]

   In support of the relief sought in the summons, the plaintiff filed an affidavit of Jack Clifford affirmed on 16 September 2025, and affidavits of Luke Sampson affirmed on 13 November 2025 and 2 December 2025.

3. [3]

   The orders were opposed by the defendant.

4. [4]

   On 17 December 2025, I ordered that the summons be dismissed with costs. Below are my reasons for making that order.

Background

1. [5]

   The defendant, Joseph Coffey, is a 34-year-old Aboriginal man. He has an extensive criminal history dating back to matters in the Children’s Court in 2006. His first appearance in an adult court was in the Bourke Local Court in 2010 where he was convicted of being in possession of goods suspected of being stolen and was sentenced to a term of imprisonment of four months. Subsequently, he has been convicted and sentenced to terms of imprisonment for other offences.

2. [6]

   On 24 April 2023, the defendant assaulted his former intimate partner, with whom he has children. That assault involved the defendant using an object variously described as a broomstick or a mop, partly made of metal. The assault caused the victim significant injuries including a fracture to her right hand, which required surgical fixation with pins and plates, and a cut to her right hand.

3. [7]

   As a result of that conduct, the defendant was convicted of recklessly causing grievous bodily harm contrary to s 35(2) of the Crimes Act 1900 (NSW) (Crimes Act). Because at the time of the assault, an apprehended domestic violence order was in place listing Mr Coffey as the defendant and the victim as the person in need of protection, he was also convicted of an offence of contravening a prohibition or restriction in an apprehended violence order. He was sentenced in the Brewarrina Local Court on 19 July 2023 to an aggregate sentence of three years and six months imprisonment commencing on 18 May 2023 and concluding on 17 December 2026.

4. [8]

   On appeal to the District Court at Dubbo, the defendant’s convictions were confirmed and the sentences were varied to an aggregate term of two years and eight months imprisonment commencing on 17 May 2023 and concluding on 16 January 2026, with a non-parole period of 20 months commencing on 17 May 2023 and concluding on 16 January 2025.

5. [9]

   Since those convictions, the defendant has been convicted and sentenced in relation to other offending. The most recent of his sentences expired on 16 January 2026.

The statutory framework

1. [10]

   The issues that I am required to determine are a function of the following provisions of the Act:

2. [11]

   It was the common position of the parties that the statutory preconditions in s 5B(a), (b) and (c) and s 6 for the making of an order were all satisfied and that the only issue to be determined was whether the Court was satisfied “to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under order”, as is required by s 5B(d) of the Act.

3. [12]

   The defendant has previously been convicted of a “serious violence offence”, namely recklessly inflicting grievous bodily harm contrary to s 35(2) of the Crimes Act, and was sentenced to a term of imprisonment for that offending. As at the date the summons was filed, the defendant was in custody serving an aggregate sentence of imprisonment for offences including the index offence and accordingly was a “supervised offender” within the meaning of s 5I(2)(a)(i) of the Act. This application, commenced by summons filed on 16 September 2025, was made within the last nine months of the defendant’s sentence of imprisonment which expired on 16 January 2026. Accordingly, the condition in s 6(1) is satisfied.

4. [13]

   In those circumstances, I am satisfied that the statutory preconditions have all been satisfied and that the concessions made by the parties in that regard were correctly made.

5. [14]

   The proceedings before me are a preliminary hearing: s 7(3). Having regard to the way in which the matter has been conducted, for the purposes of this preliminary hearing, the only issue that I am required to determine is whether the defendant is a high risk offender. Before a finding to that effect can be made, I must be satisfied to a high degree of probability that he poses an unacceptable risk of committing a serious violence offence if not kept under supervision: s 5B(d).

6. [15]

   Johnson J described the task of the Court and its purpose at the preliminary hearing stage in State of New South Wales v Manners [2008] NSWSC 1242 at [8]-[9]:

7. [16]

   Consequently, the threshold question for the Court when dealing with an application for interim orders at a preliminary hearing is to be resolved without weighing the documentation, predicting the ultimate result or considering what evidence the defendant might call at a final hearing.

8. [17]

   The Court, however, is to take into account the fundamental objective of the legislation which is to protect the public and the safety of the community: Attorney-General for New South Wales v Gallagher [2006] NSWSC 340 at [21] and Attorney-General for the State of New South Wales v Quinn [2007] NSWSC 873 at [10]. It is also appropriate for the Court to give weight to the issue of risk avoidance: Attorney-General for the State of New South Wales v Winters [2007] NSWSC 611 at [7].

9. [18]

   In accordance with s 10A(b) of the Act, the Court must be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order (ESO). Accordingly, although this was a preliminary hearing, it is necessary to evaluate whether the supporting material is sufficient to justify the making of an ESO, pursuant to the relevant statutory test.

10. [19]

    The power to make an ESO pursuant to s 5B is discretionary. In determining unacceptable risk, the Court is guided by the objects of the Act set out in s 3 and matters set out in s 9.

11. [20]

    Section 3(1) provides that the primary object of the Act 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. Section 3(2) provides that another object of the Act is to encourage high risk violent offenders to undertake rehabilitation. In determining whether or not to make an ESO, the safety of the community must be the paramount consideration, as dictated by s 9(2).

Principles derived from case law

1. [21]

   The test in s 5B(d) requires the exercise of a discretionary judgment: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Lynn) at [82]. The objects of the Act must be held in mind when undertaking this evaluative task: Lynn at [55].

2. [22]

   The Court must be satisfied that the existence of an unacceptable risk is higher than the civil standard of proof and is “beyond more probably than not”: Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 at [21]. An “unacceptable risk” has been held to be one that is not tolerable or far from normal expectations or required standards: Lynn at [50]-[51].

3. [23]

   The right of an offender to their personal liberty after serving a term of imprisonment is not a relevant consideration in this evaluative task: Lynn at [44] and [55]-[58].

4. [24]

   The nature of the risk is to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability has been held to depend upon those matters, together with a comparison of what may be described as the background level of risk to the community: Lynn at [126].

The evidence

1. [25]

   The defendant has a long history of violent offending, much of which was directed at his former intimate partner who was the victim of the index offending on 24 April 2023. However, that is the only occasion on which he has been convicted of serious violent offending. His criminal history, although extensive and with numerous references to domestic violence, does not otherwise extend to any other offences of serious violence as defined in s 5A of the Act. Offences of the kind contemplated by s 5A are offences causing death or grievous bodily harm, whether intentionally or recklessly, intentionally choking a person so as to render them unconscious, or offences of attempting, inciting or conspiring to commit any of those types of offences.

2. [26]

   The evidence does not establish a proper basis to conclude that the defendant presents an unacceptable risk of committing a serious violence offence or an unacceptable risk of inciting or conspiring to commit a serious violent offence. His criminal history and the circumstances in which he committed prior offences establish the contrary. His violent conduct is spontaneous and unplanned. He has no history which would give any indication of a risk of causing another person’s death or intentionally choking another person. The single instance of committing a serious violence offence is the index offending of causing grievous bodily harm to the victim on 24 April 2023.

3. [27]

   It is not to the point that the defendant may pose a high risk of committing further offences upon his release. Although his criminal history shows a pattern of violence, particularly committed in a domestic setting, the history does not establish a pattern of committing serious violence offences.

4. [28]

   In a risk assessment report dated 21 February 2025, the author concedes that it is not scientifically possible to accurately predict whether or not an individual offender will reoffend. The assessment relied on the use of actuarial tools to assess risk, with the author conceding that such tools have only moderate predictive accuracy. The application of each of those actuarial tools resulted in an assessment of the defendant as being at a high risk of further violent offending. However, the report gives no assessment of the defendant’s risk of committing a further serious violence offence. The report notes that the defendant’s history of violent offending shows a pattern of unplanned and chaotic offending, and the author of the report opines that the level of harm caused by the defendant’s violence is more a factor of circumstance rather than any considered level of planning, intention or retribution.

