Lynn v State of New South Wales

1. [1]

   BASTEN JA: I agree with Leeming JA.

2. [2]

   LEEMING JA: Mr Scott David Lynn appeals as of right pursuant to s 22 of the Crimes (High Risk Offenders) Act 2006 (NSW) from an order made by the primary judge (Ierace J) on 17 May 2019 imposing a continuing detention order for a period of 15 months (less than the 2 years for which the State had applied): State of New South Wales v Lynn (Final) [2019] NSWSC 580. Although represented by counsel before the primary judge, Mr Lynn conducted the appeal by himself, and in large measure the written submissions (which are voluminous) are in his own perfectly legible handwriting.

3. [3]

   Mr Lynn’s notice of appeal identifies four grounds:

   1. (1)

      “The Judge erred in imposing a Continuing Detention Order without a commencement date.

   2. (2)

      The Judge erred in taking into account a Criminal Record that contained errors.

   3. (3)

      The Judge incorrectly applied the legislation to my circumstances and criminal record.

   4. (4)

      The Judge erred in assessing the risk of the commission of a serious violence offence upon my release.”

4. [4]

   Mr Lynn’s written and oral submissions extended beyond those grounds. I have sought to address all substantial arguments which he advanced, an approach which mirrored that taken by Mr Emmett of counsel who appeared for the State in this Court although not before the primary judge.

5. [5]

   Mr Lynn also said that he had commenced proceedings in the High Court seeking to remove, pursuant to s 40 of the Judiciary Act 1903 (Cth), this appeal. Further, some of his written material refers to applications in the nature of quo warranto, certiorari and other constitutional writs. I understood Mr Lynn to say that he had only made that application on the day before the appeal was heard. There is nothing to suggest that the High Court has made any orders. Once again, I have sought to deal with the points which he makes as a matter of substance.

6. [6]

   The State’s application for continuing detention order was made by summons filed on 22 May 2018. One reason that date is significant is that the legislation was amended, extensively, by the Crimes (High Risk Offenders) Amendment Act 2017 (NSW), with effect from 7 December 2017.

7. [7]

   The power to make a continuing detention order is found in s 5C, which at all relevant times has provided:

8. [8]

   A “serious offence” is defined in s 4(1) to mean a “serious sex offence” or a “serious violence offence”. It is not submitted that Mr Lynn has ever committed a serious sex offence, but there is an issue whether Mr Lynn has served a sentence for imprisonment for a serious violence offence, so as to satisfy para (a). There may also have been some confusion as to whether, when the continuing detention order was made, Mr Lynn was a detained offender or a supervised offender, so as to satisfy para (b). Much of Mr Lynn’s appeal relates to the way in which the primary judge reached the state of satisfaction required by para (d).

The extended supervision order imposed in 2013

1. [9]

   Previously, Mr Lynn had been subject to an extended supervision order, from which he had appealed (this time represented by senior and junior counsel) in 2016: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57. That appeal was dismissed. The order had been made by Hidden J on 17 December 2013, for a period of 3 years: State of New South Wales v Lynn [2015] NSWSC 665. However, it remained in force for much longer than 3 years. Indeed, it remained in force until the continuing detention order was made in May 2019.

2. [10]

   That has come about because Mr Lynn has repeatedly been convicted of offences, including but not confined to breaches of the extended supervision order, for which he has been sentenced to terms of imprisonment. At all material times, subsections 10(1A) and (2) of the Act have provided:

3. [11]

   Thus, while an offender is in lawful custody, including when serving a sentence imposed for a conviction of an offence under the Act or any other law, then the offender’s obligations under the order cease, but time ceases to run for that period. However, upon the making of a continuing detention order, an extended supervision order “expires and ceases to have effect”: s 18D.

4. [12]

   The primary judge recorded at [10] that it was uncontroversial that the applicant had been dealt with by a court for breaching the extended supervision order at least 13 times since it was made. For example, just dealing with the three calendar years 2015, 2016 and 2017, he spent the following periods in prison: from 15 January 2015 – 6 July 2015, from 2 January 2016 until 22 March 2016, from 23 March – 6 June 2016, from 22 June 2016 – 21 March 2017, from 16 April 2017 – 21 June 2017, from 28 July 2017 – 27 August 2017 and from 30 November – 11 December 2017.

