State of New South Wales v Windle (No. 5)

This is a preliminary hearing in relation to an application by the State of New South Wales for an extended supervision order ("ESO") under the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW). The defendant is Mr Windle. Mr Windle is currently subject to an existing ESO, which is due to expire on 11 June 2020. The final hearing of the State's present application is listed on 1 June 2020. Because the final hearing will occur before the expiration of the existing ESO, there is neither need nor jurisdiction to make an interim order at this stage: see Crimes (High Risk Offenders) Act 2006, s 10A.

A limited amount of material was tendered at the preliminary hearing and it was provided to me in advance. Mr Windle did not object to that material on the hearing of the application. Nor did he contest the making of orders under s 7(4) of the Crimes (High Risk Offenders) Act 2006.

Having perused the material, I am satisfied that "the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order".

In particular, on the limited material tendered at the preliminary hearing, the Court at the final hearing is likely to be satisfied, assuming there is any contest, that Mr Windle is an offender who served a sentence of imprisonment for a serious violence offence as that term is defined circuitously in the legislation, and the relevant offence was one of attempted murder by suffocation, to use lawyer's shorthand. The Court is also likely to be satisfied that Mr Windle is a supervised offender, there being no question that he is subject to an extended supervision order at this time. Thirdly, the Court is likely to be satisfied that the application was made in time and in accordance with the provisions of the Crimes (High Risk Offenders) Act.

Further, and perhaps more controversially, the material may persuade the judge at the final hearing that the evidence establishes to a high degree of probability that Mr Windle poses an unacceptable risk of committing another serious violence offence if a further ESO is not made. In reaching that conclusion, I have paid particular regard to the earlier judgments of this Court, particularly those two of Johnson J, [1] the remarks on sentence of Judge Garling, [2] and the risk assessment reports, including one prepared as recently as 23 March 2020, by Mr Samuel Ardasinski. I also note there is some material suggesting non-compliance, impulsivity and alcohol use that might be relevant to the issue the Judge hearing the final application will be grappling with.

As I have said, Mr Windle does not contest those findings and that was made clear through the cooperation of the parties and the lawyers on both sides in advance. On the assumption that I would reach those uncontested conclusions, the parties were helpful enough to provide short minutes of order. I will mark those for identification, along with my handwritten changes, as MFI 1 and I will make orders in accordance with those short minutes.

The hearing is being conducted by audio link. I think because of the traffic in the Court at the moment, neither counsel nor their solicitors were able to join us in the so-called virtual court facility where I would have had the pleasure of seeing their faces. But in any event, because I am doing it by audio link, I think it is appropriate that I read the orders onto the record because I note that Mr Windle is present with his solicitor and he should hear the orders being made.

Without opposition, the Court orders: