State of New South Wales v Noack

HIS HONOUR: This is an application by the State of New South Wales - and I will refer to it as “the State” - for a continuing detention order, pursuant to section 5G of the Crimes (High Risk Offenders) Act 2006 (NSW) (the Act). The application relates to the defendant, Justin Peter Noack, who has served the entirety of a 4 year sentence imposed on him by the former Chief Judge of the District Court for a serious violent offence as defined by the Act.

The 4 year sentence also comprised a non-parole period of 3 years but the applicant was not released at the expiration of the non-parole period and served the entirety of the sentence.

A continuing detention order can only be made if the “Supreme Court is satisfied that adequate supervision will not be provided by an extended supervision order.” The Act also provides for such an order, that is an extended supervision order, and provides both the procedural requirements, the kind of evidence that can (and in some instances must) be considered and the criteria upon which both detention orders and supervision orders might be made.

While the Court is provided with a discretion, and can take other matters into account, the Court must consider certain criteria set out in the Act. Further, the primary purpose of the Act is to protect the community from the risk of, in this case, serious offences of violence committed by offenders who have served their prison terms. The constitutionality of the legislation was recently considered and confirmed by the Court of Appeal in Kamm v State of New South Wales (No 4) [2017] NSWCA 189. A secondary purpose of the Act is to foster the rehabilitation of offenders. It needs hardly be said that this secondary purpose, if achieved, fosters the primary purpose of protecting the community. However, whatever philosophical objections might be harboured, at all times when considering an application such as the present, the protection of the community from violent offenders is the primary purpose of this statutory scheme.

The original summons seeking the order sought an interim detention order pursuant to the Act. The matter came before Lonergan J in May 2017 and the State sought an interim detention order. On the material before her Honour, Lonergan J was not satisfied of the relevant matters and determined instead to subject the defendant to an interim supervision order; see State of New South Wales v Noack [2017] NSWSC 782.

The State appealed against that decision and the matter came before the Court of Appeal (Gleeson, Leeming and Simpson JJA) as a matter of extreme urgency on 20 June 2017. The reason for the urgency was that the sentence was due to expire on the day after the State brought the matter before the Court of Appeal. The Court refused leave to appeal: see State of New South Wales v Noack [2017] NSWCA 144.

Fullerton J renewed the interim supervision order on 17 July 2017 for a further period of 28 days commencing 19 July 2017 and expiring 15 August 2017. One of the orders made by Lonergan J, which was not disturbed by the Court of Appeal, was that the final hearing of the State’s application was to be today, that is 4 August 2017. It will be seen therefore that there is considerable urgency to the matter and a necessity that a decision be made on the State’s application as soon as possible, both from the point of view of the defendant but also from the point of view of those responsible for either taking the defendant back into custody (as requested by the State) or organizing his supervision, a matter of considerable complication and expense, for reasons which will become apparent in the course of this judgment.

Because of that urgency, and because of the rather extreme business of the judges of the Court and the workload of the Court, it is not possible to provide a lengthy exposition of my reasons for the conclusions to which I have come and the orders I propose to make. The nature and operation of the Act has by now been considered in a large number of cases. In particular the nature of the risk assessment has been considered and I will insert some references to authorities in the final version of the judgment: see, for example, Attorney-General of New South Wales v Tillman [2007] NSWSC 605 at [19]-[28]; State of New South Wales v Donovan [2015] NSWCA 280 at [9]-[24].

The Act also makes it clear that there is no onus on the State to establish the risk of further offending on balance of probabilities or to any particular standard.

As McCallum J said in State of New South Wales v Donovan [2015] NSWSC 1254 at [2]:

As I said in the State of New South Wales v Anderson [2015] NSWSC 1515 at [14]:

Further, the terms of the legislation itself, whilst fundamentally geared towards the protection and safety of the community, recognise that fundamental right by providing the alternative of an extended supervision order and by providing that an extended detention order ought not to be made unless an extended supervision would not provide sufficient protection to the community. I am there paraphrasing the terms of the legislation.

Many of the facts and circumstances relevant to the present application have been set out by Lonergan J and by the Court of Appeal in the two earlier decisions to which I have already referred. It is unnecessary to repeat those, and impossible in the time available to summarize the voluminous material that has been tendered by the State on the hearing of the application.

Notwithstanding that the defendant has been at liberty since his release and generally compliant with the terms of the extended supervision order made by Lonergan J, confirmed by the Court of Appeal, and renewed by Fullerton J, the State nevertheless submits that an extended detention order should be made. However, with its customary responsibility and fairness, the State, represented by both senior and junior counsel, acknowledges that this is an "exquisitely difficult judgment for the court" and makes its primary submission with an appropriate degree of circumspection and diffidence. However, the State asserts correctly that the primary criteria for the making of such an order have been met and goes on to submit that the various factors enshrined or mandated in the legislation to guide a judge in making the final determination militate favourably to its primary position. That is, that there should be an extended detention order whereby the defendant is returned to custody for a period of 12 months, following upon which (all things being equal) an extended supervision order would take effect. The State does of course, in the alternative, submit that an extended supervision order should be made.

The defendant's primary position is that I would not be satisfied that the threshold question has been reached. Against that submission, or contrary to it, I am satisfied that the defendant is a “high risk violent offender” as that expression is defined in s 5E(2) of the Act. That is, the defendant is a “violent offender and the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violent offence if he is not kept under supervision.”

That finding is based on four general categories of evidence.

First, the defendant's criminal history, particularly history for offences of violence which was set out in earlier judgments of the Court and here I will insert what is paragraph [4] of the Court of Appeal’s judgment to which I have already referred:

Second, the finding is based around the savagery of what has been described as an “index offence” which was an offence of recklessly inflicting grievous bodily harm in most distressing circumstances. Those circumstances in a nutshell were that the offender was an inmate in gaol and along with others committed a violent attack upon a fellow inmate who it was suspected was a child sex offender. The group, including the defendant, set upon beating him with broomsticks to a point where he sustained major head injuries and other significant bodily injury. As troubling as the offence itself was, the defendant's attitude to the offence as expressed to the psychologist, Mr Sheehan, was even more troubling. The psychologist records that:

Third, in addition to the criminal history, the index offence and the lack of insight and remorse for that offence, there is a large body of material that demonstrates that the offender has chronic difficulties in controlling his violent temper and that he has in the past been non-responsive to alternatives to custodial sentences and indeed resisted attempts by various authorities to assist him to rehabilitate. It was for that reason that he did not seek to be, or in any event was not, released at the expiration of the non-parole period set by Blanch J for the index offence. I think the best that can be said is that the defendant's response to treatment, supervision and support has been inconsistent and at times intransigent. That of course is a troubling matter.

The fourth category of evidence that led me to the conclusion that an order of one kind or the other must be made is the expert opinions and risk assessments made by experts such as Dr Samuels, Mr Sheehan, Mr Aradinsi, Ms Thomson and others who have interacted with the defendant and have a great deal of experience and expertise in matters of this kind. While predicting future outcomes is notoriously difficult, the overwhelming body of opinion is that the defendant represents a relevant risk to the community of committing violent offences and given the nature of the index offence a serious offence of violence.

The evidence amply justifies the findings to which I have just referred. As well as the detailed history of non-compliance with court orders, the failure or refusal to respond to attempts to providing him with rehabilitation alternatives and repeated transgressions of the criminal law by committing violent offences, there was also in accordance with the terms of the legislation a number of psychological and psychiatric opinions which support the view that the statutory prerequisite concerning the ongoing risk that the offender represents to the community, and particularly to those close to him and those charged with the responsibility of attempting to assist him, is very great indeed. Again, as a result of time and urgency I will not set out the terms of the various psychiatric and psychological reports that identify that finding.

Sections 13A, 13C, 14 and 15 of the Act provide the procedural and other requirements of an application for a continuing detention order. There is no dispute in the present case that these procedural requirements have been complied with. The determination of the application is guided by Division 2 of Part 3 of the Act. In particular s 17(4) sets out a number of matters to which “the Supreme Court must have regard” along with any other matter that the court considers relevant.

I have considered each of the matters in s 17(4), which are to a greater or lesser extent relevant to the proper disposition of the present matter.

It might be thought that the fact that the defendant was placed on an interim supervision order (rather than an interim detention order), and that this decision was upheld by the Court of Appeal, would be a factor militating strongly in favour of a finding that the correct outcome would be to make an order which extends for an appropriate period the supervision order rather than returning to offender into custody. Such an approach would seem to accord with general common law principles, which cherish the liberty of the subject and generally eschew notions of preventive detention. However, in fact, it is not a relevant consideration at all. That is because the purpose of the legislation is protective in its nature rather than punitive (see, for example, Kamm v New South Wales which I have already cited).

Further, the Court of Appeal in the present case made it clear when it delivered judgment on 21 June 2017 that [2]:

The last of these observations is plainly true in the present case where there have been provided to the court updated reports from various experts who give opinions as the risk that the defendant poses to the community and those closest to him. Further, the defendant has been on the supervision order for a period of about six weeks and his compliance and progress has been monitored during that period. I have before me a substantial amount of material, particularly in the form of case notes demonstrating those matters.

I am satisfied, particularly by the evidence of Ms Wigg and the case notes through which Mr O'Neil carefully took me, that the defendant's compliance to this point has been good. However, I accept Mr Sheehan's reservation – given in oral evidence today – that the length of time to which the defendant has been subject to the supervision order is insufficient to allow for a particularly sanguine opinion to be reached. However, I preferred Dr Samuels' opinion as to the relevance of the fact that on at least one occasion the defendant avoided interaction with government and/or banking officials because he was concerned that the situation may lead him to become aggressive. Mr Sheehan saw this as indicative of an abnormality, while Dr Samuels saw it as a progress; the progress was he avoided a situation that may lead to trouble and violence. I accept Dr Samuels’ opinion.

One of the concerns in the present matter is that the precise residential address of the defendant has been subject to change. The defendant has made it clear, particularly in the interim proceedings, that he does not want to live in Sydney. He has a brother who lives in Coolamon near Wagga Wagga and it is clear from a perusal of the case notes that his brother's influence is a very positive one for the defendant. Initially when the interim supervision order was made he was able to live with his brother in the small community of Coolamon. However more recently the brother has indicated that he can no longer provide this accommodation to him. I hasten to add that this had nothing to do with any misconduct on the part of the defendant. There were then urgent steps taken by the defendant, his family and also by those charged with the responsibility of administering the supervision order. In the short term he was accommodated at a small motel at a place called Gumly Gumly. That is not the most satisfactory circumstance, and the oral evidence today was that he is about to move to a small self-contained cabin in a caravan park in North Wagga Wagga.

One matter of concern in the present case is the fact that the resources in the area in which the defendant seeks to live is such that the kind of intense monitoring that is generally associated with such orders when offenders live in special or purpose-built accommodation in large metropolitan areas is not available. The evidence provided by the State shows that monitoring and supervision of the defendant in a relatively remote country community creates major resource issues for the State and the small staff of people who are called upon to provide recently released offenders with support. In particular, an affidavit of Michael Patrick Marshall sets out the real problems in the ongoing viability of the Risk Management Plan that was put into place in the aftermath of the orders made by Lonergan J.

While I have considerable sympathy for those on the ground, and people like Mr Marshall whose goodwill is unquestioned, it must be the case that if the State is to pursue orders in the nature of those currently contemplated, either continued detention without conviction for any offence or ongoing supervision after the expiration of a lawfully imposed sentence, it must be the responsibility of the State to provide resources for facilitating orders made by the Court lawfully and in accordance with the terms of the Act.

As it is, I accept the submission of Mr Craddock SC that the defendant is particularly fortunate that he is being supervised by two very committed, motivated and resourceful case workers, namely Ms Wigg and Mr Dendy. A review of the case notes demonstrates their hard work and commitment. I would like publicly to commend each of them for their work. The community owes them a great debt.

Considering the risks which plainly emerge from the defendant's history, set against his recent compliance and failure to breach in any significant way or at all the orders made by Lonergan J and upheld by the Court of Appeal, I am not satisfied that “adequate supervision will not be provided by an extended supervision order”. I am unable to accept that the resource issues deposed to me by Mr Marshall are such as to make the fashioning of appropriate conditions of a continuing supervision order incapable of effective operation. I am fortified in that view by the capacity of the State or the defendant to bring an application to revoke or vary a continuing supervision order if the need arises. The Court can again be approached to vary or revoke the order if the precise terms of the order prove to be either unworkable or ineffective in serving the primary purpose of the legislation, which is to say the protection of the community from the risk of violent offending that the defendant represents.

For those reasons I am not satisfied that the facts in the evidence in the present case and the criteria referred to in the legislation justifies the making of a continuing detention order requiring the defendant to be returned to custody at this stage. However, I am entirely satisfied that the risks posed by the defendant as evidenced by his violent past and in particular the extreme violence demonstrated in the index offence set against those statutory criteria amply justifies the making of a continuing supervision order.

I have considered the nature and content of such an order and the conditions in the peculiar circumstances of the case and am greatly assisted by the orders proposed by those representing the State of New South Wales. I propose to make an order in the following terms.

Pursuant to s 5F of the Crimes (High Risk Offenders) Act I make an extended supervision order for a period of three years. The conditions of that order are mostly in accordance with the conditions proposed in the State’s amended summons and are as follows. The Departmental Supervising Officer will be referred to as “DSO”, the Corrective Services of NSW the “CSNSW” and any reference to the DSO includes any other person supervising the defendant.