5. [13]

   I should note for completeness one minor point concerning that history. The chronology prepared by the State contains an entry for 4 February 2016 “Appellant charged with breach of ESO whilst in custody”. When an offender is in lawful custody, the obligations imposed by an extended supervision order are suspended (s 10(2)), with the result that the offender cannot commit the offence created by s 12 of the Act of failing to comply with the order. However, a review of the criminal record and fact sheets pertaining to H62954688 (which are found at Blue 1/329 and 2/730) confirm that Mr Lynn was charged on 4 February 2016, while in custody, with an offence based on a urine test conducted on 23 December 2016 – when he had been released from custody – which showed positive for methylamphetamine. Mr Lynn was in prison on 4 February serving a sentence of 11 weeks imprisonment imposed on 2 January for contraventions of the conditions of the extended supervision order between 25 December 2015 and 2 January 2016 (see the criminal record and fact sheets pertaining to H62646981 at Blue 1/328 and 2/710). These are the subject of one aspect of Mr Lynn’s submissions below, but for present purposes it is sufficient to note that at those times he had been released from custody.

Mr Lynn’s criminal record

1. [14]

   Mr Lynn has an extensive criminal record containing offences to property, drug possession and offences of violence. His first conviction was for an offence of break, enter and steal when he was aged 14. His first offence involving violence was in 1992, when aged 16, of assaulting police. His first drug offence was when aged 18, of possessing heroin. In the period prior to 2006, he was found guilty of numerous offences of common assault, assault occasioning actual bodily harm, resisting police, assaulting police officers, and minor property offences. In 2006 he was convicted of manslaughter, and sentenced to a term of imprisonment of 7 years with a non-parole period of 4½ years. Although he was released on parole, parole was revoked, and the extended supervision order was made in 2013 following the conclusion of his sentence. Since the making of that order in 2013 until the making of the continuing detention order by the primary judge, Mr Lynn’s most numerous offences have been contravening the terms of the extended supervision order, although consistently with Mr Lynn’s earlier history there have also been other offences of spontaneous violence.

2. [15]

   The hearing before the primary judge was conducted on the bases that:

   1. (1)

      the most recent sentence of imprisonment, a period of 18 months imposed by the Local Court on convictions of assault occasioning actual bodily harm, affray, and one count of failing to comply with the extended supervision order, would expire on 3 September 2019, with a non-parole period which had expired on 3 March 2019, and

   2. (2)

      the extended supervision order, originally made in 2013, would expire no earlier than August 2020.

Did Mr Lynn’s conviction for manslaughter amount to a serious violence offence?

1. [16]

   There is only power to make an extended supervision order or a continuing detention order if a person has committed a “serious violence offence”. The State contended that Mr Lynn had committed precisely one serious violence offence, when he pleaded guilty to manslaughter on the basis of excessive self-defence in 2008. Mr Lynn denied that he had committed any serious violence offences.

2. [17]

   It is convenient to deal with this immediately, because the point is a pure question of law, and if Mr Lynn is correct, then the appeal must be allowed.

3. [18]

   The primary judge did not address whether the manslaughter conviction was a serious violence offence, because no such point was taken before his Honour. Nor was any point taken in the earlier litigation, culminating in this Court’s decision in 2016. That said, the State made no submission precluding Mr Lynn from raising what would be, after all, a pure question of law on appeal, and with commendable frankness acknowledged that if the point was good, the appeal must be allowed.

4. [19]

   In 2006, while subject to a good behaviour bond, Mr Lynn was refused service at a hotel in Parramatta after extensive drinking, and then became involved in an altercation with the victim. An agreed statement of facts attributed to the victim the words, “I will kill you, motherfucker!”, to which Mr Lynn replied, “Not if I get you first”. Mr Lynn stabbed the deceased once, very quickly at the base of the neck above the collarbone. The victim died from blood loss from the stab wound, which had perforated a large vein above the heart and wounded his lung.

5. [20]

   Mr Lynn was charged with murder. In April 2008 a jury was unable to agree upon a verdict. Mr Lynn’s plea of guilty to manslaughter on the basis of excessive self-defence was accepted by the Crown, and he was sentenced on 7 November 2008 by the Supreme Court to a period of 7 years imprisonment with a non-parole period of 4½ years: R v Scott David Lynn [2008] NSWSC 1122. That judgment records that although the agreed facts did not identify the weapon which was used, the forensic pathologist who had conducted the post-mortem examination had concluded that Mr Lynn “must have used a narrow blade of some kind most likely a knife”: at [8]. Sentence was imposed on the basis that not only had Mr Lynn used a weapon but also that he was carrying one: at [19]. (I shall return below to the basis on which Mr Lynn was sentenced, in connection with Mr Lynn’s submissions that he had never been found guilty of any offence of violence involving a weapon, and had never been found guilty of possessing a dangerous item.)

6. [21]

   It will be recalled that the precondition to the power to make a continuing detention order in s 5C(a) is that the person is serving or has served a sentence of imprisonment for a serious offence, which includes a serious violence offence. The definition of serious violence offence is found in s 5A, as follows:

7. [22]

   It is clear from s 5A(2) that what matters are the elements of the offence which is said to constitute a serious violence offence.

8. [23]

   Mr Lynn submitted that he did not have an intent to kill or to inflict grievous bodily harm and thereby fell outside the definition in s 5A. Mr Lynn’s submission was that that his manslaughter conviction did not engage the power to make a continuing detention order under the Act. In written submissions he said:

9. [24]

   He put it thus in oral submissions:

10. [25]

    Mr Lynn’s submissions developing this point (especially in supplementary submissions provided at the hearing) relied upon materials which appear to have been based in part upon the Homicide Act 1957 (UK). The position in New South Wales concerning the defence of self-defence to a murder charge is different. Section 421 of the Crimes Act 1900 (NSW) provides:

11. [26]

    If s 421 is satisfied, the section operates to authorise and require a verdict of guilty to manslaughter where otherwise the person would have been guilty of murder.

12. [27]

    It is settled law that a guilty plea to manslaughter on the basis of excessive self-defence necessarily comprehends all of the elements of the offence of murder. In Lane v R [2013] NSWCCA 317; 241 A Crim R 321, the Court of Criminal Appeal (Bathurst CJ, Simpson and Adamson JJ) identified at [50] the crime of manslaughter:

13. [28]

    Similarly, in Grant v R [2014] NSWCCA 67, that Court made the same point in relation to a guilty plea to manslaughter on the basis of excessive self-defence at [66]:

14. [29]

    Manslaughter is a serious indictable offence. It is settled law that Mr Lynn’s plea amounted to an acceptance of all of the elements of murder. The offence of manslaughter to which he pleaded guilty was therefore a serious violence offence, sufficient to satisfy s 5C(a). Counsel appearing for Mr Lynn at first instance was correct to proceed on that basis, as was the earlier decision of this Court. Mr Lynn’s submission to the contrary in this Court must be rejected.

Reasons of the primary judge

1. [30]

   The primary judge conducted a hearing over two days, which included cross-examination of some of the lay evidence called by the State, and of the psychologists and psychiatrists who provided reports in accordance with the Act. Although orders were made for the compulsive examination of Mr Lynn, he refused to participate in that process, and thus the forensic reports of 12 and 25 March 2019 by Dr Furst and Dr Collins were prepared without the benefit of an examination. The primary judge summarised aspects of the earlier expert evidence at [17]-[20] as follows:

2. [31]

   The primary judge summarised the most recent reports, of Drs Furst and Collins, at [46]-[55]. Both doctors supported the making of a continuing detention order. The primary judge summarised the effect of the cross-examination of the witnesses at [72]:

3. [32]

   One important factual matter has been the involvement, or absence of involvement, in a violent offenders’ treatment program. There was qualified evidence that participation in such a program was associated with a reduced recidivism rate. The evidence included the following:

4. [33]

   There was also evidence that from time to time Mr Lynn has said he did not wish to participate in such a program “for a crime he didn’t commit”. Mr Lynn also submitted that, when he was released, he had participated in a series of rehabilitation courses and regularly attended consultations with a psychologist, and that his detention prevented him continuing doing so.