5. [29]

   Relevantly, the author of the risk assessment report is of the opinion that, although the defendant’s pattern of previous violence is unplanned and reactive, any future violent offending would most likely “fall short of a serious offence”. The highest the author puts it is that the level of any future violence could escalate to that level.

6. [30]

   In a risk management report dated 28 March 2025, the defendant is described as displaying a poor response towards community-based orders. The report refers to previous breach action due to his non-compliance. Overall, his response to supervision is described as unsatisfactory, with continued reoffending and failures to engage in intervention or attend programs. The author of the risk management report recommends various conditions in the event that an ESO is made.

Other matters relevant to the making of an extended supervision order

1. [31]

   The Court must consider the factors set out in s 9(3) of the Act in determining whether the matters alleged would, if proved, justify the making of an ESO. I will address important aspects of the evidence by reference to the pertinent factors set out in s 9(3). Having already referred to the risk assessment report and the risk management report, I will deal with other matters relevant to the assessment under the statutory provision.

2. [32]

   In a report dated 5 February 2015, Dr Gordon Elliott, consultant psychiatrist with Justice Health, noted that a previous psychiatrist had formed an initial assessment and provisional diagnoses of possible schizoaffective disorder and psychotic depression. Dr Elliott formed the view that the defendant did not present as suffering from any chronic psychotic illness. Dr Elliott formed the view that the defendant’s history was inconsistent with chronic psychotic illness.

3. [33]

   While Dr Elliot noted the defendant’s multiple and severe substance use disorders, particularly relating to alcohol, cannabis and methamphetamines, and noted a suggestion of behavioural problems in his childhood and adolescence, Dr Elliott was of the opinion that the defendant did not have symptoms characteristic of psychotic illness such as schizophrenia or schizoaffective disorder.

4. [34]

   The ultimate opinion expressed by Dr Elliott was that the defendant had severe substance use disorders, required to be assertively addressed. He noted that the defendant’s prognosis was poor and that his risk of recidivism was high unless he achieved abstinence.

5. [35]

   The risk management report notes that the defendant first came to the attention of Community Corrections in 2010, and that records indicate that his response towards community-based orders has been poor with breach action arising from non-compliance. The report also notes that when he was released on 14 February 2025, he was directed to report to Brewarrina Reporting Centre on 18 February 2025 but failed to do so. Since that failure, he was contacted by way of a field visit to his residence on 25 February 2025 and has since reported on time.

6. [36]

   A further failure to report is noted in the risk management report in relation to arrest warrants issued in May 2023 for the index offence. The report also notes that the index offence of recklessly causing grievous bodily harm was perpetrated while he was subject to another period of supervision.

7. [37]

   The defendant’s willingness to complete offence-based programs in custody is noted as having “fluctuated”. He successfully completed EQUIPS Foundation, Aggression, Addiction and Domestic and Family Violence (DFV) programs in October 2022. He also successfully completed EQUIPS Foundation and Addiction in July 2024, although the report notes that the defendant refused to complete the remaining identified programs, namely EQUIPS Aggression and DFV.

8. [38]

   When asked if he was willing to undertake interventions and programs in the community, the defendant indicated that at the time of the preparation of the risk management report he was too distraught to consider his involvement in such programs, citing the recent death of a family member. However, the defendant stated that he felt that given time, he would be open to community-based interventions of that type in the future.

9. [39]

   The defendant also completed CONNECT in June 2024. That program is designed to develop an offender’s ability to overcome adversity and adapt to changes faced in everyday life.

10. [40]

    The defendant also completed the driver knowledge test on 21 November 2024. He commenced a vocational course in construction whilst in custody but did not complete that course, having withdrawn due to trauma arising from the death of a family member at the time.