5. [34]

   The primary judge reproduced s 5C of the Act, identifying as the key provision s 5C(d) of the Act. He noted that by reason of s 5D the Court was not required to determine that the risk of the offender committing another serious offence if not kept under supervision was more likely than not. His Honour had regard to the paramount consideration, namely, the safety of the community, as mandated by s 17(2) of the Act: at [31]. The primary judge was conscious of the amendments to the Act, which among other things removed an express requirement to be satisfied that adequate supervision could not be provided by an extended supervision order before a continuing detention order was made: at [32]. His Honour was conscious that there was a discretion even if the prerequisites were satisfied: at [34].

6. [35]

   His Honour’s consideration was at [73]-[87]:

Commencement date (ground 1)

1. [36]

   The first ground of appeal is that the primary judge erred in imposing a continuing detention order without a commencement date. I would reject this ground.

2. [37]

   The Act makes special provision for the commencement of an order, in the following terms:

3. [38]

   The operation of that section has aspects which are counter-intuitive. At first blush, there appears to be a conflict between the commencement of a continuing detention order after “the offender’s current custody expires” in s 18(1)(a), and the suspension of an offender’s custody under a continuing detention order while the offender is in lawful custody under any other Act or law in s 18(2). The conflict is, however, only apparent. That is because “current custody” is a defined term for the purposes of Part 3 dealing with continuing detention orders. The definition is found in s 13B(2), a provision which simultaneously defines “detained offender” and “current custody”, and which was also considered by this Court in Turner v State of New South Wales [2019] NSWCA 164. Section 13B(1) and (2) provide as follows:

4. [39]

   The immediate relevance of the definition of “current custody” is that, in its application to Mr Lynn, it applied to the sentence of imprisonment imposed for his conviction for manslaughter and for offences under s 12, and for other sentences served concurrently or consecutively with those sentences. Mr Lynn’s sentence for manslaughter had been fully served by the time that the State made its application for a continuing detention order on 22 May 2018. On 30 April 2018, the District Court varied a sentence imposed by the Local Court by imposing a sentence of imprisonment of 4 months commencing 12 January and concluding 11 May 2018. On 4 June 2018, Mr Lynn was sentenced to a further term of imprisonment for assault occasioning actual bodily harm, affray, and breach of a supervision order. However, on the critical date, 22 May 2018, Mr Lynn was in custody but not because he was serving a sentence imposed for a serious offence or under s 12. He was bail refused on charges of hindering a police officer, assaulting a law officer and failing to comply with a condition of an extended supervision order (his trial on those charges was part-heard). It follows, somewhat counter-intuitively that Mr Lynn was not a “detained offender” when the State filed its application. The primary judge recorded that far from straightforward history at [10] of his reasons, noting that it was not the subject of challenge. Nor was it challenged in this Court.

5. [40]

   It follows that:

   1. (1)

      the continuing detention order made by the primary judge commenced on the day that it was made pursuant to s 18(1)(a),

   2. (2)

      because Mr Lynn was at the time in lawful custody other than serving a sentence of imprisonment imposed for convictions for offences listed in s 13B(2), his custody under the continuing detention order was suspended for some months pursuant to s 18(2), and

   3. (3)

      the suspension did not alter the continuing detention order’s expiry date, which continued to be 15 months after it was made.

6. [41]

   For those reasons, ground 1 of Mr Lynn’s appeal is not made out. However, it may be that the primary judge proceeded on the basis that the 15 month period would only commence to run after parole had been granted. Indeed, I think that is the more natural way to read his reasons. It is consistent with his Honour’s reference to the adjournment of the hearing before the State Parole Authority, and his statements that “I do not intend to encroach onto the jurisdiction of the State Parole Authority” and “a further period of custody from today of about 15 months would be, in my opinion, appropriate” (emphasis added): at [85].

7. [42]

   It may be that there was confusion between the different effects which being in lawful custody has upon an extended supervision order and a continuing detention order. As noted above, in the case of an extended supervision order, being in lawful custody suspends an extended supervision order, thereby “stopping the clock”. That is not the case with a continuing detention order.

8. [43]

   Mr Lynn’s continuing detention order commenced when it was made. The result may be that it will be a few days or weeks less than the primary judge had intended. It was not said that this gave rise to any appellable error.

9. [44]

   The same considerations make it clear that Mr Lynn was not, when the continuing detention order was made, a “detained offender”. He was instead a “supervised offender”, which is defined in s 13B(4) as follows:

10. [45]

    Mr Lynn fell within paragraph (b) of that definition. The obligations imposed by the extended supervision order made in 2013 were, in May 2019, suspended while he was in lawful custody serving a sentence of imprisonment for assault causing actual bodily harm. Accordingly, the precondition to the making of a continuing detention order in s 5C(b) was satisfied.

Alleged errors in the criminal record (ground 2)

1. [46]

   Many of Mr Lynn’s submissions were directed to what he described as errors in summary material which had been supplied to the expert psychologists and psychiatrists who gave opinions in this case, and also in the submissions made to the Court. The errors fell into a number of categories.

2. [47]

   First, there were some errors of detail in the material. For example, the experts were instructed, and the State made submissions at first instance, to the effect that Mr Lynn had been convicted of using weapons to avoid lawful apprehension in relation to his use of a shovel and screwdriver when in January 1999 he was apprehended for shoplifting. That was wrong. In fact, the conviction of using a weapon to avoid lawful apprehension related to a threat by him in February 2000, once again when apprehended shoplifting, to stab a security officer with a syringe. Nothing material turns on this.

3. [48]

   A different category of error, and one which occupied more of Mr Lynn’s submissions, was the reliance in the summaries provided to experts and in the submissions to the primary judge upon matters stated in police “Fact Sheets” which either were not charged, or else were the subject of charges which were dismissed. There is some force in Mr Lynn’s submission that the summary overstated the seriousness of the offending conduct. To take the example raised during oral submissions – which so far as I can see is the most serious instance in this category – the State’s submissions to the Court and the materials which were provided to the experts included the following statement:

4. [49]

   True it is that the police Fact Sheet stated that he had been seen by McDonald’s staff to go near a woman “and try and hit her with this chair”. However, he was never charged with assault, or any other offence, related to that attempt. He was charged with and convicted of a charge of resisting or hindering a police officer in the execution of duty and of destroying or damaging property worth no more than $2,000. The error is one of omission, in failing to disclose that Mr Lynn was not found guilty of all of the matters alleged in the Fact Sheet.

5. [50]

   There is a pattern in Mr Lynn’s offending of being charged with offences which are then withdrawn or dismissed when no evidence is proffered. For example, in 2005 charges of breaking and entering a building, assaulting police officers in the execution of their duty, destroying property, and entering inclosed lands were withdrawn. However, in the same year, he was convicted of two separate offences of assaulting an officer in the execution of duty, and common assault.

6. [51]

   Ultimately, I would not conclude that the errors to which Mr Lynn points have been shown to be material to any aspect of the litigation, for these reasons.

7. [52]

   First, during the hearing, objection was taken to the Fact Sheets in relation to offences which were not proven. However, counsel for Mr Lynn said he was content for the primary judge to note the objection and consider the material in that light. The primary judge indicated that he would proceed in that fashion. There is no reason to doubt that the judge was fully cognisant of the different evidentiary status of Fact Sheets where the offence was established and Fact Sheets where the charges were dismissed or withdrawn. Save in relation to the use of a knife, which I address below, Mr Lynn did not suggest that any aspect of his Honour’s reasons disclosed error in that regard.