11. [41]

    The report also notes that whilst incarcerated, the defendant applied himself to his work as a modular housing engineer, remained compliant with work routine and showed an improved response and attitude to employment.

12. [42]

    The defendant has a poor record of compliance with supervision in the community.

13. [43]

    The risk assessment report notes that his response to community supervision has been “generally superficial”. Although he is generally polite, he does not engage deeply in discussions about change.

14. [44]

    The risk management report notes that his response to past supervision has been “unsatisfactory” due to continued reoffending and failure to engage with interventions.

15. [45]

    The plaintiff submitted that the defendant’s record establishes a poor response to bail supervision, referring to breaches of bail in October 2017, January 2018 and February 2021. The plaintiff also pointed to the defendant receiving warnings for breach of bail in November 2017 and January 2018.

16. [46]

    In addition, the defendant has a history of parole revocation. His breaches of parole arose in October 2015 as a result of a failure to report to a parole officer, in January 2017, again for a failure to report, and in December 2019 as a result of being charged with further offences. A community correction order was called up in July 2020 as a result of the defendant being convicted of other charges, and an intensive correction order was revoked in January 2021 as a result of the defendant committing further offences and failing to report to Community Corrections. His parole was again revoked in March 2022 upon him being charged with further offences, in May 2023 upon being charged with the index offences and in May 2025 upon being charged with a further offence and due to failures to report.

17. [47]

    That history establishes that the defendant has a poor record of compliance with Court orders. However, his past breaches of bail conditions, although relevant generally to compliance, are not of great assistance because bail does not involve supervision in the community. Such breaches do not assist the Court in assessing the risk of the defendant committing a serious violence offence.

18. [48]

    Additionally, the defendant’s history, in particular the frequency with which he has reoffended, has resulted in him spending only limited periods in the community. The author of the risk assessment report notes that since the offender turned 18 years of age, he has been returned to custody on 13 separate occasions. As a result, the defendant has not had an adequate opportunity to establish a record of compliance with community supports.

19. [49]

    Reference has already been made to the defendant’s extensive criminal history. That history commenced in 2006 for offending that was dealt with in the juvenile justice system and extends, over some 46 pages, to offending in adult courts in 2023.

20. [50]

    The defendant’s prior offending can generally be described as falling into driving offences, minor drug offences, breaking, entering and stealing offences and domestic violence related offences. To the extent that his criminal history displays a recognisable pattern, the pattern does not disclose any prior offending for serious violence offences; the only instance of serious violence offending is the index offence committed in April 2023. Generally, the pattern that the criminal history reveals is a pattern of domestic violence offences, which fall short of the definition of serious violence offending in the Act.

21. [51]

    When sentenced in the Brewarrina Local Court on 19 July 2023, the presiding magistrate took into account that the defendant entered pleas of guilty and was entitled to the maximum permissible discount arising from those pleas. The magistrate noted that the defendant’s lawyers had conceded that the s 5 threshold had been crossed and that no penalty other than a term of full-time imprisonment was appropriate in the circumstances. It was held that an intensive correction order would not address the need for community safety nor the risk that the defendant would reoffend in a way that would impact on the safety of the community or the victim. The fact that the defendant and the victim were in one another’s company and consuming illicit substances together in the circumstances leading up to the offending was taken into account, as was the aggravating factor that the defendant was subject to parole at the time of the commission of the offending. The magistrate then took into account the serious nature of the injury occasioned by the assault, namely a fracture of the victim’s hand which required surgery. The fact that the offence was committed in the victim’s own home was also taken into account.

22. [52]

    The magistrate noted that the defendant had shown a complete disregard for the provisions of the apprehended domestic violence orders and that the defendant’s long criminal history displayed a pattern of violent offending directed towards the same victim. The defendant’s polysubstance abuse disorder and history of depression, as well as notes contained in the Justice Health material of a possible schizoaffective disorder, were also taken into account. The defendant’s intoxication through use of a combination of alcohol, cannabis and methylamphetamines at the time of the commission of the offences was taken into account as a contributing factor. The magistrate made detailed reference to the defendant’s disadvantaged upbringing and applied the factors in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 and R v Fernando [2002] NSWCCA 28 in assessing moral culpability.

23. [53]

    On 26 October 2023, on appeal to the District Court, her Honour Judge Robinson considered that each of the offences crossed the s 5 threshold. Her Honour recognised that the offender repeatedly committed offences directed at the same victim and noted the need to recognise the impact on that victim and give recognition to the human dignity of the victim in any sentence. Her Honour accepted that, based on the strong subjective material tendered by the defendant, there was a basis for finding reduced moral culpability. Her Honour noted that the defendant expressed positive insight and appeared to have stabilised whilst held in custody. She noted that he was then compliant with medication.

24. [54]

    The defendant’s long criminal history and the views expressed by the sentencing and appellate courts strongly support the view that he poses a risk of committing violent offences. However, that material does not establish a proper basis for establishing that he poses an unacceptable risk of committing a serious violence offence as defined in the Act. The plaintiff submitted that the frequency of past offending suggests a high likelihood that the defendant will commit a further violent offence “of some sort”. However, that is not the test.

25. [55]

    Although the criminal history and the fact sheets relevant to some of the prior offences establish offences of violence and the use of weapons, including golf clubs and baseball bats, in none of those prior circumstances (leaving aside the index offence) has the defendant used violence or weapons to commit a serious violence offence. On each of those prior occasions, his conduct has fallen short of the statutory standard. Similarly, although the defendant’s prior offending referenced in the statement of facts has often been accompanied by significant verbal threats, including threats to kill, in none of the prior offending has the defendant acted on those threats.

26. [56]

    It cannot be inferred from the defendant’s history that he poses an unacceptable risk of committing another serious violence offence if not kept under supervision.

Consideration

1. [57]

   As I have already indicated, the only issue in dispute between the parties is whether the Court should be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious violence offence if not kept under supervision under the order.

2. [58]

   The assessment of the unacceptability of any risk involves taking into account the likelihood that the risk will eventuate together with the consequences of the risk should it eventuate. As Harrison J (as his Honour then was) stated in State of New South Wales v Pacey [2015] NSWSC 1983 at [43]:

3. [59]

   The Act is not concerned with general reoffending or even violent reoffending that is not within the definition of a serious violence offence.

4. [60]

   Taking into account all of the evidence and the submissions of the parties, I am not satisfied to the high degree of probability required that the defendant poses an unacceptable risk of committing another serious violence offence if not kept under supervision.

5. [61]

   The defendant is 34 years of age. He has only once been convicted of a serious violence offence, despite his criminal history extending over a period of 17 years. The defendant has shown a capacity to engage in rehabilitative programs and a desire to work. The fact that he is displaying some improved engagement with programs and an expressed desire, although tentative, to engage with programs whilst in the community, and the fact that he has some protective factors operating in his favour, in the context that he has not committed any other serious violence offences apart from the index offence, in my view are significant considerations.

6. [62]

   The safety of the community, and in particular the defendant’s former intimate partner, is a matter of great importance both generally and in relation to the present application. However, offenders who do not meet the statutory test in s 5B(d) should not be made subject to supervision orders upon their release to parole simply because their release is associated with some risk.

7. [63]

   The defendant is at some risk of reoffending. However, the material that I have considered does not satisfy me to the high degree of probability required that he poses an unacceptable risk of committing another serious offence if not kept under supervision. Accordingly, I am not satisfied that there is a basis for making a supervision order under s 7(4) or s 10A of the Act.

Conclusions and orders

1. [64]

   I am not satisfied that the evidence tendered in support of the application would, if proved, justify the making of an extended supervision order. It follows that I am not required to make an order pursuant to s 7(4) or s 10A of the Act.

2. [65]

   For the above reasons, I made the following orders on 17 December 2025 dismissing the summons with costs.