8. [53]

   Secondly, Mr Lynn had an opportunity to meet with both experts (and indeed was subject to an order to do so). He did not do so. He also had an opportunity to cross-examine the experts, which was taken advantage of. So far as I can see, there was relatively extensive cross-examination, and to some effect, given the conclusion stated by the primary judge, and the order ultimately made (which was some nine months less than was sought by the State).

9. [54]

   Thirdly, in the scheme of Mr Lynn’s offending, which is extensive and falls into predictable patterns, I am unpersuaded that the matters to which he refers would materially alter the experts’ views. The experts’ views are based on an assessment of the background as a whole, rather than misdescriptions or omissions relating to details of the conduct.

Mr Lynn’s criminal record involving knives

1. [55]

   The primary judge referred to Mr Lynn’s criminal history including threats with a knife. His Honour commenced his statement of the background at [3] with the sentence “Thereafter his record was replete with multiple property, drug and violence offences, many involving him threatening others with a knife or similar implement that he was carrying on him, in the course of assaults.” Likewise, the risk of threatened and actual harm in the future based on Mr Lynn’s use of knives was an aspect of the expert opinion. But Mr Lynn strenuously contended that he had never been convicted of an offence of possessing a knife. For example, he said (Transcript, 18 November 2019, 13):

2. [56]

   Again, at 17:

3. [57]

   However, as was pointed out during the hearing, Mr Lynn’s submission is inconsistent with the criminal history, in relation to his convictions for (a) manslaughter, (b) the Kings Cross altercation itself and (c) another conviction involving a knife.

4. [58]

   First, the man whom Mr Lynn killed in 2006 died from a stab wound and Mr Lynn was sentenced on the basis that Mr Lynn had been carrying the weapon which inflicted the fatal wound. Mr Lynn’s point seems to have been that (as was noted in the judgment imposing sentence) the agreed facts did not state there had been a knife. That is not to the point. The sentencing judge found, presumably to the criminal standard, that he had been carrying a narrow blade most probably a knife.

5. [59]

   Secondly, the State’s submissions to the Court and materials supplied to experts included the following offending conduct in June 2003 in Kings Cross:

6. [60]

   Mr Lynn was found guilty of using an offensive weapon with intent to commit an indictable offence contrary to s 33B(1)(a) of the Crimes Act and given a bond on 2 June 2004. The Fact Sheet refers to Mr Lynn throwing a bottle into the front windscreen of a taxi outside a hotel in Kings Cross. The driver got out of the car, and Mr Lynn is recorded as saying “Get back in your fucking car and move on” repeatedly, following which Mr Lynn “drew a knife from the front area of his person, which was concealed by his shirt. The knife was approximately 30cm in length, with a dark coloured handle and silver or chrome coloured blade”. After another exchange, the Fact Sheet recorded that Mr Lynn picked up a glass bottle smashed it against a tree leaving jagged edges around the neck, and then “was holding the knife in one hand and the broken bottle in the other, pointing both at the victim”.

7. [61]

   The offensive weapon offence was, as Mr Lynn submitted, based on the bottle Mr Lynn threw at the windscreen of the vehicle. However, Mr Lynn also pleaded guilty to an offence of having custody of a knife in a public place, contrary to s 11C(1)(a) of the Summary Offences Act 1988 (NSW), which was taken into account on a “Form 1”, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

8. [62]

   When he was taken to this during his submissions, his response was “They've been marked wrong obviously because if you go down there it says offensive weapon to commit indictable offence withdrawn.”

9. [63]

   True it is that the criminal record also shows that charges of using an offensive weapon with intent to commit an indictable offence and having custody of an offensive implement in a public place were withdrawn, and charges of assaulting an officer in the execution of duty and resisting an officer in execution of duty were dismissed. But there is nothing to suggest that there was any error in relation to the way in which the charge concerning a knife had been dealt with on a Form 1. Mr Lynn did not provide evidence contradicting the record.

10. [64]

    Thirdly, on 13 September 2005, Mr Lynn was charged with one count of possessing an offensive weapon in a place of detention. This arose from a strip search on that day within Parklea Correction Centre during which a jail-made knife was found. The criminal record indicates that a fine was imposed.

11. [65]

    Contrary to Mr Lynn’s submission, he has repeatedly been convicted of offences of possessing a knife. He has also been convicting of killing a man using a blade. And he has been charged on further occasions of events of violence and threatened violence involving a knife (as well as other sharp objects). There is no error in the deployment of those primary facts by the experts or by the primary judge.

12. [66]

    One aspect of Mr Lynn’s written submissions, not elaborated orally, was a complaint that the criminal history reflects charges which have been entered with multiple dates of birth. He wrote:

13. [67]

    There was no objection at trial to the tender of the criminal record, despite Mr Lynn being represented. More substantively, nowhere in Mr Lynn’s voluminous submissions is a complaint made that the criminal record double counts the same offence. To a large extent, I have correlated the eight digit identification numbers on the criminal record to the New South Wales Police Fact Sheets in evidence which confirm the absence of any double counting. While there is a high level of repetition of the offences (relatively minor drug offences, assault, affray, resisting arrest and shoplifting), the fact sheets disclose different dates and places and circumstances of offending. True it is that Mr Lynn, by his written submissions, again not elaborated orally, refers to statements that have been made in various counts about the possibility that a criminal record is unreliable. Those statements were not in evidence, nor was any application made to tender them pursuant to s 75A of the Supreme Court Act 1970 (NSW).

Incorrect application of the legislation to Mr Lynn (ground 3)

1. [68]

   Mr Lynn claims that the case was insufficient to support the making of a continuing detention order.

2. [69]

   One aspect of this ground was a complaint about the conclusion reached by the primary judge at [58]:

3. [70]

   Part of this complaint was strongly expressed in submissions that the conclusion of the primary judge, and the evidence upon which it was based, exaggerated the position. I do not accept the submission. Mr Lynn did not give evidence. The judge’s conclusion was based upon the testimonial evidence for Mr Carden, who made a report based on the primary records of incidents involving Mr Lynn, and was cross-examined by counsel then appearing for him. The case notes viewed as a whole show a consistent pattern which supported the conclusions drawn by Mr Carden and the primary judge.

4. [71]

   Mr Lynn also emphasised that although he had been, repeatedly, charged with breaching the conditions of his extended supervision order, the breaches were technical and minor. These submissions, based as they were on relatively recent events, occupied a great deal of the hearing.

5. [72]

   One charge arose out of being on the wrong side of City Road, in Chippendale, when he was required to be in Broadway. Another was when he was outside in his backyard at 7:30am on New Year’s Day before curfew. A third arose when instead of travelling to Eastlake shops to get cigarettes, he met a friend on the way to the shops, got cigarettes from his friend and then went home. A fourth concerns an occasion when he stabbed a urine test box with a pen, which according to Mr Lynn is exactly how correctional services officers open those boxes. The foregoing is not exhaustive.

6. [73]

   The short answer to this submission is that even if, as Mr Lynn submits, the legislation is being applied harshly in relation to minor or even trivial breaches, that is not material to the continuing detention order which is the subject of this appeal. That order was imposed not because of the breaches of the extended supervision order which have led to Mr Lynn being returned to custody. It was imposed principally because of an assessment of risk based on a history of violence, informed by a positive urine test for methylamphetamine. There was no error in the primary judge proceeding on that basis.

7. [74]

   That is a sufficient answer to this ground of Mr Lynn’s appeal. However, something should be said of the substance of the complaints.

8. [75]

   First, the starting point is that breach of a condition of an extended supervision order is a very serious offence, the penalty for which is 500 penalty units or imprisonment for 5 years: s 12.

9. [76]

   Secondly, Mr Lynn was charged with four offences of failing to comply with an extended supervision order, and was found guilty of three counts, one being dismissed. He was sentenced to a period of imprisonment for 6 months commencing 19 December 2014. Sequence 3 concerned Mr Lynn’s presence in Chippendale. It is not clear on the face of the material whether that was the charge which was dismissed. Sequence 1 was a positive detection for Methylamphetamine in a urine sample provided on 28 November 2014. Sequence 2 was failing to provide a schedule of movements when directed to do so and sequence 4 was failure to comply with a reasonable direction given by departmental supervising officers. As the State submits, Mr Lynn’s description does not reflect the full extent of the conduct according to the Fact Sheet, and Mr Lynn’s version of events was not in evidence below (or in this Court). Similarly, Mr Lynn’s version of events concerning his buying cigarettes from a friend on the way to the Eastlake shops was not in evidence below (or in this Court). In relation to the final example, the Fact Sheet states that Mr Lynn stabbed the urine test box “aggressively”, and, once again, Mr Lynn’s version of events was not in evidence.

10. [77]

    It may be that there is force in Mr Lynn’s complaint that the legislation is being applied harshly to him. However, it is not possible on the evidence to evaluate the validity of his submissions.

11. [78]

    It was at all times open to Mr Lynn to give evidence about these matters, either directly in the litigation, or indirectly through participating in the psychological and psychiatric examinations for which orders were made under the Act. Mr Lynn did not avail himself of either of those courses.

Error in assessing the risk (ground 4)

1. [79]

   Prominent in Mr Lynn’s oral submissions were references to the report of Professor Greenberg to the effect that Mr Lynn did not suffer from a mental illness. The written submissions are difficult to follow. They include, by way of representative example:

2. [80]

   Professor Greenberg conducted a psychiatric assessment of Mr Lynn on 22 February 2004 – 15 years ago. Significantly, that assessment predated the enactment of the Crimes (High Risk Offenders) Act, and it was on that basis that Professor Greenberg expressed his conclusions by reference to the Mental Health Act 1990 (NSW) as follows:

3. [81]

   The professor’s opinion, some 15 years ago, and prior to the manslaughter, to the effect that Mr Lynn did not satisfy the criteria for gazettal under the Mental Health Act, is of limited utility in assessing whether the different criteria under the Crimes (High Risk Offenders) Act are satisfied. Contrary to Mr Lynn’s submissions, the fact that Professor Greenberg held a senior academic position does not mean that his opinion is to be preferred to those experts whose views are much more recent, and were directed to the issues arising under the legislation.

4. [82]

   Mr Lynn’s submissions appear to proceed on the basis that in order to make a continuing detention order, the State must prove (a) an imminent risk that a serious violent offence will be committed and (b) why such imminent risk cannot be avoided by conditions on an extended supervision order. That submission misstates the test imposed by the Act. The question is whether the risk is “unacceptable” (the requirement for an emergency detention order under s 18CA requires a risk to be “imminent and unacceptable”).

5. [83]

   Mr Lynn also submits that the elements of a risk of his committing a serious violent offence are not there, because “future elements of a serious violent crime [are] premeditation, preparation, motive with threats of serious violence and conspiracy”. I do not accept the submission. Mr Lynn’s criminal history is replete with casual encounters rapidly escalating to the risk and in some cases the actuality of violence. The manslaughter conviction, the altercation with the taxi driver in Kings Cross, and the most recent conviction for assault occasioning actual bodily harm illustrate this.

6. [84]

   Mr Lynn submitted, orally and in writing, that he had participated in weekly sessions at Matthew Talbot hostel, and various other counselling programs, and that he “always met those obligations [and] … never missed them”. The evidence falls short of establishing a perfect record of attendance.

7. [85]

   A deal of Mr Lynn’s submissions cannot readily be summarised. Some are under the heading “Corruption/Collaboration”. There is a reference to “Klatter System Cancer”. It is said that “Risk of a serious violent offence is not a mental hypothesis of virtual existence. A risk is by definition”. Many of his submissions relating to relief sought from the High Court, based on an absence of “jurisdiction”, are difficult or impossible to follow. There is no point in summarising these pages. I have read them all. I have not identified any further submissions impugning the exercise of discretion by the primary judge.

Orders

1. [86]

   For those reasons, the appeal should be dismissed. The continuing detention order will expire 15 months after it was made, on 17 August 2020. The State does not seek costs, and by reason of s 23, no order for costs may be made.

2. [87]

   WHITE JA: I agree with Leeming JA.